ML20244A780
| ML20244A780 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/18/1984 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20097F079 | List:
|
| References | |
| FOIA-84-487 NUDOCS 8906120145 | |
| Download: ML20244A780 (26) | |
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Ty' UNITED STATIS OF AMIRICA NUCLIAR RIGULATORY COMMISSION
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m In the matter of:
TEXAS UTILITIES ELECTRIC COMPANY, et al Docket No. 5 0-4 45 RD=i4d (Comanche Peak Steam Electric j
Station, Units 1 6 2)
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Telephone Conference Locanon: Glen Rose,- Texas Pages: 38,543-38,566 l
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Date: Wednesday, July 18, 1984 f
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38,543:
1 mgc-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~2 BEFORE THE ATOMIC SAFETY & LICENSING BOARD 3
4
- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 5
In the matter of:
6 TEXAS UTILITIES ELECTRIC COMPANY. et al.
Docket Nos. 50-445-7 50-446 (Comanche Peak Steam Electric 8
Station, Units 1 and 2) 9
- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 10 11 Glen Rose Motor Inn Glen: Rose, _ Texas
~ July l'8, 1964.
Id TELEPHONE CONFERENCE 15 The telephone conference in the above-entitled-16 matter commenced at 1:58 p.m.
17 la BEFORE:
l' JUDGE PETER BLOCH, Chairman" Atomic Safety & Licensing Board 20 U.S. Nuclear Regulatory Commission Washington,ED.C.
'20555 22 7
l 23 2a 25 i
- U. -.
1 APPEARANCES:
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For the Applicants Texas Utilities' Electric Company,
.]
et al.:
3 MARK L.'DAVIDSON, ESQUIRE d
BRUCE DOWNEY ESQUIRE Bishop..Liberman, Cook, Purcell & Reynolds 5
1200 Seventeenth Street.. Northwest Washington,'D.C. 20036 6
For~the Nuclear' Regulatory Commission Staff:
7 GEARY S. MIZUNO, ESQUIRE 8
Office of the Executive Legal Director U.S.
Nuclear. Regulatory Commission'
' Washington, D.C.
20555 10 For the Intervenor Citizens Association for Sound.
Energy:
11 ANTHONY Z.
ROISMAN, ESQUIRE 12 Executive Director Trial Lawyois for Public-Justice, P'.C.-
- 3 2000 P Street, Northwest. Suite 611 Washingtc6, D.C.-
20036 to For tha Witness 15 MICHAEL L.
SPEKTER,' ESQUIRE 16 Suite 1102 1717 K Street, Northwest 17 Washington, D.C.
20006 1
I 18 19 2o 21 22 I
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1 1
38.545
!p b 2.
1 Good afternoon.
2 MR. MIZUNO:
This isLGeary Mizuno.;
3 MR. DAVIDSON:.Your Honor, my name is' Mark-4 Davidson.
I'm a member of the-firm of Bishop,'Liberman, 5
Cook, Purcell & Reynolds, attorneys for the Applicant in-6 these proceedings.
7 MR. DOWNEY:
Your Honor,.this Bruce.Downey-8 up here with Mr. Davidson.
9 JUDGE'SLOCH:
Welcome to Mr. Davidson and' 10 Mr. Spekter whom I haven't met before.
Please continue.
11 MR. ROISMAN:
All right.
Mr. Chairman, the 12 issue has come up with regard to the testimony of an in 13 camera witness who we will refer to here as he is referred 14 to in the filing that we made on the 27th of June addressed.
15 to Mr. Belter as Witness F.
And the issue is'whether or 16 not the testimony of a start-up engineer who engages 1in what 17 we believe to be essentially the same kind of reviews as 18 is engaged in by QC or QA personnel is_ pertinent for purposes 19 of harassment and intimidation, which he himself-exp'rienced e
20 related to his efforts to raise problems in a specific 21 area identified in that June 27th' memorandum related to 22 electrical matters.
23 In other words, in his work he had to look.to 24 see if he thought the electrical components were~in proper 25 order.
His job was to report-if they were not.-and-to.sec l
38,545 e2pbl 1
P'R 0 C E ED INGS 2
MR. ROISMAN:
Mr. Bloch, this is Tony Roisman 3
calling.
4 JUDGE BLOCH:
Yes, Tony.
You have others with 5
~ you?
6 MR. ROISMAN:
I do indeed.
We have two 7
matters that we'd like to bring to your attention at this 8
time.
0 JUDGE BLOCH:
I want to put it on the squawk 10 box.
I also want to take a moment to call Judge Grossman'in.
11 MR. ROISMAN:
All right, thank you.
12 JUDGE BLOCH:
Hello, Judge Grossman is co ing 13 over if you will hold for a moment.
14 MR. ROISMAN:
All right, thank you.
15 Except for the witness and the reporter why 16 don't we each identify who we are so he will know who is on 17 the phone?
18 MR. DAVIDSON:
Fine.
19 JUDGE BLOCH:
Okay, Mr. Roisman, p?. ease proceeil.
20 MR. 'ROISMAN:
Yes, thank you, Mr. Chairman.
21 First I thought I should have everyone who is here that is 22 going to participate in the call introduce themselves.
So 23 I'll ask the other people'-- another CASE lawyer is here.
24 and I'll start with him.
25 MR. SPEKTER:
Yes, Your Honor, Michael Spekter o
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~38.547' ppb 3 I
that they.got corrected.
His allegation is that in the'cours e
2 of doing that he vas harassed and' intimidated and discouraged 3
from making such reports.
4 JUDGE BLOCH:
What.was the time period of'the l
5 alleged harassment?
l 6
MR. ROISMAN:
I'll let Mr. Spekter,.having 7
sort of outlined it generally, carry on from here, Mr.
8 Chairman.
9 MR. SPEKTER:
Yes, Mr. Chairman,:the time 10 period would have been from November / December 1983 through 11 1984, April, 12 JUDGE BLOCH:
Is.the allegation that the 13 harassment' occurred with respect to the det.cting of 14 deficiencies in'these' turned-over' systems?
15 MR. SPEKTER:
That is exactly correct.csir.
16 JUDGE BLOCH:
And from the Applicant, please.
17 MR. DAVIDSON:
Judge Bloch, this is Mark 18 Davidson, and I think that.the basisLfor our relevance-19 oojection turns very definitely on.how-one characterizes l
20 the Witness F's occupation.
And I believe it is an inaccurate 21 statement to characterize him'as being comparable to or-22 doing the job of a QC inspector.
23 What we had hoped to do,'in fact, was to hold OG 1
24 a voir dire of to demonstrate-that his job 25 responsibilities did not include anything that was a QC/QA l
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'38;348 lpb6 I
function.
In fact, I think we could have elicited testimony
.I 2
from that QC inspectors -- Mr.'F that QC inspectors 3
in fact do inspect work that he works upon.
And that it is d
not his job to do the QC inspection.
5 And on the basis of that voir. dire that we-6 would have concluded.and which Mr. Mizuno of the Staff h'ad 7
hoped to undertake himself, of which.Mr. Roisman suggested 8
would be unnecessary', we had'h'oped'to demonstrate that the 9
allegations that Witness F wishes >to testify about doinot to fall within the defined scope of these. proceedings, as Your 11 Honor so declared them in the June 14th hearing.
12 And I specifically refer to pages 13,915 13 thtough.3,975 of that transcript.
And that cranscript,.Your 14 Honor will remember the-Board stated qu1te clearly.that 15 to be relevant ih these proceedings, testimony had to be 16 per,tinent to allegations regarding QC intimidation.
17 JUDGE BLOCH:
Mr. Downey, with respect to'
. l 18 Witness F, you told me he was not'a QC..
What.was he doing?
19 MR. DOWNEY:
Your Honor, that was Mr. Davidson-20 who spoke and who is representing us with respect to this i
21 witness.
j i
22 JUDGE BLOCH:
Very good, thank you.
j 23 MR. DAVIDSON:
Your Honor, he was assignedLon
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2d the construction site of a TUGCO in an electrical test group 1 j
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4 25 which was staffed not only by so-called start-up engineers, j
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38,550 l
lpb6 1
MR. DOWNEY:
Just a moment. Your Honor, we 2
are rearranging ourselves.
3 MR. SPEKTER:
That is quite all right.
Your 4
Honor, my comments were that Witness F was not a craft-5 personnel.
He was involved in testing and writing up 6
non-conformance reports and writing up test deficiency report s.
7 And in that vein of work he was doing essentially the same 8
work that quality control people were doing.
9 In the spirit of the transcript of June 14th 10 as Mr. Davidson has cited those transcript portions, it is 11 clear to me that ordinary craft personnel would not be 12 permitted to testify at this particular time.
However, Witne ss 13 F went far beyond that in his duties, and was accomplishing 14 the type of task that were very, very similar if not exactly 15 the same as OC personnel.
16 JUDGE BLOCH:
It seems to me that it's quite 17 possible that we're going to wind up with an evidentiary IB question as to whether or not the responsibilities are i
19 similar.
It seems to me the proper way to go would be to 20 have the voir dire conducted by both parties.
I 21 If at that time it is clear that the function l
l 22 is not of the nature of checking up on the quality of things, 23 then I would expect that CASE would discontinue further.
l 24 questioning on their good-faith determination.
25 If, on the other hand, it is clear that a l
t I
38,549 2pb5 1
but also just craft personnel.
And his function was that of 2
a start-up engineer.
His function was not QA or QC and 3
JUDGE BLOCH:
He was in the start-up test 4
group.
So what was he doing?
5 MR. DAVIDSON:
The electrical test group, 6
Your Honor.
7 JUDGE BLOCH:
They were doing things like 8
measuring test, continuity test?
9 MR. DOWNEY:
Your Honor, perhaps the witness 10 could address that.
Il MR. DAVIDSON:
That's the subject matter of 12-the voir dire we had proposed to have. Your Honor.
13 MR. SPEKTER:
Your Honor. Mr. Spekter here.
b2 I would just like to say that Witness F would like to assert 15 that the craft situation was completely separate from his
!c division as a test engineer.
Additionally, he wrote numerous 17 NCRs. non-conf o rmanc e reports and TDRs. test deficiency IB reports and did in fact the same type of testing and 19 quality contral work --
20 JUDGE BLOCH:
Your last comments were not 21 loud enough.
Would you try to back up a couple of sentences.
)
l 22 MR. SpEKTER:
Yes, sir.
]
23 JUDGE BLOCH:
Or come closer to the speaker 24 perhaps.
25
F 38,551 lpb7 1
substantial portion of the work being done was to check up 2
on the quality of the items involved and to find whether ther e 3
were dr;iciencies, then I would consider it directly relevant 4
and I wcaid hope that the Applicants might withdraw their 5
objection.
6 MR. ROISMAN:
Mr. Chairman, this is Mr.
7 Roisman.
Just before Mr. Davidson says something, a point 8
of clarification.
Is it your ruling that whether the person 9
had a QC label attached to the job is not the crucial
~
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10 consideration, but rather the nature of the job itself?
And 11 that is what we should explore in the voir dire?
12 JUDGE BLOCH:
The nature of the job itself.
13 yes.
And also whether there is the basis for. generalizing 14 about relationships between craft people on the site.
And 15 of the people on the site who are responsible for checking to on quality -- j us t one second please.
17 (Pause.)
1 18 Mr. Mizuno, we didn't give you a chance to 19 argue before we ruled.
Would you like to comment?
i i
20 MR. DAVIDSON:
Mr. Chairman, this is Mark 21 Davidson again.
I just wanted to say something and that 22 Mr. Roisman pointed out that he had interrupted me.
I 23 appreciate your ruling, and indeed I think it was consistent 24 with the proposal that I made to Mr. Roisman before this 25 call was placed, which was that we needed a voir dire before i
I 1
38,552' 2pb8 1
the objection was fully fleshed out for Your Honor's 2
consideration.
I believe that is correct.
3 One further point of clarification, and I d
think that your statement has been very helpful in that 5
regard, is am I correct fn my understanding that if in point 6
of fact QC personnel inspect the work that Mr. F undertakes 7
in other words, there was someone else performing the 8
QC function and it is subject to their inspection, and that 0
he is not the arbiter of that issue, but that is a demonstrat tor 10 that we have irrelevant testimony, 11 JUDGE BLOCH:
No, I would not rule that way.
12 It seems to me that if the ANI, for example, knows things 13 that are similar to what QC people do, or there are other 14 people, perhaps this engineer who does things like that, and 15 we find that the craft reacts in a certain way to those 16 people, that that could be relevant when we come to decide 17 whether there is e pattern of intimidation on the site.
18 We have to see what the conduct was and what 19 the nature of these activities were, and some explanation of 20 what happened in these incidents.
21 MR. DAVIDSON:
Your Honor, I appreciate that l
22 clarification because in review of the June 14 hearing 23 transcript I understood the Board to have said that the 24 reason that intimidation of craft personnel would not be 25 relevant is that a good quality control program non-interfered
38,553
!pb9 i
1 1
with by intimidation would catch all of them, and therefore 2
it would be fruitless to explore it.
3 And I thought quite honestly.that if the 4
work that Mr. F had done was subject to those inspections 5
by QC personnel that once again we would have the same kind 6
of fruitless inquiry that the Board called to our attention 7
last time.
8 JUDGE BLOCH:
The ambiguity that we've got 9
into here is the similarity of the task being taken on by 10 Wit' ness F, all'eged similarity.
I do not know what your 11 voir dire is going to show, And perhaps the ANI, and the QC 12 people on site, they seem to Se performing similar functions, 13 and it's difficult to understand why they should be 14 intimidated if they are.
15 I think it's different from the craft, whether 16 the QC function, or whether it's just by QC inspectore or 17 others who come after them.
It is not the craft work 18 is not directly analogous to the checking up on quality.
19 And arguably, the start-up engineer is part of that systam 20 from what the Intervenor say hu is, from what you.say he 71 may or may not be.
22 MR. DAVIDSON:
Thank you. Your Honor.
And 23 one other point before I turn the microphone over to Mr.
24 Mizuno.
And that is that there will be another objection 25 pending here requiring a voir dire.
Witness F has proffered
38 554' 0
2pbl'0 1
an affidavit in these proceedings which has not as yet been 2
admitted into evidence and may in fact may not be.
However.
3 it is predicated upon a great deal of his opinion, and there 4
has been no qualification of this witness as an expert.
5 So we will be objecting to any of that kind 6
of testimony.since it would be incompetent evidence unless 7
he were qualified to give his opinion.
8 JUDGE BLOCH:
Okay.
Well, we will be applying 9
the same rule on good-faith on the part of CASE's attorneys.
10 MR. DAVIDSON:
I take it that in taking'the 11 good faith on the part of all of the attorneys here that 12 Your Honor has in mind that the basis for any good faith.
13 determination be fully spread on the record.
14 JUDGE BLOCH:
You have been doing that, and 15 it is helpful.
Should there be a need subsequently for us 16 to reach rulings. I do find some redundancy and I-do find a 17 tendency for that basis to be done in much greater depth than is is required for a review of the merits.of the proposal.
19 There is obviously a lot of heat present at 20 these depositions, and they sometimes cause very lengthy 1
21 explanations when shorter explanations would be more to the 22 point.
23 MR. DAVIDSON:
Understood, Your Honor, and j
24 we will all do our best to fulfill our professional l
25 responsibility to declare our bases for good faith..And 1
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likewise be.=as concise astpossib'le.: :Mr..Mizuno?-
2 MR. MIZUNO:
Yes. l Judge Bloch, ICreally'do'n't 3
have too much to add at this' point, other t!han to indicate, a
- 4. -
4 that I did want.to have some:-limited voir dire'to'es'tablish.
5 several points before we spoke with you'.
AndL we willn j ust?
6-go on and do that, and the record will be there for you.to 7
review.
8 MR. ROISMAN:
.Mr.
Chairma'n, this is. Mr. Roismam 9
again.
(
10
~ JUDGE BLOCH:
'Yes, sir.
11 MR. ROISMAN:
I-just wanted to make one.
12 clarification.
This. witness'. testimony.will" include'allegati
~ ons 13 of harassment, intimidation by his own'. supervisory'personne1' 14 and'not merely by craft.
'I think you'had preaumed.that-the a
15 source of the harassment, intimidation would have come'from l
l 16 craft, and that is not wholly the case with: regard.to,this i
17 witness.
)
i 18 JUDGE BLOCH:
I didn't'try to address lthat at 19 all, I was just addressing.this with intimidation of' craft.,
20 MR. ROISMAN:
I see.
All right.
1 Bearing intimidation ofLa-
. 'l 21 JUDGE BLOCH:
1 22 start-up engineer with intimidation of craft, and'I'found 23 some. difference.
I 1
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24 MR. ROISMAN:
.Okay.
Mr. Chairman, therel1s a' j
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25 second question.'
And if I state-it'and'it-appears-that it's.
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s 38,536
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going to take a'long time, we will disconnect from here and 2
go to another room so we won't' hold up this deposition.
If l end 2.
3 not, we will take advantage of the opportunity.
Thanh you.
.a 5
6 7
8 l-9 10 11 12 13 la 15 16 17 18 10 20 21 22 23 2a 25
DC'j b 3/1 3 8, 5 5 7-~
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I MR. ROISMAN:
Yesterday --
2 JUDGE BLOCH:
Did -you ask for the fdoor to be 3
locked?
Is this portion of the transcript going to be 4
in camera?
5 MR. ROISMAN:
No, but we happen to have an 6
unidentified witness in the. room.
And the person who was 7
about to come in, as farLascI know, has no need;to know the.
8 name of this witness.
9 JUDGE BLOCH:
All right..
10 Please continue.
~
11 MR. ROISMAN:
Yesterday, Mr. Downey'and I were 12 involved in.the taking.of the deposition of" Witness'B,.who, 13 as a. result of circumstances-not necessary to reveal here, 1d was prepared to come forward and; testify.
15 At the'beginning of the -- there is'a discovery 16 portion of that transcript, and? literally on'the very first 17 two pages, there's a colloquy between Mr. Downey:and myself' 18-as to what the implications were of Mr.'Downey taking this-19 discovery deposition.
And he and I have a dramatically 20 different perception of what we agreed to'there.'
21 JUDGE BLOCH: ' Witness'B'was taken this Monday?
1 22 MR. DOWNEY:
Yesterday. Your Honor.
l l
23 MR. ROISMAN:
It was taken yesterday, excuse me.
j 74 JUDGE BLOCH:
We. don't have it, so I'll needia 25 full explanation if we are to rule.
1
FCjl 3/2 0
1 Is it essential that there be some ruling on it 2
now?
3 MR. DOWNEY:
This is Bruce Downey, Your Honor.
4 I think not.
But I think it would be useful if 5
we framed for Your Honor the issue that arisen.
6 JUDGE BLOCH:
Okay.
7 Is this going to be recurrent, or was it just a 8
one-time thing?
0 MR. ROISMAN:
No, I think it's essentially a one-to time event, unless I think it's the first time we've had 11 anything that remotely approaches an extensive discovery 12 deposition in this case, one requested by the Applicant.
13 1 agree with Mr. Downey, I think, framing the issue 14 for you and then calling you back in t couple of days it 15 is not urgent, because the consequences of it are not 16 occurring immediately.
17 It might be helpful --
IB JUDGE BLOCH:
Phat does it have co'do with?
10 Something in your finding?
20 MR. ROISMAN:
No, it has to do with the future 21 scope of the examination of this witness by the Applicant.
22 JUDGE BLOCH:
Okay, let's go ahead.
23 MR. ROISMAN:
Let me just take a second and 24 explain it to you.
25 Witness B came forward.
The Applicant was given
FCjl'3/3'
..38,559 I
the information relevant to Witness B's testimony at a time 2
when we recognized they,,uld be allowed to postpone cross-3 examination, and that is not in dispute here.
4 The question arose -- Mr. Downey said he would like 5
to do a discovery deposition.
It was my intention to get 6
him to commit to the proposition that any questions which he 7
asked in the course of the discovery deposition which were 8
essentially cross-examination questions would not be able to 9
be asked subsequently when he had the real cross-examination 10 of Witness B, that they were to be treated as asked and 11 answered.
12 His -- and I think -- and correct me-if I'm wrong, 13 but it was -- his' understanding of our conversation on the 3d record was, and is certainly his understanding now, is that 15 all he was agreeing to was that if I had already asked the 16 question, in my direct examination of Witness B, an objection 17 during the discovery deposition would be treated as asked and 18 answered, not that it in any way would prevent him from asking l
19 the same questions again during a subsequent cross-examination l
l 20 of the witness, i
21 JUDGE BLOCH:
Which came first, the direct or the 22 discovery?
23 MR. ROISMAN:
No, the direct came first, and then 24 Mr. Downey requested -- and I agreed to -- the discovery 25 deposition at that time.
And whether the record reflects it
FCjl 3/4 38.560 I
clearly or not and that's not our purpose here now, to tell 2
you our judgment on that, although obviously you know how we 3
each feel -- I would not have agreed to have him do the d
discovery deposition at the length and depth that he did if 5
it were to be the case that those gunstions asked during 6
discovery, which were not discovery but were really cross-7 examination, could be asked yet again of the same witness.
8 JUDGE BLOCH:
Mr. Roisman, is it'your understanding 9
that he could place portions of that deposition in evidence?
10 MR. ROISMAN:
Yes, exactly -- that he would place 11 that in evidence 12 JUDGE BLOCH:
Is there an agreement on that?
13 MR. DOWNEY:
No.
14 MR. ROISMAN:
Well, that's what we disagreed about.
15 I thought there was, and he thinks there was not.
16 JUDGE BLOCH:
Is there agreement about that on the 17 record before the witness began being deposed?
18 MR. ROISMAN:
We think there was, but we have 19 different views of what it said.
20 MR. DOWNEY:
There was a colloquy, Your Honor 21 and this is Bruce Downey speaking again and I think there i
22 l was just a misunderstanding between Mr. Roisman and myself 23 about what it was we were agreeing to.
24 JUDGE BLOCK:
If that's the nature of the dispute, 25 1 don't see why we should discuss it.
I'll have to read the I
eji
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38,561 l
1
, transcript.
2 MR. DOWNEY:
We'll, I'm not sure -- I have looked 3
at the transcript briefly. Your Honor.
It doesn't answer'the d
question.
Mr. Roisman was talking about one thing and I
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5 another thing.
6 Let me just state, if I may, Your Honor e,my-posi-7 tion on this.
8 The witness in question, Witness B, for the first 9
time I heard the allegations of that witness during.her 10 direct examination.
The pretrial filing contained-no-11 substantive delineation of her claims, of her' claims-of 12 harassment and intimidation.
So, for the first time, I
.13 heard her contentions during her direct examination.
14 As you have. ruled.:Your Honor, both Mr. Roisman and 15 I agreed that t' hat placed her in the category of a surprise 16 witness, as to which cross-examination could be deferred.
And 17 I requested that, and Mr. Roisman agreed.
18 I further requested that I be permitted to take 19 a discovery deposition to flesh out what-her contentions were 20 so I could conduct an independent investigation of her-claims.
21 I did do that.
I examined her about her 22 contentions.
Some of those questions might be of the. type, 23 that I would ask in an evidentiary cross-examination.
But-24 the, purpose of the discovery deposition was to ascertain, 25 with particularly, what it was she was_ contending and who-it.
FCjl 3/6 38,562 was that implicated in these situations that she described.
2 As I told Mr. Roisman -- and my intention is now to 3
conduct my own investigation of her claims and to recall her for cross-examination.
Some considerable part of the 5
discovery deposition sought, admittedly, hearsay responses so O
that I could use those responses to seek out evidence for I
presentation in this hearing --
8 JUDGE BLOCH:
Mr. Downey, just one question.
9 If you accept what Mr. Roisman said, you would be to able to take particular: questions from that deposition and II ask that they be admitted into evidence.
12 Does that serve the purpose and reduce redundancy
'3 or doesn't it?
MR. DOWNEY:
I think it does not.
It would require.
IS first, a parceling out of this transcript, which is 150 pages I6 long.
'7 JUDGE BLOCH:
Okay.
I understand.
18 Mr. Roisman.
MR. ROISMAN:
Yes, Mr. Chairman.
"'O JUDGE BLOCH:
Given the fact that there was no 21 clear understanding on the record, it seems to me that when 22 you've got a surprise witness, that discovery of this kind is 22 appropriate and that the discovery should not affect what 24 should be asked later.
25 If you find that there is an understanding on the
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transcripts, that would be the only basis, I think, that 2
there was a stipulation reached for departing from that 3
way of proceeding.
4
.MR.
ROISMAN:
I guess, Mr. Chairman, my basic l
5
. concern -- I read the transcript as clearly indicating that
(
6 the understanding was reached, and Mr. Downey reada it 7
differently.
8 JUDGE BLOCH:
I can't read it at all.
9 MR. ROISMAN:
I understand that.
And I want to 10 be clear that I would not have allowed the " discovery" to 11 have ranged well beyond what would be discovery and clearly 12 into what was cross-examination if I had felt that the 13 witness would be subjected to the same line of questioning.
Id yet another tir.e.
U 15 JUDGE BLOCH:
But I didn't know that there were 16 things that were not prcperly discovery, but were properly 17 evidence?
18 MR. DOWNEY:
But. Your Honor, many things would be 19 both.
20 JUDGE BLOCH:
Would be what?
21 MR. DOWNEY:
Would be both.
22 l
For example 23 JUDGE BLOCH:
No, that's not really relevant.
I 24 don't understand how something that was evidence could -- I 25 thought it was authomatic that if it was evidence, it could
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FCjl 3/8 38,564-1 be asked in a deposition.
2 MR. ROISMAN:
No, that's right, Mr. Chairman -- it 3
has to do not with the general rules of evidence, but what I d
perceive to be the rules of this proceeding, which were that, 5
in lieu of these discovery depositions, we would go to these 6
to the proceeding in this form.
7 One advantage and I don't l'm frank in stating 8
it from our side, but the Applicant has had the same advantage 9
of the process is that the discovery deposition and then 10 the cross-examination of the witness, based upon what they 11 said in discovery, isn't available.
The price for that, that 12 both sides were willing to pay, was in exchange for the 13 reduced amount of hearing time, in the form of depositions, 14 that would be taken.
15 JUDGE BLOCH:
As a general proposition, I agree 16 with you.
But where it comes to a surprise witness, I agree 17 with Mr. Downey.
18 MR. ROISMAN:
Very well, we will abide by that 19 ruling, Mr. Chairman.
20 JUDGE BLOCH:
Mr. Mizuno, do you have a comment 21 that might offect our decision?
22 MR. MIZUON:
Not really.
This appears to be a l
23 matter of contention only between the Applicants and CASE at 24 this moment.
25 But I would just note that 1 don't see any problem
l o'
38.565
!FCjl 3/9 I
about I guess I have some disagreement with CASE, because 2
I keep hearing some sort of distinction between proper 3
discovery questions versus proper cross-examination questions.
4 And in my mind at least, discovery is rather broad-5 ranging.
You ask your questions, some of which you may want 6
to use some cross-examination later, in part possibly to 7
impeach the witness if they give two different questions.
You 8
can't separate out the questions and say these are only 9
discovery-type questions, and other questions are clearly 10 cross-examination and never the twain shall meet.
11 So, as far as I can tell, if I was put in the same 12 position, if I felt that there was a witness who raised a new 13 matter and thereby calling the question of surprise into 14 account, that I would ask questions related to discovery, and 15 I certainly wouldn't expect that I would be prevented from 16 asking some of the same questions which I asked in discovery 17 during my subsequent cross-examination at the trial, whether 18 it be in court in front of the entire Board or whether it be 10 in an evidentiary deposition like this.
20 JUDGE BLOCH:
Just to clarify, we ruled that where 21 surprise is involved, you are correct, it's a deposition and 22 it follows all deposition rules.
~
l 23 Mr. Roisman was saying that under the ordinary j
l 24 way of proceeding, where there is no surprise, the evidentiary l
l 25 portion should be completed and we shouldn't attempt to have
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I a fishing expedition through a deposition and then a J
2 ) repetition of the' same questions and the evidentiary portion.
3 MR. DOWNEY:
We agrec-with that. Your' Honor.
4 MR. MIZUNO:
I agree.
5 JUDGE BLOCB:
'Okay.
Then, as'I understand i t",
{
6 there are no further matters?
7 MR. ROISMAN:
Short of having a callback'after the 8
voir dire, Mr. Chairman.
9, JUDGE BLOCH:
I just. adjourned this session.
10 (Whereupon, at 2:25 p.m.,
the telephone 1
end 3 11 conference was concluded.)
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s CERTIFICATE OF PROCEEDINGS-t
.y.
This is to certify:that the attached proceedings'before the
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NRC C6MMISSION i
3' In the matter of:
. Texas Utilities. Electric Company, et tl' 4
(Telephone Confere: Tee)..
['
Date of Proceeding:
' Wednesday. July 18, 1984
'S i
P la c'e of. Proceeding:
Glen ' Rose, Texas 6
i
.were held as herein' appears, tndL..th'at-this 1s the original,
'7 transcripf for the' file of'the Commission, q
8 i
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7...Coughlin-10 Official Reporter - Typed 4
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NORFOLK. VIRGINIA ;
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