ML20204F634
| ML20204F634 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/31/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-259 LRP, NUDOCS 8608040256 | |
| Download: ML20204F634 (47) | |
Text
.
ORG NAL UNITED STATES O
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
LRP INQUIRY INTO THREE MILE ISLAND UNIT 2 - LEAK RATE DATA FALSIFICATION
~
O LOCATION:
WASHINGTON, D.
C.
PAGES:
205 -
252 l
DATE:
THURSDAY, JULY 31, 1986 l
(0 f as ACE-FEDERAL REPORTERS, INC.
l O Officialw 444 North CapitolStreet l
Washington, D.C. 20001 8608040256 860731 00kDk NADONMDE COVERAGE
c CR27703.0 205 COX/sjg UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3
_ _x In the Matter of:
5 Docket No.: LRP INQUIRY INTO THREE MILE ISLAND 6
UNIT 2 - LEAK RATE DATA PREHEARING CONFERENCE FALSIFICATION 7
- - - - - - - - - - - - - - - - -x 8
Ace-Federal Reporters, Inc.
9 Suite 402 444 North Capitol Street 10 Washington, D.
C.
11 Thursday, July 31, 1986 13 The telephone pr'ehearing conference in the above-entitled 14 matter convened at 10:00 a.m.
15 BEFORE:
16 JUDGE JAMES L.
KELLEY, Chairman 17 Atomic Safety and Licensing Board Panel U.
S.
Nuclear Regulatory Commission 18 Washington, D.
C.
20555 19 JUDGE JERRY R.
KLINE, Member I
Atomic Safety and Licensing Board Panel 20 U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 21 JUDGE GLENN O.
BRIGHT, Member Atomic Safety and Licensing Board Panel 22 U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 23 24 (x.A 25 ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-33H616
206 APPEARANCES:
2 On behalf of GPU Nuclear:
3 ERNEST L. BLAKE, ESQ.
Shaw, Pittman, Potts & Trowbridge 4
1800 M Street, N.W.
Washington, D.
C.
20036 On behalf of Former Metropolitan 6
Edison Employees:
7 MICHAEL McBRIDE, ESQ.
LeBoeuf, Lamb, Leiby & MacRae 8
1333 New Hampshire Avenue, N.W.
Washington, D.
C.
20036 9
On behalf of NRC Staff:
0 JACK R.
GOLDBERG, ESQ.
MARY E. WAGNER, ESQ.
11 Office of Executive Legal Director u.S.
Nuclear Regulatory Commisison 12 Washingt6n, D.
C.
20555 13 On behalf of Jack Herbine:
I 14 CHRISTOPHER FLYNN, ESQ.
Isahm, Lincoln & Beale 15 Three First National Plaza Chicago, Illinois 60602 16 On behalf of Gary Miller:
17 MICHAEL W.
MAUPIN, ESQ.
Hunton & Williams 18 P.
O.
Box 1535 Richmond, Virginia 23212 On behalf of Committee on Health Aspects 20 and Management of Nuclear Power:
21 MARJORIE M.
AAMODT l
P.
O.
Box 652 22 Lake Placid, New York 12946 On behalf of Former Metropolitan 23 Edison Employees:
24 SMITH B.
GEPHART, ESQ.
(
i Killian & Gephart k/
25 216-218 Pine Street, Box 886 Harrisburg, Pennsylvnaia 17108 ACE-FEDERAL REPORTERS, INC.
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P,R O,C,E,E,D I N G S,.
2 JUDGE KELLEY:
This is Judge Kelley.
I am 3
sitting here this morning with Judge Kline and Judge Bright.
4 We are prepared to go ahead with this on-the-record l
5 telephone conference.
First of all, we have a number of 6
items of information to pass on to you.
The main reason 7
for this call is to talk about a prehearing conference the i
8 latter part of August.
9 But let us first pass on some matters of 10 information and then we will get to that.
First of all, 11 yesterday we served or mailed to the various technical 12 witnesses the questions that are being put to them.
That
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13 went in the form of a covering memorandum with questions a
14 attached to the four Staff witnesses and Stier and Rockwell.
15 Each of you will receive through the service process a copy l of the memo, but you will not receive a copy of the 16 4
17 confession.
It was understood earlier that the questions 18 would be submitted only to the board and then to the 19 witnesses and not to the other party.
20 l
So that process is at that stage.
I I
l We have in the advanced stage of preparation a 21 fmemorandumandorderwhichIexpectwewillissuetomorrow, 22 i
23 l
possibly Monday, probably tomorrow.
I won't attempt to 24 touch on everything in this memo and order, but let me just l mention two or three of the main things.
First of all, we 25 n
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1 addressed the Aamodts' responses to the NRR and with a 2
proposal that those reports be put in the record.
As 3
previously indicated, those reports are being admitted or 4
have been admitted to the record.
5 There were some requests for the witnesses.
We 6
considered not only those requests, but also we have read 7
more closely now the NRR and OI reports.
8 And we have decided on the basis of that reading 9
that we are going to subpoena as witnesses seven additional 10 people.
Let me tell you who they are.
Three of these 11 people are upper-level on-site supervisors, Mr. Salinger --
12 I am not sure of the pronunciation -- Mr. Kunder and
()
13 Mr. Logan.
The other four, three of them are CROs and one 14 is a shift supervisor.
Mr. Brant is a shift supervisor and 15 the three CROs are Blessing, Wright and Hemmilla.
We will 16 be issuing subpoenas to those gentlemen here in the future 17 to appear, presumably, the latter part of. phase 1 of the 18 hearing.
19 We had a motion from the Aamodts to grant 20 f summary disposition with respect to what I will l
21 characterize as the line employees, and that was opposed by 22 l numerous employees.
That motion is being denied.
23 MR. MC BRIDE:
Judge Kelley, this is Michael 24 McBride.
Could I just ask, I wasn't quite sure.
I caught 25 l the seventh name that you read.
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1 JUDGE KELLEY:
He was asking about the seventh 2
name that I read.
I will repeat it.
I believe it's 3
pronounced Hemmilla, H-e-m-m-i-1-1-a.
I 4
MR. MC BRIDE:
Judge Kelley, this is Michael 5
McBride again.
The pronunciation is Earl Hemmilla.
6 MS. AAMODT:
Judge Kelley, I could not get the 7
second name.
Salinger and then --
8 JUDGE KELLEY:
- Kunder, K-u-n-d-e-r.
My 9
pronunciation of these names is guesswork primarily, there 10 is no prior experience with the people at all.
11 MR. MC BRIDE:
Judge Kelley, this is Michael 12 McBride again.
We wanted to inform you that Mr. Kunder is
()
13 already a party to the proceeding, so I don't believe it 14 will be necessary to issue him a subpoena.
15 JUDGE KELLEY:
Shouldn't be.
I was unaware of 16 j
that.
Was he on your initial list?
17 MR. MC BRIDE:
I believe so.
18 JUDGE KELLEY:
If so, we made a mistake, okay, 19 make it simpler.
Thank you.
There is another pending l
n i
20 4 matter, more than one, but one I will mention now, and that 21 is concerning the allowance,to the admission into the i
22 i record of various documents pertaining to Unit 1 leak rate.
23 This subject goes back now to one of the earlier prehearing d) conferences, it's been debated back and forth; I believe in 24 25,
May in our order we asked the numerous employees to write a O
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1 memorandum specifying exactly what it is they wanted in it, 2
why, and they did so on the 14th of July.
Thereafter, 3
Mr. Blake sought permission to file a response to that 4
filing from the numerous employees, which permission was 5
granted, and we received yesterday from Mr. Blake the GPUN 6
opposition to the numerous employees' request.
I don't 7
know that we will get that ruling into this upcoming memo 8
and order.
If we do not, however, we will issue a ruling 9
on that point very soon, maybe later next week.
i 10 Yesterday, Mr. McBride called me and also Judge 11 Kline, I believe, on the subject of the numerous employees' 12 motion before the U.S. District Court in Pennsylvania
()
13 concerning whether certain material had been released in 14 violation of the Rule 6(e) of the Federal Rules of Criminal 15 Procedure.
16 I think I will just ask Mr. McBride to summarize 17 the status of that.
Could you do that.
18 I MR. MC BRIDE:
Certainly, Judge Kelley.
The l
fcallwasplaced for the information of the parties because 19 i
1 20 j Judge Rambeau did grant the motion that we filed before her, 21 and the order which is under seal requires the Commission l
22
If by chance I should l
24 misstate any of this, the parties should be aware that Jack l
l 25 l Goldberg has a copy of the order and I read it to him i
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1 yesterday, and so, Jack, feel free to correct me if you 2
think I am misstating this in any way.
3 But the order further provides that the 4
l Commission shall take action to ensure that the information 0
5 is not made public after concluding that the board, in its I
6 May orders, and the Commission's actions generally, have 7
apparently prevented the material from being made public.
8 I am not at liberty to release the order to the 9
parties, because Judge Rambeau issued it under seal.
She 10 did serve Mr. Goldberg as well as Mr. West and ourselves, 11 which is why I felt at liberty to give it to Mr. Goldberg, 12 but I have not even felt at liberty to give it to the board.
(j g
13 But in any event, it is Mr. Goldberg's choice 14 j
and an attempt of counsel for board or the Commission, to 4
l 15 determine how the information should be disseminated within i
16 g the Commission to ensure that the order is complied with.
P 17 I will say that I believe that the board's 18
[ orders have been consistent with Judge Rambeau's 4
4 19
!i determination that this matter must remain under protective 20 status in this proceeding, and I believe that it would be a i
21 y violation of Judge Rambeau's ruling if any of the parties 22 were to make what information they have been provided in 23 1 this proceeding under seal, if they were to make that I
24 information public.
}
25 j
JUDGE KELLEY:
Thank you.
I will just repeat (2) j 1
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I what Mr. McBride has indicated.
The board itself has not 2
seen this order, and if permission is granted by the Court 3
that we do see it, we, of course, would like to see it.
4 But right now we have not seen it.
5 Is there anything right now, Mr. McBride, that 6
you think this board should do about this matter?
7 MR. MC BRIDE:
I don't think you need to do 8
anything more, Judge Kelley, except to repeat, in effect, 9
the protective order that the board previously issued, to 10 ensure that the matter does not become public by virtue of 11 a portion of it having been made known to the parties to 12 this proceeding.
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13 JUDGE KELLEY:
As of now it was a temporary 14 order of, I believe, indefinite duration.
So I think what 15 we would contemplate, when we see the court's order, we may 1
i 16 enter some other order making the other order permanent or 17 doing something else appropriate; but at least until we do 18 see the order, and pending any -- we may want comments from 19 l
the parties on whether we should do or not do anything; i
20 once we see it, we will do nothing.
?
21 MR. MC BRIDE:
Judge Kelley, I should only add 22 !
that I think at least this portion of the transcript of W
23 r this prehearing conference should also be put under seal, i
24 l
JUDGE KELLEY:
Why?
l 25 MR. MC BRIDE:
Because I,
to some extent, had to (2)
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1 divulge the contents of the District Court's order which 2
itself is under seal.
3 JUDGE KELLEY:
All right.
The substance of what 4
you said was that the Court upheld your position and said 5
that the papers in question should be kept secret; isn't 6
that right?
7 MR. MC BRIDE:
Yes, sir, and that the Commission 8
take action to make sure that these matters are not made 1
l 9
public.
10 JUDGE KELLEY:
I fail to see what is secret 11 about that.
I can understand your saying it out of an 12 abundance of caution.
But does any other party think we
()
13 have to segregate this transcript this morning and put that J
14 under seal?
Mr. Goldberg?
t 15 MR. GOLDBERG:
I don't think the transcript 16 should be under seal.
I think Mr. McBride has a legitimate 17 concern, and it's almost maybe a catch-22 situation in that 18 by revealing that the Court has granted this motion to 19 suppress, that may reveal certain information to the public 20 k if they read this which shouldn't be disclosed.
21 p
JUDGE KELLEY:
What information?
In general, fdon'tsayexactly.
22 23 MR. GOLDBERG:
I am trying to do that.
The i
24 p Court has ruled on an argument that certain references 4
25 reveal matters to the grand jury, information disclosing i
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I whether indeed those references disclose matters before the 2
grand jury may disclose matters before the grand jury.
3 JUDGE KELLEY:
Okay.
We will take your motion 4
under consideration; "your" meaning Mr. McBride's.
The 5
Court, I think, is frankly skeptical about the need to seal 6
this portion of the transcript, but we will read it over 7
again and we will consider it.
8 MR. GOLDBERG:
Judge Kelley, this is Jack 9
Goldberg again.
Let me just add on to what Mr. McBride 10 said, I believe I agree with his characterization of the 11 status of this issue.
I want to add on the record that 12 pending the determination as to whether the government will
()
13 appeal Judge Rambeau's order, I have taken and will 14 continue to take immediate steps to prevent any use or 15 disclosure of the information in question until a decision 16 is made not to appeal or pending the outcome of the appeal.
17 If a decision is made not to appeal it, or the result of 18 the appeal is the same as Judge Rambeau has ruled, I will 19 take immediate action to permanently delete the information 20 i from the courts.
21 But for now, the status quo will remain, there 22 will be no user disclosure until we make a decision.
Y 23 !
MR. MC BRIDE:
Judge Kelley, I should also add, 24 this is Michael McBride again.
As our letter to the board 25 l indicated, and a copy of this letter was served on the (1) f i
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1 parties, they may not have received it yet, but we believe 2
it's entirely up to Mr. Goldberg whether he decides to 3
share the order with the board, and we are no't objecting to 4
him doing so.
We just think it's a judgment for him as 5
counsel for the Commission to make.
6 JUDGE KELLEY:
Okay.
I think that our attitude 7
on the posture of the matter is a separate part by the fact 8
that this entire motion process and the material affected 9
thereby is a very, very small part of this record.
10 Therefore, for example, if your motion had had 11 the effect of suppressing half of our record, we might be 12 much more interested in immediate action so that this case
()
13 could move forward.
14 But the status of these documents, in the next 15 few weeks, to us, should have no effect whatsoever on the 16 forward progress of this case.
17 So we are willing to abide at least for now.
18 I think we would like to pass on to some other 19 points.
On an entirely separate subject of payment of I
20 l expert witnesses Stier and Rockwell, the record will 21 reflect and the parties know the board had proposed to pay 22 l those witnesses, to certify a legal question back to the i
23 Commission back in late May.
Last Friday the Commission 3
24 rendered an opinion in response.
I won't restate all of I
25 !
that either, except to say that the opinion confirms in the
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1 board abstract authority to pay expert witnesses market 2
rate.
We also think that the Commission finds at least 3
that the Commission does not favor, does not share our 4
concern about appearance aspects in this proceeding, which 5
were largely responsible for our saying we should take this 6
approach.
7 I might add a couple of things, that our concern 8
did not go to the substance of partiality or impartiality 9
nearly as much as it went to questions of appearance, and 10 appearance rationale has been weakened by the fact that in 11 the absence of a definitive Commission ruling, we were 12 obliged earlier this month to step aside from hiring
()
13 Mr. Stier to partake of the NRR report and ask the company 14 if they would be willing -
"the company" being GPUN -- if 15 they were willing to do that, which they were and which 16 they did.
17 But that being the posture of things now, I 18 think it's a little less compelling that the board -- or a 19 little less productive of the board, based here on the 20 appearances of Mr. Stier, and the ongoing NRR report.
I I
21 l
might also mention if we were on notice of this, I don't f
think we were really focusing on the fact that Mr. Rockwell 22 4
23 l as a principal consultant is also an employee of GPUN, who hI believe may be appearing in the case, 24 d
25 l So in any case, with those factors in the C)
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picture, with the additional difficulty which we thought 2
might have been considerable of getting government 3
contracts in place in the next couple of weeks, we decided 4
that it really wasn't very practical for us to continue the 5
proposed course of payment for these two witnesses.
6 Having reached that conclusion, I would ask 7
Mr. Blake, as counsel for GPUN, whether GPUN would be 8
willing to pay the expenses of Mr. Stier, Mr. Rockwell, and 9
whatever technical assistance they might both need in 10 connection with this proceeding.
And call Mr. Blake and 11 explain to him as I just stated, whether GPUN would be 12 willing to pay those expenses.
()
13 Mr. Blake consulted with his client, indicated 14 that within reason, at least, they would be willing to do 15 that, but they were anxious that these people do appear and 16 that the proceeding had the benefit of their views; and, 17 that, therefore, would pay within reason; I say that 18 because the company, needless to say, is not just opening --
19 proffering a blank check for whatever anybody wants to look O
20 at.
But as long as the work focuses on what we have been 21 talking about, and they are saying that, they are willing 22 to pay.
I 23 I There is a proposal of the company paying i
24 !
instead of the board; it does not involve any change in 3
25 a what we had termed the no-access rule.
The board will O
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l continue to deal with the witnesses.
The no-access 2
question is not academic, is certainly less important in 3
view of the fact the time for putting these witnesses has 4
already come and gone.
5 So that is the posture of that.
We expect they 6
will be paying these expenses.
I want to ask Mr. Blake 7
whether he believes that I made a fair statement of what 8
our discussion covered and whether he wants to add anything.
9 MR. BLAKE:
No.
You have covered it adequately, 10 Judge Kelley.
11 JUDGE KELLEY:
Thank you.
The other very brief 12 discussion I had, Mrs. Aamodt called me yesterday or the (j
13 day before asking for an extra way to submit questions for 14 Mr. Stier and Mr. Rockwell, and that request was granted.
15 MS. AAMODT:
Judge Kelley, I mailed those to you 16 j yesterday.
i 17 JUDGE KELLEY:
Thank you.
Which brings us to 18 the subject of this prehearing conference.
We put that l
19 down in our order of May 22 as a tentative prehearing
!i 20 l conference on the 21st of August.
You have talked about 21 possible alternatives, if that's not a good date for people.
I 22 i We can change it, for example, to the 25th.
You might i
1 23 j think about that as I go over some of these other points.
1 24 You do feel, however, that the prehearing i
25 !! conference should take place.
It seems to us that there (Z) s k
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1 are a number of fairly important preliminary items that i
2 j aren't yet resolved, especially matters related to order of e
3 witnesses.
It's awkward to try to really discuss these l
things over the phone.
We don't intend to do so this 4
5 morning.
What we intend to do is give you a list of things 6
that we are thinking about so you can come prepared to 7
t discuss them at a prehearing conference.
8 l
Let me list some of the things that occur to us.
I 9
l If in a particular case we have a definite preference, we i
10 will tell you now what it is.
But the idea would be that 11 we would be now giving you a preliminary agenda for the j
Il 12 p prehearing conference to come, and we would then -- I will f
get back to this at the end, ask all of you to submit the
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14 other items that you wish, so that they could be included b
15 and addressed at the conference.
f 16 l
Taking first the testimony by the experts, and I i
hamreferring to the staff initial experts Kirkpatrick and 17 s
18 ;i Vermier, also Russell, Capra, Mr. Stier and whoever t
19
[ accompanies him, Mr. Rockwell and whoever accompanies him, d
20 I referred a few minutes ago to these questions we have 21 i
received, a great bulk of them coming from numerous 22 employees, as one would expect.
Also some questions from 23 Mrs. Aamodt.
But the numerous employees' questions are j
]b questions that are common to all four witnesses, the l
24 I
25
' majority of cases, to put it a little differently, if the
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l question is asked to Kirkpatrick, the very same question is 2
asked to Russell, Stier and all the rest of them.
3 When you add it all up, some 250 plus questions 4
are questions put to all, generic questions, if you will.
5 It does seem to the board -- and that's fine.
6 We don't criticize that at all.
What we are saying is that 7
we believe that under those circumstances, the experts I 8
just named to whom these kinds of questions have been put 9
should be sworn in as a panel, asked these questions as a 10 panel.
11 When that process is complete, it would then go 12 to individual questions which are unique to various D
13 witnesses.
This notion of having a panel is included in 14 our memorandum to the witnesses, which you will see shortly, 15 describing these points this morning as items for 16 discussion.
Let me frankly say that our inclination, 17 though, to have a panel is pretty strong, and the proponent 18 of another approach, I think, will have his or her work cut 19 out for him or her.
t 20 Passing on in terms of sequence, it seemed to us I
i j
21 that it would be simplest to go ahead and ask individual l
l questions to theso experts in the order in which they have 22 23 numbers of questions, roughly taking the shorter ones first 24 i
so they can go ahead and finish up and go home.
There are I
25 very few individual questions for Kirkpatrick and Vermier.
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1 Very few for Rockwell.
There are already lots and lots of 2
questions for Russell and Capra, largely because of the 3
focus on individual tests in some detail.
We have no 4
preference in sequence between Russell and Capra on the one 5
hand and Stier and Rockwell on the other, but that can be 6
discussed.
Once those expert witnesses have testified, 7
there were three witnesses added in one stage or another in 8
these discussions, who are not now parties, who presumably 9
would not have prefiled testimony.
Two of them, Havercamp, 10 Hartman, we would think would come next, after the expert 11 witnesses, if we can hear comment on that.
12 A third person, let me ask Mr. McBride about
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13 this, numerous employees suggested James P.
McBride, Jr.
14
-- James P.
Moore, I believe.
15 JUDGE KELLEY:
Yes, you are McBride.
James P.
16 Moore, Jr.
Discussing the appearance last week with 1
17 Mr. Rockwell, he indicated that a Mr. Moore would probably 18 appear with him as his co-expert.
Now, if that turns out 19 to be the same Mr. Moore, I suspect it is, we really don't ti 20 [
see why there would be a separate appearance by Mr. Moore, f
do you?
l 21 t
22 g MR. MC BRIDE:
Judge Kelley, this is Michael i
McBride.
I believe it to be the same individual who we 23 24 suggested.
We suggested him precisely because he had i
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and it seems to me it would be an appropriate thing to have 2
him appear with the lawyer, Mr. Rockwell, for whom he
.3 worked in putting that report together.
4 JUDGE KELLEY:
That would bring one to the 5
employee and former employee witnesses.
As a general 6
proposition, we first of all are inclined to believe that 7
we should hear first from the line employees and immediate 8
supervisors; and after we have heard from them, from 9
upper-level supervision and management, let's be a little 10 more precise, we would propose to hear first from the CROs, 11 the site CROs, the shift foreman, the supervisors, drawing 12 a line et that point.
I) 13 Then the question arises, well, those employees,
\\.s 14 what sequence.should they be heard in?
We don't have any i
15 fixed notion on this.
We can put out some options and use 16 that list to come up with some others.
For one thing, we 17 might hear from them, a shift.
People who were on shifts 18 together, taking a CRO followed by a foreman followed-by a 19 shift supervisor, something like that.
20 Another option might be to hear from them by job, 21 hear all of the CROs first followed by all of the sh'ift 22 foremen and so on.
l 23 l
Another thing that occurs to us, and we are I
l uncertain about, but I will mention it, that would be to 24 fhearfromshifts in town.
That is to say, put CROs and 25 (2) l ACE-FEDERAL REPORTERS, INC.
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1 shift foremen and shift supervisors together in one town.
2 It immediately occurs to us that's not the kind of thing l
3 l
you would do if these witnesses were coming in cold and you 4
wanted to get candid spontaneous responses.
5 On the other hand, in this particular case, we 6
have prefiled testimony, we have in most cases several 7
statements, rather extensive statements by a lot of these 8
witnesses.
There may be something to be said for 9
addressing points of difference in that format.
We put it 10 out as an option and not something we are especially 11 sponsoring at this point.
12 Again, there may be other possible approaches.
()
13 MR. MC BRIDE:
Judge Kelley, could I interrupt 14 for just a moment.
This is Michael McBride again.
I would 15 ask that the board take into account an additional factor.
16 I won't try to address the substance of what you have just 17 said yet, but I understand you want to hear from the 18 parties when you are through.
19 JUDGE KELLEY:
Right.
This is essentially the f
board is doing most of the talking here.
We envision the 20 21 discussion at a later prehearing conference, but go ahead.
22 !I MR. MC BRIDE:
Right.
I just think there's an 23 l
important factor that all parties and the board need to i
24 i
keep in mind in resolving the question that you just posed, 3
25 l and that is that a number of these individuals continued to (1) l I
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I be licensed operators, and the company, I would assume, and 2
the individuals as well, will need to have some 3
accommodation for their employment responsibility in the 4
scheduling, and that factor will need to be taken into 5
account; plus the fact that even if they don't have to work 6
at the moment, that the board would like to hear from them, 7
they may just be coming off an 11:00 to 7:00 shift or may 8
be getting ready to go on a 3:00 to 11:00 shift or 9
something, and we are going to need to work with you, if 10 you will permit us, to try to work around those kinds of 11 problems.
12 JUDGE KELLEY:
We procide that, and we will take
()
13 those factors into account certainly.
14 Okay.
So we had several possibilities about 15 sequence for what I would call line employees.
In terms of 16 upper supervision and management, it was appropriate to us 17 to start with the lowest level persons and simply work up.
18 As we understand it, that would mean one would start with 19 f Mr. Floyd and work up to Mr. Herbein.
That's the general l
20 j
principle.
We can talk about specifics later on.
I l
recognize, too, that there was some question earlier about 21 i
22 Mr. Burns' availability, and I regret that we were not able to accommodate Mr. Burns' request, but I hope that the way 23 l
this is unfolding now -- Mr. Flynn, you are speaking today 24 i
25 for Mr. Burns; is that correct?
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1 MR. FLYNN:
Yes, I am.
2 JUDGE KELLEY:
I am simply indicating that the 3
sequence we lay out here hopefully can be fit into to 4
Mr. Burns' schedule.
That is what we have to suggest on 5
i the subject of, order of witnesses.
There are a couple or 6
three other points that we want to mention.
I think it 7
would be appropriate for discussion at a prehearing 8
conference.
We have had some discussion about follow-up 9
questions.
We will find a paragraph on that in our May 22 10 order at page 12.
We think some further discussion of that 11 topic would be warranted.
I don't believe we ever got 12 anybody's comments on the record.
So we would like to mark
()
13 that for some further discussion.
14 The subject of use of prior statements, 15 specifically, use of prior statements by the board.
The 16 board does expect that we will want to ask questions, 17 impeachment-type questions, if you will, of some of the 18 witnesses that will be appearing.
We had said generally 19 earlier that we would give some advance notice of which f
fpriorstatementswe intended to focus on.
That was at a 20 f
time when there was a lot of discussion about prior 21 i
22 statements and a lot of sort of general references to large 23 I numbers of prior statements found in Bethesda and in 24 various attorneys' file drawers and everywhere else.
fHundredsandhundredsofstatementswere talked about.
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1 It was in that context that we indicated that we 2
would -- prior notice of use of the statement.
3 Well, the way this pattern has shaped up, we now 4
have a record which indeed has a fair number of statements 5
in it, but the number of statements for any particular 6
individual is not very great.
You can look at the Stier 7
appendices, you can look at the OI or NRR reports.
I think 8
it's fair to say that some witnesses may have only one 9
statement.
Most have two or three, but our inclination now, 10 we can talk about this at the prehearing conference, is to 11 simply say that the witnesses should be on notice that the 12
- board may ask them questions about any of their statements
()
13 that are in the record, and that that would not be an undue 14 burden on them.
It would not be a matter, then, of their 15 going over many, many, many statements.
Quite contrary, 16 there would be sort of a manageable set of papers to look 17 at.
18 So that is our explanation in that regard.
19 In terms of approximate time, we, of course, 20 can't predict now how long this phase 1 of this evidentiary 1
21 hearing is going to take.
Our inclination, however, is to 22 start it and go through and finish it without any long i
23 I
breaks.
We may take a day off or half a day off here and i
2/
there.
But it's our strong preference, given the fact that i
25 the witnesses have been on notice for some time, all the O
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1 testimony is going to be in, to go ahead and get this 2
hearing completed.
We can discuss that, too, but that's 3
our present inclination.
4 l
Those comments I have just made constitute a 5
sort of tentative agenda for the prehearing conference.
l 6
Let me ask you whether you have a preference between the 7
21st, as previously indicated,.or the 25th, which is fine 8
with us.
Or you could suggest an alternative date, but I 9
think the options are going to be kind of narrow.
Mr.
10 Blake?
11 MR. BLAKE:
No preference.
12 JUDGE KELLEY:
Okay.
Mr. McBride.
(}
13 MR. MC BRIDE:
No preference.
14 JUDGE KELLEY:
Gephart.
i 15 !
MR. GEPHART:
No preference.
16 JUDGE KELLEY:
Goldberg.
17 MR. GOLDBERG:
No preference.
18 MR. MC BRIDE:
Mr. Flynn.
19 MR. FLYNN:
No preference.
I 20 l JUDGE KELLEY:
Maupin.
21 MR. MAUPIN:
No preference.
!)
22 JUDGE KELLEY:
Aamodt.
23
(
MS. AAMODT:
25th.
3 24 JUDGE KELLEY:
I guess that carries the day.
25
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25th is a Tuesday?
Monday the 25th.
How about Monday the (1) l 3
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1 25th at 10:00, same place we have met before, that is to 2
say, at East West Towers in Bethesda on the fifth floor at 3
the public hearing rocm.
Okay.
That's the way it will be, 4
and we will put a note to that effect in this next memo and 5
order, but you will all know now that that is the plan.
6 We did, in looking over the schedule, recognize 7
that we moved up the start of the hearing almost a week 8
from what we originally proposed, the next big filing 9
deadline is prefiled testimony on August 15.
I will ask 10 Mr. McBride, upon whom the principal burden apparently 11 falls, would you like a few more days past the 15th?
12 MR. MC BRIDE:
We very much would appreciate
()
13 that, your Honor.
We are endeavoring to have as many of 14 the statements available for filing and distribution by 15 that date as we can, but I suspect the board and the 16 parties would all understand that with the number of 17 clients that we have in separate places, it may be 18 difficult to totally complete the job, so a few more days I 19 think would be helpful.
l h
l 20 JUDGE KELLEY:
If you have a reasonable size i
21 l
batch done by the 15th, why don't you serve them.
But it i
22 I seems to us that it would be okay if you -- you can bring i
23 !
them to the prehearing conference on the 25th, I think.
l 24 t MR. MC BRIDE:
We will be delighted to serve t
i l
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1 every effort to complete the job by the 25th at the time of 2
the prehearing conference, and I think I can fairly 3
represent that although there will be a large number of 4
statements compared to the bulk that is already in the 5
record, it is going to be an immense added burden on the 6
parties and the board.
7 JUDGE KELLEY:
I am a little concerned that you i
8 say you will make every effort to be through by the 25th.
9 If the original deadline was the 15th, it should be done by 10 the 25th.
11 MR. MC BRIDE:
We will certainly do it by the 12 25th.
The only reason I can't be absolutely certain, but I
()
13 don't anticipate this problem arising, it's sometimes very 14 difficult to get ahold of a few of these people.
15 JUDGE KELLEY:
Incidentally, I don't know that l you were thinking about this at all, in-the case of these 16 17 additional people when we are issuing subpoenas, we issued 18 a couple last week and we are going to issue about six more.
19 l
If it turns out some of these people -- I know you have i
20 been counsel to in the past, I don't know whether you are 21 j now.
But in any case, any deadlines prefiled on them would 22 be some later date.
I 23 MR. MC BRIDE:
I understand that, Judge Kelley.
24 i We do continue to represent all of the persons we have 25 represented in the past, with the exception of Mr. Blessing.
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JUDGE KELLEY:
Thank you, that's helpful.
2 MR. MC BRIDE:
Judge Kelley, if I could make a 3
comment now, immediately following your comments, we had 4
not anticipated that we had any obligation to prefile 5
testimony for nonparties who are subpoenaed by the board.
6 JUb;d KELLEY:
Correct.
Well, let me rephrase 7
that, I am sorry, I think I spoke too soon.
Nonparties, 8
like Mr. Hartman you don't represent.
9 MR. MC BRIDE:
In fact we never have.
10 JUDGE KELLEY:
Okay.
And in the case of 11 Mr. Havercamp, who you requested to be subpoenaed, I don't 12 know whether the Staff will or will not prefile.
It hasn't
()
13 been discussed, but it wouldn't be your problem certainly.
14 In the case of another former employee, let's 15 say, you tell me you represent all these people who are 16 going to get subpoenas except Blessing, is that correct?
17 MR. MC BRIDE:
Let me look back through your 1
18 list.
I believe that is correct.
No, we do not represent I
l 19 Mr. Logan and never have.
l h
20 JUDGE KELLEY:
But you represent Salinger and 21 Kunder is already a party you told me.
l 22 MR. MC BRIDE:
Yes.
L 23 ll JUDGE KELLEY:
And the other people that I 1
24 !
mentioned except Blessing.
If you don't represent these l
25 people -- and frankly the board hasn't discussed it, I am l
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1 getting your reaction, we can discuss it more at the 2
prehearing conference.
If you are going to represent these 3
people, I would think you would file prefiled testimony, 4
perhaps at some later date than the date we have spoken of, 5
in view of the fact that we are now only getting around to 6
subpoenaing these people.
But I assume there would be 7
prefiled.
You are assuming not?
8 MR. MC BRIDE:
I am.
It may be that these 9
individuals will elect to do so, but, number one, I don't 10 mean to be too contentious about it, but I don't believe 11 the board can require it.
12 Secondly, I think the board can only require
()
13 their appearance.
Secondly, these are individuals who 14 elected not to participate in this proceeding, and I think 15 that necessarily carries with it the implication that they 1
16 have less interest in filing such a statement than the 17 people who are parties.
18 JUDGE KELLEY:
I don't know what their thinking 19 was, obviously.
It could be a hypothetical.
An 20 3l ex-employee can say I won't become a party to this case and l
21 I hope they will leave me alone but when the evil day i
22 arrives and there's a subpoena at the door, then they want i
23 l to file prefiled testimony.
You may be right.
We can't 24 require somebody to file if he is not a party, but they may 25 very well wish to and the board may say, I would like to l
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1 have prefiled and then they have an effect.
2 I think we can leave this to the next prehearing, 3
but the exchange between us can perhaps at least advance 4
the thinking on the subject a little bit, okay.
5 MR. MC BRIDE:
That's fine, Judge Kelley.
Would 6
this be a convenient time for me to raise an additional 7
potential issue with respect to some of the people that you 8
are going to subpoena?
Or would you like me to wait.
9 JUDGE KELLEY:
Go ahead.
10 MR. MC BRIDE:
Judge Kelley, we have in the past 11 taken the position before the Commission, and the 12 Commission did respond to our argument in a published order
()
13 in September of 1983, which I can give you the citation to 14 here if you like.
15 JUDGE KELLEY:
Yes.
16 MR. MC BRIDE:
Let me get that.
17 MS. AAMODT:
Judge Kelley, I do not know who is 18 speaking.
19 JUDGE KELLEY:
Mr. McBride.
20 MR. MC BRIDE:
Yes, Judge Kelley, I am sorry.
I 21 If you will bear with me just a moment, I will get it from E
22 the Commission's published decisions.
18 NRC 315, 1983, 23 General Public Utilities Corporation, Three Mile Island i
24 l
Nuclear Station, Unit Number 2, we had moved to quash or 9
f modify subpoenas issued by the Office of Investigation to 25
- ()
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many of the same individuals who we have been discussing
~2 this morning.
Taking virtually -- there was an irrelevant 3
issue for purposes of present discussion there as well 4
about the grand jury investigation, but the two relevant 5
arguments raised at that time were, number one, that the 6
. Commission lacks the legal authority to compel the 7
appearance of, in Washington, of a person who lives in a 8
different place.
That is that the Commission lacks the 9
authority to require them to travel to any greater extent 10 than the district court, and secondly, that it was 11 unreasonable in those circumstances, that it was 12 unreasonable for the Office of Investigation to require, as O
3 their subpoena reportedly did, all the individuals to come 14 to Harrisburg, Pennsylvania regardless of where they then 15 live.
The Commission did not address the first issue, the 16 purely legal question.
The Commission, however, did agree 17 with us at pages 325 and 326 of that volume, that under the 18 circumstances, it was not reasonable to make the individual 19 go to Harrisburg for the convenience of the Office of l.
20 Investigation, and the Office of Investigation has 21 i transcripts now before you to indicate he did travel to 22 l interview a number of these individuals.
23 j There may be at least two of the people who I
24 either have subpoenaed or have announced their intention to l
25 subpoena, who, I believe, most likely, will elect not to l O l
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1 come to Washington unless compelled to do so for various 2
reasons.
3 We have not made a final decision with the 4
client in one particular case, but I believe it is likely l
5 that Mr. Cooper will file a motion with the board asking 6
that the board take his testimony in southern California 7
where he lives and works rather than in the Washington area.
8 I wanted to put you and the parties on notice of that now, 9
so if we should go ahead and make that motion, it would not 10 come so late in the process of what you are trying to j
11 accomplish here in scheduling that it would be disruptive.
12 JUDGE KELLEY:
I appreciate that.
Procedurally, j ()
13 this would be in the form of a motion to quash or modify, I l
14 gather; correct?
15 MR. MC BRIDE:
It would not be a motion to quash, 16 Judge Kelley.
I believe that both we and Mr. Cooper 17 recognize that the board has the legal authority to compel 18 him to testify.
The sole question is the location of your 19 s appearance.
I 20 JUDGE KELLEY:
I appreciate your mentioning it.
Q I
21 That's something we have to work out.
The same thing may i
22 arise.
One of the people I mentioned not long ago was in i
l 23 l Kansas, I believe, and some of the others are not so far l
24 i
away, as far as the record indicates.
But in any case, I i
25 !
think our approach would be to go ahead and issue subpoenas i
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with a cover letter to some extent, and then if there is 2
some objection, complete objection coming at all or some J
3 objection to venue, then we can resolve that in the form of 4
4 motion to quash or at least informally.
But I appreciate 5
your mer.tioning the point, okay.
6 I said earlier, I will just repeat, we would 4
7 appreciate your submitting agenda items, any agenda item 8
you think ought to be discussed, ought to be served.
Now 9
if we move this to the 25th, just a moment, served by the 10 20th, put in the mail by the 20th -- this doesn't have to i
11 be elaborate; it's just a list of bullet-like entries 12 without a lot of explaining -- I think we will all I
()
13 understand what is meant.
But if you want to get a point 14 on the agenda, then do file whatever you want to propose by 15 the 20th.
l
{
16 Mr. Burns and Mr. Flynn who is here in his stead, 17 filed a request that we waive or change the so-called d
l 18 no-access rule as to the individual's responsibility, part 19 1 of the proceeding, he conceded its applicability or at k
20 f
least difference with respect to technical issues, but l
21 argued that the rule should be different with respect to 22 his client, Mr. Herbein, I believe specifically with 23 respect to Stier, tha't he wanted to be able to talk to i
24 l
Mr. Stier in advance of the hearing.
Without restating 25 Mr. Burns' entire proposition, we didn't ask for, nor did
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I we receive any comments from any other party on the l'
2 proposition Mr. Burns put forward.
3 I would like to ask you each whether you have a 4
view on that or not.
Mr. Blake, do you have any views on l
5 that, any objection to the proposal?
6 MR. BLAKE:
Only that I thought I recalled the 7
board asking the other parties be included in any access t
8 that took place, and I don't recall seeing that in 9
Mr. Burns' filing.
10 JUDGE KELLEY:
My recollection of his filing was 11 to this effect, and I may be wrong, it's not right here in 12 front of me.
My recollection is that under the Burns'
()
I 13 proposition, it would, in effect, be up to the witness, so l
14 that Mr. Stier, for example, could say, okay, I will talk 15 to Burns, I will talk to Blake, I don't want to talk to 16 McBride.
It would be his option, was the way I think it 17 was phrased.
Is that fair, Mr. Flynn?
18 MR. FLYNN:
That's substantially the proposition.
19 JUDGE KELLEY:
Mr. Blake, anything else?
20 MR. BLAKE:
No.
4 l
t 21 JUDGE KELLEY:
Mr. McBride?
i I
22 MR. MC BRIDE:
Judge Kelley, that was the way I f
recalled the proposition as well, and I think we endorsed 23 24 l
Mr. Burns' suggestion.
We had taken the position earlier l
i 25 l in proceeding that we should be allowed discovery.
That l
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was denied, and we also took the position that it would 2
advance the proceeding if we were able to talk to the 3
witnesses ahead of time, and I suspect the board might be 4
able to observe from our questions that it might well 5
advance the inquiry, if we'd had a chance to talk to the 6
witnesses beforehand; but I am not rearguing the 7
propositions that the board advanced for putting the 8
no-access rule into place in general, except that I do 9
think that the hearing is already going to be long enough 10 as it is; and if the parties can discuss some of these 11 matters beforehand, it may help shorten it up.
,i 12 JUDGE KELLEY:
Mr. Gephart, anything to add?
13 MR. GEPHART:
No.
14 JUDGE KELLEY:
Mr. Goldberg, do you have any 15 comment on this proposition?
16 MR. GOLDBERG:
No.
17 JUDGE KELLEY:
Mr. Flynn, your proposition is 18 before the board.
Anything else you want to say?
i 19 l
MR. FLYNN:
No, just that we think the I
f 20 l appearance of Mr. McBride really helps our focus of the 21 hearing and would help move it along much more quickly.
f JUDGE KELLEY:
Okay.
I am frankly troubled by 22 23 this idea that it, in effect, becomes the witness' option, l
j 24 if Mr. Stier, for whatever reason, doesn't want to talk to 25 Mrs. Aamodt; okay, is that under your proposition?
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MR. FLYNN:
I understand your concern.
Our only s_
2 feeling was that this should be designed to be to the 3
utmost convenience of the witness, and we didn't anticipate 4
that any particular witness would take a hostile or 5
noncooperative stance toward any of the parties.
6 JUDGE KELLEY:
Mr. Maupin, any comments?
7 MR. MAUPIN:
I did not file on this more recent 8
ground; on this no-access rule I had filed earlier 9
describing Mr. Burns' view, and I do feel it's an excellent l
10 filing.
11
.1 JUDGE KELLEY:
Mrs. Aamodt.
l 12 j
MS. AAMODT:
Yes, Judge Kelley, I could not hear
()
13 the last several comments, but I would object to 14 f
Mr. McBride's request.
15 JUDGE KELLEY:
Speak a little more loudly.
16 MS. AAMODT:
Essentially, Mr. Herbein would be 17 l able to discover, take discovery of Mr. Stier and Mr. Stier 18 !
could deny me that opportunity.
I don't feel that it is an 19 equitable proposition that Mr. Herbein is making.
i 20 [
JUDGE KELLEY:
What if it were conditioned by 21 the board upon Mr. Stier giving you, in effect, equal time li 22 or equal opportunity?
23 MS. AAMODT:
Well, that might be overcome over 24 my objection.
I do feel that the opportunity for discovery 25 ;
should be open to the other parties.
If Mr. Herbein has O
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1 access to Mr. Stier, I think the other parties should have 2
access to Mr. Stier.
3
[
JUDGE KELLEY:
Thank you.
4 MR. FLYNN:
I couldn't hear that.
5 JUDGE KELLEY:
I am sorry, the connection is not 6
ideal.
The board is hearing everything fine, but the 7
connections between parties is not very good.
I think I 8
can paraphrase Mrs. Aamodt correctly but briefly.
She has 9
opposed your proposal as cast, that is, that the witness 10 might decide among people seeking time, who to talk to.
11 Her objection might not be met, at some extent 12 at least, if the board were to condition this on the
(~')
13 l
witness providing equal opportunity to all parties, and her s/
14 1 response was, well, that would help.
15 MR. FLYNN:
I don't think that we would have any 16 problem with that condition.
I 17 l
JUDGE KELLEY:
Thank you.
I think, in terms of Il 18 time and burden, the person that might have a real stake in 19 j
this would be Mr. Stier.
It is easy for Mr. Kline to say ll that it doesn't bother him, because obviously it doesn't 20 21 l bother him; he doesn't have to talk to all the other ll 22 4
parties.
It's Mr. Stier that has to do that.
I think Mr.
23 Stier may be in contact with the board in the next day or 24 so and unless there is some objection, I think the board 25 would ask Mr. Stier what his view is on this proposal (1)
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1 before we make a ruling.
2 We can tell you later on the record whatever it 3
is he said.
Does anybody object to that approach?
Thank 4
you.
5 I have one other item here, and that is the 6
possibility of a site visit to TMI.
We talked about this a l
7 little bit last spring and then when the schedul'e flipped, 8
we spoke no more of it.
But quite recently, I did call 9
Mr. Blake and asked him to check into what we could have I
access to up at the site, or up around Labor Day, which we 10 l
I 11 appreciate, and check back to me.
I will paraphrase 12 quickly and say that access to items of interest is really
()
13 limited to the control room.
You can go to the control 14 room and you can look at some dials and gauges, but the i
~
15 makeup tank, for example, I believe also the sump tank, if 16 that's what it is called, those items are still in areas of 17 I
radiation such that your site visit group couldn't go and i
18 observe it.
l 19 The board talked this over a little bit.
Our i
20 intent was that if we are going to go up and look at some i
21 I
gauges and dials in the control room, we have all of us 22 been in the control room one time or another.
We will have j
23 l
some diagrams and photographs and the like showing the key I
24 l
gauges and dials involved, that it seemed to us that it was 25 l
purely a matter for us to decide we would not go.
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1 However, we recognized that parties might'have a 2
different view of it and might think it important that they 3
and the board see what there was to see, so let me just say 4
that our inclination is to not go on site visits, but I 5
will ask each of you whether you think that is a mistake.
6 Mr. McBride.
7 MR. MC BRIDE:
Yes.
Thank you, Judge Kelley.
8 We do think it would be useful for the board to see the 9
control room.
We had never suggested that the board see 10 the makeup tank or the sump themselves.
The control room j
11 provides not only gauges and dials but such things as drip 12 charts.
I think just to have the sense of the magnitude of
(}
13 the responsibilities that the operators had by being in the 14 control room is something that we think the board should 15 take into account and would probably be instructive for the 1
16 parties as well, as well as the general physical 17 relationship of one set of panels to another and other 18 aspects of the room.
And we do feel that it would be 19 useful for the board, and so we adhere to the position we 20 g have taken before on that.
21 JUDGE KELLEY:
In terms of things like physical 4
22 i relationship and what is located where, what would we get i
j 23 out of going up there as opposed to looking at a photograph?
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j 24 MR. MC BRIDE:
The addition of hydrogen to the I
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25 makeup tank and how that physically was performed.
That i
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1 was performed for a time from the control room and also for 2
a time had to be performed elsewhere, and it may be useful 3
for the board to get a greater on-site familiarity with 4
that process.
5 JUDGE KELLEY:
Thank you.
Mr. Gephart, anything 6
to add?
7 MR. GEPHART:
No.
8 JUDGE KELLEY:
Goldberg?
9 MR. GOLDBERG:
No.
10 JUDGE KELLEY:
Burns?
11 MR. FLYNN:
No.
12 JUDGE KELLEY:
I am sorry, Mr. Flynn?
()
13 MR. FLYNN:
No.
14 JUDGE KELLEY:
Maupin?
15 MR. MAUPIN:
No.
16 JUDGE KELLEY:
Aamodt?
17 MS. AAMODT:
No.
18 JUDGE KELLEY:
I guess I asked all of you, 19 anything to add, I am not sure if that constituted an 20 p endorsement of my view or Mr. McBride's view.
Or neither, 21 perhaps it's neither.
Let me backtrack.
Mr. Flynn, do you b
22 want to make a site trip or not?
i 23 I
MR. FLYNN:
We don't really have a position on i
24 i this.
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25 l JUDGE KELLEY:
Mr. Maupin?
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MR. MAUPIN:
I don't have a position.
2 JUDGE KELLEY:
No position.
Mrs. Aamodt?
3 MS. AAMODT:
No position.
4 MR. MC BRIDE:
I am sorry, Judge Kelley, I 5
didn't hear Mrs. Aamodt.
6 JUDGE KELLEY:
No position.
Back to Mr. Blake, 7
do you have a view on this?
8 MR. BLAKE:
No, sir.
We have no preference.
9 JUDGE KELLEY:
Okay.
10 MR. GOLDBERG:
Judge Kelley, Jack Goldberg.
You 11 got me first round, but you missed me the second round.
12 JUDGE KELLEY:
Sorry.
13 MR. GOLDBERG:
An additional comment, whether or 14 not to indicate agreement with Mr. McBride, I don't think i
l it's necessary for the board to visit the control room.
I 15 16 think the photographs which will be presented and entered 17 into the record and be available to all the parties will be 18 adequate.
19 JUDGE KELLEY:
Could you recapitulate in a 20 little more detail?
I think he spoke earlier, but could 21 you tell us what is available in the way of visual aids.
22 MR. GOLDBERG:
Mary Wagner is in a better position to give you more detail about the status and what 23 24 we will likely have at the hearing.
I MS. WAGNER:
We are proposing to use some 25
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27703.0 244 cox-1 photographs that GPU had earlier used in different lawsuits 2
in private litigation.
About six of their photographs that 3
have been enlarged, which -- there is a couple of overview 4
photographs which-set forth all the control room panels; 5
and then we had more specific photographs which relate to 6
the gauges involved, things like that.
7 Makeup tank, I don't think we have.
If you have 8
a different recollection of what your photographs show, you 9
can tell me.
But I don't think we have makeup tank.
10 That's all in those areas.
11 JUDGE KELLEY:
Thank you.
12 MR. GEPHART:
Judge Kelley --
()
13 MR. MC BRIDE:
He asked if the parties could see 14 the photograph on the 25th and that might advance the whole 15 discussion.
16 JUDGE KELLEY:
Is it possible to bring them, 17 Mary?
18 MS. WAGNER:
We are in the process of trying to 19 obtain either copies of the photographs or negatives from 20 f which we can make our own copies.
I think it's quite f
possible we will have those by the 25th.
In any event, 21 i
22 l Mr. Blake's office has a blowup of six photographs that we i
23 ;
are interested in from his office.
24 I
JUDGE KELLEY:
I wonder if the Staff on a best i
l efforts basis could bring whatever you could produce by the 25 (2) l i
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25th.
Mr. Blake, if you have some pictures, that would be 2
helpful, if you could bring them along, too.
3 MR. B LAKE:
Yes, sir.
4 JUDGE KELLEY:
I think that's all the board has 5
this morning.
Let me go around then and see if other F
6 points need to be raised.
Mr. Blake, anything else?
7 MR. B LAKE:
No, sir.
8 JUDGE KELLEY:
McBride?
9 MR. MC BRIDE:
Yes, Judge Kelley.
Although I 10 understand you want us to discuss all of these things in 11 greater detail at the prehearing conference, I thought it 12 might be useful to say now that particularly on behalf of
(~)
13 the out-of-town people, including our our cocounsel from
\\/
14 Harrisburg, I was wondering, if in light of the fact that 15 although the board wants to keep the proceeding moving, and 0g I don't disagree with that, 16 it nevertheless is not the most 17 urgent of matters.
I wonder whether in that view it could 18 be at least agreed upon that we could start Monday i
19 afternoon and conclude Friday at noon or something on that 20 order, so that the people who do have to come in from out 21 of town and go home again for the weekend don't end up with l about a day plus weekend, and that everybody has other 22 y
23 5
responsibilities as well.
24 JUDGE KELLEY:
We will certainly consider that
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1 moving this case ahead.
Okay.
Anything else, Mr. McBride?
2 MR. MC BRIDE:
Judge Kelley, I wanted to ask as 3
a general matter whether or not a particular document that 4
may be a Commission or Staff document is technically in 5
evidence.
Is it your view that the parties will be able to 6
have the board take official notice of Commission documents i
7 in order to make arguments or refer to those documents and 8
testimony?
9 JUDGE KELLEY:
I don't think we can really 10 answer that in the abstract.
There is a great deal of --
11 you are extending your question to things like NUREGs, 12 vigorous dispute now about NUREGs that has a lot of O
3 inf rmati n about Unit I rephrased, for example.
Taking a 1
I 14 ruling on that.
I have CFR, but I think you know that.
I 15 am not sure how helpful I can be in the end.
7 I
16 MR. MC BRIDE:
Let me be more specific then.
17 With respect to NUREGs, the problem that we have is that we i
18 do feel that there is some background about Unit 1 that is j
)
19 important in the context of the issues in this proceeding 20 that concededly only concern Unit 2, but based on prior 21 experience at Unit 1, we believe very strongly that the 22 board needs to be made aware of how these practices f
originated and what the Commission Staff's conclusions, 23 i
24 which appear to have been endorsed by the Commission itself, i
l 25 were, with respect to those same practices; and regardless O
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1 of whether a document is in evidence, we would expect that 2
the Commission would feel obliged to entertain an argument 3
about a different conclusion about the same practices at f
4 the two units, if such a conclusion were to be reached by 5
either an expert or nonexpert witness or the board.
6 JUDGE KELLEY:
I still find it difficult to i
7 0
answer something.
You are still putting it, I think, 8
rather abstractly, in the sense that you haven't referred 9
to any particular document.
We have gone through a process 10 l
here.
I can make this observation.
We have gone through a l
11 j process, as you know, of record building, prior to a d
12 P hearing; and there has been a time for parties to propose 3
()
13 the inclusion of particular documents in the record.
A lot 14 i
of such papers have been considered, some went in and some I
i 15 stayed out.
You are certainly on firm ground in citing O
16 I
cases in CFR.
I don't think they have to be in the record, F
17
!l but I think each attorney has to make a judgment whether ij 18
) something is or is not within the scope of the so-called 19 i
official notice, and proceed on that basis.
?
20 MR. MC BRIDE:
I should have and apologize for 3
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21 h not making specific reference to such things as section 4.0 of the NUREG 0680 sub 5.
22 23 JUDGE KELLEY:
Well, are you asking a question g
1 24
! whether sub 5, can -- let's suppose that the board focuses 0
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1 are not persuasive, and that sub 5 is excluded, are you 2
then asking me now whether you can get it back in by 3
official notice?
4 MR. MC BRIDE:
Yes, in effect, I don't mean to 5
suggest we are trying to circumvent the board's order, but 6
if we got the order that they told us might come out next 7
week, ruling that various sections of NUREG 0680, sub 5, 8
were not admitted in evidence, where we would be left?
And 9
I am trying to short-circuit the need for another round of 10 comments or something.
Since we have all the parties, the 11 question is whether we would by that ruling be precluded 12 from referring to the document itself in testimony or
()
13 arguments and discussing the conclusions that the Staff 14 reached and the Commission appears to have endorsed.
15 Because this has a bearing on the preparation of our 16 testimony, which is one of the reasons that I raise it now.
17 JUDGE KELLEY:
The board can't answer you this 18 morning.
There are too many ifs, ands and buts here.
We 19 can go around and hear frcm all the lawyers, I think you 20 are just going to have to take whatever ruling you can get i
i 21 l
on sub 5 next week and make a judgment.
i l
22 i
I suppose the view of the lawyers think, well, I i
23 can still cite sub 5 even though it got knocked out by a 24 board order from the record, then somebody will come along i
25 and move to strike it from your testimony and we will argue
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1 about it again.
That seems to me the way that would likely 2
work.
I don't know if that is helpful.
3 MR. MC BRIDE:
No, it is helpful, because if we 4
do that, we didn't want the board to think that we were 5
trying to ignore or circumvent its ruling, but we do feel 6
strongly about the necessity to be able to refer to past 7
practices and the Commission's conclusions.
8 JUDGE KELLEY:
You may or may not be able to do 9
that.
There are apparently other lawyers -- Blake doesn't 10 think you should, from my quick reading of his pleading, 11 but I don't want to speak from him.
I think you are trying 12 to get a ruling of something in advance and we just can't
(}
13 give it.
14 MR. MC BRIDE:
I didn't mean to suggest that at 15 4 all, but while we had all the parties and the board, simply 16 to point out that I think a ruling -- simply as to whether 17 it comes into evidence or not, may not completely answer 18 the issue.
19 l
JUDGE KELLEY:
Oh, it may not or it may.
I l
guess we will see when it happens.
Mr. Blake, do you want 20 i
21 l
to make any comment at this point?
Simply because you
/
22 filed a pleading in opposition to the proposition on sub 5?
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23 MR. B LAKE:
No, I don't have any comment at the f
24 moment.
f JUDGE KELLEY:
All right.
Well, we will cross 25 C:)
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I that bridge when we come to it.
Mr. Gephart, anything else?
2 MR. GEPHART:
Nothing.
3 JUDGE KELLEY:
Goldberg?
4 MR. GOLDBERG:
No.
5 JUDGE KELLEY:
Mr. Flynn?
6 MR. FLYNN:
No, nothing else.
[
7 JUDGE KELLEY:
Mr. Maupin?
8 MR. MAUPIN:
Just this, if testimony, prefiled 9
testimony is filed after the 15th, for example, if a batch 10 of it is handed over by different employees on the 25th, 11 may we assume that in preparing and submitting questions 12 based on that prefiled testimony, we will have the same
(])
13 number of days on the 25th as we would have had on the 15th?
14 JUDGE KELLEY:
I should have said that 15 specifically.
Yes.
I think that's fair.
Without looking 16 at a calendar, yes, that's correct.
If we slip one 17 deadline, we will slip the next.
You can assume that's 18 true.
Okay.
Mrs. Aamodt.
19 MS. AAMODT:
Judge Kelley, I have two requests.
20 One is for a copy of the transcript of this telephone 21 conference.
There were large portions of it that I did not 22 I hear.
I also was disconnected for Mr. McBride's comments 1
l on the rulings by Judge Rambeau.
23 24 JUDGE KELLEY:
I will mail you a copy.
j 25 MS. AAMODT:
All right.
The other question I
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I have to ask is whether I could make a brief motion to the 2
l board.
I 3
JUDGE KELLEY:
Do you mean now over the phone?
4 MS. AAMODT:
Yes.
5 JUDGE KELLEY:
All right.
6 MS. AAMODT:
Is that all right?
I 7
I JUDGE KELLEY:
fou are asking to make a motion 8
now on the phone?
I 9
MS. AAMODT:
That's right.
10 JUDGE KELLEY:
I don't want to say yes or no.
11 Can you give me the general nature of the motion?
I MS. AAMODT:
This is concerning the board's last 12 l
()
l order on participation in the hearing as engaging on 13 i
14 grounds of personal attacks and language.
i JUDGE KELLEY:
Correct.
I think any such motion 15 16 0 should be in writing.
We don't want to take it in the il 17 phone conference.
18 MR. MC BRIDE:
Judge Kelley, would you do me a 1
19 1 favor since Mrs. Aamodt might not be able to hear me.
20
- ! Would you point out to her since she did not hear me the 21 l
first time, that in light of Judge Rambeau's order, all l
i l
22 parties are required to keep the parties that we have l
l 23 l
become aware of that are under seal in this proceeding i
24 l
under seal for the indefinite future.
I il 25 JUDGE KELLEY:
Did you hear Mr. McBride that I
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2 MS. AAMODT Yes, I did.
I fully undarstand 3
3 that request.
4 JUDGE KELLEY:
Okay.
Good.
He heard that, j
5 Mr. McBride.
[
6 MR. MC BRIDE:
Thank you.
j 7
JUDGE KELLEY:
If there is nothing further then, i
8 thank you very much.
We will see you on the 2Sth.
Goodbye.
9 (Whereupon, at 11:18 a.m.,
the telephone 1
i j
10 conference was concluded.)
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202-347-3700 Nationwide Coverage 4633MM6
CERTIFICATE OF OFFICIAL REPORTER O
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
INQUIRY INTO THREE MILE ISLAND UNIT 2 - LEAK RATE DATA FALSIFICATION DOCKET NO.:
LRP PLACE:
WASHINGTON, D.
C.
DATE:
THURSDAY, JULY 31, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt) Nb b
(TYPED)
WENDY S.
COX Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation i
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