ML20204A466
| ML20204A466 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 05/06/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-142 OL, NUDOCS 8605120245 | |
| Download: ML20204A466 (147) | |
Text
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M A STER O
UN11ED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
BRAIDWOOD STATION 50-456/457-OL UNITS 1 8 2 C0ililutiWEALTH EDIS0ll CutlPAllY (EVIDENTIARY HEARIf1G)
O r.OCAmN:
KANKAKEE, ILLIfl0lS PAGES:
DATE:
TUESDAY, MAY 6, 1986 f/b 0\\
ACE-FEDERAL REPORTERS, INC.
ogicial Re;mtm 444 North Capitol Street bfS !bb!k bbbbbI56
( $))73 o
NATIONWIDE COVERAGE
)
UNITED STATES O
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-456 OL 50-457 OL COMMONWEALTil EDISON COMPANY '
(Braidwood Station, Units 1 and 2)
O LOCATION:
KANKAKEE, ILLINOIS PAGES:
1059 - 1203 DATE:
.Tr'ESDAY, MAY 6, 1986 s
ACE-FEDERAL REPORTERS, INC.
O Official Reporters 444 North Capitol Street Washington, D.C. 20001 (202)347-3700 NATIONWIDE COVERAGE
1059
<s 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
5 x
6 In the Matter of:
- Docket No. 50-456 OL 7
COMMONWEALTH EDISON COMPANY 50-457 OL 8
(Braidwood Station, Units 1 and 2) 9 x
10 Kankakee City Hall 11 Council Chambe rs 385 East Oak Street 12 Kankakee, Illinois 60901 13 Tuesday, May 6, 1986 14 The hearing in the above-entitled matter reconvened 15 at 9:00 A. M.
16 17 BEFORE:
18 JUDGE HERBERT GROSSMAN, Chairman Atomic Safety and Licensing Board 19 U.
S. Nuclear Regulatory Commission Washington, D.
C.
20 JUDGE RICHARD F. COLE, Member, 21 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission 22 Washington, D.
C.
23 JUDGE A.
DIXON CALLIHAN, Member, Atomic Safety and Licensing Board 24 U. S. Nuclear Regulatory Commission Washington, D.
C.
l ()
25 APPEARANCES:
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g 1
On behalf of the Applicant:
2 MICHAEL I.
MILLER, ESQ.
3 ELENA Z.
KEZELIS, ESQ.
Isham, Lincoln & Beale 4
Three First National Plaza Chicago, Illinois 60602-5 On behalf of the Nuclear Regulatory 6
Commission Staff:
-7 STUART TREBY, ESQ.
ELAINE I. CHAN, ESQ.
8 GREGORY ALAN BERRY, ESQ.
U.
S. Nuclea r Regulatory Commission 9
7335 Old Georgetown Road Bethesda, Ma ryland 20014 10 On behalf of the Intervenors:
11 ROBERT GUILD, ESO.
DOUGLAS CASSEL, ESQ.
12 TIMOTHY WRIGHT, ESQ.
4 ()
Business and Professional People 13 for the Public Interest Chicago, Illinois 14 15 16 17 18 19 20 f
21 22 23 24
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25 Sonntag Reporting Service, Ltd.
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1 JUDGE GROSSMAN:
The hearing in the matter of 2
the Braidwood operating license is reconvened.
3 According to my calculation, this is the fourth day 4
of hearing.
The first one was devoted to the quality 5
assurance issue.
6 We will first have counsel for the parties identify 7
themselves.
8 I believe all parties are represented by counsel'at 9
this hearing; and, thereaf ter, we will have a short 10 recess while we pass around a list for people to sign in 11 order to present limited appearance statements.
12 We will start with the Applicant's representatives.
p
\\u/
13 Mr. Miller.
14 MR. MILLER:
Thank you, Judge Grossman.
15 My name is Michael I. Miller.
16 With me at the counsel table is Elena Kezelis.
We 17 are both f rom the Law Firm of Isham, Lincoln & Beale, 3 18 First National Plaza, Chicago, Illinois.
We are here 19 representing the Applicant, Commonwealth Edison Company.
20 JUDGE GROSSMAN:
Mr. Guild.
21 MR. GUILD:
Mr. Chairman, Members of the 22 Board, my name is Robert Guild, Business and 23 Professional People for the Public Interest, Chicago, 24 Illinois, on behalf of the Intervenor Richard Rotem, et O
25 e1.
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Can you hear me?
2 JUDGE GROSSMAN:
Well, I think others cannot.
3 The windows are open and I think it's going to be 4
very difficult for people in the audience to hear you.
5 MR. GUILD:
I am sorry.
6 Robert Guild, Business and Professional People for 7
the Public Interest, Chicago, Illinois, on behalf of the 8
Intervenor Rorem, et al.
9 At'the counsel table with me is Douglas Cassel, the 10 General Counsel of BPI, and Timothy Wright, and just I
11 behind us is Ms. Rorem and her daughter, Bridgette.
12 MR. BERRY:
Good morning.
My name is Gregory O
13 L.
Berry from the Office of the Executive Legal 14 Director.
I represent the Nuclear Regulatory Commission 15 Staff in this proceeding.
16 With me today is Stewart L. Treby, Assistant Chief 17 Hearing Counsel, and Ms. Elaine Chan, also an attorney 18 with the NRC Staff, and also Mr. William Little, 19 Director of the Braidwood Project.
20 JUDGE GROSSMAN:
As members of the audience 21 may know by now, we have set aside the early part of 22 this hearing to accept limited appearance statements 23 relating to the quality assurance issue that we are 24 going to hear this week.
( )-
25 All those who wish to make these limited appearance Sonntag Reporting Service, Ltd.
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statements can sign the sign-up sheet that we will pass 2
around during this recess, and we will now take that 3
recess for ten minutes.
4 (Whereupon a recess was had, after which the 5
hearing resumed as follows:)
6 JUDGE GROSSMAN:
The hearing is back_in 7
session.
8 We received back our limited appearance statement 9
list and we have six people who wish to make limited 10 appearance statements, 11 I will read their names first and then I will call 12 them in order to come forward and have a seat and make 73
\\_/
13 their statement or present it.
14 Z.
Reytblatt, Gerald Cook, Everett Quigley, Shirley 15 A.
St. Germaine, Hazel Sweeney and Dennis L. Cantwell.
16 Will Z.
Reytblatt please come forward?
17 Have a seat.
18 I am sorry, sir.
19 MR. REYTBLATT:
This one?
20 JUDGE GROSSMAN:
No, behind that.
21 MR. REYTBLATT:
Oh, all right.
22 Hello?
Can you hear me?
23 JUDGE GROSSMAN:
Yes.
24 Mr. Reytblatt, could you please give us your full
()
25 name and address, if you would like?
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1 THE WITNESS:
Yeah.
I am Zinovy Rolf 2-Reytblatt, R-E-Y-T-B-L-A-T-T.
3 I reside in the City of Chicago, 3101 South Wabash.
4 I am an Associate Professor at the Illinois 5
Institute of Technology.
6 My experience with testing is about 30 years.
7 I hold a Ph.D. degree in applied mathematics.
8 I have about 30 papers and patents in the field 9
related to testing.
10 I have been involved with the testing of nuclear-11 containment systems since 1974.
12 I prepared several reports and papers.
13 I was a consultant with a major consulting firm.
14 I was senior analysis, Sargent & Lundy, who were 15 consultants for Braidwood.
16 I was a subcontractor of the Nuclear Regulatory 17 Commission doing consulting work for the Oak Ridge 18 National Laboratory.
19 I would like to make a statement about the quality 20 assurance work on Braidwood power plant; but if you 21 allow me to say a few words of more general nature that 22 I believe will be helpf ul in understanding the problem, 23 I would appreciate that.
24 Can I?
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25 JUDGE GROSSMAN:
Well, the reason why we l
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1 limited the statements of quality assurance is that this t
2 is the third or fourth opportunity that we have given 3
the public to have their say, and we prefer not to have 4
repetitious statements.
5 We had opportunity at the emergency planning 6
sessions, at least two opportunities then, and I believe 7
an opportunity before that at the pre-hearing 8
conference; but if you don't take very much time on the 9
general statements --
10 MR. REYTBLATT:
No.
I would say five 11 minutes,-at most.
12 JUDGE GROSSMAN:
Okay.
O 13 MR. REYTBLATT:
Probably two or three.
t 14 JUDGE GROSSMAN:
Okay, fine.
15 MR. REYTBLATT:
Containment leak rate testing 16 is the only means to assure that in the case of a severe 17 accident no or very little contamination of the 18 environment will occur.
19 These tests were plagued with faulty methodology.
20 According to this methodology, any value of leak 21 rate can be obtained f rom any set of data.
22 With fraud, for example, fraudulent tests were done 23 on Zion twice, and with distortion I would say of i
24 criminal natute of even the existing methodology, which f ()
25 took place in several -- at several plants in Illinois, Sonntag Reporting Service, Ltd.
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including Braidwood.
l 2
What I am talking about now is application of the 1
3 f raudulent computer program to do the leak ' rate 4
calculations.
5 These programs were used in the tests at LaSalle, 6
at Byron, at Zion, at Braidwood.
7 The programs do a lot of wrong things; but I will 8
focus only on the options that are evidently fraudulent 9
even for laymen.
10 This is the option that allows to throw out any set 11 of raw data and replace it by garbage.
12 Listings of fraudulent computer programs are in my 13 possession.
There is no question about authenticity of 14 these programs and about things they do, that these 15 things are illegal.
16 The existing regulation allows you to throw out a 17 certain amount of data, to be precise, no more than five 18 percent, to account for bad instruments, bad sensors, 19 anything, of course, may happen; so you are allowed to 20 discard a certain amount of data.
21 However, the computer programs in use do not limit 22 the amount of data that is thrown out.
i 23 The law does not allow replacing of thrown data by 24 the garbage.
The present com) uter program does it
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25 automatically.
You push a button, the real data is Sonntag Reporting Service, Ltd.
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1 replaced by garbage.
You don't like it, the figure you i
2 obtained is not low enough yet?
Well, you can continue 3
this process indefinitely.
4 In one of Zion's tests, about 30 percent of the i
5 data were fraudulently changed.
6 There is a proof that these programs were used when 7
the sensors were functioning normally.
8 The law does not allow discarding of the data other 9
than from malfunctioning sensors.
10 I have in my possession a computer output that 11 proves indecent gains with the data, that the data were 12 discarded, then they were returned.
In other words, the O
13 reason for throwing these data out was not -- was what 14 the law allowed.
15 What could be the consequences of the poor 16 methodology compounded by disrespect even to our poor 17 laws that regulate the leak rate testing?
18 The scientific estimates show that real leak rates 19 can be ten times higher, and in extreme cases hundreds 20 times higher than the law allows.
21 The effect for the City of Kankakee of this would 22 be as if the reactor building were put up maybe across 23 the street.
24 Excuse me for being a little bit emotional.
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25 I believe that the matter is extremely important; Sonntag Reporting Service, Ltd.
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1 that the tests must be reviewed; that tecting according 2
with the illegal methodology on the exemption basis, 3
which was done at Braidwood, should not be repeated.
4 There is only one methodology which is legally 5
allowed today.
This is the outdated ANSN 45.4-72.
6 No further than yesterday I received a letter from 7
the American Nuclear Society, in which letter the 8
American Nuclear Society acknowledges that they used the 9
wrong equation for leak rate calculations.
10 In this letter they promise to review their 11 standard and to incorporate the scientifically sound 12 equation.
O 13 I suggest that the leak rate testing of the 14 Braidwood project be postponed until the American 15 Nuclear Society comes up with their revised version and 16 this revised version is legally endorsed by the Nuclear 17 Regulatory Commission.
18 Doing tests on an exemption basis with 19 methodologies that have been pending for five years and 20 have not been endorsed and have no chance of being 21 endorsed I think is something bordering to the crime.
22 Thank you very much.
23 If you have questions, I would be very happy to 24 answer these.
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25 JUDGE GROSSMAN:
- Yes, Mr. Reytblatt, Sonntag Reporting Service, Ltd.
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1 Professor Reytblatt, have you brought this to the 2
attention of the NRC Staff?
3 MR. REYTBLATT:
Yes.
My report was submitted 4
to the NRC three years ago.
There was no answer from 5
the NRC.
6 However, some of the points of my report have been 7
reviewed by the Oak Ridge National Laboratory.
8 I am proud to say that every and each of my 9
comments from my report has been supported by the Oak-10 Ridge National Lab, with the exception of one comment.
11 Even that comment is correct, and they simply wrote in 12 the official report, NUREG, N-U-R-E-G-dash-3549.
They O
13 simply wrote that the Extrand formulation is correct; 14 whereas, ANS, American Nuclear Society, formulation is 15 not.
16 Today my letters are pending with the 17 Commissioners.
18 I am seeking an opportunity to make a five-minute 19 slide presentation before the High Commissioners.
20 JUDGE GROSSMAN:
Professor Reytblatt, do you 21 have any additional information with you that you wish 22 to pass on to the NRC?
You can do that right now.
We 23-have the NRC Staff attorneys here; and if you have 24 information to pass on to them, written documentation,
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25 we can ask them to follow up on that; or has everything Sonntag Reporting Service, Ltd.
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1 already been submitted?
2 MR. REYTBLATT:
I am afraid that I have to 3
think it over; and if there is such an opportunity, I 4
would like to have more information on the channels and 5
methods that I can use to do so and I certainly will.
6-JUDGE GROSSMAN:
Okay.
7 MR. REYTBLATT:
Thank you.
8 JUDGE GROSSMAN:
Thank you, Professor.
9 MR. REYTBLATT:
Thank you.
10 JUDGE GROSSMAN:
The next speaker will be 11 Gerald Cook.
12 Is Mr. Cook there?
O 13 MR. COOK:
Yes.
14 JUDGE GROSSMAN:
Mr. Cook, could you state 15 your full name for the record and give your address, if 16 you wish?
17 MR. COOK:
Gerald Howard Cook, C-O-O-K, 290 18 Municipal Center Road, Bourbonnais, Illinois.
19 This catches me somewhat by surprise.
I hadn't 20 expected to speak.
I only expected to ask some 21 questions.
However, my background is as a retired Naval f
22 officer, having participated in Operation Crossroads and l
23 Redstone, one the fission bomb, the other the fusion.
24 In connection with that, I went to several schools
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25 of instruction, nothing like what the scientists go Sonntag Reporting Service, Ltd.
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1 through; but I have arrived at some conclusions, among 2
them being the intensity time factor.
3 When columns are written about the evacuation, for 4
instance, of Chicago, intensity time factor plays the 5
greatest part; and what that refers to is the intensity 6
of radiation and the time in that vicinity.
7 So that whatever happens in any atomic 8
installation, that is the prima ry factor.
9 secondly, on the same line, the actual free 10 movement of traffic into and out of Chicago is pretty 11 well known so far as time factor is concerned; and this 12 encompasses only those suburbanites who move in and out 13 of the city.
14 The next factor is the surprise factor so far as 15 evacuation is concerned.
16 The ordinary citizen, with his stove on, be it 17 electric or gas or whatever, and leaves it that way, you 18 have a burned out city; but the rest of it, of course, 1
19 is the reversal of the inbou nd traffic lane.
20 The questions I had, hopefully, somebody would have 21 covered these before, before I got up here.
22 My first question was:
Ilow much expense has been t
13 added to the public electric bill which is caused by the 24 delays in the construction?
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25 JUDGE GROSSMAN:
Sir, we are going to treat Sonntag Reporting Service, Ltd.
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1 these as rhetorical questions.
We are not here to 2
answer questions.
We are here to find what others say; 3
so you may pose these questions in general to the llRC 4
and to the utility, I assume.
5 MR. COOK:
Possibly the other non-experts
)
6 here would be interested in these things.
7 How much additional time has been taken to build 8
the installations to produce the electricity?
9 The evacuation factor I have covered.
10 And when will the estimated fossil fuel run out 11 occur?
And how about the atomic fuel?
Will atomic fuel 1
12 be available for as far as you can look ahead?
Possil 13 fuels I know won't be.
4 14 The big question of atomic-created deaths and 15 injuries come up; and I can't think of one that has r
16 occurred as a result of operation of commercial l
17 reactors.
18 The IIavy, as you all know, has a large number of 19 ships that are propelled by reactors; and they haven't 20 had this, either.
21 So the question, it seems to me, is junt not a good t
22 question.
It's like comparing apples and orangen when 23 you say certain things cause death or injury and other l
24 things we are not going to worry about.
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25 An automobile, for instance, anywhere from 15,000 Sonntag Reporting Service, Ltd.
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1 to 45,000 deaths a year.
2 As you may imagine, I am not in favor of any pore 3
delays.
4 Thank you.
5 JUDGE GROSSMAN:
Thank you, Mr. Cook.
6 Our next speaker will be Everett Quigley.
Mr.
7 Quigley.
8 MR. QUIGLEY:
Good morning.
9 My name is Everett Quigley, E-V-E-R-E-T-T, Jay 10 middle name, Q-U-I-G-L-E-Y.
I live at Rural Route 1, 11 Box 378, Kankakee.
12 I want to greet you all to Kankakee, since I am a 13 resident of Kankakee, born and raised here, and I hope 14 it doesn't rain so we don't get our Soviet radioactive 15 fallout that is flying over us at the present time.
16 That would not be a very hospitable way of enjoying 17 Kankakee.
18 I have a few comments to make, some concerns in 19 regards to the Braidwood Nuclear Power Plant 20 construction and to the quality assurance.
21 One of the concerns I have is in regards to the 22 people who are responsible for building the operation.
23 Living in Kankakee, we know the economic affects 24 that the Braidwood plant provides for people, and we
()
25 also know that there are a lot of jobs that are provided Sonntag Reporting Service, Ltd.
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1-that are not always permanent; and much of the things 2
that I hear from people who work at the Braidwood plant 3
or f rom people who know people who work at the Braidsood 4
plant talk about the turnover, that there is a large 5
amount of turnover, a frequent turnover of workers, of 6
construction workers, of engineers.
7 I am concerned about that type of turnover; and how 8
do you assure quality in labor and in the process, and 9
as a consequence to that, how do you assure quality in 10 construction?
11 I feel that the importance of a well-built nuclear 12 power plant, one at the price of 6 billion dollars, is O
13 great, and I also feel that cause of that, there should 14 be well-trained people who are putting this together and 15 it should be put together with not so much frequency or 16 expeditious factory-type mass production, but with very 17 ca ref ul methods.
18 I also have some concerns in regards to quality of l
19 the geology of the area.
That, again, relates to the j
quality assurance of the plant.
20 21 We know that this plant is located in a strip mine 22 area and we know that underneath the strip mining area 23 is a system of shaf t mines and, again, I don't believe 24 in the materials that I have read that that underground l ()
25 quality can assure us long-term safety.
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1 I have to express my experience -- I have expressed 2
my. concerns at the LaSalle plant.
I have expressed my 3
concerns about Dresden.
I have expressed my concerns 4
about the General Electric storage facility.
This la 5
even more appropriate, because it brings the situation 6
much closer to my home and much closer to an ecology 7
that I appreciate a lot.
8 In the wake of a major nuclear accident in this 9
world in Chernobyl, I think the concerns are even more 10 expressive, and I believe that the quality is very 11 important.
12 I also believe that Americans in general as a O
13 society have been studied a great deal over the last few 14 years, and quality is something that seems to be missing 15 on a very broad point of view; and I hope that is not an 16 epidemic of our society.
17 I also would like to make a couple of comments.
18 Since I do come from Kankakee, I am aware of a lot 19 of people that I have spoken with who would have liked 20 to have been here to make some comments to you gentlemen 21 today at this time but were not able to due to their 22 working conditions or due to other reasons; and I would 23 like to ask that you provide some type of public comment 24 limited statement process later during the evenings,
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25 during the late afternoons, during the next four days so Sonntag Reporting Service, Ltd.
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1 that other people will have an opportunity to speak to 2
you'about their concerns.
3 Finally, I just would like to say that it's 4
difficult to understand how we can assure quality of a 5
massive structure like the nuclear power plant at 6
Braidwood, and I guess that is what the whole process is 7
for to datermine today; but I really believe that we 8
have a lot. to be determined and quality is one thing, 9
quantity is another thing; and I hate to say it, but my 10 concern is that I think Commonwealth Edison is more 11 interested in quantity, especially since the benefits 12 are more in their favor for quantity rather than 13 quality.
14 Thank you.
15 JUDGE GROSSMAN:
Thank you, Mr. Quigley.
16 The next speaker will be Shirley St. Germaine.
17 Is Ms. St. Germaine here?
18 MS. ST. GERMAINE:
I am Shirley St. Germaine, 19 Salina Township Trustee, and I am currently serving on a 20 committee studying the Braidwood nuclear plants.
I also 21 live within the Emergency Planning Zone.
22 In 1973, Commonwealth Edison approached my husband 23 and I to sell them ground for building their towers that 24 are needed to get into the plants.
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25 We at that time were very much against the plant Sonntag Reporting Service, Ltd.
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1 and we still are.
2 We never sold to them.
3 We eventually had to give them the right to go in f
4 there and build their towers by receiving money for-l 5
leasing them the ground; never sold to them; one of the
{
6 very few farmers that held out.
If we hadn't, eminent 7
domain would have taken over, anyway, so it didn't 4
8 really matter if we hadn't gone along with them or not, i
9 I feel that in talking with many people that I have 10 in the past few years in regards to this plant, I have 11 met up with individuals who have left the plant because 12 they were very concerned about the type of quality that O
13 the plant was being constructed, the high turnover, the i
14 bad welds, the common, ordinary worker that said, "You 15 know, " Hey, this is a great thing because I am going to 16 be here forever because they just don't know what they 17 are doing."
I could supply names, but at this time I 18 don't feel that is necessary.
19 I also was giving a presentation on nuclear waste 20 in early February and I contacted the director for our 21 evacuation here within the County.
I don't know if you 22 judges are aware, but I believe it's a big fiasco.
I 23 think that there is a large political issue involved 24 here within the County between the evacuation plan
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25 between the County and the city.
They are not Sonntag Reporting Service, Ltd.
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(~y) 1-cooperating together.
They have split up.
2 There is a new director for the County, there is 3
one for the city; and they are not cooperating with each 4
other.
5 In visiting with one individual who is head of the 6
city planning part of it, he was informed that -- he 7
informed me, pardon me, that many of the meetings that 8
are being held he was not informed of and vice versa; 9
and trying to get the information I was securing on the 10 evacuation part of it to present in my presentation, I 11 couldn't get that until the very last day, and then I 12 called the gentleman's home and I said, "If I don't get 13 it I will be going to the president saying that I was 14 not able to receive this information.
I need to know 15 about the evacuation planning."
16 Finally, the day of my presentation, it was mailed 17 to me through the mail.
18 I only wish to state, in his first paragraph he 19 says that the County of Kankakee has an evacuation plan 20 for the Braidwood power plants.
21 We have had many meetings with all the different 22 meetings'and towns that are in the EPZ zone, and we have 23 checked in with all schools, nursing homes, et cetera.
24 Well, if they have done this -- I live within
()
25 eight-and-a-half miles of the Braidwood nuclear plant, Sonntag Reporting Service, Ltd.
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1 a d I am the trustee in Salina Township.
No one has 2
ever contacted the supervisor of my township or any of 3
the trustees in regards to evacuation procedures.
4 I find that a little out of line and highly 5
unethical.
6 There is no way if it isn't built of quality that 7
we can be assured -- even if it is built of quality that 8
anyone can be assured -- that a disaster won't happen 9-such as recently happened in the Soviet Union.
10 There is no way to reduce the toxicity of these 11 radioactive isotopes.
They must decay naturally, 12 meaning virtually perpetual containment.
Mankind has no 13 experience in perpetual creations, and the present 14 procedures for radioactive waste containment leaves much 15 to be desired.
16 John Golfined pointed out that even if the atomic 17 industry is able to contain 9 percent of its ' wastes, 18 which is highly unlikely, if past history is any 19 indication, then hundreds of pounds released could 20 result in as many as 500,000 more lung cancer deaths per 21 year if the nuclear economy reached the proportions once 22 proposed.
23 There is no safe level of radiation.
24 John Kaufman and Arthur Tamlin estimated if anyone
()
25 were to receive the 1720 milli-R dose, an additional Sonntag Reporting Service, Ltd.
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1 32,000 cancers we would bury each year.
2 Scientists do not understand all of the ways in 3
which radiation from the specific isotopes affect human 4
life.
5 Because there are over 200 radioactive elements 6
produced by these reactors, practically nothing is known 7
of genetic affects and transformation.
8 Analysis of biological affects of atomic 9
experiments are scarcely complete.
It only takes one 10 radioactive particle to act on one cell in order to kill 11 or damage that cell.
Higher exposure over larger areas 12 of the body increase that event.
Therefore, until O
13 scientists begin to agree on the actual health hazard, 14 the world really has to just stand waiting to find out 15 our real fate.
16 Because of this, I am saying if that plant has not 17 been built under quality control, it has not met the 18 quality specifications and the evacuation procedures are 19 not in line, I feel that the Commission should be taking 20
-- and the judges -- a stronger look at what is 21 happening in Braidwood.
22 Delays drove up the estimated costs of the 2,000, 23 2420 megawatt Braidwood plants by more than 40 percent 24 since 1984, 2.025 billion.
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25 What were those delays?
Why were they there?
Was Sonntag Reporting Service, Ltd.
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it because they had to go in and rip out and build over 2
bad welds?
What are the problems?
3 To cover that Edison would need 4.8 annual rate 4
increases for 11 years.
That is on top of the 11 5
percent hike last year that put Byron 1 into the rate 6
base.
7 All I can say is that I am a very concerned citizen 8
of Salina Township as a trustee.
I live in that area.
9 I have lived there for 33 years.
I have watched it 10 proceed from the day they came in and bought my -- well, 11 leased my ground, to the point now where I see the 12 sirens on the corner that have been installed to tell me O
13 that if they ring, evacuate; and if that plant is 14 opened, I need to be assured that it has been' built of 15 quality, quality construction; and I won't ever have to 16 hear that siren ring or my children or my grandchildren 17 or whatever; and until I am assured of that, I will hold 18 everyone responsible that has built that plant and the 19 affect it has as a disaster that the Soviet Union has.
20 Thank you for listening to me.
21 JUDGE GROSSMAN:
Thank you, Mrs. St.
22 Ge rma ine.
23 The next speaker will be !!azel Sweeney.
24 MS. SWEENEY:
My voice is not in the best
()
25 speaking form this morning.
I hope you can understand l
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1 me.
2 First of all, I want to thank you for this 3
opportunity to speak.
I didn't know that I would have 4
the chance, so I have no prepared notes but just 5
speaking as to the safety of the program.
6 I want to back up.
7 My name is Hazel Sweeney.
I live at 1063 East 8
Maple in Kankakee, Illinois.
I formerly was from the 9
South Wilmington-Braidwood area, so I am interested in 10 that area, too.
We often make visits back there.
11 I am speaking as a concerned sit citizen.
I want 12 to back up all the people who spoke before me.
13 I want to say:
Why hold this meeting at 9:00 14 o' clock in the morning where it's so difficult for 15 people to get here to the meeting?
Is there any reason 16 to hold it that early in the morning?
17 JUDGE GROSSMAN:
Well, Ma'am, this is a 18 working day and some of un come from a lot further than 19 the people here.
We have tried to accommodate the 20 public as best we can.
We are holding the hearing down 21 here in Kankakee primarily to accommodate the public.
22 MS. SWEENEY:
Yes, I appreciate that; but I 23 just thought I would bring that up.
24 A lot of people would have liked to have been here.
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25 I am speaking as a concerned citizen, and the Sonntag Reporting Service, Ltd.
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1 concerned citizens are afraid of the safety and they do 2
not know if they are always told the facts and the truth 3
about things; and in lieu of the recent Russian 4
disaster, of course, people are more afraid than ever.
5 That doesn't mean we would do the same way as they 6
have done holding back facts, but, nevertheless, it does 7
make people worried.
8 So my main concern this morning ist 9
Please tell the people about the safety and tell 10 them the truth; and thank you.
11 JUDGE GROSSMAN:
Thank you, Mrs. Sweeney.
12 The next speaker and the final one on the list is 13 Dennis L. Kent.
14 Is Mr. Kent here?
15 MR. KENT:
My name is Dennis L. Kent.
I live 16 at 306 South Rosewood Avenue in Kankakee, Illinois, 17 I am sure the citizens of the City of Kankakee 18 welcome this hearing to our fair city.
19 With reference to the proposed Braidwood Nuclear 20 Power Plants, the words which we receive from the 21 workers at that proposed power plant tend to indicate 22 that it would be impossible to assure quality at 23 Braidwood.
24 We are told that construction at that plant is a
()
25 continuing series of construction, constructions, Sonntag Reporting Service, Ltd.
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demolitions and reconstructions done by rapidly 2
turning-over work force.
3 The experience at various other facilities is
?
4 making it more and more clear that it is impossible to 5
assure quality while simultaneously producing electric 6
power by means of the heat genetsted by nuclear fission.
7 An adaptive use should be found for the facility 8
currently under construction.
j 1
9 I would suggest that many windows should be cut 10 into the concrete and that the facility should be turned 11 into a resort.
The paleontolo<jiets who know the value 12 of the area would be pleased to this unique and l
13 important paleontological resort pteserved for their 14 use, and the investors would cee at least some of their
,o 15 great investment preserved through 'this means.
/
16 Like some of the other speakers before, I should
~
17 also like to call to the attention of the hearing that 18 there are other speakers'who would be interested and 19 willing and who would beneficially share their thinking 20 with the hearing if a time could be found for them.
21 For instance, an Alderman from the City of Kankakee 22 would be able to make a limited appearance shortly 23 before 5:00 P. M.
I believe that the hearing will still 24 be in session at that time, and I should like to have
()
25 the time of 4:45 P. M.
set aside for a limited l
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1 appearance, if that is all right with the Hearing 2
Officers.
3 JUDGE GROSSMAN:
Well, the best we can do on 4
that is to have them come here and see where we are at 5
that point.
We can't -- we will just have to play it by 6
ear.
7 This is the fourth opportunity, at least, we have 8
given for limited appearance statements-9-
If it's an important matter for a person wishing to 10 make a presentation, I would think that they would have 11 time to find during the working day; so we will take 12 that under advisement.
O 13 He can appear here at 4:45 and we will see where we 14 are at that point.
15 MR. KENT:
Many of our aldermen and also 16 working people have schedules piled upon schedules, as 17 the rest of us do; but I should just like to reinforce 18 again that there are times and places where various 19 concerned citizens and elected officials would come 20 before the hearing and that one, since you have got some 21 advance warning on it, perhaps, you will be able to make 22 room for that.
I hope so.
23 Thank you very much.
24 JUDGE COAL:
We could also except written
()
25 statements for those people who can't make a personal Sonntag Reporting Service, Ltd.
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1086
-1 appearance. ~
2
' JUDGE GROSSMAN:
Those written stateinents
~
3 will be part' of the transcript of this day's hearing if 4
th97; submit it today during the working day.
Whichever 3
day they subilt-it,: we will have that included in the 6
t ranscr'ipt ; so you may ir. form your fellow citizens of 7
that.
8 MR. KENT:
Alderman.
I might ask while I am
'I stiil i here if the hearing is scheduled for three or f our 9
10 days?
'Is that --
11 JUDGE GROSSMAN:
We have scheduled the 12 hearing so that we. will complete whatever business the O
13 parties have to present this week.
14 If they conclude their presentations for the week
~ 15 early, we will be leaving early; but that's a matter for 16 the -- we; have no idea how that is.
The parties are
\\
17 more cognizant of that than the-Board here is.
18 NR. KENT:
If the heating, as planned, is 19 completed early, would it be possible for additio'nal 20' limited appearances'to be made at the conclusion?
21 JUDGE GROSSMAN:
We will take that under c
22 advisement, Mr. Kent.
~
MR. KENT:
Thank you.
23 j 24 Also, I should like to have an address to which
()
~
25 written statements can be sent.
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CE) i 1
JUDGE GROSSMAN:
The address would be the 2
Nuclear Regulatory Commission, Washington, D.
C., 20555.
3 MR. KENT:
Thank you.
4 JUDGE GROSSMAN:
And if you put the name of 5
the plant, Braidwood, we will receive copies of that and 6
we will attempt to append that to a transcript, if we 7
receive those statements before the record is closed.
8 MR. KENT:
When do you anticipate that that 9
will be?
10 JUDGE GROSSMAN:
There may be three or four 11 weeks of hearing.
12 Again, is this is a matter that you may take up k
i 13 with Intervenors' counsel.
I think they are the ones 14 who are most informed as to how long the hearing will 15 take.
16 MR. KENT:
I am sure that our Intervenors 17 will do well for us.
18 Thank you.
19 JUDGE GROSSMAN:
Thank you, Mr. Kent.
20 The next --
21 MR. GUILD:
Mr. Chairman.
22 JUDGE GROSSMAN:
Mr. Kent was the final 23 limited appearance presenter.
24 Mr. Guild.
()
25 MR. GUILD:
Mr. Chairman, I am informed that I
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1 several others came in during the course of the 2
presentation and have added their name to a list and 3
would desire to make statements at this time if the 4
Board would entertain them.
5 JUDGE GROSSMAN:
We will take -- okay.
We 6
will allow them to sign a list, but we will cut that off 7
at this point.
8 If anyone comes in during the day, that's a matter 9
that we will attempt to handle some time later on, 10 because we are not going to keep on adding as we go 11 along ad infinitum.
12 MR. TREBY:
Mr. Chairman.
O 13 JUDGE GROSSMAN:
We will take --
14 MR. TREBY:
I would like the record to 15 reflect, since a number of limited appearance people 16 have requested evening sessions, the record should 17 reflect that an evening session was held for limited 18 appearance statements at an earlier session of this 19 hearing.
20 JUDGE GROSSMAN:
That's correct.
21 We will now take a two-minute recess for further 22 sign-ups for limited appearance statements and we will 23 not guarantee that we will take all of these statements, 24 but we will do the best we can.
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25 (Whereupon a recess was had, af ter which Sonntag Reporting Service, Ltd.
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the hearing was resumed as follows:)
2 JUDGE GROSSMAN:
We are back in session.
3 We have four more additions to the limited 4
appearance list, Charles E.
Ruch, Sr.; Karen Lesmeister; 5
Timothy Jones; and Rich Westerman.
6 Mr. -- is it Ruch?
7 MR. RUCH:
Ruch.
8 JUDGE GROSSMAN:
Would you please come 9
forward, sir?
10 MR. RUCH:
Yes, sir.
11 JUDGE COLE:
Sir, could you use the other 12 seat?
The microphones are really in front of that seat, 13 and, sir, if you could use that small microphone by your 14 left --
15 MR. RUCH:
This one right here?
16 MR. BOARDS:
Yes.
17 MR. RUCH:
My name is Chuck Ruch.
I live at 18 1100 South Evergreen in Kankakee, and I am a member of 19 the Kankakee County Board.
20 I have watched with growing disbelief and awe the 21 weather report for the last week as the radioactive 22 cloud has drifted over from Russia and appears to be 23 heading this way.
I worried as a representative and as a father of 24 1
( ()
25 four children about at what point I should be concerned l
Sonntag Reporting Service, Ltd.
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1 about the rain that falls in my backyard.
2 I watched last night as Unit 5 had a story 3
regarding the statements of various individuals who were 4
intimately familiar with the construction of the 5
Braidwood Nuclear Power Plant, and I became rather 6
concerned and angry that I would not have the 7
opportunity for myself and my f amily to have a luxury of 8
watching the weather reports occur if the same problem 9
had occurred in Braidwood as had occurred in Russia.
10 I was also very upset and question the fact that, 11 whereas, the person who was making these allegations --
12 and I unde rstand that they are allegations -- worked at 7_s
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13 the plant, that the only response that the utility 14 company sought to bring forward was that of an attorney.
15 I would hope that this Commission in its studies 16 would go beyond the representations of an attorney and 17 ask other engineers whether or not the allegations made 18 by this individual who appeared on the Chicago 19 television station are true or not.
I think you owe 20 that to this community, because we are not going to have 21 the ability to leisurely watch the weather reports as 22 they -- as the clouds float across the world.
23 I would feel better if the same attorneys for 24 Commonwealth Edison were not out arguing that their
()
25 liability insurance should be capped if there were to be Sonntag Reporting Service, Ltd.
uGneva, Illinois 60r34 (312) 232-0262
1091 x) 1 some kind of catastrophic calamity result from 2
Braidwood.
3 I urge you not to listen to lawyers but find -- get 4
independent engineers.
5 The allegations that this man made last niglt on 6
television were amazing.
It spoke of shoddy 7
workmanship, of repeating work and of an apparent 8
disregard for basic fundamental safety factors, which 9
the public has been led to believe are taking place at 10 these nuclear power plants.
11 I come before you here today to urge you to go 12 slower, to not let paid representatives from 13 Commonwealth Edison make assurances to the public that 14 the stories that are being told by people who have 15 worked there are not true.
I urge you to talk to this 16 person, put him under oath, bring him before you, bring 17 him and all the other people who have made these 18 statements, make them point to the problems that they 19 talk about, because the level of investigation and 20 expertise that has been evidenced, at least through this 21 man's statements, are rather scary; and you cannot 22 af ford to stop, and you owe the people of this 23 community, the people that won't have the leisure of
'24 watching the radioactive cloud float for days at a time n(_)
25 and listening to the assurances that the radioactive Sonntag Reporting Service, Ltd.
Geneva, Illinois 66134 (312) 232-0262
1092 s
u) 1 level will be safe by the time the rain falls in our 2
back yards.
3 That won't be the case if anything similar to that 4
happens at Braidwood; and the allegations that were 5
repeated on the news last night are allegations which 6
deserve your utmost and absolute attention.
7 I urge you to consider what has gone before in 8
light of that, because you will not get a second chance 9
and the people in Kankakee County won't get a second 10 chance.
11 Thank you.
12 JUDGE GROSSMAN:
Thank you, Mr. Ruch.
7-
%/
13 The next speaker is Karen Lesmeister.
14 MS. LESMEISTER:
My name is Karen Lesmeister.
15 I live at Route 1, Bonfield.
I am one of the people who 16 live within the 10-mile evacuation radius.
17 Not too many months ago I got this little book in 18 the mail about the emergency procedures that we are 19 supposed to follow if there is a problem at Braidwood 20 and we have to be evacuated.
21 On the back there are several questions and there 22 was a little form that you were supposed to send in if 23 you had any problems with any of the questions.
24 All of the questions pose problems for the people
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25 in my neighborhood.
i l
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-v 1
Where I live is a one-mile stretch of road and 2
there are ten houses on it.
Five of these houses are 3
right by a creek.
This creek, when it rains, floods.
4 There is only one gravel road here.
5 This is not a town where you can go out the alley 6
and get out.
7 If this road is flooded, we have no way of getting 8
out.
9 When I called up -- when I sent this card in, 10 someone called me up and told me they were from the 11 State planning procedure.
He didn't really answer my 12 questions.
He referred me to a man from the County that 13 called me.
14 I explained to him the problem that we have with 15 the flooding.
16 I told him if anything goes wrong with Braidwood 17 and this creek is flooded, we will not be able to get 18 out.
The water is so deep we can't even get our cars 19 out, the kids can't go to school, people can't go to 20 work.
21 I asked them how they would evacuate us.
22 Well, the first man who called had no idea.
He 23 didn't even know we flooded.
24 The second person I talked to said, well, perhaps
()
25 we can get boats.
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1 When the creek goes over, it's not possible to get 2
boats in there.
There's fences, shrubbe ry, trees.
You 3
couldn't get a boat through it.
4-I mentioned that some of my neighbors have had to 5
be evacuated on previous occasions, just because of the 6
depth of the water, by the river patrol amphibious 7
vehicle.
He suggested that perhaps they would use that.
8 This is fine and dandy, except this is an open 9
vehicle.
10 All of us who live there have little kids; and I 11 expressed concerns about if we had to be evacuated, 12-there would obviously be radiation in the air and would O
13 probably be a pretty good dosage.
I don't want my kids 14 exposed to this.
15 I asked them if they had any provisions for any 16 sort of radio -- radiation-proof suits.
17 Well, I was told that in this whole county, there 18 are 12 such suits.
19 Well, if you figure there is going to be two people 20 driving this vehicle, that leaves ten for the people 21 around there.
22 There are four people in my family.
There are six 23 people next door.
That takes care of all of the suits.
24 There are three more houses out there.
That's at
()
25 least another 15 people.
I don't know what these people Sonntag Reporting Service, Ltd.
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1095 1
are supposed to do; just sit there and get these doses 2
of radiation, I suppose.
3 Nobody seems to be too worried about it.
4 I shouldn't be worried about it.
They will take 5
care of it.
6 I explained to them that they have this siren, 7
which is a mile-and-a-half f rom my house, which is
-8 supposeo 'o blow if I have and problem, and I am 9
supposed to hec
- this and I am supposed to leave.
10 On a day 11 > yesterday, when we had a wind like we 11 had, there is no way anybody in my neighborhood will 12 hear that siren because the wind will be blowing in the
(~')~ 13 opposite direction.
14 Well, they told me they would call me.
I asked 15 them, "What about all of the rest of my neighbors?"
16 Well, if they sent the card in and mentioned it -- if 17 they didn't sent the card and, God forbid, somebody I
18 moves out and somebody new moves in and they don't know 19 about this, they are going to be tough out of luck if 20 they won't hear the siren, because they won't know that 21 they are supposed to be called, and the, will just sit 22 there.
23 We also have a problem in the wintertime with the 24 snow.
()
25 When it snows out in the country, it blows.
They Sonntag Reporting Service, Ltd.
Geneva, Illinois 60134 (312) 232-0262
1096 R-)
1 don't come out and plow our roads until the snow 2
completely stops and the blowing completely stops.
It's 3
a futile effort.
4 I asked them about this and they said, well, they 5
would get the people who run the snowplows to come out 6
there and plow the roads so we can get out.
7 Well, I know one of the people who runs the 8
snowplows.
He is a nice guy, but I very much doubt if 9
he is going to willingly expose himself to all the 10 dangers of radiation to plow me out when he has kids of 11 his own that he will be worried about.
12 Again, I shouldn't worry about this.
They will 13 take care of this.
14 I also asked these people if anything happened and 15 I had to be evacuated and I could never go back to my 16 house -- which is a distinct possibility, in view of the 17 fact of what happened in Russia -- who is exactly going 18 to pay for my house, all of the things in it, everything 19 that I have; and I was told, "Well, don't worry.
Edison 20 belongs to some fund and they have 400 million dollars 23 and they can pay for this and I shouldn't worry about 22 it."
23 Well, I figured out the value of the land alone in 24 Essex Township, and it comes out to something like 30
( })
25 million dollars at $1,500 an acre.
That doesn't count Sonntag Reporting Service, Ltd.
Geneva, 111tmrir60174 (312) 232-0262
1097 1
anybody's house, anybody's possessions, anybody's 2
animals, anything.
That is just the straight land.
But 3
they are going to have enough money.
4 If they had to -- if 18 miles from around this 5
plant was completely full of radiation and nobody could 6
stay there or go there or anything, there is not enough 7
money in this fund to pay all of us.
8 I asked them the procedure for submitting a claim.
9 Nobody seems to know, but they are sure there will 10 be a form and I will just fill this form out and send it 11 in.
12 How they are going to know exactly what is in my O
13 house and what it's worth?
I would like to know, and 14 nobody seems to have the answers to any of this.
15 The other thing that they told me is if I am 16 supposed to be evacuated, I am supposed to come to-17 Kankakee.
18 Well, from what I heard on the news, Chernobyl has 19 been evacuated within 18 miles.
I suspect Kankakee is 20 20 miles from Braidwood, so that gives me two miles, and 21 if the wind is anything like it was yesterday, I don't 22 think Kankakee is going to be very much safer than I 23 would be.
24 Then I asked where I was supposed to stay.
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25 They told me to stay at a high school gym and they Sonntag Reporting Service, Ltd.
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\\
1 will have the cots and everything set up there.
2 Chernobyl has been going on for ten days.
3 These people have been evacuated.
4-I and my neighbors and everybody who lives in this 5
zone is supposed to live in a high school auditorium for 6
ten days.
7 I asked them why Edison couldn't come up with a 8
plastic card, like a credit card, issued to people 9
within so many miles of the plants?
In the event of any 10 kind of a catastrophy where we have to get out, they can 11 make an announcement over the air.
Whoever has the 12 little cards, go ahead and use it, make prior
.f g
t.I t
13 arrangements with the hotels, motels, restaurants, 14 everybody else.
If you are one of the people that have 15 to be evacuated, you just show this card.
It's 16 automatically cha rged to Edison.
17 Edison keeps telling us their nuclear plants are so 18 safe.
I don't know why they should object-to doing this 19 since they say they are never, ever going to need these, 20 My final comment is:
I wouldn't think an 21 evacuation plan like this is all that difficult.
I know 22 it's not easy to figure out how to move all of these 23 people and how to pay for all of our things and stuff 24 like that, but this is all things that you can see.
()
25 You know what the problems are.
You should be able l
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' t.d 1
to handle them.
2 If this is the best plan that Edison can come up 3
with to evacuate people, it doesn't say much for their 4
planning and it makes me wonder how safe this Braidwood 5
plant really is.
6 Thank you.
7 JUDGE GROSSMAN:
Thank you, Ms. Lesmeister.
8 The next speaker is Mr. or Ms. Jones.
I can't read 9
the first name that well.
I am sorry.
10 Excuse me.
Miss Jones.
11 Could you move one over where the mikes are, 12 please?
,-)
U 13 Thank you.
14 MS. JONES:
My name is Tynthia Jones.
15 I am here today for a couple of reasons.
16 First of all, I am a single mother of two.
Okay?
17 And my concerns deal with safety.
18 What is being done at Braidwood I would think would 19 be there to enhance our area.
20 Somehow a lot of controversy has come out of this.
21 I would like to be guaranteed that work is being 22 done for safety precautions and what have you would 23 benefit my children and not hinder or hurt them: and 24 when I am talking me and my children, I am talking down
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25 the line for their children and their children's Sonntag Reporting Service, Ltd.
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(")s u
1 children.
2 Now, radiation in the air, there is no way of 3
really analyzing how effective it will be on a human 4
being, no surefire way to come up to say that this won't 5
harm the children.
6 There are so many interests being brought out here, 7
a lot of them -- I don't understand the technical 8
aspects of it, but I do know that I do want safety for 9
my children.
10 Secondly, is the economic standpoint.
11 All construction that needs to be done out there at 12 Braidwood, who is to say that that cost won't be passed 13 on to the consumer?
14 As the utility rates go up, the consumer has to pay 15 for this.
16 Frankly, a lot of people here do not have the money 17 to cover those costs.
18 Now, I would like to think that there is a better 19 way of building safety precautions without passing it on 20 to the consumer.
To me that is -- that sounds like the 21
-- couldn't understand.
22 I am not saying the work needing to be done is not 23 applicable, but isn't there a way that it can be done 24 without passing it on to the consumer?
We will be
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25 paying not only once but twice from a standpoint of Sonntag Reporting Service, Ltd.
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1101 1
money as well as safety.
2 JUDGE GROSSMAN:
Thank you,-Ms. Jones.
3 The tenth and final speaker this morning is Rich 4
Westerman.
5 Mr. Westerman.
6 MR. WESTERMAN:
I want to thank you for 7
making this opportunity available to me to come in and 8
express my feelings on this matter.
9 I would also like to urge that you do make another 10 time available for others who find it impossible to be 11 here; and my wife, for one, would like to have submitted 12 her comments in this forum, too.
She won't be able to O
13 because she is working today.
14 My name is Rich Westerman.
I am a lifelong 15 resident of the county.
I live right now at Route 1, 16 Box 279, St. Anne.
I am a father of three.
17 I operate a small business in this area, and in the 18 last ten weeks my general feeling of apprehension about 19 all the nuclear plants in Northern Illinois has really 20 been compounded by the situation in Chernobyl; and I 21 would like to relate two situations that I have observed 22 through the years.
23 A good friend of mine is an iron worker at 24 Braidwood.
He has worked there since the plant began
()
25 construction.
He has regaled our family with stories of Sonntag Reporting Service, Ltd.
Geneva, Illinois 66134 (312) 232-0262
1 1102 1
the ineptness of the construction process out there.
To 2
him it's always been amusing; and as someone stated 3
before, it gives him a great feeling of comfort, because 4
he feels he is going to be there.
He feels he will 5
retire from the place, that's his line, because there is 6
so much repetition, so much -- not repetition -- but so 7
much construction and demolition and reconstruction and 8
sometimes even re-demolition.
9 I have recently made acquaintance with a start-up 10 enginee, working at the plant; and while he has never 11 given me any indication that he has observed any shoddy 12 work or anything, he has definitely told me that the h~
13 push is on.
He has been working 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> days and he 14 says that the push is on from above.
15 This plant is desired to go on line by a lot of 16 people in a hurry, and that doesn't make me feel any 17 better.
18 Finally, I would like to urge you that, having the 19 great responsibility that you have, if you err in your 20 judgment, that I urge you to err on the side of caution 21 here and do everything you can to make sure that 22 parents, like myself, don't have to regret having all 23 these nuclear plants in Illinois, especially the 24 Braidwood plants.
()
25 Thank you.
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JUDGE GROSSMAN:
Mr. Westerman, I assume you 2
would be much happier to see the shoddy work done over 3
again than to have it remain in place, if it's faulty?
4 MR. WESTERMAN:
No, sir, I didn't mean to 5
indicate that.
I just meant to convey to you my 6
feelings that it doesn't make me feel any better to know 7
that this work must be done over and over again, the 8
same things done; and some of the things he has told me, 9
that they were discovered, they had to be taken apart 10 because they are done incorrectly because of a different 11 crew working on the job each time.
3 No, I am glad that there is some quality assurance 12 J
13 here; but there is just a -- it's not a good feeling 14 that I get from speaking with the people that I have 15 told you about.
16 JUDGE GROSSMAN:
Thank you, Mr. Westerman.
17 MR. WESTERMAN:
Yes.
18 JUDGE GROSSMAN:
That concludes the limited 19 appearance statements this morning.
20 The next order of business are some pending 21 motions.
22 Does any of counsel have something further before 23 we get to these pending motions?
24 MR. MILLER:
Your Honor, I believe that there
()
25 are in addition some other preliminary matters that we Sonntag Reporting Service, Ltd.
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might discuss; but the agenda is yours and I think 2
probably dealing with the motions first is appropriate.
3 MR. GUILD:
Judge, if I could.
4 JUDGE COLE:
Is it on now?
5 MR. GUILD:
Judge, if I could suggest, 6
perhaps Mr. Miller and other parties and counsel for the 7
other parties could simply state for the record what we 8
think needs to be done, taken up as a pre-hearing 9
matter, the Board then could set an agenda.
10 JUDGE GROSSMAN:
Fine.
11 Mr. Guild, do you wish to do that or Mr. Miller?
12 MR. GUILD:
I could take a stab at it first, 13 Judge.
14 My list includes a motion to strike that was filed 15 by Intervenors with respect to Applicant and Staff 16 testimony prefiled.
There is a pending motion by 17 Applicants with respect to seeking an offer of proof by 18 Intervenors regarding certain testimony to be elicited, 19 responded to by Intervenors.
20 The Staff served a motion upon me yesterday with 21 respect to the protective order and confidential 22 information license the Licensing Board and Commission i
23 received.
There was a motion by Applicant in liminae 24 with regard to --
()
25 (A siren was thereupon heard.)
l 1
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MR. GUILD:
They are only testing.
2 JUDGE COLE:
Does anybody know how long that 3
is going to last?
4 A VOICE:
Three minutes.
5 JUDGE COLE:
Three minutes, thank you.
6 I take it that is not a Commonwealth Edison siren, 7
Mr. Miller?
8 MR. MILLER:
I don't believe so.
9 (Laughte r. )
10 JUDGE COLE:
Do they do this everyday or is 11 it just once a week?
12 A VOICE:
One day a month.
~
13 It keeps us on our toes.
14 JUDGE GROSSMAN:
Mr. Guild, you were up to 15 Applicant's motion in liminae.
16 MR. GUILD:
Yes, judge.
17 I spoke with Applicant's counsel yesterday and they.
18 consented to putting on a.:esponse to that motion back 19 with the approval of the Board.
20 I would suggest that since the witness that is the 21 subject of that testimony would not likely testify until 22 a later session of the hearing, that it is not necessary l
l 23 to take up that question at this time.
l l
24 JUDGE GROSSMAN:
That's fine.
We will defer
()
25 that then.
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1 MR. GUILD:
Thank you.
2 I on behalf of Intervenors have a number of 3
requests to make, an opening statement at some point, 4
either today or at the opening session tomorrow.
5 On the 28th of April, Applicants --
6 A VOICE:
That's the all-clear.
7 MR. GUILD:
This may be a message, Mr.
8 Chairman.
9 (Laughter.)
10 JUDGE GROSSMAN:
Mr. Guild, on April 28th, 11 you began to say.
12 MR. GUILD:
Yes.
7_
t)
\\
13 Applicant submitted a Board notification that 14 brought two matters to the party's attention and to the 15 attention of the Board.
16 The first was a decision by the Department of Labor 17 Administrative Law Judge in the matter of Bonnie J.
18 Parkhurst against L.
K. Comstock Company.
That 19 reflected an administrative determination that L.
K.
20 Comstock Company and Sargent & Lundy, the architect 21 engineer at Braidwood, had violated the Employee 22 Protection Energy Reorganization Act.
In short -- and 23 that Sargent & Lundy had had joint liability for those 24 acts of retaliation.
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25 In addition, there were matters reflecting the Sonntag Reporting Service, Ltd.
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termination of two further Comstock quality control 2.
inspectors, a Mr. Hunter and Mr. Arndt.
3 I would like to bring those matters to the Board's 4
attention and speak to the question of re-opening 5
discovery with regard to those subjects; in short, 6
attempting to obtain discovery on those matters during 7
the two-week recess that is to come at the conclusion of 8
this session of the hearing; but I can discuss that in 9
more detail at some other time later.
That is a 10 pre-hearing matter.
11 The other two items that I have on my list are an 12 order of Cross Examination and Cross Examination of
("s)
~
13 witnesses for this week and the subject of required 14 procedures for handling exhibits,. and that's my list.
15 JUDGE GROSSMAN:
Mr. Miller, do you have any 16 additional matters?
17 MR. MILLER:
Yes, sir, I have a few more.
18 I believe that the Intervenors have pending also a 19 motion to exclude witnesses.
20 JUDGE GROSSMAN:
I haven't seen that motion.
21 MR. MILLER:
I am not sure of the date.
Let 22 me check.
23 JUDGE GROSSMAN:
Okay.
24 MR. MILLER:
The date on that is May 1st,
()
25 sir, so it's possible that it may not have made it --
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1 JUDGE GROSSMAN:
It certainly didn't before I 2
left, at least not to my desk.
3 MR. WRIGHT:
Judge Grossman, this is Tim 4
Wright on behalf of Intervenors.
5 I was responsible for this motion and, in fact, on 6
May 1st I had it served by Federal Express mail to your 7
office.
8 I have an extra copy.
9 JUDGE COLE:
I believe I received it, Mr.
10 Wright, although I can't find a copy here with me.
11 If you have an extra copy --
f.
12 MR. WRIGHT:
I do have an extra copy and I
(
13 will provide it for you.
14 THE COURT REPORTER:
Judge Grossman, would you 15 kindly ask the media to relocate and be quiet, please?
16 JUDGE GROSSMAN:
The rules are no one blocks 17 the Court Reporter here.
18 Thank you.
19 Mr. Miller, continue, please.
20 MR. MILLER:
Thank you.
21 In addition, we have discussed with counsel for the 22 Intervenors an extension of time for Applicant to file 23 its motions to strike, if any, directed to the testimony 24 of the three expert witnesses that are sponsored by
()
25 Intervenors.
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In a telephone conversation with Ms. Kezelis, I 2
believe yesterday, Mr. Guild agreed that those motions 3
could be deferred until af ter the depositions of those 4
three individuals, which are scheduled for May 19th.
I 5
think that they will not be called as witnesses until 6
well after that date, so that the Board will have ample 7
time to consider any motions to strike the responses by 8
the Intervenors, and I would ask that the Board approve 9
that arrangement.
10 JUDGE GROSSMAN:
Is that correct, Mr. Guild, 11 that you have agreed to that?
12 MR. GUILD:
Yes, Mr. Chairman.
(D 13 I will make -- I made the observation to Ms.
14 Kezelis that the motion to strike goes to the testimony 15 on its face and should not be predicated on discovery 16 depositions of those prospective witnesses.
17 If, with that understanding, I consented to the 18 extension of time --
19 MR. MILLER:
We understand that, Mr.
20 Chairman, and obviously any motions will be directed to 21 the testimony as submitted to the Licensing Board.
22 JUDGE GROSSMAN:
Okay.
Fine.
23 So we will defer it according to the agreement of 24 counsel.
()
25 Any problem, Mr. Treby?
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1 MR. TREBY:
None; except the Staff would like 2
the same rights as_the Applicant has.
3 JUDGE GROSSMAN:
Is there any reason why that 4
wouldn't be extended to the Staff?
5 (No response.)
6 JUDGE GROSSMAN:
That is fine.
It's extended 7
to the Staff.
8 MR. MILLER:
In addition, Judge Grossman, we 9
had discussed briefly in our telephone conference call 10
-- but not resolved -- the question of the introduction 11 of the deposition testimony of one witness, Manfred 12 Godecke.
s 13 The Board ruled during the course of the conference 14 call that introduction of deposition testimony from 15 witnesses who were available for live testimony was not 16 going to be permitted.
17 We have structured our case accordingly.
- However, 18 Mr. Godecke is currently in West Germany, and we would 19 like to designate portions of his deposition transcript 20 for inclusion in the record, subject, obviou sly, to l
21 cross-designations by the Intervenors and the Staff.
22 JUDGE GROSSMAN:
That's fine.
23 I can't see any objection to that.
Mr. Guild, you i
24 may have one, but you will have to give us some reasons l
lj-~
25 for it.
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Applicant is certainly entitled to use depositions 2
of unavailable witnesser.
3 Is that the last item on your list, Mr. Miller?
4 MR. MILLER:
No.
I have just a very few 5
more.
6 JUDGE GROSSMAN:
Then we will come back to 7
that after we get the Staff's additions, also.
8 MR. MILLER:
Fine.
f 9
I would like to request a clarification actually 10 from the Board regarding some aspects of the May 2, 11 1986, order admitting Subcontention 2-C, and I would 12 like to have some time to discuss that with the Board.
13 I --
14 JUDGE GROSSMAN:
We are not going to be cross 15 examined on the written order, are we?
16 MR. MILLER:
No, sir.
I am going to request 17 some clarification, if the Board is able to give it to 18 me.
I don't think my request is untoward or unseemly.
19 In addition, I think that it would be useful for 20 the Board and certainly for the Applicant to have some f
21 understanding of what a projected schedule is for the 22 timing of Cross Examination.
23 We do have a large number of witnesses identified 24 by the various parties.
By my count we have
()
25 approximately 22 hearing days, and I chink that it would Sonntag Reporting Service, Ltd.
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be before June 23rd.
2 I think the Board previously indicated that at that
/
3 point in time it was unavailable because of other 4
commitments.
5 I don't want to foreshadow my presentation en it, 6
but it seems to me that even with a large number of 7
witnesses, that we ought to make some effort, if we can, 8
to conclude these evidentiary hearings in the 22 hearing 9
days that we have got bet,wcen now and June 23rd.
That's 10 something that I would like to discuss, if we can.
11 And then, finally, I know the Board has not 12 indicated when it wants to[ discuss this, but we might k_)
i 13 also discuss the locatiorifof any future hearings after 14 this week's session before we get started.
15 JUDGE GROSSMAN:
I think'we will discuss that 16 off the record, but we certainly will discuss it here.
f 17 MR. MILLER:
That concludes my, list.
e 18 JUDGE GROSSMAN:
Okay.,Mr. Tieby.
19 MR. TREBY:
I believe that befween them the 20 Intervenors and the Applicants have covered all matters 21 that we had listed as preliminary matters.
22 JUDGE GROSSMAN:
Okay.
Why don't we take the 23 last thing that we received first, which is the Staff's 24 submittal that we received yesterday, which surprised
()
25 me, because Staff on the one hand says it doesn't know -
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what is in the submittal but, on the other hand, is able 2
to reach the conclusion that what we did was incorrect 3
or what we stated was incorrect as far as the contents 4
of that motion.
5 Could you explain that to me, Mr. Treby?
6 MR. TREBY:
Yes, Mr. Chairman.
7 The Staff requested clarification of one matter and 8
sought reconsideration on a second matter.
9 The matter that the Staff sought clarification of 10 was the statement in the Board's memorandum 11 memorializing the conference call that the Staff is 12 aware of the information that is in the protected or 3
D 13 confidential information.
14 The Staff has not seen that confidential or 15 protected inf ormation.
The only information that I 16 recall that occurred during the telephone conference 17 call was the representation by the Intervenor that there 18 is nothing in there that the Staff is not aware of.
19 Based on that, we don't think it is a fair 20 statement in the Board's order to say that the Staff is 21 aware of that information.
22 We are generally aware that there have been 23 allegations of harassment and intimidation of the 24 Comstock quality control inspectors; but not having had
()
25 an opportunity to look at that information, there is no Sonntag Reporting Service, Ltd.
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1 way that a statement can be made that we are aware of 2
what is in that documents.
We believe it's misleading
\\
3 to the public to say that the Staff is aware of that,
,4 when we have not~seen the documents; and all'we have is 5
a representation by Intervenors to that effect.
\\6 JUDGE GROSSMAN:
Well, Mr. Treby, let's be 7
precise about this.
8 You are not saying that we are incorrect in our 9
statement.
You are in swne way suggest!ing that we 10 indicated that you knew what was in that telephone call.
11 You statted correc.tly what our position is, that it 12 was cepresented by Mr. Guild that all of that 13 information was known to you.
'14 I would suggest, Mr. Treby, that if you had 15' information that you represented to us that Mr. Guild 16 knew, that we would accept your representation.
17 Is there any resison why we can't believe Mr. Guild?
l 18
.That's my first question.
19 My second question is:
Is there any reason why we
' 20 ought to treat this as a star chamber proceeding by 21 compelling Mr. Guild to divulge Information that he has?
7 22 lie is entitled to nave info'rmation that you are not 23 privy to.
24 Why are we compelled to require him to divulge 25 that?
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MR. TREBY:
You have raised two points.
2 The first point that we wish to have clarified in 3
the order was that the statement therein, that the Staff.
4 is aware of the contents of these documents, is based on 5
Intervenor's representation.
We don't want to have any 6
inference left that we are aware of what is in those 7
documents, because we haven't seen them.
We are not 8
aware of that information.
9 JUDGE GROSSMAN:
Mr. Treby.
10 MR. TREBY:
The second point that you raise 11 with regard to:
Why do you want these documents?
12 The Intervenor has documents which it alleges O
13 affects health and safety of the public.
It has 14 provided those documents to the Applicant's counsel.
15 The Staff is the only party in this proceeding that is 16 not privy to that information.
We find that to be an 17 impossible condition under which to conduct our case.
18 JUDGE GROSSMAN:
Mr. Treby --
19 MR. TREBY:
Why should the other parties have 20 information that the Staff is not privy to?
21 JUDGE GROSSMAN:
No.
Mr. --
22 MR. TREBY:
Certainly, if there is a 23 representation that the Intervenors have some 24 information that relate to health and safety, why
' ()
25 doesn't the Staff have an opportunity to have that Sonntag Reporting Service, Ltd.
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1 information so that we can take the appropriate action 2
with regard to the information?
3 I don't understand why it is so secretive what this 4
information is.
We have signed a protective order in 5
this proceeding in which we have indicated that we will 6
not divulge any party's confidentiality.
We have been 7
very careful not to divulge confidentiality.
In fact, 8
the parties went through a great deal of procedures at 9
the beginning of this, because we refused to divulge 10 confidential documents that had been provided to the 11 Staff.
12 We find it just incomprehensible that we are unable 3
O 13 to get information relating to the health and safety of 14 this plant that both the Intervenors and the Applicants 15 presently have in hand.
16 JUDGE GROSSMAN:
Mr. Treby, you were offered 17 the same opportunity that Applicant had to receive that 18 information under the same conditions.
You chose not to 19 receive it.
20 The protective order that you are talking about was 21 an agreed protective order with regard to other 22 information.
This is different information that 23 Intervenors had and offered to give you under the same 24 conditions.
()
25 MR. TREBY:
The conditions that --
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1 JUDGE GROSSMAN:
Mr. Treby, I allowed you 2
time to finish.
Now allow me time.
3 Secondly, that information was submitted to Staff.
4 That information was submitted to the Commission.
5 The Commission chose not to look at that 6
information.
It was given the Commission in camera.
7 The Commission had every opportunity.
8 You know the old saying, " Fools rush in where 9
angels fear to tread."
We have no desire to look at 10 confidential information that we have no need for, nor 11 are we going to compel Intervenors to re-submit it to 12 Staff, this time to Staff attorneys rather than to the 7-13 Commission for purposes that are unnecessary for this 14 hearing.
15 If there is some legal right that you have, other 16 than within this hearing, to receive that information, 17 you are free to pursue it.
There is nothing in the 18 proceedings that we have had that requires that that be 19 turned over to you.
20 Intervenors, apparently, are willing to submit it 21 to you under the same conditions they have submitted the 22 information to Applicant, and I believe that offer still 23 stands.
24 l
Is that correct, Mr. Guild?
()
25 MR. GUILD:
Mr. Chairman, it is.
Mr. Cassel Sonntag Reporting Service, Ltd.
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is responsible for this particular motion.
That is 2
true.
The same offer stands.
3 MR. TREBY:
Well, I would point out, for the 4
record, that the Commission indicated that it had not 5
looked at this information because it was deciding the 6
question before it based on the five factors and not on 7
some information that had been provided in camera, but 8
indicated in its order in a footnote that it encouraged 9
the Intervenors to make that information available to 10 the Staff.
11 JUDGE GROSSMAN:
Well, fine.
We encourage 12 Intervenors to also make it available to Staf f.
But 13 just like the Commission, we are not going to order 14 Intervenors to make it available to Staff, because, like 15 the Commission, we have no need for that information in 16 this hearing, either; and we are not going to go beyond 17 the needs of this hearing to require Intervenors to do 18 something that is unnecessary for our purposes.
19 MR. TREBY:
Well, the Staff believes it needs 20 the information.
21 The reason we have been reluctant to enter into a 22 protective order is because the protective order 23 provides that before we can turn it over to the 24 technical staff -- we, the lawyers, can turn it over to
()
25 the technical staff -- we will need to come back to this Sonntag Reporting Service, Ltd.
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Board to ask for that permission.
2 We thought that our duties as officers of the NRC, 3
we needed to turn materials over right away.
4 However, we believe -- and we still believe -- that 5
that is necessary.
However, we believe that it is 6
important for us to perform our functions as attorneys; 7
and if the only way we can do that is to enter into a 8
protective order, which provides that only the attorneys 9
can look at that information, and then if we deem it 10 necessary we need to come back to you, we will be 11 willing to enter into that protective order.
12 JUDGE GROSSMAN:
Mr. Guild, I believe that O
13 was part of your offer; and under those conditions, if 14 Mr. Guild says so, we will agree to that right now.
15 MR. CASSEL:
That's fine, Judge.
16 JUDGE GROSSMAN:
All right.
Fine.
So that 17 matter is disposed of.
18 JUDGE GROSSMAN:
With regard to Intervenor's 19 motion to strike portions of the testimony of Applicant 20 and later of Staff, it appears to the Board that it 21 would be preferable to hold that motion in obeyance 22 until Cross Examination of each of those witnesses, in 23 which you will, of course, conduct your voir dire along l
24 with your Cross Examination and focus on the particular
()
25 aspects of the testimony that you believe should be Sonntag Reporting Service, Ltd.
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1 stricken.
2 If that's not agreeable, let's hear comments from 3
counsel. '
4 MR. MILLER:
Your Honor, that is certainly 5
agreeable to Applicant.
6 I would like to inquire as to whether it would be 7
useful to the Board to have a brief written response 8
available for the Board and the parties with respect to 9
each witness's testimony prior to the time that they are 10 called?
11 I don't believe that we will get to any witness 12 whose testimony is the subject of a pending motion to 13 strike until, perhaps, Friday; and that probably would 14 be the earliest, but we could have a written response to 15 the motion to strike that individual's testimony, that 16 is Mr. Larry Seese.
17 JUDGE GROSSMAN:
He is certainly entitled to 18 have a response to it.
Whether you want to do it orally 19 or in writing -- and we prefer it be in writing, too, so 20
' hat we can view that before we hear it coming at us 21 orally.
22 MR. MILLER:
Fine.
I will arrange to do 23 that.
24 JUDGE GROSSMAN:
Mr. Guild, was there any
()
25 objection -- or Mr. Treby -- to having that deferred i
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1 until we have the witnesses available on Cross 2
Examination?
3 MR. GUILD:
Generally no, Judge.
4 I think the only point, for the record, by that 5
motion we take the position that there are infirmities 6
for the support of the case by Applicant and the case.
7 One example comes to mind particularly.
There is 8
no support for the Staff's -- there is no commitment by 9
the Staff, for example, to offer testimony of either of 10 the resident inspectors who first received the 11 harassment complaints f rom the Comstock inspectors, Mr.
12 McGregor and Mr. Shultz, for example.
13 We make a point by our motion that putting 14 commentary or evidentia ry presentations through the 15 mouth of a witness who had no personal knowledge of 16 those complaints is infirm and we just want the record 17 to reflect our position to that effect, at the earliest, 18 prior to the point the Staff may claim some surprise for 19 us having identified what we believe is a fatal flaw in 20 this case.
21 JUDGE GROSSMAN:
Fine; and you will notice 22 that I did include voir dire as being part of your Cross 23 Examination, so that there isn't any misapprehension as 24 to whether you have waived anything by having your Cross
()
25 Examination come after the testimony is presented.
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In other words, if the testimony is not competent, 2
the fact that it's already been submitted and you are on 3
your Cross Examination doesn't waive the right to strike 4
that testimony at that time, even though your objections 5
are in the nature of voir dire rather than Cross 6
Examination.
7 MR. GUILD:
On that understanding, we have no objection tb deferring the ruling until the witness 8
9 takes the stand.
10 JUDGE GROSSMAN:
Mr. Treby, anything further?
11 MR. TREBY:
Mr. Berry will respond to that.
12 JUDGE GROSSMAN:
Mr. Berry.
7-
\\/
13 MR. BERRY:
Yes, that's fine, your 1:onor.
14 Staff would just note, however, that we don't agree 15 with the statement just made by the Intervenor, that 16 this absence of a particular Staff witnesses and 17 appearance constitutes a fatal infirmity in our case.
18 I think the regulations are clear that each party 19 has the right to present the case they deem appropriate 20 and they can call whatever witnesses they want.
The 21 Staff chose the witnesses necessary, in its judgment, to 22 bring the information to the Board necessary to support 23 a decision in this case, and Intervenors, of course, may l
24 question that, but the absence of a particular witness,
(' )
25 Staff would not agree that that constitutes any fatal s-Sonntag Reporting Service, Ltd.
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2 JUDGE GROSSMAN:
That is correct, Mr. Berry.
3 As long as you have competent witnesses to present your 4
case with, you are certainly entitled to choose 5
whichever competent witnesses you have.
6 MR. BERRY:
With that understanding, your 7
Honor, just a point of clarification.
8 You did inquire with responses to Intervenors' 9
motion to strike.
10 JUDGE GROSSMAN:
I am sorry.
Did we require 11 responses?
,q You are certainly entitled to respond at the time 12 NJ 13 the motion to strike is renewed, since we are taking it 14 under advisement; and we won't require that you make any 15 written response; but, certainly, if you think that 16 would help your case, you are certainly entitled to make 17 a written response which you can argue from orally.
18 I won't commit you to either procedure here.
You 19 are on the road and it's not easy to file written 20 responses and you are probably -- you may wish to just 21 orally respond to that and you are certainly to do that.
2 22 MR. BERRY:
Thank you, your Ilonor.
23 JUDGE GROSSMAN:
The next matter I think we 24
-- if the parties are willing to have us discuss this on
()
25 the basis of what you submitted, well, that's fine; but 1
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1 it may require a heated argument.
That is the 2
Applicant's motion to require Intervenors to make an 3
offer of proof.
That motion was made at a time in which 4
we had a multitude of sub-issues in the case.
5 At the present time what we have is one issue on 6
harassment and intimidation, which is comprised of a 7
number of specific incidents and is limited to those 8
specific employees and specific incidents by virtue of 9
this Board's pre-hearing orders; and it appears to the 10 Board that nothing in there is a surprise to any of the 11 parties.
12 To the extent that anything new is in there that is O
13 a surprise, I think that was ruled out in advance by the 14 Board before it was reconstituted; and so I will say 15 right of f the bat that we are inclined to go along with 16 Mr. Guild.
17 I would also point out that I personally have had 18 years of experience in trying cases in which my party's 19 case was built up entirely, in most cases, except for 20 occasional expert witnesses, of fact witnesses that were 21 either adverse or hostile; and I appreciate the problems 22 encountered by the adverse party in attempting to elicit 23 facts favorable to its case.
24 So I am inclined -- the Board is inclined -- to
-( )
25 rule in Mr. Guild's favor, that he doesn't have to Sonntag Reporting Service, Ltd.
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further elaborate on the information that he will 2
attempt to elicit from the adverse and hostile 3
witnesses.
4 Mr. Miller.
5 MR. MILLER:
Thank you, your Honor.
6 I would just like to make a few comments.
7 No. 1, it is not apparent to me that all of the 8
witnesses identified by Mr. Guild as potential witnesses 9
on this issue are, in fact, hostile.
10 Indeed, at least one of them, Mr. Puckett, is 11 certainly not under the control of the Applicant or any 12 of his contractors; but, apparently, Mr. Guild, from a
~
G 13 very early date in this aspect of the proceeding, has 14 been in communication with Mr. Puckett.
15 Secondly, we have approximately --
16 JUDGE GROSSMAN:
Well, Mr. Miller, before we 17 go off Mr. Puckett, in what you requested, I can't 18 believe that if Mr. Guild gave you all the information 19 that you know about Mr. Puckett, that he wouldn't have 20 complied with what you are requesting.
21 If you want to go further for a Q and A on Mr.
22 Puckett, I don't think that Mr. Guild can offer that 23 now; but I just can't believe that you don't have 24 whatever information you alreaoy need from Mr. Puckett.
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25 MR. MILLER:
Clearly, there has been Sonntag Reporting Service, Ltd.
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extensive discovery with respect to Mr. Puckett and 2
others, other QA inspectors and so on.
3 But it has always seemed to me that the 4
Commission's requirements with respect to the pre-filing 5
of direct testimony was a substitute for the procedures 6
that one usually finds in Federal District Courts which 7
require the parties together to file a proposed final 8
pretrial order, which identifies the witnesses, the 9
subject of their testimony, identifies the exhibits on 10 which the parties are going to rely, so that there is a 11 reasonable opportunity for both sides to understand what 12 the dimensions of the case are that they are going to 13 have to deal with.
14 Now, it is true that we know generally what the 15 documents are.
We supplied them all.
The Staff 16 supplied a few more.
17 So I am not suggesting that somewhere in the files 18 that have been accommodated during the course of 19 discovery, that we don't have the documents; but that's 20 a far cry from having some idea of what the thrust of 21 the Intervenor's case is, so that we can be prepared to 22 meet it on a full and fair basis.
23 JUDGE GROSSMAN:
Well, Mr. Miller, I don't 24 know that Intervenors can tell you in advance what the
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25 thrust of the information that they are going to attempt Sonntag Reporting Service, Ltd.
Geneva, 111irmtrG0174 (312) 232-0262
1127 (v) 1 to elicit f rom the adverse and hostile witnesses is 2
going to be.
3 To the extent that the case has been discovered ad 4
infinitum, I think you are well aware of the 5
fundamentals of the case.
6 We will certainly afford you an opportunity, as we 7
have indicated in the past with regard to other issues, 8
additional time to meet whatever testimony in any way 9
surprises you; and I think that's as far as we can go in 10 compelling something that I don't think Mr. Guild is in 11 a position to give you.
12 If he were in a position to give you that, we would 3
d 13 think dif ferently of it; but I think you have gotten 14 more than just a general outline of the case.
You have 15 gotten all of the specifics, basically, of the incidents 16 that we have here; and whatever comes up as a matter of 17 surprise, we will give you every opportunity to meet.
18 MR. MILLER:
Your Honor, I appreciate the --
19 JUDGE GROSSMAN:
And, by the way, the same 20 goes for Staff.
We will certainly afford Staff that 21 opportunity.
22 Mr. Berry, I don't know that Mr. Miller has 23 concluded yet.
24 MR. MILLER:
May I make one further comment?
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25 I appreciate the opportunity to request additional Sonntag Reporting Service, Ltd.
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time.
2 It seems to me that the likelihood of me having to 3
do that would be substantially reduced if the Board 4
would simply require Mr. Guild to identify the documents 5
which he purports -- which he proposes not to use for 6
Cross Examination, but only which will constitute a part 7
of his direct case.
8 Now, it seems to me that that is not something that 9
I could reasonably anticipate.
l 10 Every witness and his counsel takes a chance on 11 Cross Examination that documents are going to come from 12 almost any direction.
We understand that and hope that O
13 we will be prepared for it; but in terms of the direct 14 case that goes beyond Cross Examination of our 15 witnesses, I think at a minimum we are entitled to 16 simply a listing of the documents.
17 JUDGE GROSSMAN:
Mr. Guild, do you have any 18 objection to submitting a list of the documents you 19 intend to rely on on your case in chief?
20 MR. GUILD:
I defer to Mr. Cassel on that.
21 MR. CASSEL:
With your permission, Judge, Mr.
22 Guild has recruited me to handle a couple of the 23 motions.
24 I have filed a number of pretrial orders in Federal
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25 Court and you have months after the close of discovery Sonntag Reporting Service, Ltd.
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1 normally to prepare those orders listing your documents.
2 I think it is simply not the case, as a matter of 3
fact, that as we sit here today, we know what the 4
documents.are that we intend to use in their totality.
5 It's literally going to be a case, because we are 6
attempting to proceed to hearing expeditiously, of 7
preparing practically on a daily basis for each witness.
8 We will try to have as much done as possible ahead 9
of time, but we simply don't have a complete listing of 10 documents at this point that we are going to be using.
11 Beyond that I think the comments you made earlier 12 about the issue of examining adverse witnesses O
13 generally, both with the -- with respect to the question 14 that the company has as much notice of the key documents 15 as we do and with respect to the difficulties of 16 eliciting information from adverse witnesses, suggests 17 that, even if we had today, we certainly do not, nor are 18 we likely to have by the time the witnesses begin to 19 testify, a complete list for all the witnesses.
It 20 would be inappropriate to produce such a list of 21 doc umen t s.
22 JUDGE GROSSMAN:
Mr. Derry.
23 MR. BERRY:
Yes, your lionor.
24 The Staff agrees generally with the Applicant on
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25 this particular motion.
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1 It seems to the Staff if the Board directed all 2
parties to file testimony regarding their direct case --
3 and the purpose of pre-filing testimony is to give some 4
notice to the other party as to what is the nature of 5
the affirmative case. -The Staff filed its testimony, 6
the Applicants filed testimony, Intervenors filed 7
testimony for three of their witnesses, so at this point 8
it would appear to the Staff that their affirmative case 9
consists solely of the evidence of the three identified 10 witnesses.
11 To the extent their affirmative case encompasses 12 more testimony and evidence and the testimony of other 13 persons, then I think fundamental fairness requires that 14 Staff and the Applicant be provided some indication as 15 to what that is going to be.
16 Ordinarily, the Staff recognizes that ordinarily 17 Cross Examination is limited to the scope of the Direct 18 Examination and the matters bearing on credibility.
19 We have no problem with that.
20 To the extent that Intervenor would represent or 21 the Board would limit the Intervenors' Cross Examination 22 to the scope of that direct testimony, I think that we 23 would agree with Intervenors that you could dispense 24 with some requirement of providing some indication of
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25 what the matters are pending to be elicited; but there Sonntag Reporting Service, Ltd.
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is no indication here, or every indication to the 2
contrary, that Intervenor may plan to go beyond matters 3
brought out in the direct testimony of some of the Staff 4
and Applicant witnesses or, indeed, will call certain 5
witnesses for Cross Examination that have not been 6
identified by either Staff or the Applicant.
7 I think, in that case, the parties are entitled to 8
some indication, not the filing of testimony, but at 9
least some written explanation or just describing it 10 generally what the particular witnesses would say if 11 examined.
12 To the extent that Intervenor can't do that, then I 13 think it's clear that we might just be on a fishing 14 expedition; and I think, to avoid that, just so the 15 parties have some notice of where we would be going with 16 these, with witnesses who either have not been 17 identified by the Staff or the Applicant or matters that 18 can exceed the scope of the testimony, I think just to 19 keep the hearing within appropriate bounds, that the 20 Intervenors should be allowed to make -- required to 21 make -- some preliminary showing that the evidence they
(
22 would elicit is relevant, and I think this is consistent l
23 with a number of cases of the Commission and is l
24 appealable.
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25 JUDGE GROSSMAN:
Mr. Derry, you are aware of Sonntag Reporting Service, Ltd.
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the fact that you can compel or people on the Staff can 2
compel NRC Staf f to prepare their written testimony.
3 Applicant -- and you also can purchase written or 4
prepared testimony from expert witnesses.
The same 5
holds true of Applicant with regard to their own 6
employees and to retained experts.
7 With regard to Intervenors, they are not in a 8
position to compel testimony from anyone other than 9
. experts that they retain and they have submitted and are 10 in the process of submitting further of that prepared 11 testimony; but when we come to the further category of 12 outside witnesses, if you were to tend to elicit O
13 testimony from outside witnesses, I think you also would 14 have a problem of compelling them to state exactly what 15 it is they will answer in regard to your questions or to 16 compile a summary.
17 And that's the category that we are dealing with 18 here.
19 MR. BERRY:
Your Honor I -- I am sorry.
20 staff is not even inquiring of that much.
21 As the parties have pointed out, there has been 22 extensive discovery in this case.
23 Most of the witnesses that have been identified by 24 the Applicant, the Staff and the Intervenor have been
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25 deposed.
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V 1
I don't think that it's that difficult at this time 2
for Intervenor to explain to the Board, to the other 3
parties, the nature of the evidence that he would try to 4
elicit from various witnesses.
5 I think the Intervenor earlier mentioned a 6
particular Staff witness that has not been -- that has 7
not been -- for whom no testimony has been filed.
The 8
Intervenors could be in a position to tell us what they 9
would expect that witness to say or what -- and how that 10 would help their case.
11 We are not asking them to provide us written 12 testimony.
We are asking them to represent that they O
13 would, in fact, testify-to particular facts, but to give t
14 us some general guideline as to the nature of that 15 testimony, and that would hold true for a number of the 16 witnesses; and as I said before, this is only -- this 17 only applied to the extent that the Intervenor is going 18 to go beyond the direct testimony of witnesses.
We have 19 no problem with them if they confine their examination 20 to the direct testimony.
21 JUDGE GROSSMAN:
Mr. Derry, let's assume that 22 you prepare Witness A for a certain topic and Witness B 23 is prepared for another topic, and Intervenors in cross 24 examining Witness A wish to inquire into the area that
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25 you have not prepared that witness for with regard to l
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1 Area B, which is also in the case, and you have notice 2
of that being in the case.
3 Why do you think that the Board ought to tie the 4
hands of the Intervenor so that Intervenor --
5 Intervenors could not inquire of Witness A with regard 6
to Incident B or Witness B with regard to Incident A, 7
when you have full notice that those areas are in the 8
case?
9 All it is is a limitation for no purpose as far as 10 I can see it.
11 You personally are prepared, as counsel, to handle 12 all the issues.
O 13 If Intervenors can elicit favorable testimony from 14 someone you haven't prepared on a particular issue, I 15 don't see why we ought to preclude them from doing that, 16 as long as you have fair notice that that issue is in 17 the proceeding, and so I don't see any reason to impose 18 that limitation.
19 Could you tell me of one, in the way of assistance 20 to counsel, why that would be preferable?
21 Mr. Miller?
22 MR. MILLER:
Well, let me offer one 23 possibility.
24 Remembet, at least in my judgment, what we are
()
25 talking about is Intervenors.
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JUDGE GROSSMAN:
On these documents?
+
2 MR. MILLER:
No, sir.
Let me just address 3
your last point.
4 JUDGE GROSSMAN:
I am sorry.
5 MR. MILLER:
What we are talking about is 6
Intervenors' direct case, that is in the situation in 7
which you pose a hypothetical, that is, Witness A knows 8
about Incident A only, but Intervenor seek, not as part 9
of Cross Examination necessarily, but as part of their 10 case in chief, to examine him about Incident B.
It 11 seems to me that the witness may very well say, "I am 12 sorry, I don't know," or "I don't remember."
O 13 JUDGE GROSSMAN:
Absolutely.
If the witness 14 is incompetent, that is as far as it's going to go; but 15 If the witness shows competence and offers favorable 16 testimony to Intervenors, why aren't they to make their 17 case that way?
18 MR. MILLER:
They certainly are.
19 All I am suggesting is it may very well be that 20 there will be a fuller record developed in terms of 21 information made available to the Board if all parties, 22 the counsel and the potential witnesses know what the 23 scope of examination by the Intervenors may be.
That is 24 in support of Mr. Berry's position, which is somewhat
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25 more expansive than the one I took, which is simply to Sonntag Reporting Service, Ltd.
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v 1
ask that the documents be identified.
2 Mr. Cassel, somewhat surprisingly says, "Well, they 3
are really not in a position to do that, because they 4
haven't had time."
5 I accept that.
6' However, the first witness is going to the witness 7
stand the first thing tomorrow morning.
8 Presumably, as to the witnesses that are going to 9
be examined this week, I can assume that the witness is 10 going to be cross examined, and whatever extension of 11 that Cross Examination represents Intervenor's case in 12 chief,, will take place at the same time; that is, we O
13 will not be in a position of having Cross Examination, 14 excusing the witness and then recalling that witness at 15 some later point in time for further Direct Examination; 16 but that's just an assumption on my part.
17 JUDGE GROSSMAN:
No, that is incorrect, Mr.
18 Miller.
19 If anything comes up that surprises you, you may 20 certainly ask for a postponement of rebuttal or 21 additional rebuttal with regard to that witness for -- I 22 am sorry -- for Redirect with regard to that witness.
23 We are not going to allow you to remain surprised 24 and stick you with the results of that, so that you
()
25 certainly may ask for further time to Redirect with Sonntag Reporting Service, Ltd.
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1 regard to assume element of surprise.
2 MR. MILLER:
I hope that I won't have to ask 3
for that; but I perhaps saan't making myself clear.
4 I can assume that, for example, Mr. DeWald is going 5
to be the first witness tomorrow.
He has prefiled 6
direct testimony.
There will be Cross Examination by 7
the Intervenors on that testimony.
8 At some point I would expect them to identify for 9
the record and the parties that they are now conducting 10 their examination of Mr. DeWald adversely as part of 11 their case in chief; in other words, going beyond the 12 scope of Cross Examination and launching into, perhaps, O
13 new subject matters as part of their own direct case.
14 I assume that that would simply follow 15 sequentially.
There would not be any excusing of Mr.
16 DeWald and then recalling him as part of the 17 Intervenor's direct case at some point later in time.
18 All I am suggesting is that if we have a list of 19 the documents, that the likelihood of my claiming 20 surprise and asking for further delays in order to 21 conduct a Redirect Examination of any witness is going 22 to be substantially less.
23 I find it incredible that Intervenors, at this 24 point in time, when they have had documents for many,
()
25 many months, are not in a position to simply supply us Sonntag Reporting Service, Ltd.
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1 with a list of those pieces of paper.
2 JUDGE GROSSMAN:
Mr. Cassel, do you have 3
anything further to say on this?
4 MR. CASSEL:
Simply that the -- is this thing 5
working?
6 JUDGE GROSSMAN:
Yes, it is.
7 MR. CASSEL:
Simply that the example that Mr.
8 Miller just gave is a very good one of why we should not 9
be required, to a witness who obviously is as adverse 10 and hostile as Mr. DeWald, a documentary road map of 11 what questions he would be ashe;d, which is exactly the 12 effect of Mr. Miller's present suggestion.
13 JUDGE GROSSMAN:
That is how it appears to 14 the Board, and so our ruling is going to be that they 15 don't need that road map; but if there is any surprise, 16 Mr. Miller, you can ask for further time to either 17 redirect or rebuttal later on with regard to any such 18 documents; but I don't think the Board wishes to require 19 that a road map be given a hostile and adverse 20 witnesoer, and that is the Board's ruling on that.
21 Fine.
Let's go off the record a minute.
22 (There followed a discussion outside the-23 record.)
24 JUDGE GROSSMAN:
Well, since we have touched
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25 on the order of presentation here, let's continue with Sonntag Reporting Service, Ltd.
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that.
2 I don't know that we have any problem here.
3 I assume that Applicant will put on its witnesses 4
for its case in chief and Mr. Guild or Mr. Cassel or Mr.
5 Wright will cross examine and voir dire at that time and 6
renew the motions to strike and will also attempt to go 7
further in developing their own case without having to 8
recall adverse or hostile witnesses.
9 Staff will then have the opportunity to cross those 10 witnesses, also; and I guess we will be doing that 11 according to the order of Applicant's presentation.
12 Is there any loose end here that we haven't O
13 covered?
14 (No response.)
15 JUDGE GROSSMAN:
Later on Intervenors --
16 well, perhaps this is it.
17 Later on Intervenors will then present their case; 18 though, of course, Ta*-rvenors will say that they are 19 adverse to both Staff and Applicant and wish to go last, 20 and Staff will say it's staff's prerogative to go Inst 21 and in the past Staff has been given the prerogative of 22 going last, and I think that's the only controversy, and 23 I guess we are just going to go ahead and do that, j
24 notwithstanding that Applicant and Staff do take the
! ()
25 same position with regard to the issues here.
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l Does that fully summarize what any dispute is 2
between the parties?
3 MR. BERRY:
That's true.
The Staff would
'I 4
exercise that prerogative.
~
5 JUDGE GROSSMAN:
Okay'..
That's concluded.
6 MR. GUILD:
Mr. Chairman, i'
7 JUDGE GROSSMAN:
Yes.
8 MR. GUILD:
A response on that point.
i 9
I do understand the Board's anticipated decision ori 4 e
10 that score, that last point about the Staff closing.
.{ ;
11 For the record, it is our position that the staff's 12 interest is associated-with Applicant and not with O
13 Intervenor and that Intervenor is in a position, as a 14 party adverse to bcth Staff and Applicant, would_ask for 15 the opportunity to close.
16 We recognize, though, that it is custom in 17 licensing proceedings that the Staff is given that 18 prerogative, so I anticipate the Board's ruling.
19 JUDGE GROSSMAN:
Well, let me also point out, 20 if I were making the rules, perhaps I would do it 21 differently; but the precedent has already been set a 22 number of times.
23 Though this Board does give, certainly, sufficient 24 opportunity for Direct, Redirect, Cross, Recross, et
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25 cetera, et cetera, including, also, rebuttal and Sonntag Reporting Service, Ltd.
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surrebuttal, and until the parties have a chance to 2
present their full case; so I think, in the final 3
analysis, it won't really matter very much as to what 4
order we allow the presentation here.
5 MR. MILLER:
Your Honor.
6 JUDGE GROSSMAN:
Just -- yes, Mr. Guild -- I 7
am sorry, Mr. Berry.
8 MR. BERRY:
I think that's fine.
The Staff 9
agrees.
10 We would just like to clarify a statement by Mr.
11 Guild, saying the Staff is associated in line with the 12 Applicant.
O 13 I would just bring it to his attention that the 14 Staff is in line with the public interest, the public 15 health and safety.
16 JUDGE GROSSMAN:
Mr. Guild, did you have 17 anything further on this?
18 MR. GUILD:
No, that is fine.
19 MR. MILLER:
No, no further questions.
20 The loose end that occurred was not Mr. Berry's 21 association of the public interest, the chips will fall 22 where they may on that score.
23 The only point is, I understood from the conference 24 call, Applicant's intended order of presentation of four
()
25 witnesses this week was Mr. DeWald, Mr. Seltmann, Mr.
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Seese and Mr. Gieseker, in that order, and that is the 2
order on which I have planned my examination.
3 MR. MILLER:
That is correct.
4 JUDGE GROSSMAN:
Okay.
5 Could you list those witnesses again, please?
6 MR. MILLER:
It's Mr. DeWald.
7 JUDGE GROSSMAN:
DeWald.
8 MR. MILLER:
Mr. DeWald, Mr. Seltmann, Mr.
9 Seese, and if we get to him, Mr. Gieseker.
10 MR1 GUILD:
Judge, if I might, for the 11 record.
' 12 If Mr. Miller would identify the additional 13 Applicant direct witnesses that I understand then would 14 be called at the next session of the hea' ring --
15 JUDGE GROSSMAN:
If you are not prepared to 16 do that --
17 MR. MILLER:
I just have to recall them to 18 make sure that I have them all.
19 It would be Mr. Kurtz, Mr. Louden, Mr. Vannier, Mr.
20 Simile and then Mr. Maiman.
21 MR. GUILD:
Pardon?
22 MR. MILLER:
Maiman.
23 MR. GUILD:
Thank you.
24 MR. BERRY:
Would that be the order?
()
25 MR. MILLER:
Yes.
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JUDGE GROSSMAN:
Now, my notes indicate that 2
the last matter raised by Mr. Miller was with regard to 3
exhibits; but I think we have covered that.
4 Was there anything farther?
5 MR. MILLER:
No.
6 JUDGE GROSSMAN:
The next matter.
7 MR. MILLER:
That was Mr. Guild's issue, I 8
think.
9 JUDGE GROSSMAN:
Oh, was it?
10 MR. GUILD:
It's more a hounekeeping matter, 11 Mr. Chairman, but trying to anticipate the Board's 12 pleasure and arrangements at this time.
O 13 We found a copy -- a commercial copying facility in 14 Kankakee.
It's at about half a mile distant from the 15 hearing room and is available only during regular 16 business hours, so we have sort of made arrangements for 17 them to undertake to copy things for the record in the 18 case.
19 Anticipating that there may be some logistical 20 snags in doing that, I wanted to raise for the record 21 now a proposal to handle exhibits.
22 The exhibits essentially are going to be -- they 23 are all documents that have been made available in 24 discovery, principally, as Mr.. Miller acknowledged, from
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25 Applicant's files.
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1 Each document bears a unique Bates stamp number as 2
recorded by Applicant for document control purposes; and 3
so a document, once presented, can be tracked through --
4 I understand -- through their indexing systems in their 5
files, which are available to them, I am informed, at 6
least in Kankakee.
I am not sure that they are here in 7
the hearing room.
8 What we would anticipate doing is make available 9
the necessary copies for use in examining a witness, but 10 asking leave of the Chairman to submit the records, 11 additional record copies, at a subsequent day's session 12 after taking them down to the copy shop and having them 7-C/
13 copied.
14 JUDGE GROSSMAN:
I think we have a problem 15 with the Reporter on that.
16 If you can work out an arrangement with the 17 Reporter that is acceptable to him, that will be 18 acceptable to us.
19 MR. GUILD:
All right, sir.
I will attempt 20 to do that at the next recess.
21 JUDGE GROSSMAN:
All right.
22 Along the lines of exhibits, one thing that we l
23 would ask of Applicant is that, if it's not too much 24 trouble, to have depositions available for the Board,
(')
25 because it's quite a burden for us to get depositions, I
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and we assume that some depositions will be used for 2
admissions and for impeachment purposes, and we would 3
like at least one copy for us to refer to when that is 4
-- when they are offered.
5 MR. MILLER:
I will have to check as to how 6
many copies we have with us in Kankakee.
I know we have 7
more than one copy available to us but --
8 JUDGE GROSSMAN:
Otherwise, we will just look 9
over someone's shoulder and ask it; but that would slow 10 up the pace; so it would be preferable if you could have 11 just one extra copy of those depositions.
12 MR. MILLER:
That's fine.
O 13 While we are on the rubject matter of exhibits, I 14 find that, in reviewing Mr. DeWald's prepared testimony, 15 that there was a slip in our own reproduction of one of 16 his exhibits; and after the luncheon break I would like 17 to bring back a new Exhibit 5 to Mr. DeWald's testimony 18 and provide it to the Board and the parties.
It 19 contains documents that the parties have seen before, 20 but it was just assembled improperly when we were 21 putting the testimony together.
l 22 I didn't discover it until late last week, and I l
l 23 would ask at that time, after lunch, to supply that to l
24 the Board and the parties.
()
25 MR. GUILD:
I would say simply, Mr. Miller, l
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1 at the next recess, tell me what that will be so I can 2
anticipate it.
3 MR. MILLER:
Sure.
4 JUDGE GROSSMAN:
That's fine; so counsel will 5
agree on that and we won't have to handle that.
6 The next item, other than the exclusion of 7
witnesses, is the deposition testimony of unavailable 8
witnesses.
9 Did we say we were going to defer that, or Mr.
10 Guild, you can make whatever argument you want?
I think 11 the rules are clear on that and I don't see that there 12 is very much you can say.
13 MR. GUILD:
I think the status of that, as I 14 recall from the conference call, Mr. Chairman, is that 15 the parties were to make alternate designationr of those 16 portions of the testimony which they wanted to rely on; 17 and presumably at that point Applicant, who is taking 18 the initiative here, would, as I understand, Mr. Miller, 19 to commit, make a written claim as to the basis for 20 offering Mr. Godecke's testimony, why he is unavailable 21 and why the issue has to be put into the deposition.
22 That would give us an opportunity in a formal written 23 form to respond, and I expected that we would respond 24 when we got the Applicant's designation.
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25 JUDGE GROSSMAN:
I don't think we are -- we Sonntag Reporting Service, Ltd.
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1 are not going to require that Mr. Miller indicate why he 2
wants to use it.
If it's relevant information, he is 3
entitled to offer it.
If he makes a showing that the 4
witness is unavailable, that's all he is required to do.
5 Now, with regard to your designation, you are 6
familiar, I am sure, with the rules, which indicate that 7
you can offer any other part that is relevant to what he 8
offers but, actually, the rules aren't even that tight.
9 You can offer any other part of the deposition that 10 you wish to, since the witness is unavailable and, 11 perhaps, Mr. Miller will then have to re-designate some 12 other part in response to your re-offer; but the point O
13 is that the deposition is available to all parties, and 14 including Staff.
I don't mean to leave you out of this, 15 but most of the counter-designations I think would be 16 Applicant and Intervenors; but Steff is certainly 17 entitled, also, to designate whatever portions Staff 18 wishes to have entered into the record.
19 Mr. Miller.
20 MR. MILLER:
Your Honor, I guess I would like 21 to know whether we are really going to have some dispute 22 about the unavailability of Mr. Godecke.
23 When he was deposed, he made a statement on the 24 record that he was currently residing in West Germany.
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25 To my knowledge, he has not returned; and I would just Sonntag Reporting Service, Ltd.
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q 1
like to know whether we are really going to have a 2
dispute about his unavailability, so I am going to have 3
to go and get some sort of a statement from him or 4
whether we are --
5 JUDGE GROSSMAN:
Mr. Guild, do you have any 6
information which would lead you to believe that he is 7
not in West Germany?
8 MR. GUILD:
That's not the issue, Judge.
He 9
was in West Germany when Applicants flew him back to 10 Chicago and took his deposition and attempt to elicit 11 through a discovery deposition testimony which they now 12 want to treat as their direct case on the argument that 7-
-LJ 13 he is now unavailable, when he was available freely to 14 them a month ago, leaves me to say, I want to see what 15 their position is on why the evidence that they seek to 16 get from Mr. Godecke cannot be presented in a live 17 fashion before this Licensing Board so we will have an 18 opportunity to cross examine to make our case.
We ask 19 them to take the position in writing, which I understood 20 he was going to do.
21 JUDGE GROSSMAN:
Mr. Guild, they flew him 22 over once, but they are not required to fly him over 23 again; and as a trial attorney, you ought to know when 24 you are dealing with a witness who is going to be
()
25 possibly unavailable for hearing, that you have to be Sonntag Reporting Service, Ltd.
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(_)
1 extra careful in taking his deposition, his discovery 2
deposition, because it may end up as an evidentiary 3
deposition; and so you were on notice of that and that's' 4
as far as the rules go and you are just stuck with it, 5
unless you can arrange to have him fly over or fly over 6
to West Germany yourself and take a further deposition 7
with leave of the Board, but, you know, you are just 8
stuck with that.
9 MR. MILLER:
I would just like to point out, 10 the reason that Mr. Godecke was flown over here was, 11 frankly, to resolve any potential dispute with 12 Intervenors with respect to the expense of going to West
[h 13 Germany.
It was, obviously, more convenient and 14 economical for Applicant as well, but we did avoid any 15 dispute with respect to going overseas for that purpose.
16 JUDGE GROSSMAN:
Okay.
I think that matter 17 is resolved.
If there is no reason to believe that he 18 is not in West Germany, then his deposition will be used 19 the same way any deposition of an unavailable witness 20 can be used.
Fine.
21 Mr. Miller, you have have -- or perhaps it was --
22 yes, it was you, Mr. Miller, some questions on the 23 harassment and intimidation admission and order on that 24 five-factor test.
j ()
25 MR. MILLER:
Yes, your Honor.
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JUDGE GROSSMAN:
We have some I's that we 2
didn't dot.
3 MR. MILLER:
No, I think all the I's were 4
dotted and the T's were crossed, but I did have a 5
question that I would like to raise with the Board, 6
because I believe it goes to the proof that we hope to 7
elicit in this case.
8 At Page 8 of the slip opinion, concerning the 9
contention --
10 JUDGE GROSSMAN:
If you will just hold it for 11 a moment.
12 MR. MILLER:
Sure.
O-13 JUDGE GROSSMAN:
Fine.
Mr. Miller.
14 MR. MILLER:
There is a paragraph that begins 15 with the words, "We are not impressed," and so on.
It's 16 the last sentence in that paragraph that, frankly, 17 causes me some concern.
18 We had tried very hard to understand what the 19 claims of harassment and intimidation really encompasses 20 and take quite seriously allegations that inspectors of 21 Comstock have been unfairly pressured by their 22 supervision.
23 In each of the depositions that we took, we tried 24 hard to understand the specific areas of the inspectors'
(')
25 work that had suffered as a result of their relationship Sonntag Reporting Service, Ltd.
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with their management; and as we represented in our 2
pleading to the Board on this issue, none of the 3
inspectors testified that their dealings with management 4
had led them to compromise the integrity of their 5
inspections, it caused them not to follow the procedures 6
and so on.
7 I am really requesting some clarification as to 8
whether this sentence in the Board's order is an 9
indication that those statements by the quality control 10 inspectors are not regarded as probative.
If they are 11 not, frankly, an important element of our proof -- there 12 is a ruling, in effect, that an important element of our 13 proof is simply not going to be accepted.
14 JUDGE GROSSMAN:
I will have to admit that, 15 perhaps, the Board's language was a little strong there.
16 Certainly, each employee is entitled to say that, 17 and if he is to be a credible witness, we will, 18 obviously, believe him.
19 If he appears not to be credible, we will take that 20 with a grain of salt; but, certainly, it's competent 21 testimony and a lot will depend on the other responses 22 that the employee gives while he is testifying.
23 The main thrust of that paragraph was that this is 24 a matter on the merits and it would not have been
()
25 appropriate for us to consider these statements in Sonntag Reporting Service, Ltd.
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1 determining whether the contention was admissible.
2 MR. MILLER:
All right.
Thank you for the 3
clarification, Judge.
4 JUDGE GROSSMAN:
We certainly do not attempt 5
to impune the integrity of any of the witnesses, at 6
least before we hear them.
7 MR. MILLER:
I am glad to hear that.
8 JUDGE GROSSMAN:
Now, the next item that I 9
see here relates to the scheduling of Cross Examination; 10 but it may have been covered in the order of 11 presentation that we discussed.
12 MR. MILLER:
No, sir.
What I had in mind was fs 13 really a slightly different issue.
14 I think I mentioned it when I raised the issue, 15 that by my count we have approximately 22 --
16 JUDGE GROSSMAN:
22 days, yes, 17 MR. MILLER:
-- 22 hearing days; and I was 18 wondering whether we could have some -- I understand it 19 would be preliminary -- some indication of how long 20 Cross Examination of Applicant and Staff witnesses is 21 likely to take.
22 JUDGE GROSSMAN:
Mr. Guild, I think you are 23 the person who is best able to give us a time estimate 24 in conjunction with Mr. Cassel.
(')
25 MR. GUILD:
Yes.
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1 Judge, I am simply in no position to be able to 2
give a firm estimate beyond saying that the plan for 3
this week is having to be faced with four key witnesses 4
to examine in three days, managers of the contractor in 5
question and the principle engineer from Commonwealth 6
Edison responsible for electrical work.
7 It's my intention to conclude their Cross 8
Examination during this session of the hearing.
9 Beyond that question and how we handle the 22 10 hearing days that Mr. Miller sees in the schedule 11 between the resumed session of hearings and the time the 12 Board has indicated it intends to take the next recess, 13 I frankly suggest that counsel put their heads together 14 first as a preliminary matter and try to see if we can 15 come up with a proposal for the Board on how to handle 16 that.
17 I think one week of time should be sufficient for 18 the parties and the Board, particularly when we are 19 entering into some uncharted waters to a large extent in 20 the sense that we just don't know how the examination of 21 these adverse witnesses is likely to go.
22 Better basis for planning after the next three 23 days, I would say.
24 JUDGE GROSSMAN:
Okay.
But we would
()
25 appreciate as long a range forecast as possible, because Sonntag Reporting Service, Ltd.
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1 a lot will depend -- a lot of the way we schedule will 2
depend on that.
'3 If we see we are running short, we are going to 4
have longer sessions and, perhaps, we can start off with 5
four-day-a-week hearings; but if we see that we can't 6
get it in with that schedule, we will have five days, 7
plus evenings.
We would like to complete it all and are 8
certainly aiming for completing it all by the 23rd, or 9
is that a Friday?
I am not sure.
10 MR. MILLER:
I think the 23rd is the 11 following Monday.
12 JUDGE GROSSMAN:
Okay.
By the 19th then.
fs N-]
13 Okay.
The next item would be the location, but we 14 will discuss that off the record; so let's end up with 15 the thorniest issue of them all, which is the -- well, I 16 am sorry.
We have two other issues.
Let's not get to 17 the motion to exclude witnesses yet, but to the 18 Department of Labor activities and the two further LKC 19 employees.
20 Now, Mr. Guild, were you unaware of these employees 21 prior to what has occurred in the recent Department of 22 Labor and dismissal activities?
23 MR. GUILD:
Well, I am aware of the 24 significant facts that are the subject of the Board
()
25 notification.
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Talking about Ms. Parkhurst first.
2 The Board notification transmits to the Board and 3
parties the Department of Labor ALJ decision in her 4
retaliation case.
That is the first time we knew of the 5
decision in her case.
6 She may have been a name on a list of employees 7
available to us in discovery, but this Board 8
notification was the basis for our knowledge that there 9
had been a second adverse determination by the U.
S.
10 Department of Labor against L.K. Comstock Company, 11 JUDGE GROSSMAN:
Well, there had been one 12 adverse determination before that; is that correct?
(s) 13 MR. GUILD:
Yes.
That was in Mr. Puckett's 14 case.
15 JUDGE GROSSMAN:
Okay.
I meant in her case 16 was there not a finding -- oh, I guess the finding was 17 the other way, was it?
18 MR. GUILD:
It was, as I understand it.
19 MR. MILLER:
Initially, her complaint was 20 dismissed.
She appealed.
21 JUDGE GROSSMAN:
Yes.
22 MR. MILLER:
And the Administrative Law Judge 23 decision was --
24 JUDGE GROSSMAN:
Yes, I read the decision.
I
(_s) 25 am familiar with that.
I momentarily forgot that.
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Nevertheless, Mr. Guild, you were aware of her 2
allegations.
3 MR. GUILD:
No, we were not, Judge.
4 MR. BERRY:
Your Honor, could I?
5 The Staff produced a number of documents to both 6
the Applicants and the Intervenors in January of this 7
year.
8 It is my recollection that documents, the Staff 9
documents pertaining to Ms. Parkhurst, were among the 10 documents provided to the Intervenor.
11 JUDGE GROSSMAN:
Well, now, how about these 12 two further employees, LKC employees?
Those names seem 13 to be familiar to me.
14 Were you aware of their complaints about the 15 company?
16 MR. GUILD:
We were aware of -- we took Mr.
17 Parker's deposition, Mr. Hunter's deposition was taken 18 by Applicants and we attended and questioned Mr. Hunter.
19 I am trying to reconstruct without the benefit of a 20 file in front of me; but Mr. Hunter was terminated, as I 21 recall, the end of March,1986, af ter his deposition was 22 taken in the case, so the events that related directly 23 to his termination were not events that we could or did 24 examine Mr. Hunter about prior to that date.
()
25 As I recall -- I invite Mr. Miller to correct my Sonntag Reporting Service, Ltd.
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1157 gV 1
recollection -- but as I recall, the subject of Mr.
2 Hunter's termination was discussed in the deposition of 3
one of his Comstock superiors af ter his termination, so 4
I can't represent and won't represent that I didn't know 5
Mr. Hunter's termination prior to the Board 6
notification.
7 The question, though, is on a much more limited 8
degree.
9 There are new facts now regarding Mr. Hunter that 10 were not available or known to us during the course of 11 discovery.
12 What I would at least like the Board to be aware of G
13 is our desire to inquire into the subjects of the Board 14 notification, that is the treatment of Ms. Parkhurst 15 that underlies the Department of Labor in her grievance 16 against Comstock and Sargent & Lundy and the 17 circumstances of Mr. Arndt and Mr. Hurite r 's te rmination.
18 JUDGE GROSSMAN:
Well, Mr. Guild, it appears 19 to me as though the issue you have here was limited to a 20 specific incident of harassment and intimidation; and 21 that was made clear at the pre-hearing conference in 22 which you were allowed further time to amend your 23 harassment and intimidation position.
24 The items that you are talking about would be, in a
()
25 sense, and understood by the Commission to be, Sonntag Reporting Service, Ltd.
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1158 w'
1 additional allegations of harassment and intimidation 2
and constitute a new issue.
3 You are entitled at any point to move for the 4
admission of a new issue on a late-filed contention if 5
you -- and you will have to satisfy the five-factor 6
test.
7 You are aware that the Commission -- the 8
Commission's policy is not liberal with regard to the 9
admission of a new contention, so that you have an 10 uphill fight in order to get that in; but if you submit 11 it to us, we will, of course, have to make our initial 12 evaluation; and then whatever our determination is will, 13 at some point, be reviewed by the Commission.
14 Whether they now intend to depart from 15 well-established precedents in allowing partial appeals 16 from the admission of contentions, when there are other 17 contentions already at issue and a case is being heard, 18 is not something that I can predict.
19 So that whichever way a decision is, I suppose 20 there might be a ground -- there might be grounds for 21 immediate appeal or directed certification, 22 notwithstanding the umpteen precedents to the contrary; 23 but, apparently, that is the sphere in which we are 24 operating.
()
25 So we can't certainly allow you to take discovery Sonntag Reporting Service, Ltd.
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1 on those matters.
The Commission has made that very 2
clear and we will just have to follow the. usual 3
procedure with late filing contentions.
4 Does anyone wish to add something -- Mr. Berry'or 5
Mr. Treby -- that I may have misunderstood that area and 6
you may wish to correct me; but that is my understanding 7
that --
8 MR. BERRY:
Mr. Chairman, the Staff's 9
understanding is in conformity with the Board's.
10 MR. GUILD:
If I may have a moment, Judge, 11 JUDGE GROSSMAN:
Sure.
12 (There followed a discussion outside the LJ 13 record.)
14 JUDGE GROSSMAN:
Was there anything further, 15 Mr. Guild?
16 MR. GUILD:
Just briefly, Judge.
17 We are mindful of the Board's views on this knotty 18 question of the standards for admission of new 19 contentions or that were the consideration of new issues 20 as they relate to this harassment claim.
21 In view of the statements that you just made, we 22 simply ask for the opportunity to consider this a little 23 further and submit something to the Board during the 24 weeks' recess, if it appears to us that some further
()
25 argument might be appropriate.
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JUDGE GROSSMAN:
Okay.
That's fine.
2 MR. GUILD:
Thank you.
3 JUDGE GROSSMAN:
The last item I have on my s
4 list relates to the motion to exclude witnesses.
I 5
think we will open the issue before a luncheon break and 6
concluded it after lunch.
7 It presently is the Board's inclination to consider 8
the issue of one of involving credibility of witnesses 9
in which the exclusion, at least to a certain extent, of 10 witnesses is justified.
11 Perhaps not completely during the hearing but, 12 perhaps, when the one party is offering its case in 13 chief, its other witnesses ought to be excluded, later 14 to be brought back when the other parties are offering 15 their case in chief, so that they can be present_to 16 suggest rebuttal testimony to their own counsel with 17 regard to the opposing party's case in chief; but being 18 excluded in the first instance so that other witnesses 19 from that party -- so that they would not hear testimony 20 presented to other witnesses and, therefore, will be 21 giving fresh answers without having any prompting.
22 That seems to me to be a reasonable middle ground 23 and, perhaps, before lunch, we would just point out 24 whether that is objectionable to any of the parties and
(')
25 then we will hear further argument.
I P
l Sonntag Reporting Service, Ltd.
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1161 1
Mr. Miller first.
2 MR. MILLER:
Your Honor, it's been my 3
experience that when requests for exclusion of witnesa+s 4
are made by any party, they are virtually routinely 5
granted in courts of law, and I am mindful of that 6
practice.
7 It seems to me, however, that this issue is and 8
these proceedings are somewhat different.
9 We do, in fact, have prefiled direct testimony, 10 which is widely circulated; and, therefore, the basic 11 outlines of each witness's testimony, as it is going to 12 be received by the Board, is well known.
7-s
\\)
13 On that basis I don't think there is a 14 justification for not imposing a rule excluding 15 witnesses from the hearing room.
16 In any event, while it is true that the issues 17 before you do not involve highly technical subjects, 18 they, nonetheless, at least touch on two areas where the 19 technicalities, if you will, of the processes involved 20 are certainly not immediately apparent to me as counsel 21 for the Applicant.
22 One allegation of harassment and intimidation has 23 to do with the transfer of Mr. Seeders.
Mr. Seeders was 24 a calibration quality control inspector.
I have read
, ()
25 the procedure, I understand the words; but I don't think l
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1162 1
that I can fully protect my client's interest without 2
having someone available to me in the hearing room who 3
is knowledgeable on that issue and can serve me as a 4
technical advisor.
5 I think we have probably gotten all of the 6
knowledgeable people on that issue as witnesses.
7 Similarly, with respect to Mr. Puckett's 8
allegations as to why he was terminated, it is our 9
position, as you know, from our prefiled testimony, that 10 there are questions about Mr. Puckett's competence and, 11 again, technical interpretations of the AWS Code and the 12 Comstock procedures are going to be explored in Cross O
13 Examination.
14 JUDGE GROSSMAN:
Who was that one person, Mr.
15 Mille r, that you have in mind?
16 MR. MILLER:
Well, I was going to suggest Mr.
17 Gieseker.
18 Mr. Gieseker, while he is not a super-expert on the 19 particular welding issues, nonetheless, has a grasp of 20 them, and I know from prior conversations with them that 21 he has been useful and helpful to me and he is going to 22 testify later this week.
23 So to the extent that he sits here and listens to 24 the testimony of Mr. DeWald and Mr. Seltmann and Mr.
()
25 Seese, there is some compromise of a strict rule Sonntag Reporting Service, Ltd.
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s_
1 excluding witnesses; but I submit that the prior 2
Commission practice, really, by the Appeal Board in the 3
Midland case, for example, in which I was personally 4
involved, has always suggested that a party should not 5
be deprived of technical expertise that is necessary to 6
enable him to present his case fairly.
7 JUDGE GROSSMAN:
I believe that is one case 8
in which the Appeal Board is following pretty well 9
established precedents with regard to management.
I 10 believe that parties are generally entitled to have one 11 person available to offer technical assistance to that 12 party, not just in NRC cases, but judicial cases; so we 13 are inclined to do that.
14 Now, I don't want to hear full arguments now but, 15 basically, whether that would be acceptable to Staff and 16 to Intervenor to have that arrangement, as we suggested, 17 with the modification that one person be available as a j
18 technical consultants to counsel.
19 MR. WRIGHT:
Your Honor, we understand the 20 Commission's rule and I don't think that would be a 21 problem.
22 We do have a problem with the individual that would 23 supply that technical advice, and I think we should 24 probably address that issue after lunch.
()
25 JUDGE GROSSMAN:
I am inclined to allow the Sonntag Reporting Service, Ltd.
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N]
1 parties to select whichever person that is -- but fine, 2
we will discuss it after lunch.
3 Mr. Berry.
4 MR. BERRY:
Just generally -- I don't think 5
it will represent a great problem -- however, to the 6
extent some of the issues in this case, the Staff has 7
more than one witness that are knowledgeable about that, 8
there may be instances where the Staf f would desire more 9
than one full technical witness, so to the extent that 10 it would only be limited to one, yes, the Staff would 11 have a problem.
12 JUDGE GROSSMAN:
Well, we will hear that
~#
13 after that.
14 Might I also suggest that the parties -- there is 15 no question in our minds that the proceedings do go 16 faster when you have panels rather than individual 17 witnesses, and any time the parties would wish to depart 18 from this and decide to not only forget about excluding 19 witnesses but put them on in panels, we would certainly 20 be amenable to having a different arrangement.
21 Mr. Wright, did you have any further comment before 22 lunch?
23 MR. WRIGHT:
Yes, one comment before lunch.
24 Our motion is here for factual witnesses and not
()
25 technical advisors, so we don't have a problem as to Sonntag Reporting Service, Ltd.
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1 technical advisors, except to the extent that they 2
testify to some specific things in the case.
3 JUDGE GROSSMAN:
Well, we will think about 4
that during lunch.
5 I think it's now time to recess; and the first day 6
we usually take a little longer because we don't know 7
what the eating arrangements are in this area.
I think 8
we should return at about 1:20.
9 Would that suit everyone here?
10 MR. GUILD:
Sure.
11 MR. MILLER:
Yes.
12 MR. BERRY:
Yes.
s
)
13 JUDGE GROSSMAN:
All right.
Then why don't 14 we recess until 1:20.
15 Why don't we make that until 1:30, please.
16 (WHEREUPON, the hearing was recessed until 17 the hour of 1:30 o' clock P. M.).
18 19 20 21 22 23 24
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25 Sorntag Reporting Service, Ltd.
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1 2
UNITED STATES OF AMERICA 3
NUCLEAR REGULATORY COMMISSION 4
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5
__________________x 6
In the Matter of:
7
(Braidwood Station, Units 1 9
and 2) x 10 11 Kankakee City Hall Council Chambers 12 385 East Oak Street 7,()
Kankakee, Illinois 60901 13 Tuesday, May 6, 1986 14 1:30 o' clock P.M.
15 PRESENT:
As before.
JUDGE GROSSMAN:
We are back in session.
16 It appears as though we were pretty much in 17 agreement when we left that we would proceed in the 18 manner suggested for excluding witnesses for the case in 19 chief of each party, except for one person that that 20 party wishes to select to assist on technical 21 assistance.
Mr. Derry is not entirely happy at that and 22 thought, perhaps, that he would need two; but do you 23 know right now whether you are going to want two or can 24 we play that by ear?
f..s) 25
(#
MR. BERRY:
Mr. Chairman, the Staff's L
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witnesses are divided into the Intervenors' contention.
2 I believe there are three basic limits to that 3
contention.
4 A number of the witnesses that will be testifying 5
will be on behalf of Applicant.
Their testimony will 6
accomplish all of their elements of the contention.
7 It is the Staff's position that to have full 8
assistance of its Staff, the witnesses here, that the 9
Staff should be entitled, if they find it necessary, to 10 have all of its witnesses, 11 For example, Mr. Puckett, there will be testimony 12 regarding Mr. Puckett.
There will be regard testimony g3O 13 regarding Mr. Seeders.
There will be testimony of the 14 various QC inspectors, that they came to the NRC office.
15 There is no one Staff individual that has the expertise 16 to assist Staff counsel with respect to each of those 17 matters.
18 I think that in the particular circumstance of this 19 case, that the Staff should have available to it, Mr.
20 Meister, Mr. McGeese for the 24 QC inspectors, it should 21 have available Mr. Shaffner, who is an individual 22 responsible for investigating Mr. Puckett's concerns and l
23 also the individual responsible for Mr. Seeders.
24 I would point out to the Board that the general
()
25 need, necessity of sequestering witnesses is not Sonntag Reporting Service, Ltd.
Geneva, Illinois 60134 l
(312) 232-0262
3 e
L s
1168 t
I) particularly compellink in this case, aside from the 1
2 Appeal Board remarks on this.
l 3
I would bring to the Board's attention that almost 4
all of the witnesses that will testify in this case have i
5 been deposed, or the ; overwhelming majority of the 4
6 witnesses have been, deposed.
I 7
In addition, the' Staff witnesses, they have all 4'i 8
issued an inspection report; so the Staff's position is 9
pretty much cast in stone already.
I 10 The possibility of a potential collusion or canned
?
1
'll testimony or rehearsed testimony that Interv'inor is j- -
12_
concerned about, I think there is not much danger of 13 that because in the event that that does happen, 7
14 Intervenor has more than ample information and resources
.15 available to-impeach their testimony through prior f--
16 inconsistent statements and other things.
!R) even the l
17 purpose for sequestering the witnesses and the staff l
18 witnesses in particular is not really compelling-here, 19 and it would make it prejudice and certainly is would b
20 harm the Staff in presentation of this case not having I
e 21 available all of the' Staff members that can assist r
I 22 counsel in preparing and cross examining the witnesses.
I 23 So it would be our position that none of the Staff i
i 24 witnesses that I have identified, Mr. Shaffner, Mr.
()
25 Mendez, Mr. Neishler and Mr. Little should be l'
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sequestered.
2 JUDGE GROSSMAN:
Mr. Guild, are there fact 3
issues with regard to testimony of Staff people as to 4
whether they heard something or did not hear something 5
at any particular time?
6 Is that the nature of some of their expected 7
testimony?
8 MR. GUILD:
Yes, indeed, Judge; not only 9
within the context of their investigation of the grasp 10 of the issues, who said what to whom, what exactly was 11 the basis for the opinion and conclusion in your 12 inspection report, particularly in light of the fact 13 that none of the inspectors' interview statements to the 14 NRC inspectors was memorialized.
All we have is their 15 summary descriptions and opinion and conclusions 16 contained in these inspect reports.
So, yes, fact 17 testimony is very much at issue.
18 But the character and effectiveness of the Staff's 19 response when these harassment claims came to the 20 Staff's attention is very much a question of fact.
21 MR. BERRY:
And, again, your Honor, that's 22 why we point out, these matters have been explored 23 extensively in discovery.
24 Each of the Staff witnesses has been deposed for at
()
25 least one full day by the Applicants and Intervenors.
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' The position has been explored in exhaustive detail.
2 That's the other reason why I think it's not really 3
a compelling reason we need sequestering here.
4 If any of the Staff's witnesses departs radically 5
f rom their t estimony in deposition or f rom their 6
inspection report, I think that will be cleared and 7
could be easily exposed.
So the advantages of-the 8
sequestration are minimal.
9 The disadvantage of it, which you would have if you 10 would have the Staff counsel, Staff counsel, ba~ically s
11 uninterrupted on critical issues.
These is no one Staff 12 witness that has.the expertise or the background to 7(
13 advise the Staff on all the elements that -- all the 14 issues that are going to be presented here.
15 Furthermore, none of the Staff witnesses, the 16 particular Staff witness, their testimony is separato.
17 Thei_r testimony addresses separate issues and there is 18
-- take Mr. Shaffner and Mr. Mendez and Neishler, for 19 example, they inspected and investigated two totally 20 different areas.
Their ttp.imony does not overlop.
21 There would be litti:
- uC ir. Shaffner would gain by 22 hearing Mr. Mendez cc Mr. 3aishler testify or hearing a 23 number of other witnesses testify.
24 Again, I would just bring to the Board's attention
()
25 that each of these witnesses has offered an inspection Sonntag Reporting Service, Ltd.
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report, an inspection report, and has been subjected to 2
extensive party discovery.
Each of the witnesses have 3
been made available for discovery, on average two days 4
apiece, they have questioned on these matters in 5
extensive detail and all of them have testified and 6
their testimony is the story that they are going to 7
present to the Board; and there is little -- as I said, 8
there is little benefit to be derived f rom depriving the 9
Staff of their assistance and preventing them from 10 attending these proceedings.
Their position is 11 basically a matter of public record by now, and any 12 departure from that can be easily identified and there
~
13 are ample provisions available to Intervenor and the 14 Applicant to expose any quote " collusion" or canned or 15 rehearsed testimony.
16 JUDGE GROSSMAN:
Mr. Berry, with regard to 17 discovery of those witnesses, that's true of all the 18 parties here.
There is no difference with the Staff.
19 As far as the competence of Staff's counsel and its 20 experts, I think we would assume that they are as 21 competent as that of the other parties.
22 With regard to the fact that there are separate 23 discrete issues here, that's another story.
I don't 24 know that we couldn't make some allowance with regard to
()
25 that.
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1 In other words, Mr. Guild, if there are some Staff 2
witnesses who are only involved in the Puckett incident 3
and others who are only involved in the Seeders matter, 4
perhaps we could be more flexible and allow two 5
witnesses, one that has some expertise in one area and 6
the other in the other area; but that's the only way I 7
see any difference between Staff and the other parties; 8
and we are not going to make that overall assumption 9
that all of Staff witnesses are always credible and that 10 they not be so with the other witnesses.
Everybody is 11 in the same boat here and they are all going to be 12 treated the same way.
O' 13 Now, is there some room for flexibility, Mr. Guild, 14 with regard to specific issues or are we not onto that 15 point yet where we even have to make that decision?
16 Because, otherwise, we will just assume we are treating 17 all the parties the same way, with one witness other 18 than where we may have discrete issues.
19 Mr. Guild.
20 MR. GUILD:
Yes.
I am certainly prepared to 21 be as flexible as possible, given the goal of the motion 22 for exclusion, and I would be perfectly willing to 23 consult with Staff counsel to see if we could make out 24 an informal agreement that addresses that peculiar need
()
25 that they have.
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1 I just point out that they offer the testimony,.for 2
example, of Mr.~Little, the project director, on the 3
basis of the assertion that he has general knowledge.
4 It's not apparent to me why Mr. Little couldn't 5
serve in the capacity of the single person who' has the 6
grasp of.the technical issues to assist counsel.
He is 7
certainly more capable in that regard than any 8
consultant that Intervenors have available.on these 9
factual or technical questions.
10 So we are certainly in no better position than the
'll Staff would be in.
12 JUDGE GROSSMAN:
Let me point out again, Mr.
O 13 Berry, that your witnesses will be permitted to be in 14 the courtroom during all the other testimony.
It's only 15 when Staff is offering its own testimony that they'are 16 going to be excluded.
17 So I think perhaps you are envisioning a' bigger 18 problem than you have before you.
19 MR. BERRY:
That was not my understanding.
20 If that is the case, then that in large measure 21 addresses our concern.
22 I would point out in that event, though, if_that's 23 the case, there really is no reason to sequester the 24 Staff, because, as I indicated before, the Staff's
-( f 25 testimony is not related.
The witnesses we are putting Sonntag Reporting Service, Ltd.
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1 on address separate and discrete incidents and the 2
public mission, for instance, that issue is going to be 3
Mr. Shaffner, and the other witnesses don't even address 4
it.
5 JUDGE GROSSMAN:
Wait a minute.
Let me 6
backtrack on that.
That is when you are presenting your 7
own witnesses.
8 However, if Intervenor is calling Staff witnesses 9
for Intervenors' purposes, then the same rule would 10 apply and the other Staff witnesses would not be 11 permitted in the room, other than the one witness that 12 you select.
O 13 Is that all the parties' understanding of what 14 would transpire here?
15 MR. GUILD:
Let me see if I understand, 16 Judge.
17 I guess, frankly, I understand the Board's approach 18 to be more general.
19 Let's take an example.
20 If Mr. DeWald is on the stand and the Staff's 21 factual testimony is going to be on the same matters 22 that Mr. DeWald is speaking to, I frankly understood the 23 scope of the Board's proposed exclusion approach to 24 exclude the Staff witness who was going to be talking
(')
25 about those same fact matters from hearing Mr. DeWald's Sonntag Reporting Service, Ltd.
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prior testimony.
2 JUDGE GROSSMAN:
No, that was not the case.
3 Unless Applicant is -- no, that was not the case.
4 All of Applicant's other witnesses will be excluded 5
when you are presenting your case, that is with the 6
exception of one.
When you are presenting your case, 7
all of the witnesses that you intend to offer evidence 8
with will be excluded other than the one person you 9
select to assist you, and the same with Staff.
10 When Staff is presenting its case, all of Staff's 11 witnesses will be excluded, with the exception of one.
12 Now, when you are presenting your case, Staff will 7,
k 13 have its witnesses here and so will Applicant, because 14 that will afford them the opportunity of rebutting what 15 they have heard and pointing out to counsel that there 16 are matters to be rebutted which counsel may not be 17 aware of.
We don't want to hinder that ability, if any, 18 of any of the parties; so that is it in a nutshell.
19 Now, is there any further problem with that?
20 Mr. Guild.
21 MR. GUILD:
Just for clarity then.
22-The statements of DeWald, as an example, the 23 witnesses subject to exclusion during Mr. DeWald's 24 testimony would be the other direct witnesses sponsored
( ))
25 by Applicant?
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(~'T C) 1 JUDGE GROSSMAN:
That's correct.
2 MR. GUILD:
That is fine.
I understand the 3
Board's position.
4 JUDGE GROSSMAN:
Okay.
Well, that's the way 5
it's going to be, with the understanding, Mr. Guild, 6
that --
7 JUDGE COLE:
Just a minute.
8 (There followed a discussion outside the 9
record.)
10 JUDGE GROSSMAN:
At the time --
11 MR. MILLER:
At the risk of adding yet 12 another complication to this issue, I feel that I should g-13 bring to the Board's attention another aspect of this 14 witness exclusion discussion.
15 There are some Commonwealth Edison Company 16 employees who are not identified as witnesses for the 17 company but are, in fact, identified as witnesses --
18 adverse witnesses -- by Intervenors.
19 It seems to me highly inappropriate to exclude 20 those men from the hearing room, particularly since the 21 Board's earlier ruling at Intervenors' request there is 22 going to be simply no way for us to know what the 23 subject matter of their testimony is going to be until 24 they hit the stand.
( ))
25 So I can't see that there is any prejudice to Sonntag Reporting Service, Ltd.
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Intervenors' case or to testing them on what is going to 2
be the equivalent of Cross Examination by having them in 3-the room as necessary.
4 I am not certain that they are going to be at all 5
times, but I don't think that they should be 6
artificially restricted from being present.
7 JUDGE GROSSMAN:
Well, if they are company 8
employees and you are putting on your case and 9
Intervenors want them excluded, they would be excluded.
10 If Intervenor is putting on -- Intervenors are 11 putting on their case and you wish to have them 12 excluded, they will be excluded.
13 Now, if you are going to tell me, "Well, they are 14 really hostile to Intervenors," well, that's all the 15 more reason, or if they are really hostile to you that's 16 all the more reason you would want them excluded.
17 So I am allowing the parties to determine whether 18 they want them excluded when the other party is putting 19 on its case.
20 If you feel that they should be excluded when 21 Intervenors are putting on their case, then you ought to 22 ask that they be excluded.
23 So I am not really -- the rules are the same for 24 all the parties.
(')
25 I mean, the purpose is to prevent -- is to exclude l
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witnesses favorable to one party in the eyes of the 2
other parties while that one party is putting on its 3
case.
4 Now, if they do not wish to ask for that rule when l
5 you are putting on your case, well, then, that's their 6
choice; and the same with you when they put their case 7
on.
8 MR. MILLER:
I think I understand the 9
parameters of the Board's ruling.
10 JUDGE GROSSMAN:
Okay.
Now, I assume this is 11 more beneficial to the parties than the blanket 12 exclusion of everyone except for one witness, and that's
'~
13 why I suggested this as a compromise position.
14 Perhaps Mr. Guild would be more comfortable with a 15 blanket exclusion, I don't know; but he has agreed to 16 this; and if we open that ball of wax, I think we are 17 going to have a lot more problems.
18 MR. MILLER:
I also assume that once a 19 witness has been excused in terms of the direct case, 20 then he ls free to remain in the hearing room?
That is, 21 when Mr. DeWald's Cross Examination and hostile Direct 22 Examination is concluded at some point tomorrow, if he l
23 wishes to stay on, he may?
[
24 JUDGE GROSSMAN:
If he wishes to do that,
()
25 just make sure you don't want to recall him, Mr. Miller, 1
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for your direct case --
2 MR. MILLER:
Oh, I see.
3 JUDGE GROSSMAN:
-- for rebuttal.
- Well, 4
that's another story.
You can certainly call him when 5
it comes time for rebuttal; but you take chances if you 6
leave him in the courtroom and you decide you goofed, 7
you are not going to be able to recall him for your case.
8 in chief.
9 MR. MILLER:
Okay.
I understand.
10 Okay.
I think that's resolved, 11 Mr. Guild.
12 MR. GUILD:
I am not going to touch the ball F) 13 of wax that has been put before us conceptually; but 14 before lunch on recess counsel for Applicant identified 15 his technical representative as Mr. James Gieseker.
Mr.
16 Gieseker, of course, is a witness that Applicant intends 17 to call.
18 I understood counsel to describe Mr. Gieseker as 19 sort of generally the single most informed person on 20 matters of some expert character, welding, welding 21 codes, electrical installation; and I certainly would 22 concur, Mr. Gieseker is the engineer who has been 23 responsible for most of those matters.
24 The problem with Mr. Gieseker that sort of r~),
highlights this issue and is the basis for my request 25 Sonntag Reporting Service, Ltd.
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that Mr. Gieseker not be permitted to serve in that 2
capacity is that Mr. Gieseker is intimately involved in 3
the factual matters not of a technical character, but 4
involving the decisions made by Comstock and Edison, to 5
the extent Commonwealth Edison Company had a hand in 6
these matters, in the transfer of Mr. Seeders, 7
retaliatory transfers and in the retaliatory discharge 8
of Mr. Puckett.
9 Mr. Gieseker sat in meetings on both of those 10 gentlemen's cases in which determinations were made to 11 take those actions with them.
12 In my view, I can only say that those are factual
(
)
13 questions that go to heart and motive of the 14 significance of the actions taken.
15 So Mr. Gieseker may well be technically informed 16 and be an expert of counsel, but the purpose of the rule 17 of exclusion is to avoid the opportunity for a fact 18 witness to conform his later testimony to factual 19 testimony he has heard from others.
That evil is 20 present and not avoided in Mr. Gieseker serving in that 21 capacity.
22 JUDGE GROSSMAN:
Mr. Miller.
23 MR. MILLER:
Well, your Honor, there are two 24 things.
()
25 First of all, I have always regarded this Sonntag Reporting Service, Ltd.
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1 exclusionary rule as of most utility when -- in a 2
regular trial setting where direct investigating is done 3
by way of questions and answers as I think I mentioned 4
earlier.
5 Secondly, the premise of Mr. Guild's remarks, that 6
is that witnesses are going to somehow alter their 7
testimony as a result of what they heard, is one that I 8
just categorically reject based both on my experience 9
generally and specifically with the witnesses in this 10 proceeding.
11 I think that there is simply no way in the hands of 12 a skilled cross examiner, such as Mr. Guild, Staff O
13 counsel or, indeed, the Board, that witnesses are going 14 to be able to somehow shade their responses in view of 15 what they have heard in the hearing room.
16 I would tell you that Commonwealth Edison's direct 17 case literally comprises every knowledgeable individual 18 on these mattars at a management level or within 19 Commonwealth Edison Company, Comstock and, indeed, 20 Sargent & Lundy.
21 We have two Sargent & Lundy -- three Sargent &
22 Lundy witnesses.
So if I am to be told not only that my 23 witnesses are to be excluded, but that if my technical 24 expert who has no knowledge, I am just hamstrung and you
()
25 may as well exclude them'all.
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1 JUDGE GROSSMAN:
Okay.
The Board really does 2
not wish to tell the parties who their best advisor is 3
and that would just be an unwarranted intrusion into 4
your respective cases.
5 It is unfortunate if the person who is selected is 6
also a critical fact witness, but there is no 7
alternative that we see to allowing the parties to 8
prepare their cases or the way they see fit and 9
including their best advisor that they can have helping 10 them.
11 MR. GUILD:
Mr. Chairman, I understand the 12 Board's ruling.
13 Could I have a moment to confer with Mr. Miller off 14 the record?
15 JUDGE GROSSMAN:
Ce r ta i'ilyment.
16 (There followed a discussion outside 17 the record.)
18 JUDGE GROSSMAN:
Mr. Miller.
19 MR. MILLER:
Yes.
20 Mr. Guild and I have resolved our questions; but I 21 do have one more inquiry as to the Board's ruling while 22' Mr. Guild is putting on his direct case.
23 Let me see if I can articulate my understanding of 24 the Board's ruling.
()
25 JUDGE GROSSMAN:
Certainly.
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1 MR. MILLER:
That is, when Mr. Guild calls a 2
Commonwealth Edison Company witness as part of his case 3
in chief --
4 MR. TREBY:
Excuse me.
We cannot hear you 5
over here.
6 MR. MILLER:
I am sorry.
7 When Mr. Guild calls a Commonwealth Edison Company 8
witness as part of his case in chief, he is then free, 9
if he wishes to do so, to move for the exclusion of 10 other Commonwealth Edison Company witnesses; is that 11 correct or have I misunderstood?
12 JUDGE GROSSMAN:
No.
You can move for the n
13 exclusion of other witnesses.
14 MR. MILLER:
Fine.
Thank you.
That 15 clarifies it.
I really did misunderstood.
16 MR. GUILD:
You told me wrong.
17 JUDGE GROSSMAN:
Right.
You can exclude, and 18 the benefit to you is obvious, that you can have -- if 19 you do not wish to exclude witnesses, you can have 20 people here who will be able to supply additional 21 information to you to rebut that case.
22 MR. MILLER:
Fine.
Thank you.
23 MR. BERRY:
Mr. Chairman.
24 JUDGE GROSSMAN:
Yes.
()
25 MR. BERRY:
A somewhat related matter to Sonntag Reporting Service, Ltd.
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this.
2 I believe that the staff is the only party in the 3
case that has sponsored joint testimony.
We do have in 4
one instance testimony of Messrs. Mendez and Meiser 5
addressed an inspection of the concerns raised by the 6
inspectors that came to the NRC's office on March 29th.
7 In addition, they are the only mention of witnesses 8
who have sponsored joint testimony, and I would seek 9
clarification as to whether it's the Board's 10 understanding that whether those witnesses will be 11 allowed to testify jointly or will they be precluded 12 from testifying jointly.
fs )
6 '
13 JUDGE GROSSMAN:
They will be permitted to 14 testify jointly, only with regard to your direct 15 testimony, which is already prefiled, unless you have 16 some additions there; but with regard to Cross 17 examinination, that would be up to the other parties.
18 If either of the other parties objects to having 19 them both present, one will be excluded.
They are fact 20 witnesses and I don't know that there is any judicial 21 doctrine that I know of that makes people joint 22 competent witnesses on a fact situation.
So that's up 23 to the other parties, and I would bet that they would 24 exclude one or the other depending upon who is
()
25 testifying.
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MR. BERRY:
Thank you.
2 JUDGE GROSSMAN:
I guess we are about through 3
with our preliminary matters and we are ready to call 4
the first witness.
5 Is that correct?
6 MR. TREBY:
We were going to discuss off the 7
record the location of the next hearing.
8 JUDGE GROSSMAN:
Why don't we take a recess 9
for about ten minutes and the parties and Board will 10 discuss that.
11 MR. GUILD:
Judge, I raise the question of 12 opening statements, and what I would propose to do is O
13 ask for an opportunity of an opening at the point where 14 we begin our case.
15 JUDGE GROSSMAN:
We have already had this in 16 the prior hearings and we have ruled in accordance with 17 Appendix A that the parties would be permitted to put on 18 an opening if they wish to, Appendix A to Part 2, so we 19 will follow that procedure and you may put on your 20 opening whenever you wish to.
21 MR. GUILD:
Thank you, Mr. Chairman.
22 JUDGE GROSSMAN:
Now we are off the record 23 then.
24 (Whereupon a recess was had, after which the
()
25 hearing was resumed as follows )
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iv) 1 JUDGE GROSSMAN:
We are ready, Mr. Reporter, 2
to go back on the record now.
3 Mr. Miller, are you ready to present your first 4
witness?
5 MR. MILLER:
Well, your Honor, I am; but when 6
we had discussed the first day, I believe, in our 7
telephone conference call, I thought we had generally 8
agreed that the first day would be taken over for 9
limited appearance statements and preliminary matters.
10 When there were only ten individuals that wish to 11 make a limited appearance statement this morning, I 12 discussed with Mr. Guild whether we might, in fact, O
13 begin the evidentiary portion of our hearings this 14 afternoon, and he tells me that he had counted on, I 15 guess, overnight; and, as I say, our witness is not 16 here.
He is about two miles away, and he could be here 17 very promptly; but I don't want to be seen as taking 18 advantage of what Mr. Guild's understanding was.
In 19 fact, it was mine, as well.
I thought there were going 20 to be many more limited appearance statements.
21 JUDGE GROSSMAN:
I am not sure I understand.
22 Did you say Mr. Guild is or is not prepared to 23 handle that witness if he comes on within a half an hour 24 or so?
()
25 MR. GUILD:
Judge, my understanding was that Sonntag Reporting Service, Ltd.
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1 we would begin tomorrow morning at 9:00 o' clock.
Thr.c's 2
what I thought we agreed to on the conference call last 3
week.
4 JUDGE GROSSMAN:
Well, that's fine.
We are 5
not pushing it.
6 I think we are going to disappoint some aldermen; 7
but whoever is available now who wishes to make a 8
limited appearance statement, we would be welcome to 9
have his say at it; but we are not going to come back 10 here at 4:45.
11 Is there anyone present in the hearing room who 12 wishes to make a limited appearance statement?
Raise O
13 your hand.
You don't have to speak up.
14 (No response.)
15 MR. MILLER:
Your Honor, since there doesn't 16 appear to be any further interest in limited appearance 17 statements, perhaps, with the Board's permission, I 18 could make my opening statement at this point in time 19 and then we would be ready at 9:00 tomorrow to commence 20 with the evidentiary portion of the hearing.
21 JUDGE GROSSMAN:
That sounds fine.
22 Mr. Cassel?
23 MR. CASSEL:
Could I make an off-the-record 24 inquiry of Mr. Miller?
()
25 JUDGE GROSSMAN:
Oh, sure.
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1 (There followed a discussion outside 2
the record.)
3 MR. CASSEL:
Judge, I just asked Mr. Miller 4
if he would object to a five-minute break before he gets 5
started.
I would like the opportunity to call into the 6
office, if that's possible.
I understand his statement 7
will not be so long that it will threaten the end of the 8
day if we take a short break.
9 JUDGE GROSSMAN:
No, that's fine.
10 Why don't we take ten minutes then and we will be 11 back.
12 (Whereupon a recess was had, after which
(-)g 7-13 the hearing resumed as follows:)
14 JUDGE GROSSMAN:
Okay.
We are back on the 15 record now.
16 Mr. Miller was about to make his opening, and so we 17 are ready for that, Mr. Miller.
18 MR. MILLER:
Thank you, your Honor.
19 Contention 2-C, which is the contention that we are 20 here to litigate, asserts that there was widespread 21 harassment and intimidation at L.K. Comstock quality 22 control inspectors.
23 These allegations which underlie the contention 24 have been fully investigated by the NRC Staff and have l
( ')
25 been the subject of extremely intense discovery efforts Sonntag Reporting Service, Ltd.
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by the parties.
2 The facts which will be developed during the course 3
of the evidentiary presentation before you will 4
establish that widespread harassment, intimidation, as 5-that term has meaning in the NRC licensing proceedings, 6
simply doesn't exist.
That is, there will be no "7
evidence that quality control inspectors were pressured 8
to compromise their inspection functions or that quotas 9
were established for numbers of inspections to be 10 performed or that any of the other generalized 11 complaints which have been made to the NRC Staff in the 12 past, in fact, have any substance or had any effect on O
13 the quality of the plant.
14 What then explains the unfocused allegations of 15 harassment and intimidation that the parties have been 16 dealing with in discovery and which will be brought 17 before you ddring the course of this hearing.
18 They first surfaced in March, 1985.
The direct 19 cause was one inexcusable lapse by a Comstock quality 20 control supervisor, which, I believe the evidence will 21 show, triggered these complaints.
There was, in fact, a 22 threat of physical violence by a quality control 23 supervisor to a Comstock quality control inspector named 24 Richard Snyder.
l ()
25 The evidence will show that Comstock and l
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1 Commonwealth Edison management responded immediately and 2
vigorously to this specific incident.
3 The supervisor who made the threat was immediately 4
suspended and was -- I believe the incident took place 5
on a Thursday.
He was suspended on Friday, told not to 6
come in on Saturday and on Monday he was terminated.
7 In addition, there were a variety of short-and 8
long-term corrective actions that were established 9
jointly by Comstock and Commonwealth Edison Company.
10 This threat to Mr. Snyder took place at a time when 11 QC inspectors as a bargaining unit were negotiating a 12 collective bargaining agreement with Comstock 13 management.
14 That collective bargaining effort followed a 15 somewhat bitter union organizing drive, which, itself, 16 was not approved of, of a controversial company-wide 17 Comstock compensation policy which had been implemented 18 in May of 1984, 19 The evidence will show that these specific 20 irritants, which were certainly contributing factors to 21 the complaints of quality control inspectors, have been 22 significantly reduced and there are, in fact, no current 23 allegations of harassment and intimidation.
24 Now, even given this context within which these
()
25 complaints of harassment and intimidation were made, the Sonntag Reporting Service, Ltd.
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allegations have individually been thoroughly researched 2
by the NRC Staff and exhaustively gone into during 3
discovery.
4 There is no evidence of overlooked inspections, no 5
failures to follow procedures.
6 As I think I referred to earlier in the remarks 7
that I made on the motions, each inspector to whom we 8
have spoken during the course of depositions has said 9
that, regardless of their discontent with management, 10 any anger they may have had with specific individuals, 11 they performed their work as professionals.
They didn't 12 cut corners.
O 13 At the conclusion of all the evidence I believe it 14 will be clear that the March, 1985, threat to one 15 quality control inspector was, in fact, an isolated 16 incident, which was dealt with promptly and effectively.
17 There are, of course, two other specific claims of 18 harassment and intimidation that will be subject of 19 testimony before you.
One is the transfer of the 20 quality control inspector named John Seeders; the other 21 is the termination of a Level 3 weld inspector named 22 Puckett.
23 The evidence will show that both inspectors were, 24 in fact, not competent for their operation tasks and
()
25 that transfer or termination was a direct outgrowth, not Sonntag Reporting Service, Ltd.
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1 of their expression of quality concerns, but ral:.er of 2
their continued inability to perform the inspection 3
tasks that were performed to them.
4 First let me describe the transfer of Mr. Seeders.
5 Mr. Seeders is a Level 2 -- was a Level 2 quality 6
control inspector, whose responsibilities were the 7
calibration of tools used by the Comstock inspectors.
8 They included such tools as torque wrenches, wire 9
crimpers and strippers, weld rod ovens and so on.
10 He was responsible both for overseeing the physical 11 calibration of those instruments and the records and 12 making sure that the records for each tool with respect O
13 to its calibration history was kept accurate and up to 14 date.
15 In May of 1984, Commonwealth Edison quality 16 assurance found that the documentation for these 17 calibrations of Comstock tools was not being filled out 18 prope rly.
19 Mr. Seeders was asked by Mr. DeWald, his quality 20 control manager, to do a one-hundred percent review of 21 the calibration records in order to determine how 22 widespread this documentation deficiency was.
23 That assignment was made in early July.
24 Mr. Seeders did not complete the assignment.
Ile
()
25 personally never completed it, but he gave a variety of Sonntag Reporting Service, Ltd.
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excuses to his supervisors, and Comstock had to ask 2
Commonwealth Edison quality assurance for a number of 3
extensions within which to respond to the QA audit 4
finding.
5 Ultimately, review of this documentation was taken 6
away from Mr. Seeders and given to other quality control 7
inspectors for completion.
Ironically, one of those 8
inspectors is Mr. Richard Snyder, the same individual 9
who was the subject of the threat that I referred to 10 earlier.
11 Mr. Snyder's review established that there were 12 widespread documentation discrepancies in records that O
13 were the responsibility of Mr. Seeders.
14 Not only was it impossible to know the exact 15 condition in terms of calibration of many of the 16 instruments, but it was not known whether or not all of 17 the calibration instruments had, in fact, been used in 18 the fieldm make it negative at the start of the 19 statement.
20 Mr. Seeders' deficienciesinhispelfjrmancewith 21 respect to these calibration records were confirmed by 22 Mr. Selpman, Comstock quality assurance manager during 23 the course of a subsequent Commonwealth quality 24 assurance audit which took place in September of 1984.
()
25 That is, the Edison QA auditor identified the same Sonntag Reporting Service, Ltd.
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1 document deficiencies, although not on the same tools, 2
that had occurred occurred in May of that year.
It 3
stimulated additional' requests for one-hundred percent 4
review.
5 Mr. Selpman, as I said, confirmed that Mr. Seeders' 6
work was, in fact, deficient, and Mr. Seeders was given 7
the opportunity to transfer to another arm of L.K.
8 Comstock out of quality control.
9 Mr. Robert Shultz of the NRC, a Senior Resident 10 Inspector at the site, was involved both in reviewing 11 Mr. Seeders' contemporaneous allegations of harassment 12 and intimidation which occurred at about the same time O
13 period and the circumstances under which Mr. Seeders was 14 transferred from his quality control position.
15 So the NRC Staff was fully informed both of the 16 circumstances leading to dissatisfaction with Mr.
17 Seeders' work and the transfer out of the quality 18 control position.
19 I should add that Mr. Seeders' compensation, which 20 had been significantly increased in May of 1984, as part 21 of that controversial compensation adjustment that I 22 referred to earlier, was unaffected by his transfer.
23 The final chapter in Mr. Seeders' efforts as a 24 quality control inspector would be described in part by
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25 Mr. Eisler, who will tell you about the intensive Sonntag Reporting Service, Ltd.
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1 corrective action programs that have been required as a 2
result of the nonconformance reports that were written 3
because of the inadequate calibration documentation by 4
Mr. Seeders.
5 The termination of Mr. Puckett follows a somewhat 6
similar course.
7 Again, in the spring of 1984, both the NRC Staff 8
and Comstock management had concerns about the Comstock 9
welding program and took steps to -- Comstock management 10 took steps to rectify that, 11 One of those steps was to employ Mr. Puckett as a 12 Level 3 welding inspector.
13 M'r. Puckett was to both resolve close calls on 14 inspections, which is kind of a traditional function of 15 a Level 3 weld inspector; and, in addition, he was to 16 review Comstock procedures, welder qualification records 17 and to be generally responsible for suggesting and 18 implementing changes as necessary to those procedures.
19 Prior to his employment at Braidwood by Comstock, 20 Mr. Puckett had been employed at Zimmer, the Zimmer 21 facility, by Kaiser engineers; and although his resume 22 didn't reveal it, he had been in a situation there in 23 which an evaluation of his capabilities by his superiors 24 had resulted in steadily decreasing responsibilities for
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25 the weld program at the Zimmer facilities.
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And Mr. Godecke's testimony, as well as Mr.
2 Puckett's own testimony, indicates that the reason for 3
his diminished responsibilities at the Zimmer plant were 4
his lack of familiarity with welding codes and with 5
their implementing procedures.
6 Mr. Puckett worked as a Level 3 through the summer; 7
and in August -- early August -- of 1984, he recommended 8
that a stop work be imposed with respect to two aspects 9
of Comstock's welding program.
10 In one instance he asserted that the stainless 11 steel welding procedure was not properly qualified.
In 12 another he asserted that the welding of two materials O
13 that are identified as A-36 and A-446 carbon steel was 14 not qualified.
15 The evidence will show that stainless steel welds 16 are not a common procedure within Comstock's scope.
17 Most of their procedures deal with carbon steel; and, 18 therefore, the recommendations to stop work with respect 19 to carbon steel welding in particular was really quite a i
20 serious step that had been recommended by Mr. Puckett.
21 It was based on his evaluation of whether or not the 22 procedures had been properly followed up.
23 A stop work. order wab, in fact, p*it in ytace and, 24 Comstock management responded to Mr. Puckett's concerns
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25 and issued a stop work order.
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Mr. Puckett was correct with respect to the 2
stainless steel weld procedure and that weld procedure 3
was re-qualified as he had suggested.
4 However, with respect to the other issue as to 5
which he recc. amended the stop work, the welding of the 6
A-36 to the A-446 material, Mr. Puckett participated in 7
a meeting which insolved representatives of Comstock, 8
representatives of Commonwealth Edison Company and 9
welding specialists from Sargent & Lundy, who were 10 knowledgeable about code interpretation and procedural 11 requirements.
12 At that meeting there was a full discussion of the O
13 issue, and it was agreed that while there was a 14 procedural technicality that needed to be rectified on 15 the face of the procedure, that, in fact, under the 16 applicable welding code, which was AWS 1.1, 1975 17 edition, that there was no reason to stop work and that 18 with the procedural -- minor procedural -- change, 19 welding could continue.
Mr. Puckett concurred in that 20 disposition of his concerns.
21 However, inexplicably the very same day that t.is 22 meeting took place, the evidence will show that Mr.
23 Puckett wrote a memo to Mr. DeWald in which he said, 24 raising the very same issue of the A-36 to the A-446
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25 welds, that -- I think the words he used, "We are Sonntag Reporting Service, Ltd.
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1 approaching complete breakdown in our welding program,"
2 and created as part of a basis for his concern that the 3
AWS code that should have been used at Braidwood was, in 4
fact, not the 1.1 as specified by the architect 5
engineer, but the 1.3, a code that was not in existence 6
when the job was first getting underway.
7 As a result of that episode and others concerning 8
Mr. Puckett's erratic interpretation of codes, his lack 9
of understanding of some of the procedures, Commonwealth 10 Edison and Comstock management came to the conclusion 11 that he simply was not capable of fulfilling the functions of a Level 3 weld inspector.
lie was 12 s
13 tedminated.
14 Now, this was, again, an issue that was extensively 15 investigated by the NRC on the specific issue of the 16 code interpretation with respect to A-36 to A-446 that I 17 mentioned earlier.
18 The NRC Staff fully concurs with their welding 19 specialists that Mr. Puckett's interpretation was simply 20 erroneous.
21 I think the question of whether or not there was a 22 concern for quality as a result of the issues that Mr.
23 Puckett raised is again demonstrated by what occurred 24 when he left the site.
(')
25 Another Level 3 was hired.
This is a --
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l JUDGE GROSSMAN:
Excuse me, Mr. Miller.
2 MR. MILLER:
Yes.
3 JUDGE GROSSMAN:
On the welding of the -- I 4
hate to interrupt your opening.
5 MR. MILLER:
That's quite all right.
6 JUDGE GROSSMAN:
But I am n little hazy on 7
something.
8 Is it your position that if there were no 9
procedural irregularity in welding A-36 to A-446, that 10 Mr. Puckett had the authority to sign off on his 11 interpretation of whether that procedural irregularity 12 really was significant or was he obligated to insist on O
13 some corrective action to be approved by some other 14 person, perhaps the Engineering Department?
15 Could you clarify that for me?
16 MR. MILLER:
Well, I will try.
I am not sure 17 I quite understand the question.
18 But Mr. Puckett's responsibilities described --
19 again, as you will hear in the testimony -- were to 20 identify problems and recommend solutions.
He 21 identified what he perceived as a problem with this A-36 22 to A-446 welding.
23 The resolution of that involved a meeting in which 24 he participated, together with other welding specialists
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25 and representatives of Edison and Comstock management; Sonntag Reporting Service, Ltd.
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1 and it was the consensus of all concerned that the 2
problem that he identified was, in fact, a relatively 3
minor procedural irregularity.
4 JUDGE GROSSMAN:
Well, my question, though, 5
is whether ha had the authority to resolve that 6
procedural irregularity or was that someone else's 7
function, whether his function was only to identify the 8
problem initially?
9 MR. MILLER:
The testimony will show, your 10 Honor, that, in fact, Mr. Puckett had taken initial 11 steps to rectify the procedural irregularity back in 12 July, and the process involved Comstock rewriting a n
13 procedure.
This is just not for weld procedures, but 14 for any of their quality control procedures, submitting 15 them through a chain of review and approval that 16 included Commonwealth Edison quality assurance as well 17 as Sargent & Lundy, the architect engineer; so it was in 18 a sense Mr. Puckett's judgment on how a procedure could 19-be changed was subject to review and approval by these 20 other parties as well.
21 Am I being responsive to your question?
22 JUDGE GROSSMAN:
Okay.
Well, I will read the 23 transcript to see if it is actually; but you may 24 proceed.
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25 I really don't wish to interrupt opening statements Sonntag Reporting Service, Ltd.
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and get them disjointed.
It was just one matter that 2
occurred to me.
3 That's fine.
4 Proceed.
5 MR. MILLER:
I have just about concluded, in 6
any event.
7 As I say, the proof of the pudding, again, is what 8
happened after Mr. Puckett was terminated.
9 Another Level 3 weld inspector was brought to the 10 Braidwood site, a man you will hear from, Mr. Tony 11 Simile.
He was Mr. Puckett's replacement.
12 The first thing that Mr. Simile was given was all
_rs
( ')
13 of Mr. Puckett's expressions of concern that he had 14 written up during the time that he was at the Braidwood 15 site.
16 Mr. Simile's first task was to evaluate them, make 17 recommendations for changes and implement those changes 18 that were -- that went through the review process and 19 were acceptable.
20 Mr. Simile will describe for you what he did, the 21 cooperation that he received from Comstock management 22 and his evaluation, again, as a practical welding 23 e x pe r t, of the seriousness of the concerns that were 24 expressed.
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25 In short, once the entire objectory record has been Sonntag Reporting Service, Ltd.
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developed, I believe the Board will have no difficulty 2
coming to the conclusion that quality assurance function 3
at Comstock and through them, Commonwealth Edison, in 4
fact, met the requirements of Criterion 1 of Appendix B, 5
that there was sufficient independence in the quality 6
control function at Comstock so that the quality issues 7
were appropriately raised, appropriately dispositioned.
8 On that basis we will have demonstrated that 9
Commonwealth Edison Company is entitled to an operating 10 license from the licensing -- authorization for an 11 operating license from this Licensing Board.
12 That concludes my opening statements.
13 JUDGE GROSSMAN:
Thank you.
14 At this point we will, once again, offer to hear 15 limited appearance statements of anyone who is present 16 who has not spoken and wishes to.
17 Is there any such person?
18 (No Response.)
19 JUDGE GROSSMAN:
With that, there being no 20 one who wishes to speak, we will conclude the first 21 day's session on quality assurance, that is the fourth 12 2 day of hearing, and we will begin again tomorrow at 9:00 23 o' clock with the fifth day of hearing.
24 By the way, I would like to remind you that you
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25 have to gather your stuff together here.
They are going Sonntag Reporting Service, Ltd.
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to be using the room for the evening.
You can leave it 2
here at your own risk.
3 (WHEREUPON, the hearing was recessed to 4
Wednesday, May 7, 1986, at the hour of 5
9:00 o' clock A.M.)
6 7
8 9
10 11 js 12 U
13 14 15 16 17 18 19 20 21 22 23 24 t'^)
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F CERTIFICATE OF OFFICIAL REPORTER This is to certify that the attached proceedings Lefore the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
BRAIDWOOD STATION UNITS 1 & 2 COMMONWEALTH EDISON COMPANY (EVIDENTIARY HEARING)
DOCKET NO.:
50-456/457-OL PLACE:
KANKAKEE, ILLINOIS
- O" DATE:
WEDNESDAY, MAY 7, 1986
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were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear j
Regulatory Commission.
l 1
J L
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(sigt) f (TYPED) G. Allen-$'onntgd Official Reporter Reporter's Affiliation O
O w