ML20212M692
| ML20212M692 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/25/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-518 LRP, NUDOCS 8608270058 | |
| Download: ML20212M692 (98) | |
Text
ORJGINAL UN11ED STATES O
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
LRP INQUIRY INTO THREE MILE ISLAND UNIT 2 - LEAK RATE DATA FALSIFICATION LOCATION:
BETHESDA, MARYLAND PAGES:
2%3 - 348 DATE:
MONDAY, AUGUST 25, 1986
'O' 6
I ACE-FEDERAL REPORTERS, INC.
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l UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION
~
3 BEFORE THE ATOMIC SAFETY AND LICF" SING BOARD
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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
9 Nuclear Regulatory Commission 4350 East-West Highway 10 Fifth Floor Hearing Room East West Towers Bethesda, Maryland g
12 Monday, August 25, 1986
/ ;
13 The prehearing conference in the above-entitled matter 14 convened at 10:00 a.m.
15 16 BEFORE:
17 JUDGE JAMES L.
KELLEY, Chairman Atomic Safety and Licensing Board 18 U.S.
Nuclear Regulatory Commission Washington, D.
C.
JUDGE JERRY R.
KLINE, Member f
Atomic Safety and Licensing Board 20 j
U.S.
Nuclear Regulatory Commission 21 Washington, D.
C.
4 22 JUDGE GLENN O BRIGHT, Member Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission 23 Washington, D.
C.
24 7s( '
25 i
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254 APPEARANCES:
2 On behalf of GPU Nuclear:
3 ERNEST L.
BLAKE, ESQ.
JOHN NASSIKAS, ESQ.
4 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
5 washington, D.
C.
20036 6
On behalf of Former Metropolitan Edison Employees:
7 HARRY H. VOIGHT, ESQ.
8 MICHAEL McBRIDE, ESQ.
LeBoeuf, Lamb, Leiby & MacRae 9
1333 New Hampshire Avenue, N.W.
Washington, D.
C.
10 on behalf of NRC Staff:
I 11 JACK R.
GOLDBERG, ESQ.
MARY E.
WAGNER, ESQ.
12 U.S.
Nuclear Regulatory Commission
)
Office of Executive Legal Director 13 Washington, D.
C.
14 On behalf of Jack Herbein:
15 JAMES BURNS, ESQ.
JACK WILLIAMS, ESQ.
16 CHRISTOPHER FLYNN, ESQ.
Isham, Lincoln & Beale Three First National Plaza 1
Chicago, Illinois 60602 18 On behalf of Gary Miller:
1 19 MICHAEL W.
MAUPIN, ESQ.
MARIA CHRISTINA HENSLEY, ESQ.
20 Hunton & Williams 707 East Main Street 21 Richmond, Virginia 23212 22 l
23 1 24
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2 JUDGE KELLEY:
Good morning.
The presiding 3
board and parties are here this morning in the matter of 4
the Commission's inquiry into Three Mile Island Unit 2 leak 5
rate data falsification.
This is a prehearing conference, 6
leading to a hearing to begin in a couple of weeks.
I'm 7
James Kelley,.I'm chairman of this presiding board.
8 On my left'is Judge Glenn Bright; on my right is 9
Judge Jerry Kline.
10 Could we have introduction of counsel, starting 11 from the left of the stand?
12 MR. GOLDBERG:
Jack Goldberg.
With me is Mary 13 Wagner.
~
14 MR. BLAKE:
Ernest Blake, representing GPU 15 Nuclear, and on my lef t, John Nassikas.
16 MR. VOIGHT:
Harry Voight and Michael McBride, 17 representing the numerous former employees.
18 MR. BURNS:
Jim Burns, representing Jack Herbein.
19 Seated behind me is Jack Williams and Chris Flynn.
20 MS. HENSLEY:
Maria Hensley, representing Gary 21 Miller.
22 JUDGE KELLEY:
Thank you.
I received a call 23 Friday from Mr. Aamodt advising us Ms. Aamodt was ill'and 24 would be unable to attend this prehearing conference.
No 25 postponement was requested so we will proceed.
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l-Dividing matters roughly into groups in the 2
telephone conference of, I believe, the 31st, we gave you a 3
list of items we thought ought to be talked about,.with, in 4
some instances, an indication of what we thought might be 5
the best way to go; and in some other cases, no particular 6
preference.
So we might, I think, usefully start with 7
those matters.
8 In addition, several other matters have come up 9
or something occurred to the Board in the meantime which --
10 no surprises, I don't think but which we think we can 11 usefully add at this point.
12 We solicited additional suggestions for the 13 agenda from the parties and we received two sets of O
~
from 14 suggestions:
one from the numerous employees and one 15 GPU, which we will also speak to; and then there will be a 16 chance to speak to other things as they may be generated by 17
. discussions this morning.
18 I would like to speak first to the question of 19 the order of witnesses at the upcoming hearing.
We 20 suggested in our telephone conference -- I won't repeat 21 this at great length -- since we do have a large number of 22 questions -- I think 250-plus questions addressed to each 23 of the technical witnesses -- it seemed to us to be 24 sensible to do that initially in a panel format.
25 When I say " technical witnesses," I mean four n\\~)
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1 Staff witnesses:
Mr. Russell and Mr. Capra are a-pair, and
'2 Mr. Kirkpatrick and Mr. Wermiel are a pair; Mr. Rockwell 3
will be appearing in connection with the Fagrant and Benson 4
report and I believe he will be accompanied by Mr. James 5
Moore from GPU; and Mr. Edwin Stier will be here to address 6
the technical aspects of the -- what we call the Stier 7
report.
He, I believe, plans to be accompanied by at least 8
one technical person.
We don't have that person's identity 9
at the moment.
I don't know that it's crucial.
If anybody 10 thinks it is, I think they could nail it down.
But for now 11 I will simply indicate that he will be here with somebody --
12 from MBR, I would assume, the people that he worked with in 13 preparing his report.
p#
14 So, we would envision a panel of, perhaps eight 15 people and we would begin at the beginning and end -- go 16 through.
I think in a few cases it will be obvious who the 17 question ought to be addressed to, somebody's report.
Ask 18 them first, I assume.
But in a lot of cases it won't be 19 obvious, and I think the information -- we'll just ask the 20 Staff first and then have the other witnesses agree, 21 disagree, comment, qualify, whatever they care to do.
- That, 22 in a very general way, would be how we would expect to 23 proceed at the beginning.
24 And I think maybe I should stop here -- trying 25 to carve this up into digestible chunks -- stop here and (1)
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l take comments from the parties on that general proposition 2
I just outlined.
3 Let's just go around, lef t to right.
4 Mr. Goldberg?
5 MR. GOLDBERG:
I guess there's one thing that's 6
a little bit unclear to me about the scope of the 7
questioning for this initial panel.
I can see that from 8
the questions which were submitted to the Staff witnesses, 9
there are questions which might very well be considered 10 common questions for all the individuals who will be 11 appearing during this panel appearance.
But, also included 12 in the questions for the Staff witnesses are questions that-13 are very specific to.the Staff's technical analysis of O
~.
14 individual leak rate tests and also questions that are
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'15 specific to the prefiled testimony of Mr. Wermiel and 16 Mr. Kirkpatrick.
17 I guess one way of proceeding would be to have 18 the panel present for what are truly the common questions.
19 JUDGE KELLEY:
That's what we meant; right.
20 MR. GOLDBERG:
Then when they are finished the 21 panel would be dismissed and the individual witnesses would 22 answer specific questions about their report, their 1
23 technical analysis of individual tests.
24 JUDGE KELLEY:
That's what we meant.
We wanted 25 to do this as conveniently as possible.
The reason to
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1 convene this panel is if the same people are being asked 2
the same question -- I don't mean identical to the final 3
word, because there's some modification, but by and large 4
there's a large body of common questions.
Whenever we get 5
to individual questions, I would envision they would go to 6
the individuals concerned.
I'm just talking about common 7
questions.
8 MR. GOLDBERG:
Yes.
9 JUDGE KELLEY:
I might just add that, based on 10 my recollection of our review of the questions, if you take 11 the four sets of questions from the numerous employees, 12 they are quite simi.lar, up through around 250.
They are 13 not exactly the same.
The numbering -- there will come a 7,U 14 time when you ask the Staff witness to answer question 73, 15 and the other witnesses' questions 73 aren't going to be 16 the same.
He considered asking the numerous employees' 17 counsel for some sort of matrix but we'll get to that.
I 18 don't think it's a big problem.
Anybody looking through 19 these will see the similarities.
And they come in pieces; 20 I don't think it's going to be something that will be a 21 real stumbling block.
22 So, we intend to break off the separate 23 questions.
Anything else?
24 Mr. Blake?
25 MR. BLAKE:
We are content with that sort of I
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1 approach, Judge Kelley.
I wonder if I might now raise one 2
of the three additional agenda items that I put in a filing 3
last week; and that is, Mr. Christopher, whether or not 4
he's on this panel or whether or not I missed a beat and he 5
is no longer a' witness?
I raise that --
6 JUDGE KELLEY:
We understand him to be the Staff 7
witness.
Perhaps we didn't button that up.
He got 8
proposed at one point, and perhaps we failed to say at a 9
later point that he was being formalized.
But it is my 10 understanding that he will appear as supporting witness of 11 the OI report.
12 MR. BLAKE:
Is he on this initial panel?
?
13 JUDGE KELLEY:
No.
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14 MR. BLAKE.
Separate?
15 JUDGE KELLEY:
I'm sorry.
Right.
The answer is 16 no.
17 Well, as I phrased it, the panel is only 18 technical questions -- if you can put quotes around the 19 word technical."
That's not Christopher.
20 Mr. Voight?
21 MR. VOIGHT:
We don't have any objection to what 22 you have proposed.
I think we would want to preserve the 23 right to suggest or request that Mr. Russell and/or 24 Mr. Capra be recalled.
Because their report also speaks to 25 individual responsibility.
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' JUDGE KELLEY:
Oh, yes.
We contemplated that.
2 MR. VOIGHT:
I just wanted to clarify-that.
3 JUDGE KELLEY:
They.are not through.when we_get 4
through the 250, so to speak.
They have other work to do.
5 Mr. Burns?
6 MR. BURNS:
No objection.
7 JUDGE KELLEY:
Ms. Hensley?
8 MS. HENSLEY:. No objection.
9 JUDGE KELLEY:
Fine.
Then, when we finish'this 10 group of common.or generic' questions, our thought was to 11 turn successively to the individual -
" individual" isn't 12 the.right word -- the sets of witnesses.
They are all two 13 or more,'which-have particular questions addressed to their
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14 15 There are only a handful being addressed to 16 Mr. Rockwell.
He's from Minneapolis.
I thought we might 17 go ahead and ask him the questions and let him leave, as 18 the first of the four.
19 There are relatively few questions addressed.to 20 Kirkpatrick and Wermiel.
Also, and for the same reason, we l
21 might go ahead and hear from them and then the possibility 22 of recall, but basically we would contemplate they would be 1
23 through.
24 Then there are quite a lot of questions put to 25 either Russell and/or -- Russell and Capra, or Mr. Stier,
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1 and whoever accompanies -- well, maybe Mr. Stier alone, by 2
this time.
Presumably we have been over the technical 3
matters.
I'm not sure about that.
But, in any case we 4
don't have any very firm feeling about sequence there, or 5
really know t' hat it matters too much.
6 We have been aware -- made aware of the fact 7
that Mr. Russell is going to be out of the country; I 8
believe the week of the 22nd.
We are going to try to keep 9
the case moving along and would not like to do nothing 10 while Mr. Russell is out of the country.
11 But apart from that, perhaps we'd just hear 12 comment from the Staff and others, if they have a 13 preference on sequence?
[_ >
14 MR. GOLDBERG:
Yes.
Subject to scheduling based 15 on the availability of individuals, it makes most sense to 16 the Staff to have the testimony of Mr. Rockwell, as you 17 suggest, right at the conclusion of the common questions 18 for the panel.
19 Similarly, the questions for Mr. Kirkpatrick and 20 Mr. Wermiel are very few in number and for the most part, I 21 think, they can be dismissed after answering a few 22 questions which have been suggested be directed to them 23 based on their prefiled testimony.
24 After that, it makes most sense to the Staff to 25 proceed with questions for Mr. Stier and MPR, on their
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1 analysis of the individual leak rate tests and then proceed --
2 JUDGE KELLEY:
I guess, if it's on testing, it's 3
likely it will be Stier plus somebody?
4 MR. GOLDBERG:
Yes.
And then proceed to 5
Mr. Russell and Mr. Capra.
The reason for that is that 6
logically and in order of the time of the investigation,
-7 the conclusion of the investigation, Mr. Stier's work 8
precedes the work of Mr. Russell and Mr. Capra, and, also, 4
9 it would provide the opportunity, if there are questions of 10 the Staff witnesses about their conclusions in light of the 11 conclusions of Mr. Stier, Mr. Stier will have testified 12 along with his consultant, MPR.
13 So, we would propose that Mr. Stier be 14 questioned after Mr. Rockwell and Mr. Kirkpatrick and 15 Mr. Wermiel, and then proceed to Mr. Russell and Capra on 16 their technical analysis and their conclusions on 17 individual leak rate tests.
18 JUDGE KELLEY:
Let me interject a point while I 19 think of it, that might have some bearing on this question.
20 Mr. Stier telephoned me last week to report that 21 he was finishing up his report for GPU on his and MPR's 22 analysis of the Staff report.
Maybe I can just turn to 23 Mr. Blake, maybe he can give us the status on that.
24 MR. BLAKE:
I can't.
In fact, that is what I 25 was just checking on, whether or not -- I don't even know O
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I what his schedule is.
There's no access -- I'm not in very 2~
close contract.
Frankly, I don't know what his schedule is.
3 JUDGE KELLEY:
That's our problem.
He told me 4
this.
He said he thought they might have it out by the end 5
of last week.and most likely, at least by today, so its 6
availability, I guess, is imminent.
7 One question, I guess, might be:
Should we ask 8
the parties to develop, if they want to put questions on 9
this, let's call it supplemental report of Mr. Stier's, do 10 they want to put questions, should they be submitted to the
't 11 Board in advance, to Mr. Stier in advance just like the 12 others -- the time is getting a little bit tight.
13 I would suppose that one proposition might be, O.
14 on the assumption we'd get this report -- by the way, his 15 proposition was that he was going to simply supply the 16 report to GPU when it was ready and then he understood GPU 17 would serve the parties.
So let's suppose everybody gets 18 the report sometime this week.
Then -- it's pretty hard to 19 submit questions in advance.
I'm assuming that this is a --
20 I have no idea whether it's 20 pages or 200, but it's 21 certainly not like the original Stier report.
If it's 22 something fairly modest in size and scope, we could 23 probably take questions when the hearing opens, or 24 somewhere in that range, and the Board would look them over.
25 I'm breaking the sequence of discussion, I know, O
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I but it may have a bearing on who goes first as between the 2
Staff or Stier.
Does it sound reasonable, on the 3
assumption that the report comes out this week and gets in 4
everybody's hands, if you want to put questions to Stier on 5
the basis of the report, if you could simply bring those 6
questions to the opening of the hearing?
Is that 7
reasonable?
Mr. Voight?
8 MR. VOIGHT:
That's agreercent with us.
~9 JUDGE KELLEY!
Okay.
Does anybody object to 10 that?
11 Okay.
12 Jack, does that assumption affect -- I'm not 13 suggesting it does --
.O 14 MR. GOLDBERG:
I don't think so.
In the case of 15 Mr. Stier, he will have done some kind of work comparing 16
'certain things in his report and certain of his conclusions 17 with those of the Staff.
Similarly, Mr. Russell and 18 Mr. Capra have done a study and the parties already have --
19 it's part of the record -- some of their thoughts about 20 comparisons and contrast between Stier's work and theirs.
21 JUDGE KELLEY:
There will have to come some 22 point in time when the last word will have been spoken, I 23 assume.
24 Mr. Blake, any comments on the sequence question?
25 MR. BLAKE:
No.
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1 JUDGE KELLEY:
Mr. Voight?
2 MR. VOIGHT:
I'm a little concerned about the 3
idea of Stier leaving, closing up his book and going home, 4
j and then the Staff testifying about how their analysis is 5
better than his analysis on individual tests.
I feel like, 6
if we are going to have that kind of debate both parties 7
ought to still be on the witness stand.
8 But, with that reservation, the rest of it 9
sounds okay to me.
10 JUDGE KELLEY:
I understand your point.
Okay.
11 Mr. Burns?
12 MR. BURNS:
Fine.
13 JUDGE KELLEY:
Ms. Hensley?
~#
14 MS. HENSLEY:
No preference.
15 JUDGE KELLEY:
Okay.
I don't see -- the Board 16 sees overriding differences between the two, and part of it 17 may be availability, but we'll take all the comments into 18 account, including the last point Mr. Voight made.
19 Then, as indicated previously, our thought would 20 be to move to the two witnesses we have in the lineup, 21 other than initial parties who subpoenaed peopler that is
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22 to say, Mr. Haverkamp, who has now -- the Staff has filed 1
23 prefiled testimony focused, really on the LER event, and i
24 gives us some detail on that; and we thought we would hear 25 from Mr. Hartman following Mr. Haverkamp.
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1 We asked the Staff to get in touch, if they 2
could, with Mr. Hartman.
I think Jack did reach him.
3 Perhaps you could tell us a little bit about his 4
availability?
5 MR. GOLDBERG:
Yes, I spoke with Mr. Hartman 6
last week and indicated that the Board would like to hear 7
his testimony.
Mr. Hartman agreed to appear voluntarily to 8
offcr his testimony.
9 I suggested that mid-September to the end of 10 September might lwa the time frame when his testimony would 11 be appropriate and he didn't indicate any problem with that 12 schedule.
I told him that as soon as a determination was 13 made as to specifically when he would be asked to testify, 14 he would be contacted.
15 JUDGE KELLEY:
Was there any discussion about 16 prefiling?
Or was it just the thought that he would come 17 to the hearing?
18 MR. GOLDBERG:
I did not discuss with him the 19 subject of profiled testimony.
20 He indicated that it has been quite a while.
He.
21 has been examined on this subject a number of times; 22 doesn't have anything to add other than what he said in the 23 past.
24 JUDGE KELLEY:
I don't think the Board has a 25 considered view on the subject, but there are some Hartman (1)
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1 statements now in the record and our thought has been, with 2
the subpoenaed witnesses, that, to the extent they are 3
willing to file prefiled and give us sort of a 4
pulled-together version of the event from their perspective, S'
that's fine.
We would like to have it.
But if we don't 6
have that, we would take what we've got in the record and 7
that would be a basis for questions to be put to them.
8 That would be in the -- the general approach.
9 We can't, of course, require Mr. Hartman to 10 write testimony.
11 Does that approach seem reasonable?
Does 12 anybody have any problem with that?
Okay.
13 So, in the sequence of having Mr. Hartman after 14 Mr. Haverkamp and before the parties, also seemed to us to 15 be a sensible approach.
16 Then that would bring us to the party employee 17 witnesses.
The numerous employees --
18 MR. VOIGHT:
What happened to Mr. Christopher?
19 JUDGE KELLEY:
Oh, Good question.
Good point.
20 I'll tell you after the break.
It's here somewhere.
21 Let's talk about the employees in terms of the 22 sequence.
You might just note that the numerous employees 23 have filed numerous statements.
We got a rather large 24 installment a week or 10 days ago and then two sets of 25 three, I think, at the end of the week.
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1 Does that bring us up to everybody or who is 2
left?
3 MR. VOIGHT:
Everybody who came in as a 4
participant has now submitted a prepared statement..
5 JUDGE KELLEY:
Fine.
6 MR. VOIGHT:
With respect to the subpoenaed 7
witnesses, I.can comment on that, either now or later.
8 JUDGE KELLEY:
Let's get to it a little later.-
9 MR. GOLDBERG:
Excuse me, Judge Kelley, before 10 we get to the order of the individual operators, it seems
-11 to me that as I understand the. subjects that are covered so 12 far by these various panels and witnesses, we have not --
13 will not have had testimony from Mr. Russell and Mr. Capra 14 on their interviews and their actual conclusions on the 15 involvement of individuals, matching up the information 16 that they obtained from individual operators with the 17 results of the Staff's technical analysis to form the. basis 18 of conclusions on individual culpability.
That's where 19 Mr. Christopher would logically appear, along with Mr.
20 Russell and Mr. Capra, as a panel.
21.
JUDGE KELLEY:
Let me make sure I understand 22 where we are on that.
The conclusions of Russell and Capra 23 are in the record, along with their entire report; correct?
24 And their report is standing service as prefiled testimony.
25 They haven't made any profiled.
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1 MR. GOLDBERG:
Right.
2 JUDGE KELLEY:
So their conclusions are in, in 3
that sense.
4 We did have questions submitted, July 21st, I 5
think, on those witnesses, did we not?
I'm not sure what 6
we are missing.
7 MR. GOLDBERG:
We haven't 'seen any questions 8
that go to their conclusions about individuals.
The 9
questions that were submitted to them have to do with their 10 technical analysis, and the so-called " common questions."
11 And, while it's true, their conclusions are in 12 the record and we stand by them, if there are going to be 13 questions to t' hem about their conclusions on individual r.s
(
I 14 culpability, and their interviews of individuals, it hasn't 15 been covered yet.
16 JUDGE KELLEY:
Comment, Mr. Voight?
17 MR. VOIGHT:
Well, what Mr. Goldberg says is 18 obviously correct.
The questions that we put in in July go 19 to the technical analysis and not to the individual 20 responsibility.
So I think he's raising a valid point, and 21 that is, when and how do we go back and pick up on 22 individual responsibility?
We are planning to submit 23 questions to Mr. Christopher, but we are going to have to, 24 at some point, step back and address more questions to 25 Russell and Capra.
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l 27942.0 271 BRT (3) 1 JUDGE KELLEY:
Maybe we need to clarify that.
2 It looks like we may have -- in my own case, and I'll just 3
speak for myself; I don't think the Board has talked about 4
it -- we are looking over various filings this morning and 5
came on what we think is a gap in questions or a gap in 6
opportunity for questions; namely, whether the Staff, for 7
example, might want to suggest questions based on the 8
prefiled testimony.
We haven't talked about that one way 9
or the other.
But my own assumption was -- perhaps not all 10 that well based -- was that the questions, let's say to 11 Stier, on individual responsibility, were due on the 21st 12 of July.
That was my idea.
13 If nobody shares that and if the order is
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14 unclear, then maybe we have to set some other time.
15 I gather that was not your understanding, from 16 what you just said?
17 MR. VOIGHT:
That's right.
18 JUDGE KELLEY:
Was it your understanding we just 19 didn't have a deadline or how did you think that fit into 20 the scheme of things?
21 MR. VOIGilT:
I felt at that time that we hadn't 22 established a schedule or a procedure, going beyond the 23 technical aspects of the case.
24 We did --
25 JUDGE KELLEY:
I don't think the Board had that n
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understanding.
The whole idea of having a separate 2
technical hearing got scrapped back in May, and we are 3
going into a hearing this fall.
We are going right l
4 straight through until we are done on all issues.. That has
'S been our understanding now for some months.
6 If there's some gap in filings on questions of 7
individual -responsibilities, let's fill it now.
8 MR. VOIGHT:
I'm ready to discuss that.
9 JUDGE KELLEY:
Why don't we go ahead?
If I 10 understand you correctly -- and I'm being redundant, I 11 realize -- you understand the July 21 filing date for 12 questions to be technical and not individual?
13.
MR. VOIGHT:
Yes, sir.
\\-
14 JUDGE KELLEY:
And that you did not yet have a 15 date for individual responsibility, set by the Board, with 16 regard, really, to Christopher, Russell and Capra.
That's
.17 who we are talking about.
18 MR. VOIGHT:
That's right.
19 JUDGE KELLEY:
Could you propose a date?
20 MR. GOLDBERG:
Judge Kelley, while they are 4
21 conferring to determine a date, I guess it was my 22 understanding -- and I have to admit I didn't pay very 23 close attention because it didn't affect any submission of 24 Staff -- it was my understanding that the Board had 25 established schedula for the submission of questions of (1)
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whatever category for witnesses, such as Stier and Russell, 2
and Capra and" Christopher.
However,_it was theJBoard's
-3 intention to only submit to the' witnesses in advance the 4
technical questions that were asked of them and, of course, 5
I don't know what qudstions were submitted.
All!I'have are 6
-the technical questions which were provided to the Staff 7
witnesses in advance.
8 JUDGE KELLEY:
I might just add, I think we set 9
a separate day for Christopher: the 25th of August, if I'm 10 not mistaken.
Looking at the order here.
y 11 MR. GOLDBERG:
I didn't understand any 12 limitation on the subjects covered by the questions.
Only 13 a limitation on wbat we would be -- what would be provided O
14 to the witnesses in advance so that they could prepare.
A 15 decision was made that they should have the technical 16 questions in advance so they can go through the complicated 17 test analysis that they have done and not have to take 18 hearing time to do that; but that the questions on 19
-individual culpability wouldn't be submitted to them in 20 advance.
That's the onlv difference between the two.
21 JUDGE v5LTEY Look at page 4 of the order of 22 22nd, the bottom para 3c iph.
I'll just read it.
23 "The questions due on July 21 are for witnesses, 24 principally technical witnesses, who prepared reports and 25 who were not expected to file separate prefiled testimony.
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Questions for.the witness on the OI report, and other 2
witnesses, are due on August 27th."
3 So, I think it was our intention that they were 4
due then.
We are certainly open to proposing an alternate 5
date if you understood it otherwise, as long as we cannot --
6 we don't want to impinge the schedule, that's all.
7 MR. VOIGHT:
I don't think there's any problem 8
in that regard.
We'll have our questions for 9
Mr. Christopher on Wednesday, and I'm going to ask for 10 September 15th for any additional questions that we may 11 want to ask Russell and Capra.
That's not going to. impinge 12 on the hearing schedule because we can work on the 13 questions while we are here.
O' 14 JUDGE KELLEY:
I don't think we'll get to the 15 technicals until the 15th; we-don't start until the 8th.
I 16 don't think it's a big problem.
17 I'm not quite sure where we were.
Mr. Blake 18 looks puzzled.
19-Mr. Burns?
4 20 MR. BURNS:
Just to make sure I'm clear, I take 21 it, then, we could file, if we choose, summary questions to 22 Mr. Stier on individual responsibility items by Wednesday 23 of this week; is that correct?
24 JUDGE KELLEY:
Well, actually, the plot gets 25 even thicker when you recall that we had a due date of O
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1 profiled testimony on the 15th.
We graciously extended 2
that date until today.
And Mr. Maupin said, but, if you do 3
that, don't I get a corresponding extension in which to ask 4
questions?
And we said, yes, without naming a date.
5 This is questions on prefiled in Christopher.
6 We talked earlier about what we might extend that to and we 7
were thinking of just the opening day of hearing, the 8th.
8 I suppose that, if Mr. Voight -- we can accommodate 9
Mr. Voight with the 15th for those ki.as of questions --
10 and you are talking about the same kinds of questions; 11 right?
12 MR. BURNS:
Yes.
If I might, your Honor, I 13 apologize if it was unclear to us, early, in terms of f_(' /
14 filing questions for Stier.
Part of that was because we 15 had this motion on file concerning the no accession ruling.
16 JUDGE KELLEY:
Right.
17 MR. BURNS:
I did not get the order.
We have 18 been having some mailing problems in terms of receiving 19 stuff in Chicago; I finally got the order last week, 20 contacted and talked with Mr. Stier Thursday of last week.
21 Based on that conversation, on the Court's order, 22 I might wish to file some questions.
But if the Court says 23 the train has left the station, I will live with that 24 ruling.
But if there's no problem, we could have them 25 ready by Wednesday.
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27942.0 276 BRT f( f-1 JUDGE KELLEY:
We don't need to have trains 2
leave on time unless somebody is going to get on them.
I 3
think we can look at where we are -- I think the Board is 4
responsible-for some confusion here, too.
We'll own up to 5'
that.
Just as long as we walk out.of here clear on where 6
we are going, now.
7 So, the proposition, if I'm correct, is we have 8
a request to file individual responsibility questions by 9
the 15th, from Mr. Voight.
And you would like to file some 10 similar questions, perhaps.
It might as well be the same 11 date.
12 If you can do a best-efforts, like you were 13 saying, and get your Christopher questions done earlier, b'
'~
14 Mr. Voight, if you can, go ahead and file them.
But I 15 think we might as well just set one deadline, which would 16 be the 15th, for individual responsibility questions that 17 might be directed to Christopher and Stier, and Russell and 18 Capra.
19 Is that fair?
20 MR. VOIGHT:
That's fine.
21 MR. BURNS:
That's great.
22 JUDGE KELLEY:
Clear to everybody?
Okay.
23 We were starting, I think, to talk about 24 sequence among employees.
We only-had one rather general 25 principle in mind, which was, I think we would prefer to O
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hear from the front-line employees and timir immediate 2
supervisors first, and the senior supervisory management-3 people later.
We would draw that line.of demarcation in 4
this way:
By line employee we mean the CROs, the shift 5
foremen, and fairly far up the line, the shift supervisor --
6 although he might fall on one side or the other, depending 7
on the views you may want to present.
But then we would 8
hold the senior management, senior management supervisory 9
people starting, I think, with, say, Mr. Floyd on up, until 10 later.
'e don't 11 With that general principle in mind, w
12 have any very fixed notion, but that presents the question 13 of which sequence one hears line employees in, other than k_)
14 alphabetical order.
Why don't we just ask Mr. Voight what i
15 he-would prefer.
16 MR. VOIGHT:
First of all, I have no knowledge 17 with starting with CROs, and then working up the line, as f
18 you have described.
There was some conversation earlier on l
19 about trying to have these people testify by shifts.
We've j
20 given that some thought and we just don't think it can be l
21 done, because they are now spread to different parts of the 22 country; they no longer work together, and it is just going 23 to be pretty close to impossible.
l 24 JUDGE KELLEY:
You mean shift sequential or i
25 shift panel?
l l
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j s) 1 MR. VOIGHT:
Shift panel.
-l 2
JUDGE KELLEY:
I don't think the Board has very 3
much enthusiasm for that one either, for different reasons.
4 But go ahead.
5 MR. VOIGHT:
Obviously, we are going to have to 6
try to work with the Board and to some extent, with the 7
other parties, to bring all these people down here.
But we 8
will make a good-faith effort to bring them down in the 9
order that you have suggested.
I don't think we'll have 10 too much trouble.
11 JUDGE KELLEY:
Do you have a preference?
12 MR. VOIGHT:
No.
13 JUDGE KELLEY:
Could it be alphabetical order?
14 MR. VOIGHT:
I think the best thing from our 15 standpoint would be to see how many people we can line up 16 and then_let you know if there's a problem.
17 JUDGE KELLEY:
Okay.
Staff comment on this 18 question?
19 MR. GOLDBERG:
It is our position that it makes 20 most sense to consider the operators in order of their 21 shift assignments; not as a panel, but to hear the 22 operators and shift foreman and shift supervisor _who 23 appeared together on a particular shift, hear their 24 testimony before moving on to the operators, shift foremen 25 and shift supervisors who worked together on a different w(J ACE-FEDERAL REPORTERS, INC.
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h~
l shift.
O 2
In most cases, the analysis and the conclusions 3
flow from the shift assignments; what tests were done on a 4
particular shift, who was on that shift; the conclusions 5
are based on the testimony of the operators in addition to 6
the technical analysis of the tests, and obviously the 7
operators were most familiar with what occurred on their 8
shift and with the practices of the other individuals who 9
were on their shift.
10 So, for those reasons, it makes most sense to 11 proceed, to the extent possible, by shift assignments.
12 JUDGE KELLEY:
Any thoughts?
Mr. Blake?
13 MR. B LAKE:
I guess I would like to endorse 14 something that Mr. McBride mentioned in the-course of the 15 conference call; that is, that we take into account what 16 these people currently are doing, their current employment 17 situations, their current' shift assignments at the various 18 plants, where they might be working, many of whom are in 19 GPU Nuclear plants now.
20 JUDGE KELLEY:
Are we talking maybe half these 21 people are currently GPU?
22 MR. BLAKE:
I can't give you a figure but --
23 MR. VOIGHT:
That's a rough approximation.
24 JUDGE KELLEY:
A dozen, maybe.
25 MR. B LAKE:
I really encourage us to work (2)
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1 informally together, to the extent we can take into account 2
the people in the same shift operating with each other, and 3
that works out in conjunction with their availability; but 4
I want to encourage the availability being taken into 5
account by Mr. Voight, who is going to bear much of the 6
responsibility for just getting in touch with these folks 7
and keeping them coming in an orderly fashion for the 8
proceeding.
And, from our own standpoint, as long as we 9
just have a couple of days' notice, sort of lead time, as 10 we go through, that would be suf ficient for our purposes.
11 Second, I would say I think there's a 12 complication on the shift business in that, as I understand 13 it, there was a change in shifts in January of 1979, f om 7,
1
\\~'
14 five to six; and therefore, some reorientation of people.
15 So, when you try to do it simply by shift, you 16 may be mixing some apples and oranges.
17 JUDGE KELLEY:
Your point about notice is a 18 useful one.
We've got to recognize the convenience points 19 that everybody is making.
20 From the standpoint of just the Board, at least, 21 in rereading testimony, we need a couple of days.
From a 22 somewhat further perspective, it would be good to find out 23 pretty soon the sort of proposed sequence.
If one were 24 trying, for example, to go over prefiled testimony and 25 develop questions, to know whether a person is going to o
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I come somewhere toward the front or somewhere toward the 2
back might also be useful.
Okay?
3 Any other comments?
o 4
Mr. Burns, any' thoughts on this?
5 MR. BURN 3:
No.
I have no comment in terms of 6
whether to call the shift.
I do think it makes sense in 7
terms of Mr. Blake's position, the availability of EI witnesses.
I have no objection to that.
9 I do endorse the overall approach that the Court 10 has recommended:
s' tarting with the CROs and working up-11 through the chain.
'12 JUDGE KELLEY:
Ms. Hensley?
1 13 MS. HENSLEY:
Mr. Miller likewise favors a b
'/
14 bottom-up approach.
15 JUDGE KELLEY:
Shif ting to that, Mr. Burns, I'm 16 sorry we weren't able to accommodate you any more than we
~
q 17 did -- which I guess was not at all; our apologies -- what 18 is your perspective now on your own time?
When would you 19 prefer that Mr. Herbein -- if you could pick an approximate 20 time?
Do you want him right to toward the end, which is 21 what we indicated?
Is that all right?
22 MR. BURNS:
I would prefer that.
Obviously~
i 23 depending on how we are working through it, I might ask f
24 leave of the Court to move him out of order.
Besides that, i
25 I also got set for trial on October 27th, which should be a O
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I three-to four-day trial, but that would probably take a 2
week or week and a half out.
3 But I can assure the Court I will work my 4
schedule around the Court.
If we have a problem with 5
Mr. Herbein, I would perhaps ask to have him out of order.
6 Otherwise, I would prefer to have him towards the end.
7 JUDGE KELLEY:
Of course no one can tell about 8
these things, but we have ventured to hope that we will be 9
done by the 27th of October.
But we'll see.
10 MR. BURNS:
Then there would be no problem.
11 JUDGE KELLEY:
We will know a lot bsatter at the 12 end of September how this is going to go.
13 Just a few words about the subpoenaed witnesses 14 and maybe some comments, too.
As we understand it, we have 15 subpoenaed eight people and six of the eight, I understand, 16 to be represented by LeBoeuf, Lamb:
Cooper, Seelinger, 17 Olson, Bryan, Wright, Hemmila -- those six.
18 MR. VOIGHT:
That's correct.
19 JUDGE KELLEY:
Plus Logan and the other one are 20 not represented by you?
21 MR. VOIGHT:
That's correct.
22 JUDGE KELLEY:
We have one addition and then we 23 have no further plans for subpoenaing at this point.
24 Ue said earlier, in August, with reference to 25 our considering the Staff's table of people that we had oL>
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1 gone over, you know the table -- table 1, I think it is, in v
2 their backup book, where they list all the CROs and all the 3
shift foremen and all the supervisors.
We read that and it 4
turns out.that everybody on that list has been' subpoenaed 5
except.two people:
Mr. Kidwell and Mr. -- the French name --
6 Phillippe.
7 HR. MC BRIDE:
Phillippe.
8 JUDGE KELLEY:
It's an American name..Okay.
9 And we indicated, in that order, that our results of 10 looking over the record, and we really meant in terms of 11 statements -- th're was nothing in the record in terms of e
12 statements about either Kidwell or Phillippe.
We noticed 13 later, however, that in the evaluation material-of the 14 individual tests, where there were various matrices --
15 that's the correct term -- and it turns out that what the 16 Staff calls " questionable tests," Mr. Kidwell was involved 17 in quite a few of those; sufficient, we thought,.that he 18 ought to appear.
19 Mr. Phillippe was involved in very few, was a 20 trainee, and it was our feeling that we need not call 21 Mr. Phillippe.
So, we do -- Mr. Kidwell was an intervenor 22 party earlier.
Then he and Mr. Bryan noticed their 23 intention to withdraw, back in the spring, and we simply 24 noted that the notice was the notice but they might get 25 subpoenaed if their name was associated with evidence O
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l suggesting the need for their appearance.
So we now think
- 2 that we should call Mr. Kidwell back.
We propose to do 3
that.
4 We do not have a current address.
I don't know f
5 whether Mr. Voight is free to disclose that.
Are you free 6
to disclose Kidwell's address?
7 MR. VOIGHT:
No, sir.
8 JUDGE KELLEY:
Here is what I think we should do.
9 We are going to send a letter, like we'sent to the others, 10 to the last known address.
It either gets there or it 11 doesn't.
We understand he has moved, and his petition to i
12 intervene contained no address, so we will do that.
Then 13 we'll simply ask counsel -- we are not directing, but we h
14 are asking you to simply get in touch with him, tell him 15 that we want him to come in and that if he doesn't come in i
16 he runs the risk of adverse findings.
That's how we intend 17 to treat it.
18 A few more sort of miscellaneous questions about i
19 these subpoenaed witnesses.
I think Mr. McBride wrote to 20 us a while back about Mr. Seelinger, was it?
You indicated
[
21 he might file profiled but he needed more time.
That's not i
22 hard to deal with.
23 Did you have a specific date?
24 MR. MC BRIDE:
Yes, your Honor, we suggested at 25 least September 28th, 29th.
Our expectation was that since O
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I he was rather far up the chain of command, if you will, and 2
if the Board were going to follow the bottom-up approach, 3
which it now appears has been decided, that probably would 4
not be a problem in terms of the scheduling.
5 JUDGE KELLEY:
That's fine.
Make it the 29th.
6 The other five, then, do you know one way or the other, yet, 7
when the remaining five you represent might be filing 8
prefiled:
Cooper, Olson, Bryan, Hemmila, Wright?
9 MR. VOIGHT:
Cooper definitely will have a 10 prefiled statement.
11 Hemmila, I have not yet spoken to personally, 12 but I believe he will have a prefiled statement.
13 Bryan will have a profiled statement.
\\l 14 Olson and Wright are still up in the air.
We 15 have talked once to Wright.
We can talk to him again.
We 16 haven't really had a chance to sit down and review Olson's 17 situation.
18 The ones that are going to have statements we 19 are going to get them in before the hearing starts, which 20 is our interpretation of your request.
21 JUDGE KELLEY:
That will be fine.
If you can do 22 that, if it takes a little longer, then let us know.
23 l
MR. VOIGHT:
I think we can.
If we have a 24 problem with one person we'll tell you that and also, if a 25 person has decided that he's not going to give you a O
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1 statement, we'll advise you of that' fact so'that you won't 2
be wondering about it one way or the other.
3 JUDGE KELLEY:
Maybe you can just bring what 4
you've got to the hearing and let us know about the others 5
at that time, the status report.
6 MR. VOIGHT:
That will be fine.
7 Now, in the same vein, Cooper has already filed 8
a motion to modify the subpoena.
9 JUDGE KELLEY:
We want to speak to that.
10 MR. VOIGHT:
There are going to be a couple, at 11 least two or three other people who are going to fall in 12 that same category.
13 JUDGE KELLEY:
Good.
Why don't we take a O
14 10-minute break.
15 (Recess.)
16 JUDGE KELLEY:
Back on the record.
I simply 17 note the fact we were talking about profiled testimony on 18 behalf of some of the subpoenaed witnesses and we may have 19 questions, parties -- on file with respect to them, but 20 we'd simply have to address that when and if we get such 21 testimony.
There's no point in setting a date at this 22 point.
We will speak to that later.
23 This might be a convenient time to speak to the 24 motion we have to modify the subpoena issued to Mr. Martin 25 Cooper.
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)
1 MR. BLAKE:
Judge Kelley, can we just use as a 2
ground rule -- the split between the initial submission of 3
testimonies and the individual responsibility questions is 4
12 days, the 15th and the 27th.
Can we just assume, unless 5
it turns out differently, that we have about 12 days for 6
the submission of questions from the parties following the 7
filing of any of these individual pieces of testimony?
We 8
have gotten them at different dates as they have come in.
9 It would be of some help to me -- I don' t even know if we 10 are going to submit some questions, but it would be of some 11 help in terms of scheduling to have that just set as a 12 ground rule unless someone has an objection.
The 5th and 13 the 8th turns out, in all cases, to be about 12.
14 JUDGE KELLEY:
I think our main motive now is 15 not to create confusion; make it simple.
We said with 16 regard to the 15th, the individual responsibility questions 17 on Stier and Rockwell, and Capra and company -- you are 18 talking about the other statements by the parties?
19 MR. BLAKE:
That's correct.
Exactly.
20 JUDGE KELLEY:
If -- what we said earlier was, 21 we would make a roughly corresponding addition.
If it 22 turns out to be 12 days, I guess that's what it is.
I 23 looked at my calendar and noted that the 8th starting day 24 is about that much time.
Whether it is better to say about 25 12 days or -- the 8th would be as to all of them that are O
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1 in so far.
Is that a clean enough time?
2 MR. BLAKE:
Yes.
3 JUDGE KELLEY:
So it would be the 8th, on 4
individual party testimony for filing questions; it would 5
be the 15th on the points I just stated; and it will be 6
some date yet to be set for the subpoenaed witness prefiled 7
that we haven't gotten yet.
Okay?
8 MR. B LAKE:
Yes, sir.
I would also like to 9
return to one other subject before we go on.
Mr. Goldberg 10 made the observation that, with regard to notice of 11 questions which have been submitted by parties to this --
12 this expert group of witnesses, Stier, Russell, Capra, that 13 there was a split between individual responsibility and
(
)
14 technical questions.
15 Speaking for myself, I had never understood that 16 that was the split.
I thought, with regard to these folks, 17 this group, Russell, Capra, Stier, et cetera, that they 18 would see in advance whatever questions had been submitted, 19 except for those that the Board sought from people which 20 were of an impeachment type of question, which lawyers 21 normally would want to not provide advance notice of.
But i
22 my split had not been -- never in my thinking had I seen 23 the split between something called " technical" questions 24 and something called " individual responsibility" questions.
25 I must say, when you get I have not seen any (v)
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1 of these questions, but my guess is, it's going to be 2
awfully hard to parse them between individual 3
responsibility and technical questions, because much of the 4
discussion with these people about individual 5
responsibility will be questions in the nature of technical 6
questions about this test or that test.
7 JUDGE KELLEY:
In the abstract, I think your 8
point is well taken.
Whether it will present a practical 9
problem, I'm assuming that Mr. Voight's questions, due the 10 15th, will, for one thing, not be terribly extensive.
And 11 if we get into arguments whether, gee, you should have 12 followed that in July, I sort of hope we can avoid that.
13 If the questions are not that -- all that many in number.
14 Even though one might argue that it's really technical and 15 should have been filed in July, we will probably just go 16 ahead and take it.
17 As to the distinction between technical and 18 impeachment, we tried to provide a little guidance there.
19 I might just say that we held on to a very few questions on 20 the ground that they seemed to be impeachment.
As a matter 21 of fact, I think they were put by the Aamodt's in three or 22 four, sort of not very many -- show-me-your-resume-type 23 questions.
24 It does seem to us, without seeing them, that 25 you are. more likely to get into impeachment questions on oo ACE-FEDERAL REPORTERS, INC.
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1 individual responsibility when you get, for example, into 2
conflicts between different statements.
And we would not 3
propose to give that to the witness in advance but rather, 4
hold on to that and put it at the time.
5 Is that at all helpful?
Have we still got a 6
problem?
7 MR. BLAKE:
I don't think so.
I guess the only 8
other question, not from my point -- the only other 9
question is:
These fellows are now going to appear at two 10 different points in time?
11 JUDGE KELLEY:
"These fellows" being Stier and 12 Rockwell?
13 MR. BLAKE:
Right.
'O 14 JUDGE KELLEY:
Let's talk about that.
That's 15 something that I know Jack wants to speak to, too; I 16 suppose there are somewhat different ways that could be 17 handled.
18 Jack, you had some thoughts on that.
Did you 19 want to speak to it?
(
20 MR. GOLDBERG:
Yes.
The one thing that's not 21 clear from the schedule we have so far is the choice 22 between two options.
One is that when Stier and the MPR 23 representative appear to answer questions about the 24 technical analysis that was done on individual leak rate 25 tests, whether at that time they will be asked questions, ov ACE-FEDERAL REPORTERS, INC.
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27942.0 291 BRT h) 1 Mr. Stier will be asked questions about his conclusions on 2
individual culpability, followed by Mr. Russell and Capra 3
answering questions on their analysis of individual 4
questions.
And then they would be joined by 5
Mr. Christopher to answer questions about individual 6
culpability.
That's one option.
7 The other option is that Mr. Stier and the MPR 8
representative appear, answer questions about their 9
analysis of the individual tests.
Then Mr. Russell and 10 Capra appear, answer questions about their analysis of 11 individual tests, and now we are done with the technical 12 questions of these witnesses.
Then Mr. Stier would appear 13 to answer questions about individual culpability.
Then Y ~
14 Mr. Russell, Mr. Capra and Mr. Christopher appear to answer 15 questions about individual culpability.
16 Those are the two options that I see.
It is not l
17 clear to me which one we are adopting or which one the 18 Board is proposing to follow, during the hearing.
19 JUDGE KELLEY:
Well, we didn't say anything 20 about telling Stier to stop when he gets through technical 21 and then get off the stand and come back later on 22 individual.
One of the virtues of not doing that, I 23 suppose, is not having to draw the very distinction that 24 Mr. Blake was speaking of.
25 on the other hand, if there is some good, O
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I practical reason or some reason in fairness why their s
2 presentation should be sequential, then I suppose we might 3
do that.
I think we were just thinking of going straight 4
through with the witness and having him say what he had to 5
say on everything.
6 Mr. Voight?
7 MR. VOIGHT:
Well, I think I can narrow the 8
problem down a little bit.
We do not have any questions on 9
individual responsibility for Mr. Rockwell that would not 10 be appropriate.
We do not have any questions to Mr. Stier 11 on individual responsibility.
So, whatever we have 12 furnished to the Board for Mr. Stier is it.
13 We had planned on having questions for
' ')
+
14 Christopher and we may have some for Russell and Capra.
So 15 those are the only people that we will be addressing.
As 16 to those people, it seems to me, since Christopher is going 17 to have to appear separately in any event, it might be 18 better to bring Russell and Capra back and have them on 19 with Christopher.
We can do it either way, but I sense it 20 might work better to have that separated.
21 JUDGE KELLEY:
If Russell and Capra came after 22 Stier, they would still be there; right?
They wouldn't 23 have to come back, is all I'm saying.
I I
24 MR. GOLDBERG:
Then you'd add Christopher --
25 MR. VOIGHT:
All right.
I see what you are (s
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1 saying.
That will work.
That will work.
2 MR. GOLDBERG:
That will work.
3 There is one' comment I want to make in 4
connection with the questions which the parties can. submit 5
on September 15th, to the extent they might have questions 6
for Mr. Russell, Mr. Capra and Mr. Christopher.
4 7
As I said before, it was my understanding of the 8
schedule that all questions for Mr. Russell and Mr. Capra 9
were due to be filed by whatever date had been established.
10 The questions which they had been provided was the extent 11 of the questions which would be submitted to them for their 12 preparation for appearance at the hearing.
I 13 I think it was very clear that there was not a
(
14 distinction made between times for submitting technical 15 questions and time for submitting questions on individual i
16 responsibility.
And, therefore, that Mr. Voight has, 17 basically, not submitted any questions on individual t
E 18 responsibility by the required deadline.
19 If he hasn't done so -- and like I said, I don't j
20
'know what he submitted; all I have seen are technical 21 questions of Mr. Russell and Mr. Capra.
I 22 If, on September 15th, Mr. Voight comes in with
(
23 a substantial n'imber of questions that require additional l
24 work by Mr. Russell and Mr. Capra, then we are going to 25 have some very strong objections.
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1 JUDGE KELLEY:
The Board, under the 4
2 circumstances, we have said that we'll give Mr. Voight i
3 another' bite at that apple.
I think, as we'll comment in a 4
minute about the Staff and the questions, if he's coming in 5
with a lot of questions that would impose additional l
6 burdens on them, it would create -a problem f rom the Staf f 's 7
standpoint, we'll hear more about that.
But, with that
[
8 understanding, we'd cropose to leave things as we have 9
stated them.
j
.10 MR. VOIGHT:
I think I can safely state there t
11 will not be that many questions and the questions are going i
12 to be largely addressed to people's conclusions, which i
13 doesn't strike me as either permitting or requiring them to 14-do any additional work.
l 15 JUDGE KELLEY:
Okay.
Let's go ahead.
i 16 We wanted to spend a couple of minutes at least j
17 on this motion to modify for Mr. Cooper, which, I suppose, 18 potentially represents -- the same considerations may arise i
19 with respect to one or two other people.
Let me just make i
20 a couple of preliminary observations.
21 The motion begins with a legal argument which is 22 to the effect that Commission subpoenas may not be made 23 returnable when they are put into the Federal District l
24 Court enforcement context, beyond the confines of the 25 particular federal district.
Which is to say that we 4
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from California over his legal objection.
3 The Board's initial reaction to that legal 4
-proposition is one of disagreement.
As we read it, the 5
Atomic Energy Act authorizes the Commission to make -- to 6
serve subpoenas any place and make them returnable any 7
place, subject, perhaps, to some rules of reason.
8 True enough, Federal District Courts in most-9 litigation are confined to their districts, but there are 10 statutes which authorize nationwide service.
11 There is a note following, I think Rule 5 of the 12 Federal-Rules, to the effect that the' limit on the district l
13 doesn't apply to federal agency subpoenas, citing a number O
14 of agencies, not, unfortunately, including the NRC.
- But, 15 in any event, the principle seems to be that when the 16 Federal Trade Commission goes to the southern district of 17 Texas and wants to bring somebody to Washington, they can 18 do that.
19 In any event, that's an initial reaction.
You 20 put it in these terms because we would just prefer to 21 discuss the problem and see if we can't work out something 22 practical.
In any case, if we had to go to enforcement, 23 we'd have to go to the general counsel.
I have sought 24 their views on this issue and they don't have any view on 25 the issue.
So let's just talk about the practicalities and O
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1 see what we can get -- any official view, I should say.
2 In the case of Mr. Cooper, we are sympathetic 3
with loss of pay, if that would be the consequence of his 4
being away very long.
5 It occurs to us -- I speak from some experience; 6
it has been some years ago that I was commuting out there 7
on the San Onofre hearing, and just as a possibility, if 8
Mr. Cooper were required out here, could he not fly out 9
here on Sunday, appear on Monday morning, go home in the 10 afternoon and miss one day?
l'm told by our administrative 11 people, we can provide plane tickets in advance so that the 12 cost of the flight need not be borne by him in advance.
13 And, of course, what's really giving us pause --
!\\ l 14 it's a perfectly nice time of year to fly to San Diego and 15 I have no objection in principle to doing that, but just as 16 a taxpayer, it's all three of us and one or two of you, and 17 I don't know who all else would want to go along, versus 18 one person flying out here.
It just seems to us to make 19 more sense for him to come to us.
But the Board will 20 certainly be willing to tailor the schedule to accommodate 21 to the maximum extent, somebody who has to travel that far 22 and has to get back.
23 Do you think that, if we could present a package 24 that involves one day off work, say, and a plane ticket in 25 advance, that would really --
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1 27942.0 297 BRT' I) 1 MR. VOIGHT:
Well, obviously, I can't say 2
anything definitive without speaking to Mr. Cooper.
I do 3
want to point out, traveling on Sunday doesn't necessarily 4
solve the problem because this is a guy who works on a 5
shift.
He's a senior reactor operator and he's a 6
supervisor and I don't know what day he's on shift and what 7
day he's not.
8 JUDGE KELLEY:
We could take another day.
I was 9
just trying to minimize loss of time.
10 MR. VOIGHT:
I also, frankly, doubt that there's 11 any way he could do it without being away for at least two 12 days.
More likely three.
13 You know, we have to have some time to talk to i
14 the man before he comes in here and starts testifying.
F 15 But, you know, if the Board is not inclined to 16 go elsewhere, then we'll just have to talk to these f'
17 individuals and see what their preference is.
l 18 JUDGE KELLEY:
Okay.
Why don't you get back to 19 him and just indicate that we are willing to accommodate 20 them to the extent that we can.
But it's just sheer dollar 21 outlay; it's very hard for us -- assuming we have the i
i 22 authority to require somebody to come someplace, as we 23 think we do -- for us to spend that much money to ship 24 three people or more out to California, instead of junt 25 coming here.
You might get back to us on that.
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1 MR. VOIGHT:
Well, we'll talk to the three or 4
2 four people I think may have a' problem.
3 JUDGE KELLEY:
Okay.
And the same would go for
{
4 others.
I do think we could make overy effort to give them 5
a time certain and I would just guess that this is just i
6 a guess -- maybe half a day would do-it.
But.with that in 7
mind, perhaps you could discuss it with him further.
8 These are matters, again, that weren't in the 9
phone call.
I have three or four more points to raise --
10 rather, I guess these were.
[
11 On the question of prior statements, harking way 12 back to the first prehearing when we were discussing the 13 sheer volume of prior statements that were around, we did
(
14 ask parties to designate particular statements they 1
15 intended to use and some have done so.
But the context at j
16 that time was in terms of, I think, literally hundreds-of 17 prior statements located in' lots of different places and 18 reports in file drawers and who knows where else.
19 I believe we indicated that the Board expected, 20 when the hearing-time came, that we would have questions on
{
21 prior statements, about apparent confl'icts and the like, 22 and that we would indicate which statements that we 23 proposed to question about from all -- I don't know that 24 it's written in stone that we have to but we said we would.
25 The way this has developed, we've got a record l
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I that has a lot of statements to be sure, but in terms of 2
statements pertaining to particular individuals, there 3
really aren't very many.
I think in the can of some 4
witnesses, there might be one statement; more typically, 5
two or three.
So, looking at it now, we think it's fait 6
and reasonable that the Board simplys say,that, as far as 7
the Board's questions go -- and,. thoss.wo sid 'reall'y be 8
individual responsibility-type quesitons -- that each party il i
c, 9
just be prepared to respond to quest 16ns tlat arise out of 10 those statements.
We would not, then, give any further 11 notice.
We are not going to be pulling 15 or 20 statements 12 out of a hat.
It's going to be one or two. -
13 Mr. Voight, does that seem rea'conaula?-
in undetscanding that i
14 MR. VOIGHT:
Am I correct 15 you would only ask Mr. X about Mr. X's ptior atatentents?
16 JUDGE KELLEY:
I was thinking of that, basigally, 17 but I don't know that we were thinking exclust'ely.
v 18 Now that you make the point, yo6 say to Mr. X, 19 Mr. Y says you did such and such.
Is that the kind of 20 thing you've got in mind?
21 MR. VOIGHT:
That's a perhaps'slightly more 22 subtle distinction about that.
You could ask him about 23 something that Mr. Y may or may not,have said without 24 referring to Mr. Y's statement.
As long as you don't refer 25 to Mr. Y's statement, then I know Mr. X only has to read O
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1 this little package before he comes in here.
2 But, if it's going to go beyond his own 3
statements, I can think of some people that are going to 4
have an awful lot of statements to read, potentially.
5 JUDGE KELLEY:
I don't think we are prepared to 6
answer your question right here this morning.
I was 7
thinking more of the idea that we had indicated before we 8
would hand out lists, and now I'm just saying:
- Look, j
9 there's not that much to deal with.
At least in terms of a 10-man's own statement.
So we.are not going to hand out lists.
11 Just look in the record.
And we'll give you a response to 12 the question you are raising at some later point.
13 MR. VOIGHT:
Okay.
14 JUDGE KELLEY:
Does anybody else want to comment 15 on that?
16 MR. BURNS:
Only that I share Mr. Voight's 17 concern.
If you are going to examine witnesses from 18 statements other than the witness' own statement.
19 JUDGE KELLEY:
Okay.
Fine.
20 We had some discussion of the site visit.
I 21 won't repeat it all.
The Board's inclination was that a 22 visit was not necessary.
Mr. McBride suggested that we 23 would benefit from it.
We said, well, we'll look at the 24 photographs at the prehearing conference and see how good 25 they are.
I understan t we have some photographs here this l
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1 morning; is that correct?
2 MS. WAGNER:
That's correct.
3 It's the Staff's intention at the hearing to 4
introduce six 6-by-8 color photographs of the --
5 JUDGE KELLEY:
Is there something down,here that 6
people are looking at?
7 MS. WAGNER:
There's something down here as well.
8 What we've got is, counsel for GPU brought in today various 9
blowups of photographs of the TMI 2 control room.
10 JUDGE KELLEY:
Can ve,come around, too?
Why 11 don't we do that.
Stay on the rec 6rd.
12 MS. WAGNER:
In front ofl'the parties is, I guess,
(
13 basically a panoramic view of the TMI 2 control room.
14 These pictures -- I guess it's only the two 15 pictures on the left -- are included in the group of six 16 that the Staff would intend to introduce at the hearing.
l 17 It is -- but I wanted to draw everybody's attention to the 18 fact that these photographs are available,.at least in 19 blowup form, through GPU.
I can run through, if you want, 20 the photographs that the Staff does intend to introduce.
21 JUDGE KELLEY:
Please do.
22 MR. MC BRIDE:
Can I make a point be' fore she 23 goes on to the other pictures?
I just want to.make sure 24 the' Board knows that these pictures may not be for 25 precisely the right time period, because I'm quite sure if-l O 1
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1 you look at the third picture from the left and you see the 2'
board that is affixed to the front of the panel, which has 3
a roughly diamond-shaped arrangement of darker rectangles 4
on a large square, that that board was erected in the TMI 2 5
control room after the TMI 2 accident, to give the 6
operators some indication, as I understand it, of the 7
-tempuratures of the core at various places in the core.
8 With that possible problem for using these 9
pictures for testimony, I would let Ms. Wagner go ahead 10 with whatever other pictures she has.
11 JUDGE KELLEY:
Does the board have anything to 12 do with leak rates 13 MR. MC BRIDE:
Not that I know of, but I don't b'
14 know what it blocks or what else may have been changed on 15 that panel because of this configuration.
16 MS. WAGNER:
Let me state with regard to the 17 third photograph, we are not intending to introduce that 18 photograph at the hearing.
However, we do have, I believe, 19 that chart that Mr. McBride was referring to, because it's 20 included in a general overview photograph that we had 21 intended to provide.
We did not intend to make any use of 22 that chart for any purpose.
23 JUDGE KELLEY:
Okay.
24 MS. WAGNER:
Let me go through the six 25
-photographs that we had wanted to introduce.
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1 The first is the general overview photograph 2
that I had just referred to.
3 The second one -- and what I'm doing now is I'm 4
holding up GPU's enlarged copies which correspond, with 5
certain-cropping differences, to the 8-by-10 perhaps, that 6
we intend to introduce.
7-You couldn't, for example -- this photograph 8
number 2 that I've got, that I'm holding up now, could not 9
be reduced to an 8-by-10 photograph.
There are certain 10 cropping differences.
This includes the-reactor coolant 11 system temperature graphs.
12 We have a close-up of the pressurizer 13 indications; a close-up of the makeup panel controls; and 14 then the first two photographs on the left,. one of which is 15 a computer -- the computer terminal and the second one of 16 which includes the makeup panel controls and puts them in 17 the context of the panel.
18 I have brought one copy of the 8-by-10 e
19 photographs, which we would intdnd to introduce.in evidence 20 with me today for everybody to look through.
i 21 This would be -- these photographs, the 8-by-10 l
22 copies, would be the evidence and not these larger blowups.
l l
23 Those would be for the convenience of the witnesses and the l
24 parties to point to in the course of the hearing.
l 25 We would intend to introduce them through the IT s/
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I testimony of Mr. Don Kirkpatrick, when he is on the stand.
4 2
We also intend to distribute to the Board and 3
the parties, 8-by-10 color Xeroxes of these photographs, j
4 due to cost considerations.
And we are hoping to have 5
those Xeroxes made within the next few days; we should be 6
able to distribute them, shortly.
7 We are told that 8-by-10 colcr Xerox should 8
be -- should provide us good reproduction.
9 Again, I want to bring to everybody's attention 10 that there are other photographs available in blow up form 11 but it's not the Staff's intention to introduce those.
12 JUDGE KELLEY: Thank you, Ms. Wagner, for your 13 explanation and showing the photographs and bringing them O
14 along to the hearing.
15 Mr. Voight?
Mr. McBride?
You were the 16 proponents of a site trip.
Do you think those photographs 17 would make it less important?
18 MR. VOIGHT:
Well, the photographs are clearly 19 helpful.
The thing that you don't get from the photographs, 20 and you are probably not going to get, even if you have 21 more photographs, is the spatial relationships.
How big is 22 the room?
Where is the shift supervisor's office?
How far 23 away is that computer from the control panels?
24 I think it's still our view that, in the long 25 run, the Board would have a better appreciation for the O
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1 physical layout if you saw it instead of looking at 2
pictures.
3 JUDGE KELLEY:
Do you think physical layout is 4
significant from the point of view of the positions of 5
various parties?
6 MR. VOIGHT:
There's some areas in some of the 7
previous statements about was so-and-so in the shift 8
supervisor's office or out on the floor?
If you see how 9
big the room is and how far the shift supervisor's office 10 is, you are more likely to appreciate that it could have 11 made a big dif ference.
12 Mr. McBride adds that, particularly with some of 13 the Staff testimony, they seem to assume that operator A i
14 always knew what operator B was doing, and vice. versa.
15 When you see how big the room is and how far apart some of 16 the panels are, you might question that assumption.
17 JUDGE KELLEY:
Does anyone else want to comment 18 on site visit or not?
19 MR. GOLDBERG:
The only comment I have is that 20 if it turns out that a significant issue arises as to 4 -
21 distances and relationships of one part of the panel or 22 control room to another, then the Board certainly could 23 decide it is appropriate to go up there.
But, a priori, I 24 don't think there's any need to go up there.
25 JUDGE KELLEY:
We'll say something on this at V,
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I the end of the conference.
2 On the general question of starting, stopping, 3
we have indicated earlier that we would like to start the 4
proceeding, pretty much go through and finish it up.
We 5
don't anticipate stopping for days at a time.
I think we 6
ought to be a little bit flexible and ad hoc, in terms of 7
needs of parties to do other things, but basically we 8
expect to have this hearing in operation full time starting 9
on the 8th of September.
We don't have any particularly 10 good estimate of how long this is going to take.
I suppose 11 if we were guessing, it would take at least a month.
How 12 much more, we just don't know.
But we want to go ahead and 13 do it.
O 14 As a general matter, we run a 9:00 to 5:00 15 hearing in this room and expect to start at 9:00 on the 8th 16 of September.
17 We had a little discussion of these matters over 18 the phone.
We didn't, intentionally, go very far on it.
19 Mr. McBride had some comments, I know.
20 Perhaps everybody can get their oar in at this 21 point.
Staff, does that approach sound agreeable to you?
22 MR. GOLDBERG:
Yes.
We don't have any objection t
23 to that.
I think as a practical matter it's probably in 24 everyone's interest if there is time during the week when i
25 i the participants can spend in their office on other matters D
s/
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1 and -- but, we can certainly accommodate any schedule.
2 I'll leave it to the other parties to express their views 3'
about their need to be in their offices during the week.
4 JUDGE KELLEY:
Would you want to quit early 5
middle of the week one day?
Be a little more specific.
6 What's your proposition?
7 MR. GOLDBERG:
We can accommodate any schedule.
8 I think it may make sense to provide for some time during 9
the week when the parties, their attorneys, can be in their 10 office for other matters.
Or maybe even for leak rate 11 hearing related matters that require some work in the 12 office.
13 JUDGE KELLEY:
Okay.
Mr. Blake?
14 MR. BLAKE:
Judge-Kelley, I had anticipated that-15 this hearing would last a minimum of two months with the 16 expectation that it will go longer than that.
17 With that expectation, a real extended hearing, 18 week after week after week, I would 'have a strong 19 preference for holding the hearing four days a week, 20 Tuesday through Friday, and leaving one day in the office, 21 not only to prepare for that week -- Monday would be my 22 preference -- but as well to take care of the other things
-23 that by nature just come up when you are doing one thing, 24 other things don't stop.
My preference would be to start 25 bright and early Tuesday morning and find a convenient O
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I breaking point Friday afternoon so that those flying out of 2
town would be able to make flights.
But not, as a general 3
matter, plan on meeting on Mondays, except to accommodate 4
one witness' schedule or another.
But it would be the 5
exception rather than the rule.
6 JUDGE KELLEY:
I'm surprised to hear your 7
projection of two months.
But I guess -- you know -- how 8
does anyone make these estimates.
9 Mr. Voight?
10 MR. VOIGHT:
I think we would endorse Mr. Blake's 11 proposal.
Certainly we are willing to go along with it.
12 It -- the disadvantage is going to be that we are going to 13 try to get a couple of people like Seelinger, in and out of 7,,
(
)
14 here on a Monday.
But it has the advantage that other 15 people who are going to have to be traveling can use Monday 16 to get here and get ready to appear here before this board 17 on Tuesday.
18 JUDGE KELLEY:
Mr. Burns?
19 MR. BURNS:
We obviously have the worst travel 20 problem of all the participants.
We welcome what Mr. Blake 21 is saying.
It would make our life a little easier, and I 22 would take note of his point that on Fridays, if it's 23 convenient or reasonable, if we can get out at a little 24 earlier hour, that would make it easier for us; but we 25 could certainly accommodate what is most convenient for all u-l l
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1
.the participants.
2 MR. MC BRIDE:
Judge Kelley, I wonder if I might 3
ask -- it might help this discussion along -- a number of 4
us were talking during the break about how long it might 5
take for each of the individual witnesses, after you'get 6
beyond the people with reports.
It is a more-difficult 7
problem than the normal hearing because normally-the 8
lawyers can talk amongst one another and perhaps report to 9
the Board on occasion as to how long they expect to have 10 questions for each witness and then you can give some sort 11 of guesstimate of one another when you are going to get to 12 the next one.
4 13 In this format, leaving it up to the Board to at O
14 least initiate most of the questions, not even knowing, yet, 15 about follow-up, we don't have a very good idea of how long 16
_the board might expect to take with each individual witness.
17 That to some extent may color all of our thinking about how 18 long this is going to take and how many days a week we need.
19 JUDGE KELLEY:
I think we are all kind of 20 groping, frankly, in terms of guessing time.
The witness' 21 statements, by and large, are not very long.
If you saw
'22 that in an operating license proceeding we would figure a 23 couple of hours.
Here, that's maybe very different.
I 24 don't know.
25 There has been a preference -- let's get to (2)
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1 Ms. Hensley, before we get to anything else.
s 2
MS. HENSLEY:
I favor Mr. Blake's proposal and I 3
think Mr. Maupin would likewise.
4 JUDGE KELLEY:
If you are in a four-day week you 5
want Monday off; is that the consensus?
I'm perfectly 6
frank with you, my personal preference would be to take off 7
'in the middle of the week.
I don't know whether that would 8
be helpful or not.
Perhaps not.
9 MR. BLAKE:
It would meet my objective of at 10 least having one day to prepare a certain days' number 11 ahead and to take care of other things in the office.
12 MR. MC BRIDE:
Judge Kelley, that's going to be 13 difficult for us, though, I think.
Because, for example, k#'
14 if we are trying to lead the target and have two people in 15 the wings, while you've got someone on the witness stand 16 and we don't know how long it's going to take and I have i
17 two operators down here on Tuesday afternoon and then we 18 don't finish, then we are going to wait until Thursday.
19 People like Mr. Burns are going to have the same problem.
20 What do they do on Wednesday?
They either spend most of 21 their day traveling back to Harrisburg and Chicago and back 22 again or they've got a dead day.
23 JUDGE KELLEY:
Okay.
We'll take your comments 24 into account and try to accommodate everybody as well as we 25 can.
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1 We've got a series of matters that didn't come 2
up in the phone call but have arisen since.
The first one 3
is Unit 1, where we were -- there was motion from numerous 4.
employees to put in certain material on unit 1 and there 5
were some objections and the upshot was that we had a 6
memorandum and order in early August which put out for all 7
parties a proposal, joint proposal by the numerous 8
employees in GPUN, which sets forth in a few pages certain 9
factual background propositions, if I can call them that, 10 about what transpired at Unit 1.
So we simply put that out 11 in a pleading.
It had been served anyway, by the 12 proponents, and we asked the Staff whether-the proposed --
13 I couldn't yet call it a stipulation, but the attachment to 7
14 the pleading was a sort of reasonable gross summary of the 15 Staff's investigations.
16 Mr. Goldberg, what is your comment on that 17 question?
18 MR. GOLDBERG:
I think we can say that it is a l
19 reasonable gross summary of leak rate practices at Unit 1.
4 j
20 That's what the Board's question was, and we can say that 21 it is a reasonable gross summary of leak rate practices at 22 Unit 1.
23 We aren't prepared to say much more about it.
24 There are a lot of phrases and words in here which are 25 subject to interpretation; a lot of statements about what l
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I was routine, what was frequently the case, and I'm not 2
prepared to address in detail what we would -- how we would 3
interpret those phrases and what our position would be on 4
how accurately they described the practices at Unit 1.
5 But, as far as the question that was asked, it 6
is a reasonable gross summary of the practices which 7
occurred at Unit 1.
8 I would emphasize, though, that by agreeing that 9
it does represent a reasonable gross summary of the 10 practices at Unit 1, we are not and should not be construed 11 to indicating that we believe there's any legal 12 significance associated with whatever it might say, and we 13 certainly don't concede that it is within the scope of the
(
14 hearing as the Commission specified the issues for this 15 hearing.
16 But, for whatever it is worth, we would agree 17 it's a reasonable gross summary of the practices which 18 occurred at Unit 1.
19 JUDGE KELLEY:
Thank you.
I think the 20 qualification you are making illustrates'the very reason 21 for us to be having this kind of thing.
. hat the Board W
22 does not want to do is litigate the details of what 23 happened at Unit 1.
And we understand from the -- I'll ask 24 proponents to comment on this -- but we understand the 25 position to be that they would either like to or are O
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of events at Unit 1 that will have whatever relevance the 3
proponent seeks to attribute to it, in lieu of litigation
~
4 of these matters.
That's why we thought, frankly, it was 5
kind of a promising approach.
But our reason for looking 6
. with some favor on this idea is the very fact that once you 7
put this in, then that's pretty much it as far-as Unit 1 is 8
concerned, where they do have some testimony from 9
individual operators saying I used to work at Unit 1 and 10 this is what I did over there, and I guess that's okay, but 11 we certainly wouldn't be getting into extended testimony 12 from people about Unit 1.
That's why it seems to us to be 13 a good possible approach.
k 14 With those comments, Mr. Voight or Mr. Blake, 15 would you care to comment further on just what you see out 16 of doing this?
Most significant to our standpoint, to the 17 extent it will foreclose any more litigation, most 18-significant from our standpoint.
19 MR. VOIGHT:
Well, first of all let me remind 20 everybody how this problem arose.
The employees had 21 proposed to submit, as part of the record, chapter 4 of 22 -
NUREG 5, which, of course, was a Staff document.
So we 23 assumed that the staff, at least, would have no problem 24 with what was said in that document.
Other people did have i
25 problems, for different reasons.
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Our purpose in offering it was, as you have y,j t
2 described, simply to put some background in the record 3
about how some of these things got started at Three Mile 4
-Island.
5 Uhen Mr. Blake came up with this alternate 6
approach we felt that that purpose was served, so we were 7
satisfied to go forward, based on the statement of agreed 8
facts and we have never had any desire or intention of 9
litigating anything that happened in Unit 1 and this, as 10 you say, I think, will avoid the, even the possibility of 11 that arising.
12 JUDGE KELLEY:
I'm a little unclear, I think you 13 spoke about this in your pleading but maybe you can restate O
14 it -- just exactly what the status of this document would 15 be.
I understand what the stipulation is.
It isn't yet a 4
16 stipulation.
I suppose if all parties say, yes, I agree to 17 that document, then it's a stipulation, it's binding --
18 binding in the sense that it's in and the board makes of it 19 whatever it chooses in the context of proposed findings.
20 This isn't yet a stipulation, at least.
Maybe it will 21 become one.
22 Is the staff -- well, the staff isn't a party so 23 that's easy.
24 Are the other parties -- Mr. Burns, are you 25 prepared to join this proposition?
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1 MR. BURNS:
I am not.
2 JUDGE KELLEY:
You are not?
3-MR. BURNS:
No.
4 JUDGE KELLEY:
Okay.
Ms. Hensley?
5 MS. HENSLEY:
At this time it doesn't appear 6
that we are.
7 JUDGE KELLEY:
Okay.
Do you want to add, 8
Mr. Blake, to what Mr. Voight had to say?
9 MR. BLAKE:
No.
I agree with many of the 10 suspicions that the board had about our interest in trying 11 to provide Mr. Voight and the employees with enough in the 12 way of historical background, without getting into a 13 complete exploration and expanding the proceeding into TMI 14 1.
It was precisely our desire and that's why I took the 15 step that I did.
16 I think, though, if, as we said in that pleading, i
17 the board agrees that this type of historical perspective 18 is in order, we would be prepared to provide these, as wa 19 indicated, as admissions of fact.
The extent to which that 20 was sufficient, in the board's view, for record purposes, 21 what went on at Unit 1I should think would assist it in I
22 making determinations about others' desires to get deeper 23 into Unit 1.
24 While it isn't a stipulation at that point, the 25 board, with its responsibilities of ensuring it has enough i
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l in the record, I should think, would be, with those 2
admissions of fact in the record, better equipped to make 3
that decision.
As it came up on an ad hoc basis.
4 My hope would be that we could stipulate to make 5
it an even cleaner procedural arrangement -- I have little 6
faith that that will work, with all the parties.
7 MS. HENSLEY:
Your Honor --
8 JUDGE KELLEY:
Maybe I'll get back to this 9
admission question, exactly what an admission is for our 10 purposes.
Let me hear from the other parties about this 11 first.
Ms. Hensley?
12 MS. HENSLEY:
I should say first that we haven't 13 had an opportunity to speak with counsel for numerous
,_(')
14 employees about this stipulation.
Our concerns about it go 15 more to its wording than to negating the purpose that the 16 numerous employees may have to put the history of Unit 1 17 leak rate matters into the record, and I think that it is 18 something that could be easily worked out.
19 MR. BURNS:
Your Honor, if I might --
20 JUDGE KELLEY:
This has been in your hands since 21 the first week of August; is that right?
You want to 22 negotiate this thing?
Is that what I understand you saying?
23 MS. HENSLEY:
It was served on August 5th, your 24 Honor.
25 JUDGE KELLEY:
This is August 25th.
o
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( s) 1 MS. HENSLEY:
That's correct.
Yes, sir, I would s.
2 like to negotiate it.
3 JUDGE KELLEY:
I think you are a little late but 4
maybe that's a possibility.
5 Mr. Burns?
6 MR. BURNS:
I share all the participants' 7
concern about getting into an elaborate proceeding 8
concerning Unit 1.
In fact I would prefer that we not get 9
into Unit 1, certainly not get bogged down in it.
But I 10 can't agree with this because, on behalf of my client, in 11 agreeing I would, in effect, be putting admissions in the 12 record.
13 Many of these, although I know it's a good faith 7
(
)
14 attempt to paint a fair historical perspective, are very 15 broad, general, there aren't time frames on them, and as 16 far as when my client was on the island, at what periods of 17 time he had direct hands-on responsibilities for Unit 1 as 18 opposed to those times when he no longer had those 19 responsibilities, it would make it very difficult and I 20 dcn't want to have to get in a position that if these are 21 deemed admissions in the record, that I'm going to have to 22 attempt, in some fashion, to rebut them to the extent that 23 some of these, I don't feel, are in the best interests of 24 my client in these proceedings.
25 So the way they are presently structured, I'm o
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1 sorry but I just can't agree.
2 JUDGE KELLEY:
I-think I know your answer to 3
this but let me ask you.
We had these pleadings before us.
4' Before we got this proposition in front of us we were 5
thinking:
What are we going to do about there?
Our i
6 inclination, quite frankly, is -- is it section 4?
That's 7
the 20-page discussion.
Then there's section 13.
Something 8
-- and some other pieces.
Our inclination was to say, 9
okay,.put in section 4 but put it in as background.
Hear 10 no questions, call no witnesses, just have it sit there.
11 And - then have any party who wants to in their proposed ~
12 findings cite sections of section 4 as supporting their 13 point of view -- they would be free to do so and others
.s I
_)
14 could say it's not relevant or whatever they wart to say.
15 But put it in essentially as background, which is a much 16 more extensive discussion than, of course, the proposition 17 now before the House.
18 I assume from what you said you would probably 19 prefer this shorter version than section 4; is that correct?
t 20 MR. BURNS:
I have no problem with the shorter 21 version, obviously.
22 JUDGE KELLEY:
If you had your druthers --
23 MR. BURNS:
That's correct.
I 24 JUDGE KELLEY: -- you'd take the shorter version.
25 How about you, Ms. Hensley?
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1 MS. HENSLEY:
Well, Mr. Miller did not object to s
2 section 4.
We, in principle, do not object to this 3
document.
I note, however, that attachmcat A uses the word 4
" valid," in paragraph 11.
Maybe I'm just unclear but I'm 5
not -- I don't know what the definition there of " valid" or 6
" invalid" is that's being used.
7 I know there has been some controversy in this 8
hearing as to the definition of that term.
9 JUDGE KELLEY:
I think we mooted that 10 controversy.
Well --
11 MS. HENSLEY:
Those are the sorts of questions 12 that I have, your Honor.
I'm sure that I probably should 13 have taken.them up with counsel, prior to this time.
p_,
(
)
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14 MR. B LAKE:
I wish all the parties were here 15 today because five or 10 minutes off the record might be 16 very fruitful at this juncture, rather than sort of poking-17 away with first thoughts.
If we had five or 10 minutes, we l
raight very well have been able to solve it.
18 19 JUDGE KELLEY:
Do you want the next five or 10 20 minutes?
21 MR. BLAKE:
I'd be willing to give it a shot if 22 the others think it would be worthwhile.
23 MR. MC BRIDE:
I think it would by useful but if 24 I could make this suggestion, on this one in particular, if 25 the board is willing to deem Mrs. Aamodt's absence to be po l
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l aware of any objection to this, that will make our job very 2
easy.
But, if not, it might be useful if the board could 3
find out what the Aamodts' position is on this, even if 4
Mrs. Aamodt is sick, maybe Mr. Aamodt can answer the phone 5
and tell you if they have a position.
6 Otherwise, we may all work on something and then 7
find out that Mrs. Aamodt doesn't, you know, agree with any 8
approach that anybody wants to follow.
9 JUDGE KELLEY:
We were merely told -- I was not 10 here.
It's a "please call" message that I got.
The 11 message was not to call but was that Mrs. Aamodt was ill, 12 would not be here.
It was Mr. Aamodt calling.
No 13 extension was sought.
If the party misses the noticed
(~h
\\-
14 prehearing, doesn't get a notice of postponement, whatever 15 happens at prehearing is the law of the case as far as we 16 are concerned.
17 Do you want to take a 10-minute break?
All 18 right.
19 (Recess.)
20 JUDGE KELLEY:
We have recessed briefly for 21 discussions among counsel about this Unit 1 question.
I'd 22 ask Mr. Voight if these discussions have borne fruit?
23 MR. VOIGHT:
It appears that there is now a 24 consensus that the preferable approach is to go back to 25 where we were and request that the board take section 4 of O
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I the NUREG report and incorporate that in the record as 2
background, and the people can then propose whatever 3
findings or make whatever arguments they choose to.
4 JUDGE KELLEY:
Would it follow with that in the 5
record as background and with the understanding that 6
certain of the individual parties in their testimony, as I 7
believe some of them have, might say something about their 8
personal experience at Unit 1; but beyond that, Unit 1 9
would not be a subject in the case, is that the proposition?
10 MR. VOIGHT:
That's the intent; yes, sir.
11 JUDGE KELLEY:
Comment by others?
Mr. Blake?
12 MR. BLAKE:
That's a summary of what I 13 understood to be our collective views.
f,
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\\
14 MR. BURNS:
That's my understanding.
15 MS. HENSLEY:
Mine also.
16 JUDGE KELLEY:
Okay.
So ordered.
'l 17 Just to make sure we're nailed down our witness 18 list, let me recite our understanding.
19 Uith the addition of Mr. Kidwell, the board 20 considers the witness list to be complete, subject to two 21 things:
One, reconsideration about certain witnesses 22 previously proposed, such as Dr. Chung, and there were some 23 others where we simply said we would reconsider later 24 whether we would call them; and two, prospective witnesses 25 who would arise out of the hearing at the first time and G
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We mentioned 2
specifically that we have these, I think, six witnesses in 3
-cenior management and management, and in one of our 4
memorandum and orders we indicated that perhaps evidence 5
would lead or point toward other people.
If that happens, 6
.we'll call them.
It hasn't happened yet so we see the 7
present list that I just mentioned as the people we. intend 8
to hear from.
9 I might just mention in that connection, we were 10 working to some extent from table 1 of the staff's study.
11 We asked GPUN to verify that that list was accurate.
We 12 wanted to be sure we at least had considered all the CROs 13 and foremen and supervisors.
Mr. Blake wrote us a letter a
\\
14 while back, saying that.it was with the addition of two 15 names, a Mr. J.W. Garrison and Mr.
R.S.
Hutchison, were 16 also in that category at the time but the record in the 17 case of both of those people is they were in training 18 status and that they were not involved in leak rate matters.
19 The staff confirmed that to us informally, so we 20 do not intend specifically to call either Mr. Garrison or 21 l
Mr. Hutchison.
So, let me ask whether any party knows of i
22 any additional person that we have omitted that hasn't yet 23 been propose that we ought to consider.
I see no hands in 24 the air.
Apparently there are no further prospective 25 witnesses to be advanced.
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1 The numerous employees put to the technical
'2 experts, including the staff, a number'of questions.
We 3
have talked earlier about this.
I simply want to reflect 4
the fact that in the case of the staff witnesses, we had 5
heard informally, earlier, from Jack Goldberg, that in 6
certain areas the staff either felt that the -- some of the 7
questions were burdensome, they were outside the scope, and, 8
so, we sat down with Mr. Goldberg and Mr. Russell and 9
Mr. Capra and had a rather general discussion of their 10 problems with-the questions as proposed to them.
We didn't 11 discuss question by question but rather areas and general 12 concerns.
13 I'm going to state now what I understand to be 14 the upshot of those discussions and the understanding that 15 we reached, to the staff, and I'll ask Jack to comment or 16 greater clarify as he wishes.
The staff witnesses 17 Kirkpatrick, Wermiel, Russell, Capra are prepared to answer 18 the great bulk of the questions submitted to them.
Their 19 concerns did not go to the bulk, but rather to certain 20 areas.
21 As to a couple of areas, I'll mention a couple 22 specifically.
As examples, really, but there aren't that 4
23 many.
24 There's a line of questions about Reg Guide 1.45.
25 There's another line of questions about Tech Spec 3.4.6.1, m
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1 I believe it is.
The staff.had questions about both burden 2
and scope there.. The upshot of.it was we agreed with the 3
staff that the staff should simply come in and, as to those 4-lines of questions, they would make a general statement.
5 They would, in the course of that, answer some'of the 6
questions if they felt them appropriate, indicate where 7-they thought other questions were not appropriate, and we 8
would simply hear what they had to say about that area of 9
questioning.
Thereupon, the board, upon hearing them, 10 might feel that other questions should be answered that 11 were not answered and we would then propose those questions 12 again.
The staff might object or the staff might answer.
13 We would see what would happen.
14 The same questions are also posed to 15 Mr. Rockwell, Mr. Stier, and they would be there, i
16 presumably prepared to answer or prepared to say whatever~
17 they had to say.
Then, when we got through with that t
18 I
process, if the numerous employees, as proponents, were not l
I
~
19 satisfied, then they could speak to whatever points they 1
20 felt should be pursued.
We would hear argument.
We would 21 make a ruling.
And then that is the way we would do it.
22 I mentioned a couple of areas, 1.45 in the tech 23 spec.
There was another longer area of questions having to 24 do with, speaking very generally, errors in the tests.
The 25 computer problems, for example.
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1 I believe it's Mr. Kirkpatrick, is that right, 2
is-the expert on that?
3 MR. GOLDBERG:
Yes.
4 JUDGE KELLEY:
Some of the questions in that 5
area go to, oh, what did Stier do?
What did somebody else 6
do?
The staff' witness proposes to testify about what he i
7 did and to identify areas that he identified.
Once again, 8
he would certainly do that and we would go through the 9
process I just described.
If that satisfied the question 10 and/or the board, that would be fine.
If not, we might ask 11 for something in addition.
But that is the general 12 approach that we. would take.
13 That's basically the ground that we covered.
As 14 I recall it, Jack, do you want to add to that?
15 MR. GOLDBERG:
Just a couple of comments.
One 16 other area that we had a concern about -- which, it turns 17 out, because of some additional questions and guidance from 18 the board, isn't going to be a major problem -- that is, lwithrespect to the ISA, S-67.03 standard, which was a 1982 19 20 standard on light water reactor coolant pressure boundary 21 leak detection.
22 That, in addition to Reg Guide 1.45, Tech Spec 23 3.6.1, and questions about Stier MPR's error analysis, are 24 areas which, in our view, are beyond the scope of the 25 proceeding and which, therefore, we will address with some O
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1
. general. comments about those areas without going on to 2
address the details of the specific questions which have 3
been submitted.
4 It is our view that the Commission's order, 5
which established this proceeding, is very' specific as far 6
as the scope of issues and the lack of any authority to 7
pursue issues other than those which are identified in the 8
order.
With that background in mind, we are limiting the 9
preparation on these areas and, hopefully, that will 10 accommodate everyone's need and it won't be a problem.
11 JUDGE KELLEY:
We are bringing this out, really 12 for two reasons:
One, we did meet with the staff and had 13 this discussion, so you know that; second, to give you some O
14 idea of some specific areas where the staff has a problem.
15 We may not have any difficulty here.
The things may be 16 answered to everybody's satisfaction.-
If not, we'll hear 17 argument.
In other words, Mr. Voight, you are the 18 proponent of the questions, that's why I mentioned you 19 specifically.
You are not foreclosed from anything at this 20 point.
You'll make an argument when the time comes if you 21 are not happy with what you are getting.
But we did want 22 to reflect that we had had those discussions and not have 23 that just come up later on.
f 24 A point about material for the subpoenaed i
25 witnesses.
This, too, goes to counsel for them.
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g-1 What we did, as you know, is; brought them 'a' '
,o y
2 letter and sent them a subpoena.
Then we'sent them cooles, p
3 typically, of their own statements and maybe,1,I think we s.
4 sent the front part of the sta5f analysis and a copy of th 5
OI report so they know basically what it'sjabout and they
(
6 may know these things already.
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7 One thing we did not do, as a mNtter of just 8
' paper bulk as much as anything else, we didn't atter..pt to 9
tear apart the staff's underlying evaluations or/$r! Stier's, 10 and send them all the test material.
M 11 Since, particularly those'<you represe't,;you n
J ji 12 should just be aware that questions,might ariso;in those 13 areas, and I assume you can talk to' the witnesses and
~
'O
=
.14 provide them material in that area.
15 What was sent was convenience. material, 16 essentially.
',,3
' ":, ; t; 4
17 MR. GOLDBERG:
Excuse me,z JudgefKelley,.the,re's
)
'o 18 another area which just occurred to me was the subject of( #
p p;
19 discussion between the Staff and the Board which we ought. 1 I
20 to identify now, and that is the ques'tions on practices at t
1 21 plants other than TMI 2.
i 22 There were some questions that went to what the 23 standards were at other plants and what the tech, spec
)
24 limits there were and what the practices were and so forth.
25 That's another area which we believe is beyond the scope of O
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I the proceeding.
We will address it generally.
The staff 2
has examined practices at other plants and will be prepared 3
to discuss, generally, what the findings and conclusions 4
were.
I believe there is an inspection report we can offer 5
to the board for the record, as far as background, on what 6
was examined at other plants and what the staff's 7
conclusions were.
But we will not be prepared to address 8
in detail practices at any nuclear units other than TMI 2.
9 JUDGE KELLEY:
I meant to encompass that general 10 idea when I said the staff had not just scope but burden 11 problems.
That's really what I had in mind in terms of 12 burden.
13 I understood that if you happen to know the
!\\
'J 14 answer to a question, you'll provide it.
Some of those 15 questions that sound rather broad in scope may cover other 16 plants.
If you know it, then you can provide it.
17 It's a rather unusual situation in the sense 18 that we are not dealing with staff here as a party.
Staff 19 is sort of an arm of the board, in a sense, but independent 20 also.
The staff and I and the board may very well disagree 21 on a question of scope.
Then when we come to that, whether 22 one just goes ahead and does the best one can or whether 23 one certifies questions, I guess we'll cross that bridge 24 when we come to it.
But it's not a case where we can just 25 overrule objections and direct the staff to do something
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because they are not a party to the case.
<r 2
I would want to say for the Board, the Staff has 3
been very cooperative and we have been very pleased with r-4 their. work and the general approach to the case.
5 That carries me through the board's outline.
6 Let me turn to the two filings we got from GPUN and 7
numerous employees.
8 MR. BLAKE:
Judge Kelley, we discussed follow-up 9
questions in the conference call on the phone and we didn't 10 cover it.
11 JUDGE KELLEY:
We haven't and we should, at 12 least briefly.
We did have, I think, a paragraph in an 13 earlier order in which we outlined very generally what we 14 had in mind, but that's about as far as gotten.
I think 15 last prehearing we didn't get to that.
It might be wise to 16 speak to that a bit.
17 Do you want to begin?
18 MR. BLAKE:
It's of some interest -- the Board i
19 knows, the other parties may not -- we have not put in any 20 questions for the technical witnesses.
At this moment it's 21 just-not clear that we'll put in any on the individuals, on 22 the i r ; t'e s timony.
So follow-up questions are of some 23 interest to us -- the opportunity for it.
24 I will throw on the table a suggestion, that is 25 that following each individual witness' appearance, the O
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<~q) 1-board poll the-parties for an estimate of how long each of 2
thefparties would take to provide the board with any 3
follow-up questions they have.
My hope would be that in 4
the majority of witresses, cases of witnesses, that period 5
of time would only be a couple of minutes -- five, 10, 6
something like that -- to develop additional follow-up 7
questions that they wanted.
We would be able to keep that 8
witness there and finish him with follow-up questions and 9
go on.
10 It may very well be, with some extended 11 appearances, it may take longer to develop.
It may take 12 longer than for the board to sift through them and 13 determine which ones it's going to ask, and that we'd have
-O
\\-
14 no choice but to bring back witnesses, presumably the 15 following morning or some other schedule.
But I would hope 16 in the case of most of these witnesses that we could all 17 agree on a schedule that would allow them to come and go in 18 one setting.
And as approximate a time as we could.
19 In the normal case I think we are all prepared 20 to do cross-examination or redirect as we hear the 21 questions and answers and develop our own scheme of 22 questioning as the testimony is going on.
So it doesn't 23 seem to me that we need an extended period of time 24 following what the board thinks is the end of the 25 questioning, to develop whatever additional follow-up O
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1 questions are needed.
2 One difference here is that when we develop --
3 at least when I develop additional redirect or questions, 4
there may be no more than a word or a phrase which tells me 5
what it is I'm going to ask and where we are going to be 6
passing on follow-on questions to the Board, presumably to 7
sift through or ask.
My word or phrase may mean very 8
little to you and therefore I do have to write out the 9
questions in a more formal way and -- it's up to the Boarl 1
10 that's my proposal and that's what I put on the table.
i 11 JUDGE KELLEY:
You swallowed the last part of 12 the question.
13 MR. BLAKE:
It wasn't really important -- that's 7_
N0 14 my proposal and that's what I put on the table, to get 15 people on and off in one setting and arrive at a vehicle to 16 do that.
17 JUDGE KELLEY:
We'll hear from everybody on this.
18 We have to learn a little bit as we go.
But one of the 19 things we were thinking about is how much should we bite 20 off before we stop and do follow-up?
If you've got a 21 witness on, like Stier, who answers a line of 20 questions 22 on some subject and then goes to a very different subject, 23 do you stop at 20?
Or do you just march on and have him 24 testify all day and do everything at the end?
25 MR. BLAKE:
I have a clear view of that.
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1 Knowing any of the questions that you plan to put to Stier 2
I would not want to have to generate at some pcint in time 3
a list of additional questions when they may very well be 4
coming along in just a different sequence or approach than 5
you have taken.
So I would prefer to have one witness 6
complete what the board thinks of as one set, and then have 7
my opportunity to make additional proposals.
8 JUDGE KELLEY:
On the purely mechanical side of 9
things, you have jotted your phrase as you have listened to 10 the person.
Do you then write out the question in full and 11 hand it to us?
12 MR. BLAKE:
That's what I anticipated we would 13 need to do.
[~)
kJ 14 JUDGE KELLEY:
Okay.
Comments?
Comments on 15 Mr. Blake's comments?
Mr. Voight?
16 MR. VOIGHT:
I think with respect to the 17 question that you raised, about do you wait until the 18 witness is finished, or do you, perhaps, generate follow-up 19 questions as you go along, I would propose to permit people 20 to do it either way.
That is to say, if I have been 21 listening to Stier for a whole morning on a specific topic, 22 and I'm sitting there and I have written out half a dozen 23 questions, I might prefer to give them to you at that point 24 and suggest that they be asked at that point, but with the 25 understanding that the fact that I do that doesn't preclude LJ ACE-FEDERAL REPORTERS, INC.
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his appearance on the stand.
I think that -- having.that 3
flexibility will probably serve everybody's purposes, in 4
the case'of the technical witnesses who may, indeed, be on 5
the stand for three or four days.
6 When we get to the individual participants, I 7
expect it will go the other way.
They will be in here for 8
a day or half a day and when they -- when the last question 9
has been put by the board, we'll take a 10-minute recess, 10 and bring up our -- the follow-up questions in writing.
I 11 hope handwriting will be satisfactory.
12 JUDGE KELLEY:
Yes.
Mine-wouldn't be but I hope 13 yours will be better.
In fact I was really thinking of n' '
14 your questions when I was thinking of making breaks, 15 because'they do seem to break fairly sharply at a lot of 16 points.
But then it wouldn't be fair, perhaps, to preclude 17 someone, as you point out, from wanting to give us 18 something --
19 MR. BURNS:
I agree with Mr. Blake.
20 MS. HENSLEY:
I agree with Mr. Blake.
21 JUDGE KELLEY:
Does it seem reasonable to you, 22 Jack?
23 MR. GOLDBERG:
Yes.
24 JUDGE KELLEY:
The letter from Mr. McBride of 25 the 20th has two points.
It suggests there be opening (1)
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1 statements by the parties at both.the start of the 2
technical testimony and the start of_ testimony about 3
individual responsibility.
That seemed to us to be a.
4 reasonable proposition.
5 Does anyone disagree with that idea?
6 MR. B LAKE:
The idea was that the parties could 7
make an opening statement if they desired.
8 JUDGE KELLEY:
That's right.
You don't have to.
9 MR. BLAKE:
I have no objection.
10 JUDGE KELLEY:
Okay.
In objection to that?
11 MR. BURNS:
Your Honor, I take it there se~ ems to 12 be a bifurcation, that there would be a chance for 13 opening --
k-14 JUDGE KELLEY:
Technical, which would be before 15 the panel starts, I assume, and then when we get through 16 that testimony and start into individual responsibility, 17 another statement if -- another opportunity for statement.
18 MR. BURNS:
I have no problem with that.
19 JUDGE KELLEY:
Okay.
We have been asked to make 20 a room available for preparation of witnesses.
We are sure 21 we can do that, the room right back there that is perhaps 22 most suitable.
We'll just have to check on the 23 availability.
24 MR. VOIGHT:
I want to make clear that what we 25 were seeking was a room separate and apart from the counsel (n_)
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I room because I don't want to exclude other lawyers from 2
having the use of that room.
.3
' JUDGE KELLEY:
Okay.
We don't work up here very 4
much.
That's the counsel room, normally?
Back there?
5 MR. VOIGHT:
That's right.
But I would like a 6
small, perhaps a~small office someplace else on'the floor, 1
7 where people can go and be with their own witnesses.
8 JUDGE KELLEY:
I'm sure that's something we can 9
arrange.
It might be the fourth floor but we'll try up 10 here.
11 MR. VOIGHT:
Whatever can be worked out I'm sure 12-will be helpful, particularly when the individuals are 13 testifying.
'-)
14 JUDGE KELLEY:
Right.
15 MR. MC BRIDE:
If we could, Judge Kelley, and 16 some of the things we were thinking about, because some of 17 the materials are voluminous, if there's someplace they 18 could be kept.
For example, for the next week or two, if 19 we have a good idea that our witnesses will be coming one 20 after another, it would be helpful not to have to lug these 21 things back and forth.
22 JUDGE KELLEY:
I'll try to get more than one 23 room.
We'll do everything we can to accommodate that.
You 24 don't want to have to haul this around.
That's true.
25 Mr. Blake's comments of the 20th raised three O
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~ matters.
m3 have all got this,'I assume.
It's a 2
termination of.the "no access" rule after the experts 3
appear and, Mr. Blake, we did allow a form of contact in a i
4
' pleading a few weeks ago.
Does this go materially beyond 5
that?
- 6
.MR.
BLAKE:
Yes.
It says the end of "no-access" 7-after they have appeared as a witness.
8 JUDGE KELLEY:
Yes.
I understand that.
But I'm 9
asking how it varies f rom what has been 'done with regard to 10 interviewing witnesses on individual responsibility?
11 MR. B LAKE:
Are you referring to Mr.. Burns' 12 proposal and how the board --
13
. JUDGE KELLEY:
You are going beyond that?
O 14 MR. BLAKE:
Just like there never was a "no 15 access" rule.
That's what I'm proposing.
4 16 JUDGE KELLEY:
As a practical matter, what does 17 it.give you that you haven't got?
I 18 MR. BLAKE:
It might be give Mr. Stier.
We have 1
l 19 essentially been wiped out of our experts in the leak rate 20 area of our experts who have been preparing for this.
I
(
{
21 hoped that after our experts appear --
l 22 JUDGE KELLEY:
Oh, the Burns proposal only 23 applies to individual responsibility, for one thing.
So
{
24 that you are just wiping it out entirely and you could talk l
25 about technical questions or whatever; is that correct?
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MR. BLAKE:
I want to just be able to deal with 2
Mr. Stier or Mr. Rockwell-or Mr. Moore or anybody else, 3
just like.there never was a "no access" rule but you want 4
to ensure that's the case once they appear as a witness 5
throughout the remainder of the proceeding.
6 JUDGE KELLEY:
Any supporters or opponents to 7
this proposition?
Mr. Voight?
8 MR. VOIGHT:
I think Mr. Blake is probably the 9
sole beneficiary of this proposal.
10 JUDGE KELLEY:
That's probably why he made it.
11 MR. VOIGHT:
Right.
I don't oppose it in 12 principle.
I have a practical problem, primarily with 13 respect to Mr. Russell and Mr. Capra, because I predict to f) 14 you that those gentlemen will be recalled before this case 15 is over.
So I don't know when the "no access" rule would 16 terminate for those two people.
17 JUDGE KELLEY:
I see your point.
18 MR. GOLDBERG:
A couple of comments.
I 19 understand Mr. Blake's concern and desire to have access to 4
20 his own experts.
I don't have any objection to eliminating 21' the "no access" rule for Mr. Stier, Mr. Rockwell, after 22 they initially appear.
With the understanding that it may 23 be that they have to be recalled.
There is a possibility 24 for a phase 2 hearing after phase 1 is over and there's an 25 evaluation of the record and someone might identify a
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I reason why Mr. Stier should be recalled.
I don't think 2
that.is a reason to not grant Mr. Blake the relief he 3.
requests.
Just so.long as it is understood that a witness 4
is not necessarily dismissed and will not be returning 5.
under any circumstances..
6 Secondly, I guess I don't see what Mr. Voight 7
seeks to gain by having the access -
"no access" rule 8
eliminated, even for-Mr. Russell and Mr. Capra.
If what he 9
seeks'is the opportunity to request a meeting with them, 10 then I don't have any problem with that.
I don't
- 11 anticipate that_ Mr. Russell and Mr. Capra would be made 12 available to anyone, even if there weren't a "no access" 13 rule.
r%
14 JUDGE KELLEY:
If you drop the "no access" rule 15 entirely, do you not drop along with it the concept of -- I 16 almost have to say equality of access, which-I don't really 17
- mean, but, let's suppose that Mr. Russell and Mr. Capra are 18 perfectly happy to talk to Mr. Voight but they don't want 19 to talk to Mrs. Aamodt, for whatever reason.
That, then, 20 would be their prerogative; correct?
i 21 MR. GOLDBERG:
That's correct.
With no rule, i;-
22 the witnesses would be free to speak with whomever they J
[
23 wanted and would be free to discriminate.
24 JUDGE KELLEY:
Right.
I record that as a source l
25 of concern.
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1 Ms. Hensley, comments on this proposition?
2 MS. HENSLEY:
No.
We have no position on that.
3 We originally were in favor of not having the "no access" 4
rule but this is at a later period and it seems to me we.
5 don't oppose Mr. Blake's request.
6 JUDGE KELLEY:
Mr. Burns, any comment on 7
Mr. Blake's request?
8 MR. BURNS:
I don't have any comment.
9 JUDGE KELLEY:
The board will consider the 10 request.
It's a motion, really, is it not?
11 MR. BLAKE:
Sure.
12 JUDGE KELLEY:
Sure.
We have heard it and we'll 13 rule on it.
O 14 The motion is after the appearance of the 15 experts so we can rule on it any time.
Probably rule on it 16 when the hearing starts.
Okay.
17 Your second point, I think we took care of that i
l 18 by saying that Mr. Christopher would be the one.
1 l
19 The last -- our reference, I gather, was not 20 entirely clear.
Our impression in looking at this and 21 thinking about it, though, was that it was a part of the 22 LER matter.
We had this testimony from Mr. Haverkamp with 23 a lot of attachments.
24 Jack, do you know whether we have somehow 25 subsumed this point in Mr. Haverkamp's testimony?
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1 MR. MC BRIDE:
Your Honor, I might be able to be 2
somewhat frank with you on this.
3 JUDGE KELLEY: 'The Board is not sure of the 4
answer.
We are trying to clarify this.
5 MR. MC BRIDE:
Mr. Blake had a question about a 6
document of October 27, 1978; is that correct?
7 MR. BLAKE:
Right.
I 8
MR. MC BRIDE:
I think the reference that may 9
have cropped up from time to time to a document of that 10 date is that that was the date that evidently the computer 11 personnel at TMI 2 were instructed to delete the rounding 12 off from the leak rate test program.
13 JUDGE KELLEY:
In a memo of some sort?
(,, )
14 MR. MC BRIDE:
Evidently not.
To the best of my 15 knowledge, there's a reference in the log of the computer 16 personnel to the fact that the rounding off was deleted.
17 It has been a long time since I saw it but, if memory 18 serves, it says:
" Deleted BOO Bernie Smith."
Meaning 19
" deleted by order of Bernie Smith."
20 Evidently an instruction was delivered to plant 21 personnel from Mr. Haverkamp, through whoever I don't know, 22 to the computer people, that the rounding off was no longer 23 to be a part of the program.
24 MR. B LAKE:
Since it was Mrs. Aamodt's proposal, 25 since she's not here to say what she was talking about, nor, O
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1 necessarily, need it be determined today, particularly in
~ -.i 2
her absence.
I thought maybe it was just a typo at some 3
point 4
JUDGE KELLEY:
That happens in several reports, 5
as I recall.
6 Would you guide me to the page of the May 22 7
order where we did this?
8 MR. BLAKE:
I think it is page 9 of the May 22 9
order.
10 JUDGE KELLEY:
Right.
11 It's at the bottom of the page, " request the one 12 memorandum" --
13 MR. BLAKE:
I have a reference but I don't have
(,,, )
14 it in front of me.
15 JUDGE KELLEY:
Yes.
Well, we have Mr. McBride's 16 suggestion.
That may be it.
Perhaps it's a matter of the 17 board coming back and looking at the Aamodt pleading and 18 getting this nailed down.
We are sort of speculating right 19 now.
20 MR. BLAKE:
We had raised that back in early 21 June and proposed, maybe it was an October 20 memorandum.
22 Whatever --
23 MR. MC BRIDE:
Judge Kelley, I think I can tell 24 you I'd probably be aware of it if there were a memorandum 25 of that date, and I am not aware of any such memorandum;
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but it was in Mr. Haverkamp's testimony that he consulted 4
2 with people in region 1 about this rounding off situation 3
and either he or, I suppose, Mr. Smith or other witnesses 4
might be able to clear this up still further.
I don't 5
think that Mrs. Aamodt has a oscument.
I think she's 6
referring to another pleading or report or something, where 7
this was referenced.
I could be wrong about that.
But 8
I've never heard her suggest that she has a piece of paper l
9 she wants the board to accept in evidence.
10 JUDGE KELLEY:
Okay.
Without taking any more 11 time on this, we'll see if we can't clarify it, to have an 12 answer at least when next we meet.
It is most likely to 13 come up in connection with Haverkamp's testimony, I would 14 think.
That's the first time it's likely to crop up.
15 Other matters from the parties?
Jack?
16 MR. GOLDBERG:
The only thing that I can think 17 of, which may or may not deserve some discussion, but at 18 least I guess everyone should realize -- be aware of what 19 the general rule is before the hearing begins, and that is 20 the question of sequestration of witnesses.
When a 21 particular individual operator is testifying, for example, 22 will his shif t mates be permitted to attend the hearing and 23 listen to his testimony and his examination?
Or is there 24 some reason to have certain witnesses sequestered?
J 25 I'm not advocating the position one way or O
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'another.
I'm just raising that as an issue, that everyone-2 should know what the rule is, maybe, before the hearing 3'
begins.
4 JUDGE'KELLEY:
It's something we adverted to we 5
make in March.
I don't believc we cited anything.
Perhaps 6
we can assume the rule would be-unless someone rules for or
-7 the board on its own motion directs some form of 8
-sequestration,'then it wouldn't be the rule.
But we can 9
poll the parties on their views on whether sequestration, I 10 assume not of the experts but of the party witnesses, is or 11 is-not appropriate.
Any views on that?
Mr. Blake?
12 MR. BLAKE:
I see no need for sequestration.
13-Not with all that has been discussed about this subject
.O' 14 matter for so many years.
15 JUDGE KELLEY:
Okay.
Mr. Voight?
16 MR. VOIGHT:
Hell, I agree that I see no basis 17 for sequestration in this case.
More importantly, I don't 18 think that you should even consider sequestering someone i
19 who is a party.
They have a right to attend these hearings.
t 20 So, as far as our clients are concerned, we are i
21 certainly going to vigorously oppose any suggestion that 22 they can't sit in their own hearing.
23 MR. MC BRIDE:
Judge Kelley, might I add that we 24 went through this a few years ago in the TMI 1 restart 25 issue about the decontamination issue and Judge Smith, I
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I think, was initially inclined to go forward with 2
sequestration when it was proposed by one of the parties.
3 I proposed it at that time because those individuals, some 4
of whom will be testifying here, testified on those 5
subjects any number of times -- their statements were a 6
matter of record.
It was awfully hard to imagine they were 7
going to change their testimony now just because they sat 8
in the hearing room and heard somebody else testify about 9
it.
The board reversed itself and I don't think there was 10 any problem in that hearing whatsoever with lack of 11 sequestration.
The parties did differ on their 12 recollections of certain events.
The board was able to 13 rule but I don't think anyone ever argued later that it b
14 created any sort of a problem.
15 JUDGE KELLEY:
Could you give us the citation to 16 the record in that case?
I'd like to take a look at it.
17 MR. MC BRIDE:
I can tell you the matter first 18 arose, I believe just prior to Thanksgiving of 1983 --
19 whatever year we were in -- and I know that because poor 20 Mr. Chwastyk was a subject of a sequestration order over 21 the Thanksgiving weekend, came back the following Monday 22 and made clear that he had abided by it and the Three Mile 23 Island alert people who had proposed it decided not to 24 pursue the matter and Judge Smith dropped it.
It was a L1 25 done on the record.
It was not done by way of pleadings or O\\J ACE-FEDERAL REPORTERS, INC.
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1 a normal order as I recall, but Mr. Goldberg and Mr. Blake 2
were there. -They may correct me if I'm wrong.
3 MR. VOIGHT:
It is in the transcript.
4
' JUDGE KELLEY:
I was hoping you could give me a 5
transcript citation.
Is it possible, somebody?
6 MR. VOIGHT:
I don't think we can --
7 JUDGE KELLEY:
I don't mean off the top of your 8
head.
9 MR. VOIGHT:
I think in a day or two one of us 10 can get it for you.
11 JUDGE KELLEY:
The issue has come up here.
We 12 are not in hearing yet.
It's a question one is bound to 13 ask one's self.
As, on the one hand, as you say, these 14 interviews and reports have been kicking around in public 15 for a long time.
On the other hand, questions can be put 16 to a witness that are a little different, and it might give 17 a person sitting in the audience an opportunity to tailor 18 what he may have to say, based or. what he heard.
That's 19 still a possibility, I suppose.
20 We have no motion for this at the moment.
We l
21 are hearing some discussion.
So far it's negative.
t 22 Mr. Burns?
23 MR. BURNS:
I see no need for a sequestration 24 rule, particularly as to parties.
25 MS. HENSLEY:
I, likewise, see no need for it.
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1 JUDGE KELLEY:
Well, the parties are unanimous 2
against it.
The board will think about it.
I assume we i
3 could do that sua sponte, assuming we felt we needed to.
4 MR. GOLDBERG:
I had one other matter, that is, 5
just a report that the staff is close to the point where it I
6 will be returning to recipients of the NRR and OI reports, 7
the pages which they were requested to return af ter the 8
filing of the motion by one of the former operators at TMI 9
2, in connection with the Federal Rule of Criminal 10 Procedure 6-E issue.
11 We will be making the deletions which are 12 required to be made from those pages and then returning 13 whatever information is left on those pages back to the O
14 individuals who received copies of the NRR and OI reports.
15 Hopefully that will be done within a couple of days.
16 JUDGE KELLEY:
Mr. Blake?
Anything else?
17 MR. BLAKE:
No, sir.
Only that if we could get 18 the board's decision on the tour.
19 JUDGE KELLEY:
We'll give you a discussion in 20 just a few minutes.
Mr. Voight, anything else?
21 MR. VOIGHT:
I have one extremely mundane item 22 left on my list.
23 JUDGE KELLEY:
We have had a few of those.
24 MR. VOIGHT:
I'm going to suggest that once the 25-hearings begin, we have an hour and a half for lunch.
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1 Because I have learned from some previous hearings that 2
were held in this room that an hour is exactly-the wrong 3
amount of time to have lunch.
You get an hour, you wind up 4
at Roy Rogers and you are back here in 35 or 40 minutes.
5 If you want to go someplace and sit down with 6
your client and talk to him, you can't do it in an hour.
7 JUDGE KELLEY:
Of course this is the new 8
Bethesda.
We'll consider that too.
9 In general, when we take extra time for whatever, 10 we might want to start earlier.
There may be some 11
-trade-offs.
12 MR. VOIGHT:
I live nearby.
I can get here 13 carly, if you want me to.
14 JUDGE KELLEY:
That's a damaging admission.
15 Mr. Burns?
16 MR. BURNS:
I have noth'ing.
17 JUDGE KELLEY:
Ms. Hensley?
18 MS. HENSLEY:
Nothing further.
19 JUDGE KELLEY:
Let us consider this site visit 20 issue for a moment.
21 (Discussion off the record.)
22 JUDGE KELLEY:
Very briefly, then, back on the 23 record, we have decided not to undertake a site visit at 24 this point.
The point was made that as we get into the 25 case, if things like accessibility and distance were to O
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become important, we might very well reconsider and then go 2
up then or at some appropriate time.
But the proposition 3
of a visit before the hearing, we are not going to do that.
4 And that is all.we have.
Anything else from 5
anybody else?
Okay.
Thank you very much and we'll see you 6
then.
i 7-We have this four-day week -- Tuesday 8
proposition.
I think-we would like to at least start with 9
a five-day week.
We said Monday the 8th.
We would like to y
10 adhere to that, 9:00 in this room.
Thank you.
11 (Whereupon, at 1:00 p.m.,
the hearing was 12 adjourned, to reconvene at 9:00 a.m.,
September 8, 1986.)
13 14 4'
15 16 17 18 19 20 21 22 23 24 1
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CERTIFICATE OF OFFICIAL REPORTER
~(
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:
BETHESDA, MARYLAND O
DATE:
MONDAY, AUGUST 25, 1986 were held as herein appears, and that this is the original transcript.thereof for the file of the United States Nuclear Regulatory Commission.
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