ML20137Y877

Transcript of 851001 Evidentiary Hearing in Apex,Nc. Pp 8,541-8,844.Supporting Documentation Encl

ML20137Y877
Person / Time
Site:	Harris
Issue date:	10/01/1985
From:	Atomic Safety and Licensing Board Panel
To:
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CON-#485-753 OL, NUDOCS 8510080110
Download: ML20137Y877 (335)

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ORJGlN4L Uh11ED STA1ES C NUCLEAR REGULATORY COMMISSION rN THE MATTER Oh: DOCKET NO:

~

SHEAR 0N HARRIS 50-400-OL NUCLEAR POWER PLANT EVIDENTIARY HEARING -

e PAGES:

8541-8844 LOCATION: APEX,' NORTH CAROLINA DATE: TUESDAY, OCTOBER 1, 1985 g 01 t

Acs-FEDERAL REFoRTEas, INC.

O CTcial R.-vorters 8510080110 851001 4-M North C2=ito15treet PDR ADOCK 050 0 Washingter., 'D.C. 20001 (202) 04~-37CO NAT:CNWIDE COVEMCE

8541 Sim 1-1 1' UNITED STATES OF AMERICA

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2 NUCLEAR REGULATORY COMMISSION l

3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

'l :

__________________x 5; In the Matter of:  :

0 CAROLINA POWER & LIGHT COMPANY  :

l and NORTH CAROLINA EASTERN  : DOCKET NO. 50-400 OL i MUNICIPAL POWER AGENCY  :

Of (Shearon Harris Nuclear Power  :

Plant)  :

9l .

________________..-X Ramada Inn

)) Interstate 55 U. S. 1 South 12 w Apex, North Carolina 13 Tuesday, October 1, 1985 14 The hearing in the above-entitled matter reconvened, 15 8 : 3 T a . m. ,

pursuant to recess, at 16 BEFORE:

17' JAMES L. KELLEY, ESQ., Chairman Atomic Safety and Licensing Board 18 U. S. Nuclear Regulatory Commission Washington, D. C. 20555

)9 GLENN O. BRIGHT, Member 20 Atomic Safety and Licensing Board Nuc? ear Regulatory Commission 21 Washington, D. C. 20555

() 22 JAMES H. CARPENTER, Member At mic Safety Licensing Board 23 U. S. Nuclear Regulatory Commission i) Washington, D. C. 20555 24

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n .deral Reporters. Inc.

25 -

8542 APPEARANCES:

1 f[]' On Behalf of the Applicants:

- 2 THOMAS A. BAXTER, ESO.

,- 3 Shaw Pittman, Potts & Trowbridge 1800 M Street, N.W.

4 Washington, D. C.

5 DALE HOLLAR, ESO.

RICHARD E. JONES, ESQ.

6 ANDREW H. McDANIEL, ESQ.

Carolina Power and Light Company 7 P. O. Box 1551 l Raleigh, North Carolina 27602 8'

Appearing Pro Se:

9 WELLS EDDLEMAN 10 806 Parker Street Durham, North Carolina 27701 11 On Behalf of the Conservation Council of North Carolina:

12 JOHN D. RUNKLE, ESQ.

C.N) . 13 307 Granville Road Chapel Hill, North Carolina 27514 14 On Behalf of the State of North Carolina:

15 H. AL COLE, ESQ.

16 STEVE BRYANT, ESQ.

State of North Carolina 17 Department of Justice P. O. Box 629 18 Raleigh, North Carolina 27602 19 On Behalf of the Nuclear Regulatory Commission:

20 CHARLES A. BARTH, ESO.

JANICE E. MOORE, ESQ.

21 Office of the Executive Legal Director S U. S. Nuclear Regulatory Commission i 22 Washington, D. C. 20555 23 BRADLEY W. JONES, ESQ.

U. S. Nuclear Regulatory Commission, Region II 24 101 Marrietta Street

. . eroi Reporters. tne. Atlanta, Georgia 30303 25

8543 Su Walsh I C 0,N T E,N T S k_3) 2 WITNESSES DIRECT CROSS REDIRECT RECBOSS BOARD 3 William J. Hindman, Jr.) 8555 8579 8601 8562 Michael W. King )

4 D. Glenn Joyner )

Michael L. Plueddemann )

5 Peter B. Bensinger )

RESUMED 6

7 Loren L. Bush, Jr. )

Francis J. Long )

8 William J. Tobin )

Richard L. Prevatte) 8646 8658 8757 9

10 William J. Hindman, Jr. )

Michael W. King )

11 D. Glenn Joyner )

Peter B. Bensinger )8780 8811 12 N

(J

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13 14 L A_ Y - I_ N S_

15 Testimony of Messrs. Bush, Long, Tobin and Prevatte Following Page 8653 16 Construction Security Weekly Report, 17 Report 8/13-17/1984 Following Page 8776 18 19 20 21 22 23

& n pom.

25 i

1

8544 1-1-JosWal

_ 1 PROCEEDINGS

~~~~~~-~~~~

~O 2 JUDGE KELLEY: Hello. Good morning. We will 3 get right back to Mr. Cole and resume cross-examination 4 in just a minute.

5 We have a pending ruling on an evidentiary 6 question. There was an objection yesterday to two portions, 7 I believe, of the Applicants ' testimony for this panel, 8 Pages 11 and 38, where certain statements by Major Baker 9 were referred to, and the objection was on a hearsay ground.

10 We heard argument on that point, and we are going 11 to overrule -- we do overrule that objection for several 12 reasons.

f 13 It is true that we don't plan- to have Major 14 Baker as a witness, so it wouldn't be hearsay in that 15 technical sense, but these statements were made in meetings 16 in which various other people were present, so there is an 17 _ opportunity tos either corroborate the statement or deny it, 18 and that, I think, is one reason to allow it to be heard, 19 to allow it in. I 20 Beyond that, we did have Mr. Eddleman yesterday 21 questioning, eliciting several hearsay statements of Major 22 Baker at some of these meetings, and it seems to us that 23 we can't have it both ways. If we are going to get versions

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24 of what Major Baker said from one side, we should get it 25 from both.

r

,-1-2-JocWal 8545 i

1 In addition, once again without belaboring it, O 2 we don't automatically exclude hearsay. We can admit it,

)

3 and we typically do so with the caveat that we let the 4 fact that it is hearsay go to the weight rather than to 5 its admissibility.

6 Certainly in this case there were conflicting 7 reports about what Major Baker may have said. We probably 8 give it little or no weight.

9 So, those are our reasons for overruling that i

10 objection, letting those statements in.

11 Let me make just a comment or two about our 12 ground rules for questioning with panels of witnesses.

~

13 The Board has not made a practice of restating 14 rules every time we empanel a panel, but perhaps we should 15 to some extent. I will just restate, because a couple of 16 things just came up yesterday, and had occasion'to comment 17 on them at the time.

18 We don't have an elaborate set of rules, but 19 one is that if you want to confer you should do it on the 20 record.

21 Secondly, on the question of directing questions 22 the cross-examiner is entitled to put the question to the 23 person on the panel that he or she wants to put the question

() 24 nam Feileral Reporters, Inc.

to, and is entitled to either an answer -- even if it is 25 just: I don't know; before we get a response from other

1-3-Jo Wal 8546 1 members.

2 And I don't mean to discourage other members 3 of the panel from coming forward with whatever they want 4 to contribute to the question, but the -- when the question 5 is directed to a particular person, that person should have 6 a go at it first.

7 I think beyond that, if it is a series of }

8 obviously interrelated questions such as many of the series 9 that Mr. Cole was putting yesterday, if Mr. Cole wants to 10 go with one person he should be entitled to do that until 11 he has exhausted that person's knowledge and then somebody  ;

I 12 else can come in, and I am not saying one way or the other. l

. .)

- 13 There was a comment yesterday about, I think Mr. Cole, 14 thought his bait had been cut off without ruling on whether 15 that is really right or wrong in that context. The idea 16 of letting him finish a series of questions is what I just  !

17 wanted to get across .

i 18 Any questions about that?

19 MR. BAXTER: Just one clarification, Mr. Chairman. j i

20 I have advised the witnesses that they should not confer l

21 when a question is pending, but that in between questions i i

22 as long as it is not disrupting anything, they are ~ free to 23 talk to each other.

n j 24 Is your instruction different from that? l Am-FWeal f.womrs, tnc.

l 25 JUDGE KELLEY: I don't recall whether we have i r

1-4-Jo Wal 8547

~~

1 made one in the past.

2 MR. BAXTER: When there is no question before the 3 house, in other words .

4 JUDGE KELLEY: They are just talking to each 5 o the r, in effect. Well, usually it doesn't happen, because 6 we have an ongoing thing, and everybody is paying attention, 7 but if there is some sort of break -- I don't think we have j 8 had a rule of silence here necessarily. The Board doesn't 9 observe one.

10 So, that seems -- do other counsel have any 11 comment? That seems okay to me. l 3

12 (No response.)

(_/ 13 The idea is, it is sort of a -- honor code is 14 too strong a word, but the idea is on the matters of 15 substance before the panel, we put it on the record.

16 If you want to talk about something else when l 17 no question is pending, I don't see any objection to that. ,

18 Mr. Runkle, any thoughts? I I

19 MR. RUNKLE: We have no problem with that, j I

20 JUDGE KELLEY: Okay. I think with that we can j 21 go right back to Mr. Cole.

22 Mr. Runkle?

23 MR. RUNKLE: Yeah. In your ruling on the hearsay

() 24 W-Federd Reporters, Inc.

objection, that is Sheriff Baker, not Major Baker. He is 25 the Sheriff.

I

1-5-Jor;Wal 8548 1 JUDGE KELLEY: I am sorry. There is a Major s

2 in the picture.

l 3 MR. RUNKLE: There is a Major Lanier.

4 JUDGE KELLEY: I am sorry. I meant Sheriff Baker.

5 Thank you.

6 MR. RUNKLE': And I have one other matter I would 7 like to bring up now that will probably save us time later. l l

8 JUDGE KELLEY: Go ahead.

9 MR. RUNKLE: Yesterday after the hearing, I 10 offered a stipulation to the Applicants' about the bringing 11 in of a drug dog into the hearing room for a demonstration, 12 and we have no problems, and we would be assured that if r~x i i

j

_/ 13 you brought a drug dog in here that he would be able to find 14 drugs secreted anywhere in this room.  !

i 15 Otherwise, we would have to object to the 16 relevancy. .lt 17 JUDGE KELLEY: Your offered stipulation was 18 declined, I take it.

19 MR. RUNKLE: Yes.  !

20 JUDGE KELLEY: Okay. And you were just saying l 21 we don't need the dog; we will stipulate that he can find 22 the drugs?

23 MR. RUNKLE: Yes. Otherwise, we would have to ,

, ^s I

_j 24 object on relevancy grounds.

WFederal Reporters, Inc.

25 JUDGE KELLEY: Well, I suppose rather than go to the

1-6-Jo Wal 8549 1 trouble of finding the dog and bringing it here and all O_ 2 that, we had better hear it right now, doesn't that make 3 sense?

4 Go ahead and hear some argument on the point 5 and then we can make a ruling.

6 MR. RUNKLE: That is why I brought it up this 7 morning. l 8 JUDGE KELLEY: Okay. I understand. So, you 9 want to object on relevancy grounds. Do you want to expand 10 on that?

II MR. BAXTER: My only hesitancy about taking it I2 up now is I understand we are trying to get the Staff O

V 13 witnesses off today.

14 JUDGE KELLEY: I didn't really envision this 15 taking too long. It is a relevancy point. Can ' t we get that 16 on the record, and then the Board will know what the objection 17 is, and we can go on with it. l 18 Why don't we go ahead. Mr. Runkle?

19 MR. RUNKLE: Well, I don't see a real strong 20 connection between what a drug dog is able to do in a closed 21 clinical situation, in a test that would be in this room, 22 compared to what this same dog going out into a very-23 complex situation, like a nuclear power plant.

j 24 We are sure that if you secreted some kind of Aes-Federal Reporters, Inc.

25 illicit drugs in this room that the dog would be able to find

1-7-JoaWal 8550 1 it.

\

-'.~I 2 To make that point in bringing a dog in here 3 and then taking the time to go ahead and do that seems to 4 us to be stretching things a little far.

5 JUDGE KELLEY: But the loss is what, half an 6 hour of our time?

7 MR. RUNKLE: Yes, sir.

8 MR. BAXTER: Mr. Chairman, I don't think it will 9 take half an hour.

10 I have to say I find it a little inconsistent Il for counsel to offer a stipulation that the drugs can be 12 found, and then still to argue that it is irrelevant, but s

x> 13 I would honestly propose that the Board delay a ruling on

, 14 this objection until the dog handlers are sworn in and are 15 on the stand and available for cross-examination. i 16 We plan to have that cross-examination before l

l 17 any proposed demonstration, and Mr. Runkle could explore  ;

18 this theory he has just advanced now about whether this I9 room is representative or not of the kind of searches they 1

20 actually do at Shearton Harris. Rather than relying on I 21 counsel for a discussion of the merits of that position, 22 I think we ought to let the witnesses respond to it.

23 It is my impression there are a number of L_) 24 enclosed spaces out there. There are rooms. Some of them km-Federd Reporters, Inc.

25 larger than. this, and some of them not larger than this .

1-8-Jo::Wal 8551 1 JUDGE KELLEY: If I understand you, you are

( ')

2 saying that the Applicants ' don't mind going to the trouble 3 of getting the dog and the handler and paying them and 4 feeding them and so on and bringing them in here, and you 5 will run the risk that the objection might be sustained, 6 and then you won' t be able to use the dog in the case.

7 MR. BAXTER: The handler is one of the witnesses 8 in any case, Mr. Chairman, so it is just a matter the dog I

i 9 will be in the truck outside while she is here anyway.

10 JUDGE KELLEY: There seems to be some force 11 in that point. Why shouldn't we just wait and hear from 12 the handler?

> 13 MR. RUNKLE: I just thought I would bring it up -

14 now in case there was problems, and I certainly will object 15 when the dog shows up.  !

16 JUDGE KELLEY: Okay, f l

17 MR. BARTH: That means you have denied it, Your j i

18 Hcnor? l l

l 19 JUDGE KELLEY: Yes -- well, no, I didn't deny the .

i 20 objection. Mr. Baxter suggests that we wait until the 21 handler and the dog arrived to hear the rest of the objection, i 22 so you can speak to that at that point, okay.

23 Right now, I don't think we need to, because there 24 seems to be a consensus that we can wait. Mr. Baxter will Wm5eral Ceporters, Inc.

25 bring the dog.

1-9-Jo Wal 8552 I MR. BARTH: I agree with Mr. Baxter it is

'd 2 premature. The dog has not been offered. This is no time 3 to consider it.

4 JUDGE KELLEY: All right.

End 1. 5 MS fols.

6 7 I I

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10 11 12 C,- 13 14 15 16 l

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MR..EDDLEMAN: Judge, the only thing I wanted to 1

do is question on the record how you would assure the independence of somebody who was going to hide the drugs in 3

here in the first place and how he could assure that none 4

of us in the room would know where they were.

JUDGE KELLEY: Well, that goes to cross-examination,

~doesn't it? If you can expose the whole thing as rigged, it 7

will backfire on those who are offering the dog.

8 9 MR. EDDLEMAN:- Well, what I am saying is I think 10 if the demonstration is to have any value that you have got 11 to be absolutely certain that there is no rig. It is not that 12 I have to be able to figure it out on cross. If it is

) 13 going to have value, you know -- if I say, for example, that 14 I can demonstrate that one of my students can make a certain 15 calculation, how in the world are you going to prove that 16 I haven't told him the answer?

17 JUDGE KELLEY: I still~think we are premature 18 with this. I thought initially when the objection was raised 19 that it was an offer to save Mr. Baxter some trouble, and he 20 - says he doesn't mind and he will bring the dog. So let's

, 21 wait until the dog comes.

22 With that, can we move back to Mr. Cole? Is there 23 anything else?

24 (No response.)

hp ,,m, Inc.

25 Okay, Mr. Cole.

I 8554 iim 2-2 j Whereupon, j 2 WILLIAM J. HINDMAN, JR.

3 MICHAEL W. KING 4 D. GLENN JOYNER S

MICHAEL L. PLUEDDEMANN .

6 - and -

7 PETER B. BENSINGER 8 resumed the stand and, having been previously duly sworn, 9 were further examined and testified as follows:

10 MR. COLE: For my two cents'on that. matter, Your 11 Honor, I question the.~ relevancy, but personally I would like 12 to see them do it.

i 13 (Laughter.)

v 14 JUDGE KELLEY: That is an honest man.

15 (Laughter.)

16 MR. EDDLEMAN: Mr. Chairman, Mr. Barth reminded me 17 of my pledge earlier this morning that I only was going to 18 do 15 minutes. So I cut out four pages of questions.

19 JUDGE KELLEY: In all seriousness, we will work 20 this out somehow. Take the time that you need.

21 MR. EDDLEMAN: I just really have some house-22 cleaning questions, and I will stay within the time ---

23 JUDGE KELLEY: If there is anything of substance, 24 we would urge you to take the time.

Ace- of Reporters, Inc.

25 MR. EDDLEMAN: Oh, I am not cutting it off because

8555 S 2-3 I I am being a little facetious, that is true.

of that.

' .j 2 CROSS-EXAMINATION (Resumed) 3 BY MR. COLE:

4 Mr. Joyner, on page 31 of your prefiled testimony Q

5 you refer to the fact that there were no buys in the parking 0 lot. Do you recall that, sir?

7 A (Witness Joyner) Yes, I do.

8 Q Do you still affirm to that statement?

9 A Yes, I do.

10 There were no purchases made in the parking lot?

Q II A That is correct.

I2 Q Would you know if there were?

) 13 A Yes, I would.

I4 Q All right, sir.

15 Mr. King, how are you this morning, sir?

16 A (Witness King) Just fine.

17 0 Mr. King, getting back to a question or two about 18 the metal detectors again, had the metal detectors been used l9 on the site prior to the incident in time that we talked 20 about yesterday?

2I A The metal detectors had not been used. They were 22 ordered prior to the beginning of the operation, and actually 23 went into use six days after the operation started.

24 Q But prior to that time had the metal detectors been Reporters, Inc.

25 used on the job site?

8556 f

.Sim 2-4 j A They had not.

() 2 Q All right. And I believe the job started sometime 3

in '78 or '79 maybe?

4 A That is correct.

Q And they were started in '84 or '85 because of a 5

. tool theft problem?

6 7

A They were started in 1984 becuase of the concern over tool theft, company and personal tools, and specifically 8

9 because of the request from Mr. Wagner.

10 0 The construction had been going on out there for

't, ,

jj some four or five years and tool theft had not been a problem a

7, ' '

12 prior to '847 A There had been instances and reports of tool theft

) ', 13 j4 prior to 1984.

15 ..

O But again the metal detectors were not used at that 16 time, correct, sir?

j7 A That is correct.

Q Mr. Joyner, again concerning the metal detectors, kN '

18 19 cn page 17 of your prefiled testimony you make a statement 20 .concerning, or state that Mr. Hensley expressed some concern 21 to you about those metal detectors; is that correct, sir?

A (Witness Joyner) Yes, he did.

22 23 Q And that you replied that they had only been in use Ac. it.p 24

,*n. ine.

25 one week, and if you were to stop them abruptly that it would arouse suspicion. Was that not your statement, sir?

8557 Sim 2-5 1 A Yes, it was.

2 Q My question then, Mr. Joyner, and we go back to the 3 qauestions I asked yesterday, wouldn't starting it arouse 4 the same suspicion?

5 A Not in my opinion.

6 0 Why would stopping it arouse it and not starting 7 it abruptly arouse it?

8 A All the workers had had the opportunity to see 9 these things being used on a daily basis. We also had 10 Daniel superintendents who were present at the brass alleys 11 on every shift change, and they were observing the searches 12 and we felt that we would have to go back and explain ourselve n 13 if we all of the sudden just abruptly stopped using them.

14 Q Well, it is true that metal detectors had not been 15 used for the five years that the construction had been under ,,

16 way; is that correct?

17 A Yes, that is corrJ2r.

18 Q And the drug <_.vec. gation undercover operation had 19 started, had it not?

20 A Yes, it had.

21 Q And you still feel like that that would not arouse 22 suspicion?

23 A I can't imagine in my farthest thinking why metal 24 detectors would have an impact on drugs.

Ace-9eral Reporters, Inc.

25 Q But stopping it would?

8558 Sim 2-6 1 A Yes, I do.

./ '

(,%) 2 Q Well, at some point I guess you would stop using 3 the metal detectors, would you not, sir?

4 A We don't foresee that.

5 0 You are still using the now?

6 A Yes.

7 Q Again, Mr. Joyner, let me refer you to page 21 and 8 other pages after page 21, and I don't want to get into this 9 point in kind of depth, but it is about the gate search

-10 incident. You recall that testimony, do you not?

11 A Yes, I do.

_m 12 Q I believe you stated in there that the SBI was not i

',[')

w 13 involv'ed in that at all; is that correct?

14 A That is correct.

15 O They were not involved in the preplanning or in the 116 execution of that incident; is that correct?

17 A That is correct.

Eiq 18 MR;:COLEr Mr Chairman, inasmuch as the next pane 1 if 19 I believe consists of the same persons minus Mr. Plueddemann, 20 I am assuming not only the 201 matter, but matters that con-21 cern what CP&L has done after the undercover operation would 22 be better put to the third panel than they would to these, 23 although there is some prefiled testimony here that I do want 24 to go back and refer to with the next panel, but it alludes Ace- gof Reporters, Inc.

25 to matters aaf some later date.

s

8559 Sim 2-7 JUDGE KELLEY: I think it has become clear that 1

() 2 we can't draw air-tight compartments around these panels.

3 There is some overlap.

4 Mr. Baxter, as a general proposiion, would you 5 agree that that judgment by Mr. Cole seems reasonable?

6 MR. BAXTER: Certainly. As long as we are not

~

7 repeating ourselves, I have no problem.

8 JUDGE KELLEY: Right. Okay. And we have got to allov 9 some latitude here. We don't want things to just go on 10 unasked if they are of substance because we called the line 11 wrong, particularly with the same people on the panel.

12 MR. COLE: Well, this mainly would be just referring

/~h 13 back to testimony.

V -

14 JUDGE KELLEY: Right. So you would propose not to 15 follow those here and wait for the next panel?

16 MR. COLE: Yes, sir.

17 JUDGE KELLEY: Right.

18 MR. COLE: One final question.

19 BY MR. COLE:

20 Q Mr. Joyner, in your prefiled testimony you t&lk.about 21 that August 12 meeting. Was that the meeting that we talked 22 about, private and non-private, between you and Lt. Self?

23 A (Witness Joyner) No, it was not.

24 Q What was the Augsut 12 meeting then?

AcAof Reporters, Inc.

25 A I believe that was the meeting we all attended in

8560 Bim 2-8 1

• • "9 ""** ~~~

t 2 O The drug dog meeting?

3 A Not August the 12th.

4 MR. BAXTER: This is 1985.

5 MR. COLE: Excuse me. Is this the '85 meeting then.

6 All right, sir. That is what I was not sure about.

7 BY MR. COLE:

8 0 Well, at the August '85 meeting, that was the one 9 that you obviously talked to Mr. Hensley, Deputy Hensley?

10 A (Witness Joyner) Yes, I did.

11 O All right, sir. And who was present at that meeting?

12 A Lt. Self, Deputy Hensley, Sheriff Baker came in 13 at a later time, Maiser Lanier was present, Mr. Baxter was O]

L 14 present, Mr. Holly was present and Mr. King was present.

15 0 But at that meeting the Sheriff's Department did 16 confirm that the undercover operation was terminat:ed because 17 they feared for the safety of the operatives if the drug 18 dogs were used?

19 A That was not my understanding. We asked for that 20 meeting on August 12 in response to the Burch affidavit.

cnd Sim 21 Sua fois 22 23 l A 'A 25  !

l l

8561

!#3-1-Eueu I Q But I ask you to look at Page 27, at the top

,(/- !") 2 paragraph please. Maybc you misunderstood the question, 3 Mr. Joyner.

l 4 Starting three lines down, the first full sentence, 5 do you --

f 0 A (Witness Joyner) I read it.

7 Q I see. Now, my question again was, did not l

8 the Sheriff's Department inform you that the operation was 9 being terminated because they feared for the safety of the 10 undercover operatives if the drug dogs were used?

II A I'm still not understanding what you are asking.

12 The operation had already terminated several months orior

'( _

13 to this.

14 0 Weren' t you informed at that meeting that the

! 15 operation had been terminated? And, again this is your I

(- 16 own testimony so I assume it just stands as it is anyway.

17 But I was just asking you to -- I'm askina you 18 to reconfirm your statement. I assume that is your state-19 ment.

20 A That's correct. It is in my prefiled testimony.

21 Q And the Sheriff's Department did tell you they 22 terminated, they had terminated, the coeration because of l

23 the drug dogs?

24 A That's correct.

Ace-Aof Iteporters, Inc.

25 Q And that they feared for the safety of their i

u . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

8562 1#3';-SueW

- I operatives?

-O

(_) -2 A That's my understanding of --

3 Q All right, sir.

4 A -- what Sheriff Baker stated.

5 MR. COLE: Yes. That's all.

6 JUDGE KELLEY: Thank you. Mr. Barth?

7 MR. BARTH: The Staff has no questions, Your 8 Honor, of the panel.

9 JUDGE KELLEY: All right.

10 BOARD EXAMINATION 3NDEXX II BY JUDGE KELLEY:

12 Q Can I iust pick up on the safety of the coerators?

/-

t 13 I'm iust not clear vet -- maybe I'm not fully grasping the I4 testimony -- why the presence of the dogs was thought to 15 ieopardize the safety of the officers at the site?

16 Can you elaborate on that some? It's not obvious I7 to me.

18 A (Witness Kina) Mr. Chairman, if I might. We 19 did not -feel that the introduction of drug dogs at that time, 20 or at any other time, would physically endanger the lives 21 of the coeratives.

22 Havina the exnerience of being an undercover 23 officer, I knew that the introduction of drug dogs would 24 possibiv drv up on a temocrary basis the sources of drugs it.p ,m, Inc.

25 that they were tryina to purchase. However, I do not feel

8563

1. 3-3-SueW l at this time, and did not at that time feel, that the drug

.( ) 2 doa would endanger anyone's lives.

3 Q Did you hear -- and I'm asking for a hearsav 4 response I know -- did the S'teriff's people or the under-5 cover people articulate to you any specific reasons why 6 they thought that dogs on the site would endanger them?

7 A The two operatives, Agent Williams with the SBI 8 and Deputy Hensley with the Sheriff's Department, did not 9 ever, to my knowledge, state that they were afraid of their 10 personal well-being because of the introduction of dogs.

11 Q And the explanation that you are sugaesting, 12 that it would dry up the sources, invites the other question:

b) Why not have dogs out there all the time; you would never 13 14 have any drugs? But that probably doesn't follow.

15 But, it still doesn't go to this notion of 16 endangering operatives. And I will ask -- the people to ask 17 are the operatives, and we will ask them later. ,

18 But, I just wonder whether there was anything 19 specific said to you at the time as to why these undercover 20 people would be endangered by the dogs?

21 I gather the answer is no.

22 A As I recall, they never made that statement that 23 they would be endangered. Mr. Joyner may have had some 24 other conversations with them. But our conversations after 4 n.p.,,.,s. inc.

25 the operation ended, they have never indicated to me that

8564

1. 3-4-SueW 1 they were afraid for the doas to come on site because of 2 personal harm.

3 0 And you yourself, and in your excerience in this 4 area, you have indicated that it would dry up the supply 5 for a while, I guess because the sellers and the users 6 would sav that thinas are getting oretty hot and I just better 7 not brina anything around for awhile, that dog might find it.

8 But d3at's the reason that you would see -- that 9 would be the effect that you would see?

10 A Yes, sir. I feel like that the introduction 11 of dogs during the course of an operation would make the 12 people that were dealing drugs want to draw back for a short

() 13 period of time, assess the situation, not stoo entirely 14 but try to figure out a way to cet around the activities 15 of the dogs.

16 Q Okay. Yes.

17 A (Witness Bensinger) I would make the observation 18 that when law enforcement aaencies have the difficult 19 assignment of investicating other law enforcement agencies, 20 as DEA agents do, investigatina police decartments, court 21 situations, our own acents, you can't really ask those local 22 police departments to suspend operations; that the cresence 23 of doas I think could be handled by an undercover agent in 24 a manner that would recoanize: Hey, this is going to dry Ace-gof Reporters, Inc.

25 uo maybe some drugs around here.

8565

1. 3-5-SueW j But the officers themselves weren't bringing drugs 2

on to the job site. The does weren't coing to hit on them.

3 And I think Mr. King's descriotion and the 4 testimony that had been offered indicating you can somehow 5

bind a potential seller or violator by sharing with them a 6

threat to the drugs on iob site can work, and does work.

7 At DEA, our agents did do that.

8 When post auard or state and local law enforcement was, in fact, effecting seizures rather than saying: Hev, 9

10 those kind of operations would have jeopardized the safety 11 of the individual or the success of the oneration. The 12 undercover operative recognized that, talked about it, and f~l 13 maintained the confidence of the sellers.

ja Q So that you can actually facilitate the operation --

15 A Well, you can --

16 Q -- by saying: You know, did you know there was j7 a dog on site and so on?

18 A Well, I think you can reconfirm your own credibiliti .

39 You are not going to increae the immediate oossibility of 20 sale.

21 I think the suggestion that there would be a 22 less likelihood of bringing drugs on the job site is real.

23 And I would agree with that line of questioning.

24 But I would say at the same time, your credibility Ac i Reporters, Inc.

25 could be in fact enhanced.

i 8566 i

3-3-6-SueW l Q But that wasn't -- if I'm correct, and let me

! (")

(_j 2 ask Mr. King, the oossibility that the undercover people 3 could increase credibility was not a rsason for brinaina 4 doas on in this case?

5 A No.

l_

6 (Witness King) No, sir, that was not the 7 reason.

8 Q And, in fact, when you wanted to bring the docs l

9 on and your contemplation was that the undercover coeration 10 would cease?

l II A Our contemplation was that the undercover coera-12 tion would end around the first of January based on informa-

, (~}

v 13 tion provided by Lieutenant Self. And we had beaun our 34 negotiations with the contractors to bring the does on in l

15 February.

16 0 Okay. Let me put sort of a complicated question --

t-17 it has several parts, that is.

18 And what really concerns ma here i= that the under-19 cover operation here, if I understand the way it is being 20 described, had -- was.far from an ideal undercover o.ceration.

21 It had it seems several strikes against it almost from the 22 outset.

23 You weren't happy with the informant because he 24 had been fired and was known, to some people anyway, that u h p.n m ,Inc.

25 he was fired for drugs. So, the thought was that he would l

1

8567

1. 3-7-SueW I be not credible, that people would think that hc was a 2 narc, if that's the term. That's one thing.

3 Hensley was not particularly trained to do this 4 kind of thing. Williams didn't show uo very much.

5 There is testimony about how many days and hours 6 that he was around. And so for whatever reason, he wasn't 7 giving it full time.

8 And I will just take those three. If all three 9 of those conditions obtained, yet I understand that -- and 10 then the fourth one might arguably be that it was really too 11 short of an operation; it should have been longer than it 12 was.

' ', 13 Still in all, the operation, largely through 14 Hensley's activities I take it, turned up sixty-one people 15 was the number I heard. There were eight people arrested, 16 and then there were fifty- three, and that makes sixty-one.

17 So, I ask myself: Well, if this undercover opera-18 tion was as flawed as I understand it was, and it still turned 19 up that many people, my goodness, a really good operation, 20 what would they have done out there? They could have found 21 a hundred and fifty, or I don't know how many.

22 So, it raises a concern in my mind about whether, 23 you know, beneath the surface at Shearon Harris there is lots 24 of drug dealing going on. All you have to do, you can put a Ace- of Reporters, Inc.

25 couple of left-footed people out there and they will find

8568

1. 3-8-SueW I sixty-one. So, why don't we have a problem?

2 Could you help me out? That's my reaction, Mr.

3 King. I'm sort of startled that Hensley found sixty-one 4 all by himself. And it makes me wonder what else is out 5 there.

6 A First off, Mr. Chairman, the sixty-one number 7 is not something that they derived solely by themselves.

8 Going on to the job site, we provided them with twenty-one 9 names --

10 Q Okay.

II A -- up front. So, subtracting that twenty-one, 12 they identified forty people.

13 Q Okay.

14 A Forty people with an informer that was known to 15 be a drug dealer, knew the people on the job site, and could 16 go immediately places to make purchases, I felt like these 17 people with Hensley's qualifications as a law enforcement 18 officer -- although he did not have narcotics experience --

19 and with the assistance of Agent Williams from the SBI, they 20 went into the operation with the tools that they needed.

21 I don't think they went into the operation im-22 properly equipped even with those shortcomings.

23 0 Well, you disagree with the suggestion that the .

24 operation was flawed in that sense; is that right?

Ace-Aof Reporters, Inc.

25 A These are subjects of concern and interest that

8569

1. 3-9-SueW 1 we discussed going into the operation. But when you have 2 three agencies trying to put together an operation, there 3 is going to be various points of views and opinions from 4 each of those agencies.

5 That was evidenced by the Sheriff's Department's 6 insistence on using this particular informant. We had no 7 problems with Deputy Hensley, because we understood the 8 manpower situation in the Wake County Sheriff's Department.

9 And Agent Williams, when we met him and were provided with 10 his background, we felt like he was going to be a valuable 11 asset and would be able to help the operation.

12 Q Williams I believe only made one buy. Now, we 13 can ask him that later again. He will be along, I know.

14 But, if he just made the one buy, if you just 15 guage it by results, it was really a Hensley operation; is 16 that fair?

17 A If that is correct, that he only made one buy, 18 that's true, sir. However, going into the operation in 19 October and then starting it in November we had no way of 20 knowing at that time that Agent Williams was not going to 21 be on the job site on a daily basis and not be more productive 22 in the operation.

23 (Witness Joyner) Mr. Chairman, I want to add 24 one thing to that. When we began this operation, it was Ace Srol Reporters, Inc.

l 25 our full intent -- and we did express that intent to the

l 8570

1. 3-10-SueW 1 Sheriff's Department and the SBI -- that in addition to r

i 2 anything that they could do on a legal basis as far as 3 making arrests or any drug buys that they made, that we 4 wanted and asked for the names of the people that they 5 observed, either using or possessing any kind of drugs 6 while they were there.

7 And Deputy Hensley had freedom at the site.

8 And he didn't just go down to one area just because the 9 informant knew that. He did walk all the areas of the 10 construction site making these observations.

11 So, regardless of the flaws he still had the 12 opportunity and the personal knowledge of being able to 13 cover the entire site.

(v)

END #3 14 Jon flws 15 16 17 18 19 20 21 22 23 Ace- of Reporters, .

25

,e 8571 p-1-JoeWs1 1 Q Well, this is the thing I find -- one of the t

\ things I find very difficult about trying to get a handle 2

3 on this problem.

4 If the issue is whether drugs are widespread --

5 all right, that was the last panel -- but we are talking 6 about undercover operations now.

7 How is one to know? What index do you have --

8 I guess you don't have any very precise index. It would be 9 nice if you could say to yourself: Well, if I put an 10 undercover operation out there and give them access to the 11 entire site, they will find fif ty percent of the users 12 in eight weeks.

Is_- 13 And then I would: find out that there were only 14 sixty out of six thousand, so that is reassuring. But, of 15 course, I take it it doesn't work that way.

16 It is sort of a judgment thing as to what they I'7 are able to find.

18 I am kind of concerned -- Mr. Eddleman brought out 19 yesterday that of the 201 people that have been terminated 20 over the history of the site, roughly a third of them fell 21 out of this at least somewhat handicapped undercover 22 operation.

23 A (Witness King) Mr. Chairman, I would fully

() 24

. Ass Federal Repo,ters, Inc.

expect having two law enforcement officers on the job site 25 with an informer that were there for supposedly eight to ten

4-2-Jo:Wal 8572 1 hours1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> a day, with no other purpose in but to identify drug b's- 2 users and attempt to make drug purchases, that they would 3 identify people.

4 This is much more intense than the supervisors 5 walking around the drug site trying to get the power plant 6 built, and monitoring the people for drug activity.

7 These professionals were out there for no other 8 purpose but to identify drug activity, and had they not been 9 able to startridentifying people, it would have been much 10 more to our credit that drug use at the site was even less 11 than what it is.

I 12 O How did this informant -- what was his -- can you l i

() 13 tell me without breaching any confidentiality, what his 14 craft was, or whether he was acraftsman?

15 A The informer was an electrician.

16 Okay. My impression that work in a nuclear power l Q

17 plant is pretty compartmentalized, and the electricians know 18 each other, and the welders know each other, and the cable 19 pullers know each other. Well, I guess they are electricians, 20 too. And so on down the line.

21 And people working in different areas -- do they 22 fraternize to an extent that one guy could somehow get 23 around a site of six thousand workers and have contacts like 24 that?

W- el M890fteft,Inc.

25 I would assume that he would know some limited

4-3-JoeWnl 8573 i 1 number of electricians, and that would be about it.

8

/

2 How does that work?

3 A To a certain extent he would be closely associated 4 with people of his craft in his work area.

5 However, in this particular instance, when we 6 created a position and brought the informer back on the 7 job site he did have complete freedom on the job site, and 8 was not isolated to that former area of people.

9 Q When he came back on, what was his supposed 10 function? His cover? Stop me if I am asking confidential l I

11 information, but I am just trying to find out how he managed I 12 to make ~ all these contacts .

m i

13 A Identifying exactly what he was doing would 14 be bordering on giving his identity away, but basically ,

15 we created a position within a subcontractor there at the 16 job site that CP&L was controlling, where he could have  !

17 freedom of access to the job site on any shift, and have f

18 freedom of movement all over the job site.

I9 A (Witness Joyner) He, in fact, had no work l 20 assignment. He was not actually performing any work. His ,

21 sole purpose was to go out and help the undercover operatives.l 22 Q And again, I don't know how this culture works, 23 but I would have thought that somebody who used to be an l t J 24 l

electrician came on site, and he is given a cover that allows  !

W FWwj Rmorters, W. l 25 him freedom of movement, that it would still be -- there would I

4-4-Jo W21 8574 j be limits on how much ground he could cover in terms of 2

people.

3 Getting to know people, gaining some level of 4 confidence. Certainly he can't you know go hawking drugs 5

n the site; it has got to be sort of a quiet face-to-face 6

encounter, I would think.

7 A I think I can help you on one issue. This 8

particular informer had the confidence of so many people ,

I i

9 that they were actually giving him their payroll checks every l l

10 week to go down and have cashed.  !

l 13 And was getting anywhere from thirty to forty

]

l 12 individuals payroll checks and drivers licenses, and take j l

13 them down and cashing them and bringing back the money to i 14 them.

15 Q Are these the same people buying drugs? l 16 A Pardon me?  ;

17 Q The same people that were turning over checks were 18 buying drugs?  ;

19 A No, sir, not necessarily. He was '. tying to expand 20 -- his little group of people he was involved with when he 21 was working at the plant probably only involved about eight  !

22 to ten, -- or maybe to fif teen people, but he did expand that 23 by being friendly and making contacts and trying what he couldll '

24 to gain access to other areas. I a-reens cumnm, uw. l 25 0 It is a remarkable level of confidency he managed i l

4-5-Jo Wal 8575 1 to obtain.

2 A (Witness Bensinger) Judge Kelley, I think it is l

3 going to be somewhat subjective-in assessing the undercover 4 investigation. Getting a handle on it. Some of the relevant 5 facts would be, I think, whether the undercover operatives 6 were able to make buys from new names, other individuals 7 than those identified by the informant. l 8 Looking at the amount of drugs, and the money l

9 that was purchased, I was surprised that only seventeen hundred I

10 dollars was spent on buys.

11 The -- I understand the Sheriff's Department had I

12 a budget of close to seven thousand for that investigation, l

/

13 and the amount bought and spent, and the grams, the weights ,

I4 were not large, and the widening circle -- I think beyond 15 electricians could have been made because the undercover 16 operatives themselves were not limited to that group.

17 But in a sense you are kind of on the horns of a  !

18 dilemma. l 19 Does the intervention by a company by undercover, l 20 by drug dogs, by urine testing, by i ntervention, indicate l 21 less or more drug use? In one of the audits we did at a 22 public utility, we found at one location there had been no 23 fitness for duty referrals, and no positive urine screens,

<' 24 and no intervention, and no incidents.

As-Federse Ceporters, Inc.

25 And my sense is that doesn' t mean, quote, they are

. 4-6-JoeWal 8576 f

I ~ drug free.

' O 2 In some cases when you get numbers, it is the

-3 result of initiatives and actions, and the 42 individuals 4 identified as a result of a two month undercover investigation 5 out of some six thousand on the job site, even a lesser amount 6 that obviously the undercover operatives would have been i,

7 able to reach, would not, it seems to me, send a signal that 8 if they had spent a year there you could multiply that times I

9 six necessarily. '

10 I am sorry I can't be more helpful to you.

11 Q I understand. But it is hard to -- I find -- to i 12 assess what all this means. Let me ask you also, while 13 on the subject of undercover operations, and I think it is

. 14 fairly within the scope.

t i 15 I think you had testified, Mr. King, that 16 there have been a couple of undercover operations at i

17 Shearon Harris? l 1 1 18 A (Witness King) This was the second operation 19 at Shearton Harris, yes, sir.

f i-

! 20 Q Right. Yeah. You also said that you were not 21 that happy with the Sheriff's choice of the informant.

22 One wonders wh'y, if undercover operations are as effective 23 as this one was, again, perhaps it would have been better

() 24 has.passem Rose,mes, Inc.

with some better circumstances, why not do everything all 25 the time?

4-7-Jo Wal 8577 1 You had undercover operations, you had dogs, 2 all this stuff going on all the time, holding the level 3 down to some low level, hopefully.

4 Why isn't the undercover approach used. more 5 frequently?

6 A I can't really answer why the undercover approach 7 is not used more frequently, except to say there are a great 8 number of details that have to be worked out. Conditions 9 have to be right.

10 In a situation such as this, management has 11 to be receptive to the idea. The local law enforcement 12 people have'to be in a position that they can support the 13 operation.

f i

14 We feel like right now we have a good program t i

1 15 at the job site. We are able to identify people much more 16 readily than what we had been years past, and it is due to l

17 our awareness of the supervisors on the job site. The 18 training they received, the quality check program, and ,

19 numerous other factors.

I 20 And we feel like right now that we are doing an l 1

21 adequate job of' identifying drug abuse, and getting those  !

22 people off of the job site.

23 If, in the future, the circumstances were to be 24 right, and we felt like there were dealers on the job site wrw.re c.oorms, Inc.

25 that we could assist the local law enforcement community with l

4-8-JonWal 8578 I apprehending, we would again consider the use of undercover 2 operations.

3 We have not ruled that out for future activity.

4 Q I can understand where there may be some practical 5 limitations. Maybe there aren't enough people from the 6 Sheriff's Office,'or SBI, or where, or maybe for whatever 7 reason, upper management at CP&L just doesn' t want to do 8 it, but if you had your druthers from a law enforcement ,

I 9 standpoint and everybody was saying: Okay, King, we really I I

10 want to clean up drugs, or keep drugs down out there, whatever 11 you want to do, do, and we will fund it. We will send you  !

12 undercover people.

13 If you didn't have a resource problem or a 14 permission problem, would you have undercover operations 15 running out there all the time?

I 16 A If certain factors could be worked out, such 17 as what to do with the people once they were identified.

18 That is a major inhibiter here, and that being a public 19 utility, building a nuclear power plant, once we know that i

20 there is a drug abuser on the job site, we have a certain i 4

21 obligation to do something about that individual and not l 22 leave him there to continue working with the facility.

23 We have to be able to react on that individual, 24 and not give away the operation or to someway move him sc

.beFMerj Reporwes, lm. j 25 that he is not involved in critical work at die plant any

4-9-Jo:Wal 8579 1 longer.

i

/

2 Those things are very dif ficult to do without 3 revealing what is going on, and it would take quite a bit 4 of planning on how we were going to handle it.

5 Q I understand your point, if I am with you.

6 Cartainly if you had a user at an operating plant, you would 7 have him out of there immediately, as soon as you knew he  !

i 8 was doing it, but you did have people in construction for 9 some period of time who you were allowing to continue working i

10 while they were using drugs, right? It is inherrent 11 in the whole idea of an undercover thing. i l

12 A During the course of this operation, we did have j c

l 13 those people that were being identified to us. We were l l

14 concerned about that, as Mr. Hindman and myself stated in j l

15 our testimony, and that was one of our motivating factors l 16 for not desiring to continue the operation any longer is 17 that we were concerned about those people that had already 18 been identified, and we wanted to remove them as quickly

- 19 as possible.

20 JUDGE KELLEY: Okay. Any redirect? Thank you, ,

21 gentlemen. You have redirect, Mr. Baxter? l l

22 MR. BAXTER: Yes.

XX INDEX 23 REDIRECT EXAMINATION

) 24 BY MR. BAXTER:

Am Federal Coporters, Inc.

25 0 In his recent questioning, Judge Kelley ticked off l

l l

4-10-Jo;Wal 8580 1 a list of, perhaps, the limits on the undercover operation x- 2 going into it, and he mentioned the informant.

3 I believe, Mr. Joyner, it was your testimony that 4 you had cautioned against the selection of this particular 5 informant.

6 Was the basis for your caution that the informant 7 had any limitations on his effectiveness in actually being 8 able to identify and assist the law enforcement officers 9 in making introductions to people suspected of drug activity?

10 Was that the basis for your caution?

II A (Witness Joyner) Yes, it was. I felt like he 12 would have some problems on the job site, in that people

) 13 that knew that he was involved in drugs would have some 14 hesitation, at first.

15 The Sheriff's Department did provide -- and 16 the District Attorney's Office did provide him with a letter 17 stating -- and also a lab report, a false lab report --  :

I 18 that indicated the substance he had was not, in fact, drugs. I I

19 He had this with him when he went back on the 20 job site.

21 Q So, your caution was based on the fact that he 22 might be detected and identified by other employees?

23 A Yes.

lh Wess,el Repo, tees, Inc.

2d Q Was your caution based at all on any concern that 25 he might not be able to identify people involved in drug m- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ . _ _ _ _ _ _ -.

i

,4-11-JoeW21 8581 l

l 1 activity?

2 A No.

3 Q Mr. Joyner, you used the term, ' brass alleys' 4 which I don't think we have defined anywhere for the record.

5 Can you tell us what that is?

6 A Yes. That is the point at which the employees 7 pick up and drop off what we call brass, which in effect is 8 their time.

9 Q So, it is the point of entry and departure?

10 A Yes. It is their timekeeping.

l II Q There was some discussion yesterday about -- I 12 think during some evidentiary ruling -- debates about the 13 informan, and I believe someone testified that the confi-14 dentiality of the informant had been a negotiated result l 15 of discussions between the County District Attorney and the  ;

i 16 Wake County Sheriff's Department and the informant. I 17 Was the State Bureau of Investigation knowledgeable 18 of the confidential arrangement with the informant?

19 A They were not involved in the initial decision  !

20 to do that. They were told that his identity would remain l-l 21 confidential, and that he would not testify in any subsequent l

l 22 hearings.

23 0 Is it important to maintain the confidentiality O 24

. ressem r a n m ,Inc.

of en inside informene, even efeer ehe investigeeton is 25 completed?

L

4-12-Jo;W21 8582 1 A Pretty much so.

r' 2 Q Why?

3 A It is my firm opinion that if the identity of 4 this individual was known and this particular person worked 5 at any other facility that was owned or operated by the 6 Company that he previously worked for, that his life would 7 be in danger.

l 8 Q And could revealing the informant's name potentially 9 inhibit law enforcements capability in the future to --

10 A Absolutely.

11 Q Mr. King, yesterday in describing the sequence 12 of events in terms of arranging the dog handler, I believe A)

(_ 13 you testified that Ms. McConnis who was eventually selected 14 was not the contractor of first choice.

15 Did you mean to imply that she is not as qualifed I

16 as the contractor you were having initial discussions with? I 17 A (Witness King) No, I did not. The meaning of l l

18 that was that our contractor of choice could not make himself 19 available to fulfill the obligation of a contract, and he j 20 did, in fact, refer us to Ms. McConnis.

21 Q There was some discussion with you, Mr. King, 22 about the statement in your testimony that you participated 23 in a seven month undercover investigation while on the

() 24 Am-Federal Reporters, Inc.

Raleigh Police Department.

25 I believe you. clarified that a little to indicate

4-13-JonWal 8583 1 that the actual operation part of it was 143 days.

2 Can you reconcile the length of that operation 3 with your other testimony that you felt eight weeks was 4 appropriate for the investigation at the Shearon Harris 5 site?

6 A Geographically speaking, the undercover operation 7 with the Raleigh Police Department, we had two operatives; 8 one that was going to work the Hillsboro Street, N. C. State l l'

9 College campus area, and the Glenwood Avenue, North Raleigh 10 Section, concentrating primarily on taverns and arcades and 11 fooz ball parlors.

12 The other operative was going to work the southern 13 part of Wake County, outside of the city limits of Raleigh, 14 and was going to encompass basically an area from Highway 70 15 East, in Garner, around to Highway 70 West.  !

I 16 Q So, geographical area of the target is the basic I

17 difference in your view? l 18 A Yes. We did not go into that operation with any  !

1 19 known suspects that we were trying to target on and i 20 apprehend.

21 We went into the operation to go in cold to these 22 facilities, start making contacts. Use the benefit of our 23 informers to help us go to places that were known to be 24 involved in drug activity.

Ace-Federal feporters, Inc.

25 Q So, both the area and the absence of an identified

4-14-JoeWal 8584 1 list of suspects?

2 A That is correct.

3 Q Mr. Joyner, Mr. Cole asked you about the nature 4 of the intelligence that you had back in August of 1984 5 when you wrote your report that eventually Mr. McDuffy read 6 and led to further discussions about your recommendation that 7 an undercover operation be initiated.

8 You testified that your intelligence at that time 9 involved some twenty employees and some of the activity was 10 off CP&L property.

11 He asked you whether that meant the grocery store.

i 12 Was that limited to the grocery store, or did you have l

~

\ 13 information about activity elsewhere off the CP&L property. l 14 A (Witness Joyner) That was not limited to the 15 grocery store. >

16 Q I think this may b'e clear by now, but on the metal !

l i

17 detector searches, were those searches made of exiting or i 18 entering employees?

19 A They were made of exiting employees. j i

20 0 So, if you were an. undercover agent and you were 21 concerned about some action that might limit drugs coming 22 onto the site, could the metal detection searches of 23, existing employees have had any effect on people bringing

! , 24 drugs into the site?  !

u rser.i cumnen, ire.

l 25 A No, they would not.

4-15-Jo::Wal 8585 1 Q In connection with your activities at the gate,

+

2 I believe in some testimony that is going to come later, Mr.

3 Joyner, there is an assertion that you were making reports 4 of people you were bringing down at the gate with these 5 metal detectors.

6 Were those incidents involving drugs?

7 A No, they were not.

8 Q What were they?

9 A It was the tools, paint, and other items . Not 10 including drugs.

End 4. 11 MS fols.

12 j 13 14 15 i

16 l 1

17 i 18 l 19 j i

20 21 22 23 24 m-Federal Reporters, Inc.

25

n 8586 lim 5-1 I Q Did any representatives of'the

State Bureau.of

-A / 2 Investigation raise with you any concerns during the operation 3 about the metal detector searches?

jd A (Witness Joyner) Detective Hensley with the 5 Sheriff's Department raised the only concern I heard.

0 Q But no one from the State Bureau of InvestiJation?

7 A That is correct.

8 0 Did they raise it with you, Mr. King?

9 A (Witness King) No one with the State Bureau of 10 Investigation talked with me about the metal detectors, to Il my knowledge.

12 Q Did anyone raise it with you, Mr. Hindman, from the

13 State Bureau of Investigation?

/")N g_

I4 A (Witness Hindman) No, they did not.

15 0 Related to this same issue about the security 16 operations going on at the site during the undercover 17 operation, we also are going to have some testimony that the 18 agents preferred that essentially there be a cut-back in t' 19 security in that we let the undercover operation be the main 20 operation at the plant. Do you see any problems with that 1

21 approach, Mr. Bensinger?

> s v.

22

~

A (Witness Bensinger) Well, I do, and Mr. Williams' 23 affidavit indicates a desire to have a relaxed atmosphere 24 at the location. That is inconsistent with the objectives ke a n,wwm bc 25 of the Carolina Power and Light Company, and I don't think

8587 cim 5-2 j you can effectively ask an operation, an agency, whether it is a construction site or a police department or a city, to 2

just suspend its normal safety and security procedures to 3

4 the detriment possibly of construction in this case or safety to facilitate an environment that may be more productive for drug sales. I would ssee that as a conflict that is clear and that generally is able to be resolved.

7 The undercover operation has to deal with the 8

environment in which it has to operate, and that is a basic 9

essential in good undercover investigative work.

10 jj Q In discussing with the panel yesterday the planned length of the undercover operation, Mr. Cole was inquiring 12 about whether eight weeks is viewed to be an adequate period

) 13 ja of time to cover the population at the site.

Was it a reasonable expectation or every contem-15 P l ated to be the objective of this one undercover operation 16 j7 that drug activity at the Shearon Harris site would be eradicated in its entirety?

18 j9 MR. COLE: Your Honor, might I object. I don't mind Mr. Baxter testifying, I lost count after eight questions, 20 and I am guilty of it myself, but every question he has asked, 21 with the exception of two, has only required a yes or no 22 answer. He is not on cross. He is on direct.

23 JUDGE KELLEY: He is on redirect, right?

24 4.- ai Reporters. Inc.

25 MR. COLE: Yes.

8588 Sim 5-3 1 JUDGE KELLEY: Okay. And you are objecting to 2 the form of the question?

3 MR. COLE: Yes. Now I don't mind some of it, but 4 not just every question.

5 MR. BAXTER: I will rephrase that question.

6 JUDGE KELLEY: All right. It is very difficult for 7 me to rule on trends. It is easier on individual questions.

8 BY MR. BAXTER:

9 Q Mr. Cole was asking about whether or not eight 10 weeks was a sufficient period of time to conduct an investiga-11 tion of the site population of 6,000. What was the realistic 12 objective of this undercover operation in terms of what you 13 expected to achieve with it, Mr. King?

14 A (Witness King) The objective of the operation was 15 to work with the two agencies involved and identify as many 16 drug abusers as possible, to remove those from the job site 17 that we could not make criminal cases on and to assit the 18 local agencies in the arrest of those that they could make 19 cases on.

20 We had no intent or no false feeling that by runninc 21 this one-week operation we would eliminate 100 percent of 22 the drug activity in that area.

23 0 I believe there was testimony yesterday that during 24 the time of this undercover operation the division of site Ace- 9rol Reporters, Inc.

25 population between first and second shifts was roughly 5,200

8589 Sim 5-4 j on the first shift and 800 on the second shift, and we had

/ 2 testimony that the proposal by the SBI and the Sheriff's 3 Department in mid-December of 1984 was to move the undercover 4 operation ontro the second shift.

5 While you have testified that they were not 6

limited to the first shift, what, in your view, does this 7 proposal to move to the second shift say about the progress 8 of the operation on the first shift from the standpoint of 9 the law enforcement agencies, Mr. King?

10 A If the agencies felt that it was then appropriate 13 to move to the secone shift, that would indicate to me that 12 they had done all they felt they could do on the first shift b, 13 and needed to try and identify the level of the problem on 14 the remaining shift.

15 MR. BAXTER: Thank you. Those are all my 16 questions.

17 JUDGE KELLEY: I have got a couple of other questions 18 that I just didn't get put, and why don't I do it now before 19 we go back to Mr. Runkle and Mr. Eddleman. They are all 20 relating to the same thing really.

21 BOARD EXAMINATION INDEX 22 BY JUDGE KELLY:

23 Q On page 10 of the testimony, Mr. Joyner, you referred 24 to a weekly report that you wrote, and I think others have Ac 1 Reportm, Inc.

25 referred to it in the questioning. Could you provide us

8590 im 5-5 I with a copy of that report, and maybe your counsel might want'-

~_

2 to speak to- it'.-

3 MR. BAXTER: Does it have confidential information 4 in it, Mr. Joyner?

5 WITNESS JOYNER: I don't believe it does, and I 6 Mr. King does have a copy of the report that I gave him.

7 JUDGE KELLEY: I think we would like to have it 8 since it has been referred to and I have a couple of other 9 questions in this same area, and maybe you would want to 10 review it, Mr. Baxter.

II MR. BAXTER: Yes, I would like to.

12 JUDGE KELLEY: Why don't you takea look, and if you 13

} have a problem, you can raise it with us on the record, but 14 I think we would like to see it if we can.

15 MR. BAXTER: Sure.

16 BY JUDGE KELLEY:

17 Q Related to that, Mr. King, you testified a while ago, 18 and I can't quote you, but to the effect what it suggested 19 to me was that you may have started this undercover operation 20 in Augfust and September because you thought you might have 21 a dealer on site.

22 Was that part of the reasoning, part of the concern?

23 A (Witness King) The information that Mr. Joyner 24 had been receiving, and he is in a better position to describe Ace-Arol Reporters, Inc.

25 that than I am, was occurring initially while I was out of the

8591 gim 5-6 1 State, and part of that information was that some of the

( 2 individuals he was getting names on were in fact involved in 3 the-dealing of drugs. And his information, as I understood 4 it, was both off site and on site related.

5 0 Dealing meaning sale?

6 A Yes, sir.

7 O Purchase and sale. It takes two.

8 A Yes, sir.

9 C And this is as distinguished from individual use 10 where I bring something in my lunch bucket or something and 11 then I use it.at the site, but I am not selling to anybody, 12 right?.

Mr. Joyner was receiving both

[( )

13 A That is correct.

14 types of inforamtion.

15 0 Do you want to ccmment on that, Mr. Joyner?

16 A (Witness Joyner) Yes. What Mr. King stated is 17 true. I was receiving both types of information. - The primary 18 information was involving dealing, the majority of it.

19 0 The question that that raises in my mind is from 20 your standpoint is it a different matter and different problem 21 and would you distinguish between a situation where you figured 22 there was sort of more or less normal levels of individual 23 bring-it-from-home use, whatever, as opposed to sales on site?

24 Is that somehow on a different level from the law enforcement Reporters law.

25 standpoint?

8592 Sin 5-7 I A Maybe I don't understand your question.

.' 2 Q Well, I will put it to you this way. I am running 3 your security system, or I am running the "X" company security 4 system, and I just assume that people are going to bring 5 marihuana on site and smoke it on their breaks and we will 6 catch some and we won't catch others, and I am not going to 7 worry about it too much if it is just brought from home.

8 But if people are bringing a lot on or significant 9 quantities on and peddling it, that is different, and that is 10 when I will step up my enforcement action and put in under-Il cover agents and really try to crack down. Suppose I took 12 that approach, would that make any sense to you or not? Might j 13 you take such an approach?

I4 A I would feel that from a law enforcement standpoint 15 that what you are saying would be correct, that you would 16 be concerned more with the sale than you would be with the 17 use.

18 From a utility standpoint and from my company's 19 standpoint, I would probably be more concerned about personal 20 use on the job site.

21 0 But the very fact that drugs are for sale on the 22 job site, doesn't that indicate that use is going to be higher 23 or greater?

24 A Not necessarily, no, sir.

Ace Arol Reporters. Inc.

25 0 So are you saying that the fact that it is being

8593 i Sim 5-8 1 sold on site is not a cause for alarm?

2 A No, sir, I am not saying that. I am saying that 3 that is a cause for alarm and it is a violation of the law 4 from a law enforcement standpoint.

. 5 0 Well, okay, but put that to one side, and just look 6 at it from a safety standpoint, a utility standpoint. Let's 7 say I em running the "X" utility company security force and 8 I let the sheriff worry about law violations. I am just i

9 worried about control on the site and the safe construction.

10 Should I or should I not be worried if I get the 11 idea or some evidence that there is dealiny on site as 12 opposed to just lunch box individual use?

() 13 A I would take a concern about it, yes.

14 Q But would it be enough to go to, I don't want to ,

15 say an extraordinary measure, but rather unusual measure 16 of setting up one of these rather elaborate undercover 17 operations?

4 18 A Well, I felt like it was necessary to ask for it, 19 or I would not have asked for it. I feel like the company 20 knowing that anything that we revealed as far as the under-21 cover operation is concerned would have some public opinion 22 about it. I feel like by doing something assertive that we 23 were actually in fact gaining evidence against ourselves and 24 the company I felt backed us no this even knowing this, that

.Aco- Repo,ters, Inc.

25 they were concerned about the drug problem ---

i

._ ,,r., _. _ . . - . . - . - _ . . - - _ _ . . . , _ . . _ . . _ . - . _

i 8594 l Sim 5-9 i O I am still after the dealer. That is what I 2 really want to know about. Did you back the idea of an 3 undercover operation out there becuase you thought there 4 was dealing on the site whereas prior to that time you didn't 5 think that or you didn't have as much evidence of that?

6 A No, sir, that is not my primary concern.

7 Q That is not the primary concern?

8 A No. sir.

9 Q Was it just the sheer volume of people involved?

10 A I think it was a combination of information that 11 I was getting. As I stated before, thre was both types of 12 information, from a dealing standpoint and from a using 13 standpoint.

m 14 0 Okay. But you are not really hanging a lot on the 15 fact that ther were indications of dealing as far as starting 16 this operation is concerned?

17 A That was not my primary concern, no, sir.

18 Q Okay. Looking at Attachment 5, and this is infor-19 mation that was given to you by Hensley, and it goes again' 20 to the question of dealing, and again I come to this as not 21 a knowledgeable person. But I am looking at this sheet and 22 my gauestion is are there any dealers on there. And if 23 you had a letter, and letter meaning a cover code for a person, 24 I suppose if you had Mr. "X" on there with 15 transactions Aceecol Reporters, Inc.

25 and five different kinds of drugs, I would conclude he was

l 8595 Sim 5-10 i a dealer.

() 2 As to these, and take "H", four different days, 3 and what is " Crystal" by the way?

4 A (Witness King) I believe he was referring to 5 methamphetamine inthis case, sir.

6 Q Amphetamines, speed?

7 A Yes, sir.

8 A (Witness Bensinger) Methamphetamines.

9 Q Okay. Is that called speed also? It is a term 10 I have heard.

11 A (Witness King) Yes, sir, that is correct.

12 0 Would that suggest, just those four buys, that

/~') 13 Mr. "H" or Ms. "H" was dealing on the site?

V 14 A If I might respond to that, Mr. Chairman. These 15 are all drug buys that were made on the job site, and in 16 my definition of a dealer, once he makes a sale, he is a 17 dealer. It is not necessarily the quantity, the value or 18 the number of deals that he makes, but once he makes a sale 19 or distributes the drug, he is a dealer.

20 0 That would be one break point, but isn't it possible

~21 that drug users on the site, a lot of them know each other 22 and one person forgets to bring some one day and says how 23 about a marihuana cigarette or whatever. So he gives him one 24 and charges him for it, as distinguished from somebody who h Repo,ters, Inc.

25 is carrying on a trade on the site?

8596 Sim 5-11 A He would by definition of the law if he gave away 1

the marihuana cigarette and accepted money in exchange for it would have been violating the law as a dealer. If he were 3

giving away a narcotic substance, depending on the particular 4

substance and the quantities involved, he could be charged 5

with distributing those drugs whether he took any money or 6

i not.

7 I would like to note here that part of our

8 program, and we will be going into this more in another panel, j

9 is to deter drug activity completely, and if you have dealers 10 on the job site, that does not necessarily mean, as Mr. Joyner said, that people are going to use the drugs on 12 the job site, but if they are there, it enhances the possi-bility of use. So our ultimate goal is to deter the drugs 14 in the first place.

15 0 I guess what I was after here in looking at this 16 sheet, the information strikes me as kind of fragmentary, is 17 don't you have different levels of law enforcement interest 18 in different~ people on the site and aren't you more interested in catching somebody who is making a fairly major business of selling various drugs on the site as opposed to somebody 21 who sells an occasional marihuana cigarette?

22 A Our interest from a company standpoint would be if the person is in possession of the most minute amount,

• • ""*'a' even a roach, then we have a great interest in identifying 25

8597 Sim 5-12 I that person and removing him from the job site.

,m I) m 2 Our interest in getting local law enforcement 3 involved in it and their pursuit of the individual is tied 4 directly to the quantities of drugs involved. That is 5 correct.

6 0 So that if I were an undercover operator, I might 7 pass up one of these causual salesmen in the hope that I 8 will get to the person who is really dealing in quantity?

9 A I would not do that, sir. The smallest buy that 10 you could make could possibly lead to much bigger things 11 down the road. You have to start and continue your efforts 12 A (Witness Bensinger) Judge, if I could comment.

/s

() 13 0 Okay, sure.

14 A And if I am out of line, please so indicate.

15 I think the information of' dealing.on site _is 16 more serious than use, as you would suggest, although at a 17 work location people generally will sell and exchange and deal 18 to friends and people they know or are introduced to.

19 I think the quantities here, and you have made 20 reference to Exhibit 5, would reflect $200 of cocaine, and 21 that may be two to four lines of cocaine, kind of like a 22 day's supply and not a transaction that would reflect a 23 quantity at a dealer level. That doesn't mean ---

24 0 Is a line something that comes in a straw?

Ace. Reporters, Inc.

I 25 A A line is something that you could put on a slide

8598

' *~ I and which people then will sort up. And the price of cocaine, 2 unfortunately, is going down, because the supply has literally 3 quadrupled in the last four years. But these quantities for 4 marihuana, you are talking about in every marihuana case less 5 -than probably 20 jionts at the most and maybe five.

0 I also think that Mr. King's comment is right, 7 small initial purchases whereever you ca get in can lead 8 to additional sales that an undercover or operative can buy 9 for himself theoretically and then say I have got some other 10 friends that have given me their money, they are embarrassed II to meet you and I have got to buy for them and can you bring I2 me a little larger amount. And that is what one would look 13 for if there were those kinds of quantities that were in j }

I4 fact on the site or being brought in by these people.

15 '

JUDGE KELLEY: Thank you.

16 Mr. Runkle, have you got a few or several or shall I7 we take a break or shall go ahead with them now?

18 MR. BAXTER: Mr. Chairman?

4 19 JUDGE KELLEY: Yes.

MR. BAXTER: I am sorry. I have suffered from the 21 same problem you did. I overlooked two.

2 All right. As long as I am asking, JUDGE KELLEY:

23 shall we take a short break after these two and then come 24 back to you?

n.p mn, tae.

25 I could MR. RUNKLE: Ihave a couple of questions.

8599 Sim 5-14 1 do them now.

2 JUDGE KELLEY: Maybe we can finish. Go ahead.

3 We will try that. Go ahead.

4 BY MR. BAXTER:

5 0 Yesterday Mr. Cole was asking the pane about why 6 CP&L did not take action to provide a different informant, 7 and I believe you testified that one of the limitations that 8 CP&L has is that you don't have the authority under the law 9 to grant immunity from prosecution.

10 Are there any other reasons that limited your 11 ability to provide informants to the law enforcement agencies, 12 Mr. King?

13 A (Witness King) That is the primary reason in 14 this particular incident. Another reason during the course 15 of this operation is that all information that we were 16 receiving relative to the drug activities was being turned 17 over to the two agents involved in the operation, and they 18 were being afforded the full opportunity to work that 19 information.

20 Q Okay. During the ruling yesterday on voir dire 21 the Chairman in discussing your qualifications, Mr. Bensinger, 22 made some reference to policy level versus first-line DEA 23 experience and involvement with nuts and bolts of undercover 24 operations.

Ace Sal Reporters. Inc.

25 Could you very briefly state what your experience,

8600 Sim 5-15 j your firsthand experience was with investigations while 2

Administrator?

A (Witness Bensinger) As Administrator my firsthand 3

4 experience'with investigations included the direction of all f the Syntac investigations of DEA. These were investigation; .

5 that were removed from the normal chain of command in the fiel<1, 6

7 centralized in headquarters and involved multi-office 8

urisdictions. The case initiation, the agent assignment, 9

the development of the case objectives, the funding, the 10 review of the affidavits of the agents and the indictment 11 and a liaison closely with generally state and local law 12 enforcement because these cases did cross many jurisdictions 13 was constant, was personal and involved me directly.

s_ -

In addition, as Administrator, there were 50 14 15 agents that reported directly to me through the Chief 16 Inspector, and these were the internal security agents of j7 DEA. These are criminal investigators that in fact made 18 cases on our own agents.

19 The additional involvement with undercover cases, 20 particularly in jurisdictions like Florida and Miami, is where 21 we had agents working with informants undercover with: agents 22 in Columbia and foreign countries. A shipment was coming 23 into the United States and other agencies had similar 24 interests and perhaps leads to that required intervention Ac. rat Reporters. Inc.

25 on my part at the top. So that the case could proceed to

8601 lim 5-16 1 a satisfactory conclusion and that violauions of the law

/

j 2 didn't occur.

3 At the Chicago Crime Commission I supervised 4 directly as a first-line supervisor two undercover operatives 5 focusing principally in the organized crime area, and that 6 did lead to the indictment and incarceration of a number of 7 individuals in the Federal Courts.

8 I would estimate direct case involvement as 9 Administrator would have taken up 25 percent of my time at 10 DEA.

Il MR. BAXTER: Thank you, Mr. Chairman. That is 12 all I have.

I j 13 JUDGE KELLEY: Mr. Runkle.

14 RECROSS-EXAMINATION IS BY MR. RUNKLE:

8NDEX 16 O To follow up on a series of questions that 17 Judge Kelley had, Mr. Joyner, I think it was you who said 18 that the informer's job was as an electrician; is that 19 correct, or was it you, Mr. King?

20 A (Witness King) I made that statement.

21 O Are you aware that there were eight workers that 22 were either arrested or had warrants for their arrest on or 23 about January 10th of this year?

24 A Yes, I am.

ac 9roi n. port rs, tac.

25 0 And they were the result of the undercover drug

8602 Sim 5-17 1 investigation?

A They were.

2 3 0 And of those eight workers, six of them were 4 electricians in the fuel handling building, were they not?

5 A I don't know that they were in the fuel handling 6 building.

7 0 I would like to draw your attention to applicants' 8 response to our interrogatory No. 14-WB. Are you familiar 9 with that?

10 A Yes.

11 0 Do you have that in front of you?

nd Sim 12 Sua fols 13 14 15 16 17 18 19 20 21 22 23 24 ke- 9rol Reporters, Inc.

25

8603

1. 6-1-SueW l That would be Page 4 of Applicants' response.

/ 2 A (Witness King) Okay. Go ahead.

3 Q To sum up that interrogatory, it asks what jobs 4 and length of employment in vary work area for the eight 5 workers, does it not?

6 A The interrogatory number again was what?

7 Q 14-WB at the bottom of Page 4.

8 A Okay. Go ahead now.

9 Q Just to sum up briefly that interrogatory,that 10 asks about those eight workers; does it not?

11 A Yes, it does.

12 Q And for each of the eight workers it gives their

- i 13 job description, length of performance and work area per-14 formance, does it not?

15 A That's correct.

16 Q Now, if you will review those eight workers' 17 descriptions on the next several pages, isn't it true that 18 six out of those eight workers were electricians at the 19 fuel handling building?

20 A That's correct.

21 Q And that the seventh worker was an electrician 22 who was a temporary worker throughout the plant, including 23 the fuel handling building and the last one was a pipe 24 hanger fitter at various buildings; is that not correct?

Ace-Arol Reporters, Inc.

25 A 'That's correct.

8604

1. 6-2-SueW I MR. RUNKLE: I have no other questions.

2 JUDGE KELLEY: Okay, Mr. Cole?

3 MR. COLE: Yes. I have just a couple, Mr.

4 Chairman.

5 RECROSS EXR4fNATION 0 BY MR. COLE:

INDEXXXX 7 Mr. Joyner, was there some agrcement to your Q

8 knowledge concerning the informant that his confidentiality 9 would be protected even after the operation had ended?

10 A (Witness Joyner) Yes, it was.

II Q Where does that understanding come from, sir?

I2 A It came from the District Attorney and also 13 with Lieutenant Self of the Sheriff's Department.

I4 (Mr. Cole is looking through papers,)

If MR. COLE: Your Honor, I thought I had the page 16 marked.

I7 BY MR. COLE: (Continuing) 0 Mr. Hensley -- I mean, Mr. Joyner, is it Q

I9 incorrect that somewhere in the filed testimony that you 20 only referred to the agreement not to prosecute him or call 21 him as a witness in any criminal prosecution?

2 Do you recall that statement in the testimony?

23 It was in here somewhere.

24 A I have read that, yes.

Ace Grol Reporters, Inc.

25 But maybe I have Q I thought it was on Page 20.

8605

1. 6-3-SueW 1 incorrectly marked it.

2 MR. BAXTER: I don't think the word "only" 3 appears.

4 MR. COLE: What page am I searching for?

5 MR. RUNKLE: May I suggest we take a break at 6 this time?

7 JUDGE KELLEY: Maybe we can finish up. I would 8 rather do that .

9 MR. EDDLEMAN: There is a matter that I would 10 like to get information about. It would help if we'had 11 a break.

12 JUDGE KELLEY: All right. Ten minutes or so

- 13 break.

14 (Whereupon, the hearing is recessed at 9:55 a.m.,

15 to reconvene at 10:07 a.m., this sane date.)

16 JUDGE KELLEY: Okay. Back on the record. Let's 17 see, I think Mr. Cole had a pending question when we broke 18 if I'm not mistaken.

19 MR. COLE: Yes.

20 JUDGE KELLEY: Right.

21 BY MR. COLE: (Continuing) 22 Q Mr. Joyner, I was referring to Page 20. It's 23 actually Question 20 on Page 13.

24 My reading of that statement was that the in-Ae-9eral Reporters, Inc.

25 formant agreed to perform his role in anticipation of dropping

8606

1. 6-4-SueN I of the charges and the fact that he would not have to later 2 testify in any criminal proceeding.

3 Is that the full -- your full understanding of 4 all arrangements that were with the informant?

5 A I do know that the informant was told that his 6 identity would not be revealed.

7 0 But that's not in your statement here, though?

8 A I don't read that in my ctatement.

9 MR. COLE: All right, sir. Mr. Chairman, I 10 really don't have a dog in the fight as far as whether II the informant's name should be divulged or not. We went 12 a very close step in our testimony by Mr. Williams in 13 naming him, and probably the only reason his last name 14 , wasn't disclosed was because Mr. Williams couldn't recall 15 it at the time.

16 But, Mr. Chairman, if you so direct I will inforn 17 my witnesses that they are not to use his name. I was not 18 under the -- I did not know that that was the case.

I9 JUDGE KELLEY: Well, I think we need to get 20 very clear on just what the commitments -- what commitments 21 were made and what commitments weren't.

22 And if I understand correctly, it was the Wake 23 County people, and the prosecutor with Wake County, who 24 was a participant and who has the authority to commit for 9eral Reporters, Inc.

Ace-l 25 Wake County anyway, as to whether he will be kept confidential

8607

1. 6-5-SueW l and not prosecuted, correct?

2 WITNESS JOYNER: That's correct. And that can 3 be testified to by the Deputy when they come in.

4 JUDGE KELLEY: And in addition, CP&L could say 5 to the same person that they will undertake to protect 6 his confidentiality insofar as they can, which I guess you 7 have done; is that correct?

8 WITNESS JOYNER: That's correct.

9 JUDGE KELLEY: Then, it's another question about 10 an NRC proceeding. I'm not aware that the NRC has entered 11 into any agreement with the informant or anyone else about 12 whether he is confidential as far as we are concerned.

13 Mr. Barth, any comment on that?

m h4 MR. BARTH: We have no interest in revealing the 15 name of the informant and see no reason to do so, Your 16 Honor, though that is not quite a direct answer to your 17 direct question.

18 JUDGE KELLEY: Yeah. I think that is a separate 19 question, whether the Staff or the Board thinks that under 20 the circumstances we just have to have that information or 21 whether indeed he ought to be called.

22 We haven't, as a Board, focused on that. Our 23 normal procedure is that we hear the cases and the parties 24 come in and try them and the parties call their witnesses, Ace e.rol Reporters, Inc.

25 and we decide the case based on the record that is developed

8608

1. 6-6-SueW I in that way.

_; 2 But that isn't to say that we might not in a 3 given case call witnesses. I've been on Boards that have 4 done so.

5 So, I just want to make it clear that this Board 6 has never said to the informant that he wouldn't be called.

7 In appropriate circumstances, someone like that, or that 8 person, might be called.

9 Mr. Baxter?

10 MR. BAXTER: Yes. I would just like to respond II also to your question to Mr. Barth.

I2 I think that to the extent that the NRC has an

13 interest in their licensees maintaining, or attempting to 14 maintain, drug-free work places, and to the extent the 15 I

NhC secondly considers cooperation with law enforcement 16 agencies in undercover investigations to be a useful step 17 in that effort, that the NRC does have some interest unless I8 overriding public interest dictates otherwise in maintaining 19 the confidentiality of the informant, because otherwise 20 it would be virtually impossible for all enforcement agencies 21 and utilities to utilize informants in undercover investiga-22 tions in the future once they start to be revealed in these 23 proceedings.

24 JUDGE KELLEY: I don't think the Board would Ace-Arol Reporte,s, Inc.

25 disagree with anything that you just said, and indeed when

8609

1. 6-7-SueW 1 the NRC I&E people -- I would like to hear from Mr. Barth 2 on this, too -- in their own investigation extend a promise 3 of confidentiality to an informant, as they frequently do, 4 then Boards I believe are under directions to honor that 5 kind.of thing. That's an NRC promise. And we live by 6 those things.

7 We might in a given case -- there have been some 8 rather elaborate procedures spelled out for IN CAMERA review 9 and all when there is an overriding need of some sort, 10 and yet there is an effort made to maintain confidentiality 11 if we can.

12 That's not this case, as I understand it. The

( 13 NRC has made no such pledge. But, as you say, Mr. Baxter,-

14 you might very well want to argue to us that in this case 15 it would be in the overall best interest to preserve 16 confidentiality, to not call this person, and we would hear 17 such an argument and decide it.

18 We don' t have that proposition before us at

~19 this point, as I understand it. We are just trying to 20 get clear on where we are. But I think we are subject 21 to comment from counsel. -

22 Mr. Runkle?

23 MR. RUNKLE: Yes, sir. We feel that we -- we 24 hl.l_l : n.porem, Inc.

agree with the basic premise that the Board has the power 25 to call this person but we wouldn't want to see this person

8610

1. 6-8-SueW l called because of the confidentiality.

7, 4~) 2 But through a series of clues I think that the 3 identity of this informant can b'e easily derived by some-l 4 body who is at all familiar with the work site. There has 5 been a series of testimony about where this person worked, 6 what this person did. We have at least part of the name.

7 And I think that the Applicants have not made 8 an effort to protect the confidentiality of this in-9 formant.

10 MR. BAXTER: Well, the Applicants are not 11 responsible for part of the name being revealed. And I 12 can assure you that there are many, many electricians

() 13 working at the Shearon Harrison Power Plant.

14 I don't think that we have at all compromised 15 the confidentiality.

16 JUDGE KELLEY: Are you referring primarily to 17 the reference to part of the name in part of the Attorney 18 General's testimony?

19 MR. RUNKLE: Yes, sir, that's part of it.

. 20 JUDGE KELLEY: Does anyone think it would be 21 useful to mask out that reference? Or, is the cat out 22 of 'the bag, so to speak, at this point?

23 (No response.)

24 I would defer to any persuasive suggestion.

h Repo,ters, Inc.

25 MR. BAXTER: I would welcome that action by

. - . , _ _ - _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . ~ _ . . .

8611

1. 6-9-SueW I counsel for the Attorney General. I do think it would have s 1 f

(._/ 2 limited benefit at this point, but I think it's certainly a 3 useful step.

4 JUDGE KELLEY: It couldn't hurt anything. Mr.

5 Cole?

6 MR. COLE: Your Honor, I see a gentleman from 7 the News Observer. He probably has a copy of the submissions .

8 We might ask him to give it back to us.

9 But I certainly have no problem with it being 10 masked out.

II (Laughter.)

12 JUDGE KELLEY: Well, this seems like a small step

(} 13 to take. Could the parties who have been served, including I4 the Board, mask this out? Could you give us -- you might 15 as well give us a page reference where this is.

16 MR. COLE: Yes, sir, if you will give me a moment.

17 JUDGE KELLEY: Don't repeat the name. Just give 18 us the page reference and perhaps the line.

19 (Pause.)

20 MR. COLE: I think it's on Page 8 of Mr. Williams '

21 testimony, five questions up from the bottom, including the 22 answer.

23 JUDGE KELLEY: Five question up from the bottom?

24 All right.

h Reportws, Inc.

25 MR. BAXTER: It comes up again. There are more

t 8612

1. 6-10-SueW I references.

2 MR. COLE: I suspect there are, 3 JUDGE KELLEY: Could I ask you, Mr. Cole, maybe 4

by the end of the day could you just jot down the line 5 references and page references and maybe off the record 6 you could give it to the parties, and we can scrub our 7 versions accordingly?

8 MR. COLE: I will be glad to, Your Honor.

9 JUDGE KELLEY: All right. At least on a voluntary 10 basis I think any further consideration of other people in II the room who might have this testimony and who understand 12 the concern that is being expressed could similarly expunge n

U 13 this portion of tne name, and we would appreciate th'at, too.

l4 Now, were we --

15 MR. BARTH: In order to implement this, we will I0 undertake to get someone to walk in the PDR with a big ink I7 pencil and --

IO JUDGE KELLEY: Thank you.

MR. BARTH: -- scratch this stuff out, and then 20 the LPDR.

JUDGE KELLEY: Maybe, Mr. Cole, you could also-22 just look at the service list and see who it went to and 23 take such remedial action as may be possible at this date 24 when you can.

ko- of Reporters, Inc.

25 MR. COLE: All right, sir.

8613

1. 6-ll-SueW 1 JUDGE KELLEY: Now, were we still with you?

m 2 MR. COLE: Yes.

3 JUDGE KELLEY: Okay. Go ahead.

4 BY MR. COLE: (Continuing) 5 Q Mr. Joyner, on redirect I believe the question was 6 asked to you about whether or not any SBI people, including 7 Mr. Williams, raised any questions to you about the metal 8 detectors, and I believe you said they had not?

9 A (Witness Joyner) That's correct.

10 0 Do you know whether or not Mr. Williams or any 11 other SBI people raised that question to Mr. Hensley?

12 A I do not know if it was raised to Hensley or

' i 13 not.

14 Q All right. Are you familiar with the term 15 " assisting. agency" in an operation where there are two --

16 like the Sheriff's Department and the SBI are doing -- are

. 17 both in on an operation, one would be the primary agency and 18 the other one would be the assisting agency?

19 A Yes.

20 Q Are you aware that the -- are you aware of.:the role 21 of the assisting agency in an operation of that sort?

22 A No, I'm not.

23 Q Would you agree that the SBI is, in fact, the 24 assisting agency in this operation inasmuch as it was requested Ace- eral Reporters, Inc.

25 of the Sheriff's Department by ya'll?

i i

8614

1. 6-12-SueWI A Yes.

2 Q All right, sir. Mr. Joyner, again in talking 3 about the gate search where those two individuals were stop-4 ped by CP&L people, what did you find on those individuals?

5 A On each o f the individ'u als -- one of the individual s 6 had one oun*ce of marijuana. The other individual had an 7 ounce of marijuana and approximately one-half of a gram of 8 cocaine.

9 Q Were these items in glassine bags?

10 A Yes.

Il Q What specter does that raise to you when you see 12 a number of glassine bags, sir?

13 A Well, we felt the drugs were intended for distri-14 bution.

15 Q All right. What is crank? You testified what 16 crystal was, or someone did.

17 What is crank?

18 A I believe it's the same thing; it's just another 19 term for it.

20 Q Mr. King, the eight week operation, undercover 21 operation we have been referring to, do you have any 22 understanding as to how many days the undercover operatives 23 were to work, how many days a week?

24 A (Witness King) My understanding in formulating Ace- Aal Reporters, Inc.

25 the operation was that they would be there for the full work i

8615

1. 6-13-SueW1 week.

N 2 Q Which is?

3 A Which at that time was a minimum of Monday through 4 Friday.

5 0 A five day work week?

6 A That's correct, with the ability to come in on 7 week-ends if their contacts were going to be working and 8 felt they needed to.

9 Q So that's forty work days, nothing intervening?

10 Forty work days during the eight week period; is that right, 11 sir?

12 A The work week, as it was described to them, would i 13 encompass forty days. I would not expect an undercover 14 operative to limit himself to an eight hour day and a Monday 15 through Friday shift, especially in an environment of this 16 type.

17 Q All right. Inasmuch as this operation ran from 18 November through January and parts of January, do you know 19 how many work days you had during that period of time 20 inasmuch as maybe Thanksgiving and Christmas holidays would 21 come in?

22 A I do not. I would have to look at a schedule to 23 do that.

24 0 Would there have been some Christmas off-days 9eral Reporters, Inc.

Ace F 25 for the plant?

8616

1. 6-14-Sue $ A Yes, there were.

-\~s

(') 2 Q Would there have been some Thanksgiving of f-days 3 for the plant?

4 A There would have been the normal holidays that 5 Carolina Power and Light Company acknowledges.

6 Q So there would have been soms off time even 7 from those normal work days then in that period of time?

8 A That's correct.

9 Q All right, sir. Mr. King, was it you that 10 testified about the seventeen hundred dollars being spent, 11 only seventeen hundred dollars?

12 A I believe in my testimony -- written testimony --

13 I submitted that attachment.

14 Mr. Bensinger is the one that mentioned it here 15 in oral testimony.

16 Q All right, sir. Well, Mr. Bensinger, I don't 17 believe you and I have talked.

18 Mr. Bensinger, you referred to the fact that 19 on2.y seventeen hundred of some appropriated six or seven 20 thousand was spent; is that correct, sir?

21 A (Witness Bensinger) Yes, I did.

22 Q All right, sir. Is it possible, Mr.'Bensinger, 23 inasmuch as the ' testimony so far and the complaints were 24 that the informant had a limited circle of' friends, that in

, Ace- I Reporters, Inc.

25 order to keep spending more than seventeen hundred all you

8617

1. 6-l'5-SueW I would be doing was buying from the same people over and

.(}

2 over again?

3 A It's possible.

4 One last question. Mr. King, 0 -All right, sir.

5 on Page 38 of your prefiled testimony I just want to get 0 you to reaffirm a statement that you -- this gets to the 7 Smith dogs, the-drug dogs, that I would like you to affirm 8 if you can your testimony there that the impression could 9 have been left, or was left, with .the Sheriff's people and 10 others at that meeting as to when the dogs were going to be II brought in, that the impression could have been left that it 12 was going to be immediate as opposed to some time in the f 13

( distant future.

14 A (Witness King) If I understand your ques' tion, 15 the understanding that the Sheriff's Department apparently I0 got from that conversation was that the ' dogs were coming I7 in. That was not my statement at the meeting. That was 18 a misunderstanding on their part.

19 Q But that became apparent at that later meeting 20 that they were under that understanding, that they thought 21 it was going -- the dogs were coming in immediately?

22 A They didn' t come right out and make that state-23 ment to me. That's a statement that they made later, that 24 they felt the dogs were coming in imminently.

25 MR. COLE: All right, sir. That's all.

l

8618

1. 6-16-SueW l JUDGE KELLEY: All right. Mr. Eddleman?

r~h k/ 2 MR. EDDLEMAN: Now, let me preface this by saying 3 that I don't want to do anything to reveal the identity of 4 this confidential informant, but I feel it is an important 5 ' question to raise about whether the identity of the informant 6 has been compromised.

7 And I've discussed this off the record with Mr.

8 Baxter, and my understanding of what he told me was he 9 thought I could go ahead and ask my question and it wouldn't 10 cause a problem with the identity of the informant and, if 11 _so, there would be an objection.

12 I've also advised the other counsel --

() 13 JUDGE KELLEY: Okay.

14 MR. EDDLEMAN: -- of what I'm going to do. So, 15 now I'm going to go ahead and do it.

16 JUDGE KELLEY: Okay. If the witness can just 17 pause and we will hear the question. Go ahead.

18 MR. EDDLEMAN: Right. Okay.

19 RECROSS EXAMINATION 20 BY MR. EDDLEMAN:

INDEXX 21 Q Given that there has been testimony that people 22 involved with drugs tend to be suspicious and paranoid I 23 think was the term used at some point, and that I believe 24 it was Mr. Joyner that testified that if this oerson's Ac.- al n.por,.rs, Inc.

25 identity were revealed and they worked the job with the

8619

1. 6-17-SueW~1 same company he believed their life would be in danger, it I 2 would seem necessary not to reveal pieces of information 3 that somebody could put together to identify the informant.

4 And I would take it that you gentleman of 5 the panel who are sworn law enforcement officers would be 6 aware of this and would be aware of the testimony and 7 information that is available about this informant on 8 the public record.

9 And in light of that, my question is, why 10 wouldn't revealing that this person was cashing checks for 11- a large number of people in combination with the other 12 information that has already been revealed about this

(~') 13 person identify them?

v END #6 14 Joo-flws 15 16 17 18

- 19 20 21 22 23 1

hporem, ac.

25

7-1-Joc,Wal 8620 1 A (Witness Joyner) As we stated earlier, there i

~

2 were a number of electricians on this job site. We have 3 referred to electricians, and also I would like to add that 4 other people on that job site did cash checks.

5 0 Well, I am not sure you answered my question.

6 JUDGE KELLEY: Can I just ask -- whether assuming i

7 this answer might have a tendency to do the very thing that 8 we don't want to do. Do you think it would, or you think 9 it wouldn't?

10 WITNESS JOYNER: I personally don' t believe that l l

11 it would. l 12 WITNESS BENSINGER: I think it would.

13 JUDGE KELLEY: It is one thing to say something, 14 and it is another thing to underline it.

15 MR. BAXTER: I have to say, Mr. Chairman, I think 16 if there is any doubt I think it ought to be resolved against I

17 pursuing it, i

18 I am not sure what the point of it is . Nobody has l 19 asked the informant to come. I think all tre counsel now have:

i i

20 agreed that there is no need to, and we shouldn't reveal the i i

21 informant's identity.

22 Mr. Eddleman is trying to make a point that we 23 maybe have gone down the road too far ourselves. Should the I <

24 Board agree, I don't know what follows from that, since we w4ederal Reporters, Inc.

25 all agree we shouldn't go any further.

7-2-JoeW21 8621 1 So, it seems to me it doesn't serve any purpose 2 in terms of the issues before the Board, 3 MR. BARTH: From our point of view, Your Honor, 4 it is just not relevant to an issue before the Board. It 5 should not be admitted.

6 WITNESS BENSINGER: Your Honor, the issue may be 7 in principle bigger than the particulars. If the Company 8 is put in the position of promising an informant it would 9 not reveal its identity, and then it gets revealed, and 10 it does so in a manner which has been considered -- and 11 it is presented, I think the opportunity to have future 12 undercover operations at this job site or other sites is 13 seriously compromised, and no way I can see, and I think 14 companies, would be able to have expectations of realistically ,

l 15 being able to mount similar-type investigations, aside from  ;

16 the other considerations that have been raised.

17 I think it is one of principle.

18 If you say something to an informant, andyoudon't!

19 live up to that commitment of confidentiai ty, your credibility i

20 is jeopardized. l I'

21 JUDGE KELLEY: All right. Mr. Eddleman, let 22 me just ask you. At this point, is there some need from the 23 standpoint of how you see your case of needing to pursue it?

) 24 MR. EDDLEMAN: Yes, sir, I think there is. I fully w e.r.: r.pon.n, inc.

25 share the concerns expressed by Mr. Bensinger and counsel,

7-3-JoeWal 8622 1 and that was why I had at least thought of asking for an In 1

2 Camera session about this.

3 I am not trying to put everybody through the 4 burden of that, but the reason I am asking this question is 5 that I think it goes to the heart of the credibility of 6 CP&L's case.

7 If they think it would put this person's life i 8 in danger to reveal the person's identity, and they are doing 9 things that would reveal that person's identity, then I l l

10 think their whole case falls apart.

II JUDGE KELLEY: And the thing that you are referring!

12 to when you say the things that they are doing, means the 13 things that one of their witnesses may have said this 14 morning, is that the thrust?

i 15 MR. EDDLEMAN: Yes, sir. '

16 JUDGE KELLEY: Well, he said what he said, and  :

l 17 I understand the point you are making. I am not sure why 18 we have to pursue it any further.  !

19 MR. EDDLEMEN: Well, Judge, I am really struck on  ;

20 the horns of a dilemma here.  !

i 21 I think the point is important as to whether the 22 panel is believable. If they are not believable about something 23 where a person's life is on the line, I don' t think they are j i

24 believable about anything. l Ac.4.dere ceporters, Inc.

25 MR. BARTH: Your Honor, that is an argument for

7-4-Joc.W21 8623 l 1 findings, not a matter before the Board.  !

l x ~

2 MR. EDDLEMAN: That is why I have to go into it, 3 and at the same time, I think Mr. Bensinger is fully correct ;

l 4 about compromising the ability to do any undercover operationsj 5 at the plant. l 6 JUDGE KELLEY: Well, IthinkIunderstandthepointl 7 that is being made. Now, let's let the Board reflect on this  ;

8 a minute. Thank you.

9 (Board confers.)

10 JUDGE KELLEY: The Board has deliberated briefly, i 11 as you have all seen on this question. The issue is whether 12 we should pursue this line of inquiry further, or whether '

I 13 we should terminate it, and we have decided to terminate it.

I 14 The identity of this informant is not, in our i 15 judgment, as far as we are aware, at this point, hopelessly 16 compromised. It may be to some extent, but we don't think 17 there is some chance that the confidentiality may still 18 obtain. We think there is a pretty good chance that it 19 won't if we keep down this road, and we don't think that, 20 particularly wei*ghing those two considerations that we should 21 do that.

22 I understand Mr. Eddleman's point, but what has been i

23 said has been said, and any party can propose findings about  !

24 credibility. The reasons for saying things in context.

Ace-Federet Reporters, Inc.

25 They may be said Particular things may be said carelessly.

8624 7-5-JoeWal l 1

for the wrong reason. They may be said for the right reason. ;

(~)

2 They may be said spontaneously. without much thought, and l

3 we hear all these things , and we can make judgments i 4 accordingly, but we don't think on balance further pursuit 5 of this line is warranted.

a 6 So, we would like to move on to some other point,  ;

i 7 Mr. Eddleman.

8 MR. EDDLEMAN: Well, Judge, in light of that and 9 to preserve what I think is necessary to lay a factual i 10 foundation, I am going to move, and in deference to the i

11 Staff I will say I think we can take this up later, because  !

i 12 I think most of the panel members will still be here, but l n

13 I am going to move that we have an In' Camera session for l

14 the purpose of following up on this, because I think I need  !

15 to get the answers to some more questions, and I think the 16 kind of considerations that you were just mentioning are  ;

17 the reasons why more questions need to be asked.

18 Not to establish arguments, but to establish  !

19 facts.

20 JUDGE KELLEY: Well, isn't this the same point? j 21 We had a question pending, we had an objection, and we 22 sustained it.

23 Now, if you want to make a motion, aren't you f

(_}, 24 just rearguing the same point?

EFederal Reporters, Inc.

25 MR. EDDLEMAN: What I am asking -- you said there

7-6-Jo:W21 i I I 1 was no purpose in going into this. l i

2 JUDGE KELLEY: Oh, you want In Camera. That is 3 different. All right. That is a dif ferent point. j i

4 MR. EDDLEMAN: So that the facts can be elicited  !

5 without the problem of compromising the informant's confidential 6 identity.

7 JUDGE KELLEY: Well, are you prepared to make the ,

8 motion right now, or do you want to make it later?

9 MR. EDDLEMAN: Well, I am saying in light of the 10 Staff's timing and so on, if I can just say now that I am going 11 to make it, if this panel is still going to be available 12 in case the motion were granted after the Staff has been

)

13 on, then I think that is fine. .

I 14 I am willing to proceed on that basis.  !

1 15 JUDGE KELLEY: Is this panel --

16 MR. BAXTER: They will be here.

17 JUDGE KELLEY: All right. Let's go ahead then.

l 18 MR. EDDLEMAN: I do have some questions on 19 different lines.

20 BY MR. EDDLEMAN: (Continuing)  ;

i 21 Q Mr. Bensinger, one of the involvements that you 22 described to Mr. Baxter about your involvement in drug l

23 investigations was that I believe when other agencies might

> 24 be on to some movement of drugs, or shipment of drugs, that l w.d.r. n.portm. Inc.

25 your agents were also aware of, that you would have to

7-7-Jo;Wal 8626 i 1 intervene to make sure that your operations could be carried I

O V 2 out without being compromised by the activities of these  !

3 other agencies. Is that substantially correct?

4 A (Witness Bensinger) I testified to a number of responsibilities and actions as administrator, and one of I 5

6 them was that involvement that you described, which was to 7 resolve and assure that the undercover investigations of all 8 parties were able to be accomplished without compromise and ,

i 9 without violations of the law.  ;

10 Q Well, now, for example if you knew that say a l 11 police department some place was likely to pounce on a i

12 shipment that your agents wanted to go through so that you j f

(.)/ 13 could get somebody else, would you intervene in that case? {

i 14 A We would -- if we were aware of a shipment that f 15 was coming through into the United States, let's say from -- f 16 or even out of state, we would convoy it. ,

i I

17 That would mean keep the illegal drugs under 18 surveillance so that it couldn't get in the traffic, and l then watch it convoyed to perhaps another dealer, a wholesaler, 19 f

20 and then provide for arrest at that point in time.

21 If that involved notifying the local sheriff or 22 city, or state police departments about this convoy, that 23 activity normally was able to be handled at the district office h

m n.m,w,., Inc.

24 level.

25 But if there was a conflict in objectives in the

7-8-Jo:Wal 8627l l

1 case, that did get to my office and I did intervere in a number -

2 of cases.

3 Q All right. And that kind of activity would be l l

4 changing the normal operation of other agencies in order to l 5 carry out successfully your investigations, wouldn't it?

6 A That would be assessing the values of the 7 conflicting, or separate agencies, and determining what was 8 in the best interest of the case and of the country, as to ,

9 how it should be handled, but that was not the sole respon-10 sibility or involvenent I had with drug investigations.

II That happened to be one of them that I mentioned.

12 O I understand that it is not your sole involvement, 13 Mr. Bensinger, but what I am asking is when you decided it was, 14 in the best interest of the country, you would, in fact, i 15 intervene to change the regular operations of other agencies 16 so that your agency could carry out its work successfully, 17 wouldn't you?

I 18 A Normally we would involve the other agency. I 19 think I would disagree with you. No, I think we would make 20 it a joint case, and probably ask the local law enforcement 21 officers to announce the arrest, and we would join thm.m on 22 a joint investigative basis, even if our agents did the majority i

23 of the work. l 24 But rather than have these people just go ahead Q l www Reponen, Inc.

l 25 as if your operation didn't exist, and do something that might'

8628 7-9-Joz.Wni I

interfere with it, you would take action to change it to one  ;

1 2 of these joint operations, or somehow otherwise change the 3 normal operation of the other agency so that your agency i i

I 4 could' carry out its work, isn't that correct?  ;

5 A I don' t think we would change the operations l t

6 of other agencies. f 7 The suggestion there is that we are dictating to j 8 state and local law enforcement, don't do scrething. I think 9 what we did, was sit down together and say what is the best 10 way to ha.ndle this case?

11 Q All right. But it does involve at least talking 12 to them about changing what they would normally do, isn't '

13 that true?

It would be sharing intelligence, and -- our  !

14 A 15 agent, the undercover agent who was involved in the convoy 16 of the case, who may or may not have been known to the 17 local law enforcement, and our officers would advise them:

18 Hey, we got a shipment coming in. We understand you are  ;

19 working the same case, let's discuss it. What is the best 20 way for it to conclude, because we think it is going to be 21 conveyed to Charleston, West Virginia, and while you may  :

22 want to make an apprehension in Richmond, let's do thi's  !

i 23 jointly.  ;

24 Q Okay. Mr. King, you were asked concerning the l a-Fa w .i n ne m n.i s  ;

I 25 undercover operation you were involved in with the Raleigh

7-10-Jo Wal i

l 1 Police Department about differences between that and the l

s 2 Shearon Harris plant, you mentioned a couple of differences.

3 Wouldn' t you agree that another difference was 4 that there were no guards or security surrounding the  ;

1 5 establishments where you were conducting that operation? l 6 A (Witness King) That is not one hundred percent 7 correct, in that some of the establishments we were going 8 in did have off-duty police officers or other security 9 personnel working in those facilities.

10 Q But they weren' t with a fence around them and 11 regular security force, staffed at all times, around the 12 clock were they?

13 A That is correct.

i Mr. Joyner, you were asked by Judge Kelley about

~

14 Q the possible weaknesses of the undercover operation at the 15 16 Harris plant, and you mentioned that Deputy Hensley and the 17 other agent had freedom of the site at all times, and they 18 were trained agents, and therefore identified a number of 19 people.

20 Isn't it true that CP&L security has freedom of the 21 site at all times?

22 A (Witness Joyner) Yes, we do.

23 Q And do you have involved with your security on site, i

24 people who have training in drug detection? i W Reporters, Inc.

25 A I have some training in drug detection.

7-il-JotWal 8630 t Q Are you the only one who does?

(~%

's-) 2 A The other security people do not.

3 Q All right. If any of you gentlemen believe that 4 it is good practice for CP&L to only have one person en site who has training in drug detection in their security -- ',

5 6 A Our security people primarily operate the gates 7 where these employees come in, and while they are not trained 8 to detect the . differences between alcohol, drugs, er other 9 physical defects, they do report these things as they see 10 them.

11 Q I don't believe you have answered my question, 12 and let me ask again, and I will ask any member of the panel

() 13 who wishes to respond.

14 Do any of you believe that it is good practice I i

t 15 for CP&L in controlling drug abuse to have only one person 16 onsite in their security who has any training in drug i 17 detection?  !

I 18 MR. BARTH: Objection to the question, Your Honor, !

19 because we had a great deal of testimony as to the training j i

20 of supervisors to recognize drugs, drug use, and the inferencej 21 of the question is that there is only one person out of these 22 six thousand employees that has any k:nd of training and 23 knowledge at all.

24 MR. EDDLEMAN: I am asking about security.

e menoran, Inc.

25 MR. BARTH: The program is at issue, Your Honor,

7-12-JoeWD1 8631 1 and the totality of CP&L's program for drug controlling  !

I 2 is at issue, not any single individual. i i

3 JUDGE KELLEY: That is true, Mr. Barth, and I ,

4 thought of the same thing that you mentioned, that if the 5 question is directed at security people, guards at the gate, '

6 so to speak --  !

7 MR. EDDLEMEN: All of the security people, Judge.

I 8 JUDGE KELLEY: Weil, all security people. We 1'

9 will allow the question. I understand your point, but i

10 we will allow it anyway. Go ahead.

11 WITNESS JOYNER: I do not feel there is a problem .

12 given the rest of the information we have already testified

/ ~

13 to. ,

14 WITNESS BENSINGER: I believe at that site which  !

15 I visited and our associates have visited, you have a number 16 of contract guard service personnel.

17 They have, as a policy, in both of the principal I

18 guard service units, which have uniformed officers, training 19 programs, drug awareness training, and knowledge of drugs 20 at that site.

i 21 I have seen the training manuals used by both l i

22 companies, and I am not testifying of personal knowledge of 23 the specific officers there, but am testifying as to the l r

lll 24 m.: n.po,tm, Inc.

practice of the security companies themselves, and the i 25 training they provide to their officers.

l7-13-JoeWal 8632 l

1 BY MR. EDDLEMAN: (Continuing) i O 2 Q Do any of the other panel members which to add {

i 3 anything to the responses that have been given to that i 4 question?

5 A (Witness King) Mr. Eddleman, some of our 6 security personnel -- as a matter of fact, a large percentage i 7 of them have prior military experience in that they have been .

I 8 exposed to drug awareness training. It is not a formal i 1

9 part of the training at the job site that we proffer.

10 However, if you are addressing our entire security l 11 staff on the Harris project, Mr. Joyner is not the only j l

12 security person on the job site, and the other security  !

' (ms

(') 12 members at the job site do have drug awareness training.

i

14 1 i,

l na 16 i 17'  !

End 7 18  !

MS fois.

19 l

20 ,

l 21 27 23 l

l (~) 24 w.* c n . in 25 i

i 8633 ,

l Sim 8-1 1 0 And is the drug training the same kind that 2 has been discussed before, the general signs of people using 3 and this kind of thing?

4 A (Witness King) That is correct.

5 C So it is basically the same kind of training that 6 the supervisors have; is that right?

7 A That is correct.

8 0 All right. Now is there any reason why Deputy 9 Hensley would be more able than an ordinary person to see 10 someone using drugs if they are using drugs or possessing 11 drugs on the site?

12 MR. BARTH: Objection, Your Honor, the question is 13 to the wrong person. Deputy Hensley is the one to testify 14 as to his qualifications and he will be called later.

15 MR. EDDLEMAN: Well, I thought since we were doing 16 this all by hearsay anyway that I could ask them what their 17 reason was since they were talking about the distinction 18 between his ability as a law enforcement officer and the 19 ability of other persons to detect drugs.

20 MR. BARTH: First of all, that is beyond the 21 redirect, and, second of all, Your Honor, that was not the 22 question that he originally asked to which I objected.

23 JUDGE KELLEY: We have had some discussion of --

24 I have raised questions about Hensley's capabilities myself.

Ac al Reporters, Inc.

25 MR. BARTH: I make it a practice never to object

8634 Sim 8-2 1 to the Board's questions.

2 JUDGE KELLEY: Well, under the circumstancas, 3 go ahead.

l 4 How are you doing, Mr. Eddleman? What is your 5 time frame?

6 MR. EDDLEMAN: I am almost done. I have got maybe 7 five minutes more.

8 JUDGE KELLEY: All right. Go ahead.

9 MR. BAXTER: A clarification. I thought the 10 question was, and correct me if I am wrong, Mr. Eddleman, II was why not Hensley particularly, but an undercover agent 12 dedicated to an investigation would be more likely to identify

( 13 suspects than the average foreman or Mr. Joyner or others; 14 is that correct?

15 MR. EDDLEMAN: I am asking about Hensley.

16 WITNESS BENSINGER: Ik. Hensley would have had 17 a better opportunity because he had an informant, an informant 18 whose sole purpose and assignment at that site was to turn 19 over as many indications of illegal drug use and drug users 20 as possible. That is an essential element of a difference 21 between the two, and that informant working with Mr. Hensley 22 in this case, the undercover agent, had something that none 23 of the security officers have.

24 BY MR. EDDLEMAN:

AceGrol Reporten, Inc.

25 You are saying that CP&L security never uses Q

8635 Sim 8-3 j informants, Mr. Bensinger?

vou "oeta neve to eex tae= caet sueeeio=- z em O 2

^

3 saying that in this case the specific and principal duty 4

of that informant was to work with Mr. Hensley and perhaps 5

ther type of information gathered by CP&L, and I thought 6

highly of their quality check program, and other. sources of information that would be developed is I think significantly 7

different, Mr. Eddleman.

8 9 0 Well, before I go on to ask the security people 10 about this, let me ask you. In the extent to which the ij informant was useful then determines the difference in 12 y ur view; is that right?

^ ' " ^ exed * " *" di"ere"cee 'e'"ee" ""e' ***

O is g4 Hensley have in the way of detecting or observing drug users:

r vi lations that the security people didn't, and I 15 16 indicated to you what I thought was a principal difference.

0 And that would depend on the value and performance 37 f the informant; isn't that right?

18

9 A It would depend on the informant, the availability 20 of the informant.

O And wouldn't it also depend on the cooperation 21 f the informant and how seriously they took their work 22 23 and how hard they tried and things like that?

A To an extent, certainly, and to a large extent.

24 h el hporters, Inc.

Q Now if the security gentlemen can respond.

25

l 8636 Sim 8-4 Do you ever use confidential informants ---

1 2 MR. BARTH: For what purpose, Your Honor? It is j 3 an open question.

4 MR. EDDLEMAN: Let me finish the question, please, 5 Mr. Barth.

6 BY MR. EDDLEMAN:

7 0 --- use confidential informants other than just 8 getting information through quality check, but I am talking 9 about having a confidential informant out there to work 10 with you directly to identify persons and say to you this 11 one and this one and this one, take your people around and 12 maybe point people out surreptitiously or whatever, that 13 sort of thing. Do you ever do that in your ---

14 MR. BARTH: The objection still stands,'for 15 what purpose?

d 16 JUDGE KELLEY: To find drugs I assume.

17 MR. EDDLEMAN: Yes, that is what I asked at the 18 end, in your drug investigations on the site.

19 MR. BAXTER: Mr. Chairman, I would like to advise 20 the witnesses, and I don't think this question does it, 21 but they should let me know if any of the questions 22 require revealing information which would compromise your 23 ongoing present and future security operations at the site.

24 JUDGE KELLEY: Okay, sure.

Ace- of Reporters, Inc.

25 WITNESS KING: If I might respond to that.

8637 Sim 8-5 1

(^ -

2 You cannot conduct an investigation without some sort of information without going into detail, and we will 3

not reveal the sources of our information in all instances.

4 We have used, do now use and will continue to use 5

in our investigative techniques the use of informers. That 6

is not to say we limit the use of informers just to drug 7

activity, but to answer your question, Mr. Eddleman, yes, we 8

use informers.

9 JUDGE KELLEY: Separate and apart from quality 10 check?

11 WITNESS KING: Yes, sir, that is correct.

12 JUDGE KELLEY: All right.

I) 13 BY MR. EDDLEMAN:

14 0 Mr. Bensinger, you testified and were asked again 15 about our suggestion that by informing people of the drug 16 dogs that the undercover operatives could enhance their 17 credibility. Wouldn't that necessarily involve compromising 18 the drug dog operation?

19 MR. BARTH: Your Honor, we object. That had 20 nothing to do with the last redirect. We are going back 21 to starting to question these people from goal one.

22 JUDGE KELLEY: Well, but Mr. Eddleman in his 23 special status, is he limited to the scope of cross and 24 ke Ral Re lac- redirect? I wasn't aware that he was.

25

8638 Sim C-6 I MR. BARTH: We have taken this in general step by 2 step, that they testify, then they are cross-examined and 3 there is redirect and we have just gone back and forth.

JUDGE KELLEY: Well, we might have been a little 5

neater if we had worked Mr. Eddleman in in front of the 6 redirect, but I guess we just didn't.

MR. EDDLEMAN: Judge, this was in the redirect.

8 Well, be that as it may, isn't this JUDGE KELLEY:

9 your first bite at the apple, Mr. Eddleman?

MR. EDDLEMAN: No, sir, this is recross.

JUDGE KELLEY: All right, then I stand corrected.

12 You say it was in the redirect?

h 13 MR. EDDLEMAN: Yes, sir.

JUDGE KELLEY: In what way?

15 Mr. Baxter asked about it, or, MR. EDDLEMAN:

16 Judge Kelley, I believe it was you. Sorry.

II MR. BAXTER: I don't believe I did. Somebody else 18 might have.

MR. EDDLEMAN: All right. Judge, I am informed 0

that it was you that asked, and the transcript will reveal 21 it, but I believe you asked him a question about how the 22 dogs would find the seller.

JUDGE KELLEY: Well, in the interests of just wrapping this up, why don't you go ahead.

25 The availability or the WITNESS BENSINGER:

8639 1

presence of drug dogs would not have precluded the informant Sim 8-7 and the undercover operatives from making reference to the

(( 2 3 drug dogs and acknowledging them as a new deterrent clearly.

4 Your question was would that mean compromising the 5 dog. Generally most dogs will work on physical locations. I 6 personally don't have knowledge of the specific operations, 7 although generally I am familair with how drug dogs operate 8 and have seen them operate. But generally they will go to 9 places and not people.

10 And it would not be a likely or professional under-11 cover operative that would say don't hide it here. We will 12 just acknowledge the fact that dogs were on site.

13 Theoretically you could argue could they tip off (V'T 14 where the dog is likely to go? Probably the only place that 15 the dog goes is the place the handler that day and someone 16 from CP&L security would direct them to go, and I believe that j7 is the case, and other members of the panel could correct me.

18 So I am not sure that Mr. Hensley would necessarily-19 be able to preclude the finding of a dog on site. My testi-20 many was for establishing that the metal detectors and/or 21 drug dogs and/or lunch box searches are a fact of life on the 22 job site, and that we still as an undercover operation and 23 talking with prospective dealers or users will have to be 24 aware of that and when can you get me some dope. Maybe we go me m.,.re.n ine.

l 25 off site and maybe you do it in the parking lot, and maybe

n 8640 j w ex en ur n estigation to the grocery store and we buy Sim 8-8 2 from you off the location. That is tne way the undercover )

3' operation should go.

4 And the presence of the dogs with employees of the

, 5 company does not preclude the investigation from being carried 6, off the job site. In fact, I was surprised that there 7i weren't buys off the job site, as I testified earlier, of 8 larger amounts.

9 BY MR. EDDLEMAN:

10 C Well, Mr. Bensinger, the question I was trying to 11 ask you was wouldn't revealing that the drug dog is going 12 to be there, and I don't care about where, but just to try 13 to follow your suggestion, by revealing that the drug dog 14 is going to be there, wouldn't that compromise the drug dog 15 investigation by letting people on site know that there was 16 a dog coming?

17 MR. BAXTER: This is repetitious.

I8 WITNESS BENSINGER: No, I wouldn't ---

I9 MR. BAXTER: Excuse me, Mr. Bensinger. This is 20 repetitious and Mr. Bensinger didn't testify that the under-21 cover agent would advise his suspects of the days and times 22 the dog was going to come on site.

23 WITNESS BENSINGER: In fact, Mr. Eddleman, if I 24 may, my suggestion isn't ever that the undercover operative Ac rol Reporters. Inc.

25 tips off ahead of time that the drug dog is coming, but when e

8641 Sim 8-9 1 it arrives make reference to it. I would not suggest that 2 the person say hey, drug dogs are coming. That would reveal, 3 in fact, some secret knowledge. On the contrary, when the 4 dogs would have been acknowledged as a fact of life, then the S undercover operative could have said drug dogs are here and 6 and they may have told him drug dogs are here and the person 7 says yes, we will have to do something differently.

8 I am never suggesting, and I want the record to 9 be perfectly clear, that an undercover operative is not going 10 to predict and advise hey, drug dogs are coming. And if you 11 have understood that to be what I would recommend, you are 12 mistaken.

4 13 BY MR. EDDLEMAN:

14 Q Well, I don't quite understand how it binds the 15 undercover operative because once the dog is on site, as I 16 understand it, the word the dog is around spreads like wild 17 fire for ---

18 A (Witness Bensinger) Correct.

19 MR. BARTH: Your Honor, we object to the line of 20 questions. One is theoretical. We have never had any 21 evidence in the record that the dog is tipped off or people 22 are tipped off in advance, and, second, we have drug this 23 poor dog all over the place for two days, and to quote 24 Everette Dirksen, we are beating a dead horse to death. We Aco Arol Reporters, Inc.

25 have been through this a dozen times, and it is repetitious,

8642

"~ as counsel for the power company suggests. I suggest it is 1

() 2 repetitious and it is just a doggone waste of time to 3 continue this, Your Honor. ,

4 (Laughter.)

5 JUDGE KELLEY: Well, I think that we are way 6 beyond the scope here. I myself asked a question about 7 dogs at one point and perhaps I opened the door. The real 8 issue here in this testimony, as I recall it, was how and+

4 9 under what circumstances the decision to hire dogs affected 10 the termination of this particular undercover operation, and 11 that is what the testimony talks about, and sort of a general

12 discussion of how to use dogs and how they are effective and

() 13 where they go ought, it seems to me, to wait until the 14 dog panel arrives. So for that reason I think you should 15 move on to another point, if you have any more points to i

16 raise, Mr. Eddleman.

17 MR. EDDLEMAN:- I do have some more points, but 18 let me try to clarify this, because I am not asking about, 19 and I think Mr. Bensinger took off on this, and maybe we 20 don't understand each other, what we are driving at, and I 21 think that has been brought out in one of the more recent 22 answers.

23 What I am trying to ask about is what does he 24 mean when he says that they are going to bind the sellers Repo,ters, Inc.

25 and so on with special knowledge about these drug cogs if

,--r v - ---.-,,,-me.,. ,r--e - y- ,-----,-nn- - --- ... -- -- n w.r- --nm,- ~ ~ - , - a n

8643 Sim 8-11 .

they are going to reveal it in advance.

I

() 2 MR. BARTH: We object. This has no relevance to 3 the contention or any of the direct testimony whatsoever, 4 Your Honor.

5 JUDGE KELLEY: I don't think it is relevant to this 6 Panel, Mr. Eddleman, and I think you should move on to 7 other matters, and I think you should wrap up very shortly.

8 I might just add, Mr. Eddleman, that you are on 9 the fringes of NRC law here in that you are questioning 10 at all. We are going to let you do it, but you are entitled 11 to ask some questions on cross. But this whole exercise 12 goes on through recross and recross and recross, and I know

('l 13 of no case that says that another intervenor whose contention A/

14 this is not has any right at all to ask such questions.

15 So you are proceeding somewhat with the grace 16 of the Board. So do it briefly.

17 MR. EDDLEMAN: And I appreciate it.

18 BY MR. EDDLEMAN:

19 Q Gentlemen, in discussing the use of metal detectors, 20 you were asked about on redirect the metal detectors only 21 being used on people leaving the site.

Would a person bringinc 22 drugs into the site perhaps in a metal container or a thermos 23 have any reason to be certain that the metal detectors would 24 not be used on people entering having seen that they were Ac. Ras it. pore.n. inc.

25 used on people leaving the plant?

L

8644 sim 8-12 Mr. Eddleman, they would only know j A (Witness King)

() 2 what the procedures of the job site were. The procedures 3

f the use of the metal detectors were explained to the 4 employees at the time the metal detectors were introduced to 5

the job site. The assumption today would be a concern 6

because they were bringing something in in a thermos bottle.

The thermos bottle is metal to begin with. We could tell that, 7

8 It is large enough that they would be carrying it in their 9 hands and we would have no need to use the metal detector 10 to determine whether or not that thermos was metal. And the 11 metal detectors would give us no indication of what was insido 12 of that thermos.

() 13 Q Well, what about another metal container?

We would not use the metal detectors to inspect 14 A 15 metal containers.

16 MR. EDDLEMAN: Okay. That is all the question I 17 have.

18 JUDGE KELLEY: Okay. Mr. Baxter.

19 MR. BAXTER: I can't let Mr. Plueddemann get away.

20 I have to ask a question just for that reason, if nothing 21 else.

22 REDIRECT EXAMINATION

.INDEx- 23 BY MR. BAXTER:

24 Q During the time of the undercover operation, Ac ol Reporters, Inc.

25 Mr. Plueddemann, was work proceeding at the Shearon Harris

8645 Sim 8-13 j site on Saturdays and Sundays?

A (Witness Plueddemann) Yes, sir, it was.

) 2 3

MR. BAXTER: Thank you. That is all.

4 (Laughter.)

5 JUDGE KELLEY: Mr. Cole.

MR. COLE: I don't know the authority for asking 6

7 that question. Mr. Plueddemann was never ---

(Laughter.)

8 JUDGE KELLEY: Do you object? Do you have any 9

10 more questions?

jj MR. COLE: No.

12 JUDGE KELLEY: Mr. Runkle?

13 MR. RUNKLE: No, sir.

(

ja JUDGE KELLEY: I believe then that that will conclude this panel. Gentlemen, thank you very much. And 15 I gather most of you are returning. We are now going to 16 j7 take a short break and go to the staff's panel, but we will be seeing you again, most of you. Thank you.

18 j9 (Recess taken.)

20 JUDGE KELLEY: Let's reconvene.

21 MR. BARTH: The staff at this time calls Loren L.

22 Bush, Jr., Francis J. Long, William J. Tobin and Richard L. Prevatte to the stand as the staff's panel to respond 23 24 to Contention WB-3 and request that the Board swear them.

Ace- rol Reporters, Inc.

25 JUDGE KELLEY: Thank you, Mr. Barth.

8646 Siu. S-14 1 Whereupon,

( ) 2 LOREN L. BUSH, JR.

3 FRANCIS J. LONG 4 WILLIAM J. TOBIN 5 - and -

6 RICHARD L. PREVATTE 7 were called as witnesses and, having been first duly sworn 8 by Judge Kelley, were examined and and testified as follows:

INDEX 9 JUDGE KELLEY: Thank you.

10 DIRECT EXAMINATION INDEX 11 BY MR. BARTH:

12 Q Gentlemen, will you please identify yourself for

. 13 the record starting with the gentleman closest to the 14 Licensing Board.

15 A (Witness Bush) My name is Loren L. Bush, Jr.

16 Q The second gentleman, please.

17 A (Witness Prevatte) My name is Richard Prevatte.

18 I am the Senior Resident Construction at the Harris site.

19 A (Witness Long) I am Francis J. Long, the Assistant 20 to the Regional Administrator in the Atlanta Regional Office.

21 A (Witness Tobin) And my name is William Tobin.

22 I am the Senior Physical Security Inspector also out of 23 Atlanta.

24 Q Good morning, gentlemen. I hope you can testify Ace Arol Repo,ters, Inc.

25 at this early hour.

8647 Sim 8-15 Mr. Bush, I hand you a paper and ask that you

,o identify this for the record, if you will, please.

() 2 A (Witness Bush) This is my prepared testimony.

3 Q Will you please read the title of the paper, 4

Mr. Bush? ,

A " Testimony of Loren L. Bush, Jr., Concerning CCNC Contention WB-3."

7 Q Mr. Bush, was this document prepared by you or 8

under your supervision and direction?

9 A Yes, it was.

10 g Q Does this represent your testimony in this proceeding regarding Contention WB-3, sir?

g A Yes, it does.

U Q Are the matters contained in there true and correct to the best your best knowledge and belief?

A Yes, they are.

g Q Mr. Bush, would you very briefly -- I withdraw the comment.

18 Gentlemen, with regard to the other panel, I 39 hand you a document and I will ask that Mr. Tobin identify 20 g this document for the record.

A (Witness Tobin) Thnis is entitled " Testimony of Francis J. Long, William J. Tobin and Richard L. Prevatte on CCNC Contention WB-3 (Drug Abuse During Construction) . "

24

' ' " Q Gentlemen, I will ask you a series of questions

)

8648 Sm 6 I and I ask that you answer them seriatim so the report can

..,1 2 get them.

3 Mr. Long, was this document prepared under your 4 direction and control insofar as the general matters stated 5 early and the matters stated under your name are set forth 6 therein?

7 A (Witness Long) Yes.

8 Q Is the document true and correct to your best 9 knowledge and belief, sir?

10 A Yes.

II And does this represent your views and testimony Q

I2 regarding Contention WB-3?

13 A Yes.

s I4 Q Mr. Prevatte, I will ask you the same series of 15 questions. The general matters at the beginning and the 16 conclusion in the matter addressed specifically with your I7 name, where these prepared by you, sir?

IO A (Witness Prevatte) Yes.

I9 Q Are the matters contained therein true and correct 20 to your best knowledge and belief?

2I A Yes.

22 Was this document prepared by you, and to the extent Q

23 that it was prepared by you for the purpose of responding to Contention WB-3?

I Reporters, Inc.

25 A That is correct.

8649 Sim 8-17 Mr. Tobin, I will ask you the same series of j Q questions. Were the general matters on the first page and 2

the conclusions in the matters attributed to you by name 3

4 prepared by you or under your direction and control, sir?

5 A (Witness Tobin) Yes, sir, they were.

6 Q Are they true and correct to your best knowledge

_7 and belief?

8 A Yes, sir, they are.

MR. BARTH: Your Honor, the staff has served all

.9 10 _of the parties with copies of tese testimonies and we.have

-11 provided the reporter with eight copies.

12 At this time I request that the Licensing Board admit the two documents identified by the Board into 13 j4 evidence as the Staff's testimony concerning Contention WB-3.

15 JUDGE KELLEY: Okay. Mr. Runkle.

MR. RUNKLE: Yes. We do have objections to the 16 admission of this testimony.

17 ,

18 JUDGE KELLEY: Okay.

MR. RUNKLE: The objection is to the acimission of 19 20 Attachment 5 to the Long, Tobin'and Prevatte testimony, 21 which appears to be a summary of-the TI-2695/1 review of 22 alcohol _and-drug abuse at various utilities.  ;

l 23 JUDGE KELLEY: Can you give us a title on that?

MR. RUNKLE: " Memorandum to Richard D. Young from 24 mopo,ws, Inc.

James P. O'Reilly, Regional Administrator.

Subject:

Alcohol 25

8650 1 and Drug Abuse Survey." .

Sim 8-18

(_j 2 JUDGE KELLEY: And when you say Attachment 5, you 3 just mean the fifth attachment to the testimony? I don't 4 see a lable on there that says Attachment 5.

5 MR. RUNKLE: It is referred into the testimony as 6 Attachment 5.

7 JUDGE KELLEY: Oh, Okay. Thank you. Go ahead.

8 MR. RUNKLE: We would object to the admission of 9 this two-page letter without the summary of the staff's 10 investigation of the drug program at the Shearon Harris site, 11 which is referred to in the last paragraph.

12 JUDGE KELLEY: The reference there being that there are summaries for each of the sites and you are

() 13

~14 specifying that you would require that the Shearon Harris 15 summary be included? .

16 MR. RUNKLE: Yes, sir.

17 JUDGE KELLEY: Do you want to elaborate on that 18 a little bit?

cnd Sim 19 Sun fois 20 21 22 23 Ac. I a. pore.rs, 1 25

8651

1. 9-1-SueW 1 MR. RUNKLE: This document appears to be the --

j 2 a summary of all the different investigations conducted at 3 this time. And it's really not relevant to this proceeding 4 without the specific summary of the visits to the CP&L 5 program, particularly at the Shearon Harris site.

6 JUDGE KELLEY: Mr. Barth?

7 MR. BARTH: Your Honor, the very quick response 8 to that is that's not a proper objection. That is no 9 objection to the document entitled " Alcohol and Drug Abuse 10 Survey," April 01, 1933.

11 If you will turn to Page 2, Your Honor, you will 12 find that the original author of that document was Mr.

13 Tobin and it was approved and reviewed by Mr. Long, both 14 who are on the panel to respond to any questions regarding 15 this. The fact that it may refer to other documents has 16 no merit to the objection of this document itself.

17 The document speaks for itself and it is subject p6 to cross-examination by the actual authors themselves. And 19 the objections raised by Mr. Runkle are not proper in any 20 shape, manner or form as to the admissibility of this docu-21 ment.

22 I would like to also further point out, Your 23 Honor, that we have constantly offered to provide any 24 documents to any person who wants them where they are refer-Ace Arol Reporters, Inc.

25 red to in cur testimony. We have no requests for this

~

8652 I

1. 9-2-SueW document prior to the hearing that Mr. Runkle would like to fl

\' 2

' see it at 11:59 today. This really almost is figuratively.

3 And, therefore, we think that the objection is 4

improper and the attachment should be admitted for the 5 purposes for which it is set forth, which is the language 6 therein and the facts contained therein. And its authors 7 are here for the Board and the parties to cross-examine.

8 JUDGE KELLEY: Mr. Baxter, any' comment?

9 MR. BAXTER: Simply that the document is clearly 10 It deals with a survey in Region II in which CP&L relevant.

II is located.

12 The extent to which it does or doesn't apply 13

' k_w) in any given particular at Shearon Harris is a matter for I cross-examination, not the admission of the document.

15 JUDGE KELLEY: Mr. Cole, any comment?

I0 MR. COLE: No.

I7 JUDGE KELLEY: Okay. We will rule on this after 18 lunch. Let's move on for now.

I9 We have a motion -- do you have other objections ,

20 Mr. Runkle?

21 MR'. RUNKLE: No. The motion is just to have a 22 complete document here rather than just the -- just a ::wo-page 23 summary.

JUDGE KELLEY: But I gather that in lieu of, if h l Reporters, Inc.

25 Mr. Barth says no, it's fine as it is, then it's an objection

. _ _ _ - _ _ _ _ - - - - _ - - . . ~ _ . - - - _ . _ - - - . . - .

8653

1. 9-3-SueW 1 to Attachment 5.

t - 2 MR. RUNKLE: Yes, sir.

3 MR. BARTH: Then, Your Honor, I assume that you 4 will admit the testimony subject to the further ruling uoon 5 the April 01, 1983 memorandum to DeYoung from James P.

6 O'Reilly, entitled " Alcohol and Drug Abuse Survey?"

7 JUDGE KELLEY: Subject to the ruling, we will 8 admit it, yes.

9 MR. BARTH: Thank you, Your Honor.

10 (The testimony follows. )

INDEXX 11 12 l l 13 m/

14 15 16 17 18 19 20 21 .

22 23 24 Ac I Reporters, Inc.

25

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ,

)

CAROLINA POWER AND LIGHT COMPANY AND )

NOPTH CAROLINA EASTERN MUNICIPAL ) Docket Nos. 50-400 OL POWER AGENCY ) 50-401 OL

)

(Shearon Harris' Nuclear Power Plant, )

Units 1 and 2) )

TESTIMONY OF FRANCIS J. LONG, WILLIAM J. TOBIN AND RICHARD L. PREVATTE ON CCNC CONTENTION WB-3 (DRUG USE DURING CONSTRUCTION) m N

Q.1-Please state your name, job title, and business address for the record.

A.1-My name is Francis J. Long. My job title is Technical Assistant to the Regional Administrator. My business address is 101 Marietta Street, Suite 2900, Atlanta, Georgia 30323.

My name is Richard Prevatte. My job title is Senior Resident Inspector for construction at the Shearon Harris Power Plant site. My business address is U.S.

Nuclear Regulatory Commission, Route 1, Box 3158, New Hill, N.C. 27562.

My name is William J. Tobin, III. My job title is Senior Physical Security Inspector. My business address is 101 Marietta Street, Suite 2900, Atlanta,

() Georgia 30323.

, e Q.2-Please state your professional qualifications for the record.

A.2-Copies of the professional qualifications for each of us are included with this testimony as Exhibits 1, 2, and 3.

s Q.3-What is the purpose of this testimony?

A.3-The purpose of this testimony is to address the Conservation Counsel of North Carolina's Contention WB-3 which reads:

Drug use at the Harris plant is widespread. Employees under the influence of drugs are less able to follow proper procedures and

(]

v Tech -Specs for the installation of electrical systems, pipefitting, and other safety-related work. Applicant's management has failed to control drug use during construction and further, has failed to reinspect all safety-related work done by known drug abusers.

Specifically, we are addressing that aspect of the contention which concerns the adequacy of the drug program in use at the Shearon Harris site.

Q.4-Does the NRC have a requirement that licensee have and implement a drug education and prevention program either during construction or operation of a nuclear facility, except as described in Answer 3 of Mr. Bush's testimony upon

! fh V this contention.

O A.4-No. However, the NRC's regulatory authority in matters affecting nuclear safety is sufficient to ensure that appropriate enforcement action can be taken in any case in which it appears that a licensee has not taken appropriate actions regarding drug use consistent with a full appreciation of public health and safety.

l Q.5-Does the NRC inspection program include provisions for inspectors to review licensee drug prevention and control programs?

A.5-The NRC does not routinely review licensee drug abuse programs. However, under a Temporary Instruction (TI 2596/1), Region II has reviewed all Region II O licensee drug programs. As will be discussed in more detail below, this review occurred in 1982 and 1983 and included a review of CP&L's' drug program.

4 Q.6-Are there any other licensee programs that affect drug use at Shearon Harris?

A.6-Yes. The security requirements found in 10 CFR 73.55 and the NRC approved Security Plans have had a positive effect in preventing drug use at nuclear plants, by providing for contraband searches at the entrances to facilities (persons, packages, and vehicles), pre-employment screening (polygraphs, psychological testing, background investigations) and training of security officers and plant supervisors in detecting aberrant behavior.

O

/

U Q.7-Since the routine I&E inspection program does not include inspection of the licensee's drug program and implementation, please explain the bases for your testimony on Contention WB-3.

A.7-We will pro, vide this answer in two parts. The first part addresses the basis for Mr. Prevatte's testimony and the second part addresses the bases for the testimony by Messrs. Long and Tobin.

Prevatte Since March 1983, I have been assigned to the Shearon Harris site as the Senior Resident Inspector for Construction. In that capacity I have had numerous opportunities to observe the licensees' implementation of their drug program m In addition, the licensee on a

\rd where such implementation is of a visible nature.

voluntary basis, has kept me informed of drug-related incidents in order that I would be aware of items which might result in inquiries from the public or which might have an adverse impact on the quality of construction at the Harris site.

Later in this testimony I will discuss some of the specifics of which I am aware.

Long and Tobin Our knowledge of the Shearon Harris drug program was obtained during a review of utility drug programs which was performed for all Region II licensees. In early 1982, Mr. Tobin participated on a Comission Task Force to survey several utilities with respect to their drug abuse policies, programs, and recommenda-tions. This Task Force published NtJREG-0903 " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse" in June 1982. In September of 1982, O

V the Comission ordered surveys of all operating licensees' drug programs when

/'

~ it published Temporary Instruction 2596/1. We both represented Region II in the conduct of those surveys which included a review of CP&L's drug program. The procedure we used was to meet with Corporate and Site management, legal, person-nel, security, and others to determine specific utility policies and implementing programs relative to drug prevention.

These reviews were not inspections which would result in conclusions of whether the licensees meet or do not meet specific reonfrements. Rather, these surveys resulted in findings relative to the general content of licensee programs. Our specific findings on CP&L will be discussed below.

Mr. Tobin is a Senior Physical Security Inspector for Region II and has conducted His background in law enforcement and (v) pre-OLsecurityreviewsatShearonHarris.

security provides the basis for his statements concerning security measures and their potential effect on drug use at the site.

Finally, in preparation for this testimony, we have reviewed certain CP&L docu-ments which describe the drug program developed for and applied to the Harris site, to determine whether the conclusions we reached for CP&L during our TI 2596/1 review were equally valid for the drug program at Shearon Harris.

Q.8-Mr. Long and Mr. Tobin, would you first describe the conclusions relative to CP&L reached as a result of the TI 2596/1 survey?

O

l 1

l

. 6-O V

A.8-Yes. The survey of CP&L took place on February 17, 1983. Our conclusions were stated in a letter from J. P. O'Reilly to R.C. DeYoung dated April 1, 1983, attached hereto as Exhibit 4. In that letter we conclude with respect to CP&L:

The licensee's drug policy, while relatively new, prohibits on-site use or possession of drugs and off-site use which adversely impacts job performance; The licensee felt ic enjoyed the support of its employees with this policy; The licensee believed that contractors were more to blame for drug incidents n than its own employees; U

The licensee is upgrading the training given to supervisors and employees on its drug prevention program and policies.

Q.9-Have you reached any conclusions based on your limited review of the current licensee program as described in licensee documents?

A.9-Yes. The licensee program has been fonnalized and upgraded. Previously we were shcwn a one page " statement of practice" which has now been replaced by a formal CP&L " Drug and Alcohol Abuse Reference Manual," bearing the signature of the

('h G

CP&L Chairman / President, which sets forth the licensee's practices, procedures, and employee assistance program. This manual will be explained at an orientation session to each employee, who will then document his attendance and his under-standing of the program. The program was upgraded in that supervisor training in drug awareness and detection has been increased from 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> to between 12 and 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br />.

CP&L now administers a drug urinalysis exam and a psychological test to all new employees as part of pre-employment screening. In this regard the licensee has gone beyond the original Edison Electical Institute (EEI) guidance.

The licensee has also instituted a program which requires personnel involved in r.

l' intra-company and inter-department transfers (unless the individual has three years of continuous company employment) to undergo psychological and urinalysis tests. This is in excess of what would be required in the NRC proposed Fitness for Duty Rule.

1 Our conclusion from the above is that the licensee recognizes the seriousness of potential drug abuse at its facilities and has increased its efforts in preven-tion, detection, and education programs.

Q.10-Mr. Prevatte, as a result of your activities at the Shearon Harris site, do you have any knowledge concerning CP&L's implementation of the programs reviewed by Messrs. Long and Tobin?

O l

l

l

()

V l

A.10-Yes. Based on the licensee providing me with information and my own observations, I am aware that:

Based on a sampling of supervisor training records, the CP&L supervisory personnel at Shearon Harris have been receiving training on aberrant behavior. They have also received training as to their responsibilities relative to the CP&L Drug Program; Undercover operations have been conducted by CP&L and local authorities to identify and eliminate drug abuse on site; Activities have been conducted to investigate drug use or sale based on O informet4cn sunniied 81 emp>oyees to Cg&t supervisory gersonnei; Based on information provided in the licensee's " Quality Check" program, the licensee has conducted investigations and drug screening activities; Random searches on the site at entrances and exists have been conducted by security personnel; Several times a month, narcotic detection dogs have been used to conduct searches of the site and the parking lot areas.

l p Q.11-Gentlemen, what are your conclusions regarding the CP&L drug program and its O application to the Shearon Harris site?

L

_g-O G A.11-Based on our reviews, we conclude that CP&L recognizes the importance of controlling drug use at the Shearon Harris site. This is evidenced by the fact that the licensee has implemented its program at a construction site, Shearon Harris, even though the program proposed by EEI focuses only on operating sites.

Further, we are aware of the information provided to the Board by the Attorney General of North Carolina in the form of an affidavit. We are not surprised that the CP&L drug program has not been 100% effective; no program is. However, based on our knowledge of the present population of the site (over 5,000 workers), even assuming the magnitude of drug use alleged in the Attorney General's submittal, we cannot conclude that the CP&L drug program has not been effective.

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ENCLOSURE STATEMENT OF PROFESSIONAL QUALIFICATIONS I. Francis J. Long, Technical Assistant to the Regional Administrator, U.S. Nuclear Regulatory Ccmmission, 101 Marietta St., Suite 2900, Atlanta, Georgia 30323 II. EDUCATION A. Auburn University BS (EE),1949 Major, Naval Science (NROTC)

B. Post Grad Nuclear Courses: U. of Iowa, MIT, U. of New Mexico III. EXPERIENCE A. U.S. Navy 6/49 to 6/55 - Navy Nuclear Supervisor six months course, Armed Forces Special Weapons Project. Nuclear Physics and theory of nuclear weapons; assembly, testing and weapons deployment.

O B. Westinghouse Electric Corporation (Bettis Atomic Power Division),

6/55 to 6/63: Senior Engineer, Shippingport Atomic Power Station - Design, procurement, construction, installation, and testing of electrical control and nuclear instrumentation systems. Westinghouse Technical Representative and advisor to the Naval Reactors Office and DuQuesne Light Company, the operation utility. Involved in development of many prototype systems concepts which are still in use in nuclear plants today in some form.

C. U.S. Atomic Energy Commission (Nuclear Regulatory Commission) 6/63 to present:

Among the first group of NRC reactor inspectors, regularly inspecting all AEC power demonstration and research reactors.

Assigned to the Atlanta Regional Office in 1964 as an inspector and later became Supervisor of reactor Construction for all nuclear power plant projects in the Region. Developed the initial construction inspection program, built up a professional staff of highly qualified specialists and implemented the inspection program.

1 f~ . ,g_ l Introduced and promoted the Quality Assurance concept in the Commission, participated in development and interpretation of the QA Criteria and participated in the training of the industry in use of the QA Criteria. Worked closely with utilities in development and implementation of their QA programs. Performed or assisted in numerous management audits of nuclear plant, contractor and vendor QA programs.

ANSI committees developing nuclear standards.

Qualification requirements for Inspection and Testing Personnel (N45.2.6); Requirements for Quality Assurance Program Audits (N45.2.12), and Qualification Requirements for Nuclear Plant Auditors (N45.2.23). Presently a member of the ASME Subcommittee on Personnel Qualifications, and participating in development of NOA-1.

Participated in the development of essentially all Comission policies ard programs associated with inspection and enforce-ment including, construction, pre-operational testing, startup, and operations. Considerably involved in development of NRC q Reporting Requirements, Systematic Assessment of Licensee V Performance, and Enforceme:it policies.

Have held positions of Chief, Construction Branch; Chief, Testing and Operations Branch; Deputy Regional Director, Acting Regional Director, Director, Enforcement Staff, and Technical Assistant to the Regional Administrator.

Have prepared a number of technical papers and speeches for NRC management on a broad spectrum of topics, but predominantly associated with improving nuclear plant management.

Participated in development of the NRC Resident Inspector Program and the staffing and training of Resident Inspectors.

Numerous ideas and suggestions have become established policies and routine practices of the Commission, certain of which have resulted in considerable financial savings to the Commission.

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d' ENCLOSURE STATEMENT OF PROFESSIONAL OUALIFICATIONS I. William J. Tobin III, Senior Physical Security Inspector, U.S. Nuclear Regulatory Commission, 101 Marietta St., Suite 2900, Atlanta, Georgia 30323 II. EDUCATION A. Bachelor of Science (1966) La Salle College, Pailade19hia, PA B. Numerous schools and courses relative to my baining in the U.S.

Marine Corps, Federal Bureau of Investigation, Pennsylvania Crime Commission, and U.S. Nuclear Regulatory Commission III. EXPERIENCE A. 1980 to Present - U.S.N.R.C. (Atlanta), conducted several

,, reactive inspections and investigations of suspected sabotage and (j drug abuse at licensed facilities. Participated in the Commission's Task Force to survey the industry relative to drug abuse programs (NUREG-0903).

B. 1979 to 1980 - U.S.N.R.C. (Atlanta), Acting Physical Security Section Chief.

C. 1978 to 1979 - U.S.N.R.C. (Atlanta), Physical Security Inspector. Represented the Commission to the American Nuclear Society in the authorship of ANSI Standard 3.3 " Security for Nuclear Power Plants."

D. 1975 to 1978 - U.S.N.R.C. (Atlanta) - Physical Security Inspector.

E. 1972 to 1975 - Pennsylvania Crime Commission (Philadelphia)

Special Agent. Participated in investigations of organized crime, corruption of local officials and major drug operations.

Worked closely with law enforcement agencies at all levels.

F. 1969 to 1972 - Federal Bureau of Investigation (Tampa, Florida and New York City) Special Agent. Conducted investigations of Federal fugitives and organized crime figures, duties included testifying before and presenting evidence to Grand Juries, U.S.

Attorneys and U.S. Magistrates.

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G. 1966 to 1969 - U.S. Marine Corps (Quantico, Virginia; Republic of South Vietnam; Jacksonville, North Carolina). Worked closely with law enforcement agencies in the conduct of drug use investigations while serving as Legal Officer and Intelligence Officer for several Marine Corps units.

IV. MEMBERSHIPS Fraternal Order of Police Georgia Sheriffs Association Society of Former FBI Agents O

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ENCLOSURE STATEMENT OF PROFESSIONAL QUALIFICATIONS I. Richard L. Prevatte, Senior Resident Inspector (Construction) U.S.

Nuclear Regulatory Commission Route 1, Box 3158, New Hill, NC 27562 II. EDUCATION A. High School graduate

8. Numerous U.S. Navy technical schools and courses C. Numerous technical courses associated with construction, testing and operation of commercial nuclear power plants.

III. EXPERIENCE A. March 1983 to present: U.S. Nuclear Regulatory Comission Region II. As Senior Resident Inspector (Construction) at the Shearon Harris Nuclear Plant, conduct routine and reactive inspections bm covering the construction activities to insure compliance with regulatory requirements and applicable industry standards.

8. January 1981 to March 1983: U.S. Nuclear Regulatory Commission, Headquarters as an Electrical Engineer with the Pcwer Systems Branch of NRR, performed electrical system reviews on applications for operating licenses and prepared safety evaluation reports.

Conducted reviews and evaluations of electrical system problems including generic and specific plant issues.

C. July 1979 to December 1980: Bechtel Power Corporation, Norwalk, CA. As a Senior start-up Engineer at the San Onofre Nuclear Generating Station, supervised electrical and mechanical test technicians and craft personnel in activities associated with procedure development and start-up testing on electrical and mechanical systems.

D. December 1978 to June 1979: Westinghouse Electric Corporation, Pittsourgh, PA. As a System Start-up Engineer on the Angra, Brazil Plant, conducted start-up test activities associated with construction completion, component and system testing. Addi-tionally, provided training and assistance to licensee personnel in these areas.

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, ,'E . October 1976.to December 1978: South Carolina Electric and Gas Company, Columbia, SC. As a shift supervisor at the V.C. Summer Nuclear Plant developed plant operating and emergency procedures.

Supervised and provided training for reactor and auxiliary operators assigned to shift and assisted start-up testing of plant components and systems. Certified for Senior Reactor Operator.

F. July 1956 to August 1976: U.S. Navy, various ships, shore facil-ities and schools.

1. Served as Electrical Officer on two ships.

2. Served as Main Propulsion Assistant on one ship.

3. Served as Engineering and Damage Control Training Officer at a training command.

4. Numerous positions with twelve years of experience as an enlisted person with positions of increased responsibility in enlisted grades E-I through E-9 in the electrical field.

(])IV. MEMBERSHIPS Institute of Electrical and Electronic Engineers B

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n UNITED STATES OF AMERICA V NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of -

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CAROLINA POWER AND LIGHT COMPANY AND )

NORTH CAROLINA EASTERN MUNICIPAL ) Docket Nos. 50-400 OL '

POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power Plant, )

Units 1 and 2) ,,

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TESTIMONY OF LOREN L. BUSH, JR. CONCERNING CCNC CONTENTION WB-3 Q.1, What is your name, . position and professional background?

A.1. My name is Loren L. Bush, Jr. I am a Senior Security Specialist with the Operating Reactors Branch, Division of Inspection Programs, p).

k Office of Inspection and Enforcement, U.S. Nuclear Regulatory Commission. I have been employed by the NRC since June 1976. Prior to joining the NRC, I served over 20 years in the U.S. army and worked as 'a security consultant to the nuclear industry. I received a Bachelor of Science degree in Business Administration from the University of Florida in 1965, and have taken graduate studies in -

management. In addition, I have completed numerous training courses in that field, most recently a series of graduate level seminars at

" George Washington University in Contemporary Executive Development.

While in the military, I received extensive training in the identification and effects of drug abuse and in the laws of arrest, search, and seizure. Over the past 15 years, I have attended many O seminars that reinforced that original training. I have organized

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t o and conducted a seminar on the identification and effect of drugs V

(with Harold Patin, President of Drug Education Associates). I have been certified by the American Society for Industrial Security as a protection professional; the examination subjects included. substance abuse, legal aspects, and management.

While in the military, I had several command and senior staff assignments with the Army's Criminal Investigation Division. Many of the. investigations concerned. drugs; many of the drug investi-gations were conducted by undercover agents and were targeting drug sources and distribution systems, some of which were international in scope. I also had a crime laboratory under my control for processing forensic evidence which included drugs. My b'O duties with the NRC the past few years have included working with the proposed rule and proposed policy statement relating to fitness for duty. I was a member of the NRC Task Force that surveyed the drug and alcohol programs of ten licensed nuclear utilities, of two federal agencies, and of two large corporations in 1981-82. The non-nuclear programs surveyed were the Department of Defense, -

Federal Aviation Administration, Kimberly-Clark Corporation, and General Motors Corporation. The survey was conducted to determine the common elements and management attitudes that constituted what was perceived by the Staff to be the better drug and alcohol programs.

That survey is reported in NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse", dated June O 1982. I also was responsible for consolfeating all naC comments and

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initially developing the Office of Inspection and Enforcement position on the electrical utility industry standard on drug abuse issued by the Edison Electrical Institute (EEI).

Q.2. What is the purpose of your testimony?

A.2. The purpose of my testimony is to set forth the Staff's position on Contention WB-3 in so far as that Contention relates to the Applicants' drug prevention and, detection program. My testimony describes the current regulatory situation relating to drug abuse in the nuclear industry, and compares CP&L's drug prevention program with the standard being adopted by the nuclear industry.

Q.3. What are the rules, policies, and standards pertaining to drug abuse in.the nuclear power industry?

A.3. he NRC ha's no rules, regulations, or policy guidelines regarding control a,nd prevention of drug use for holders of construction permits. Current NRC rules pertaining to drug abuse at operating -

nuclear power reactors include: (i) the physical and mental qualifications criteria for security personnel described in Appendix

~B to 10 C.F.R. Part 73 which prohibit individuals with drug addiction from performing security duties, and (ii) the physical and mental qualifications criteria for licensed reactor operators described in 10 CFR 55.11, which require that there be no conditions O that wouid i Peir oudsement or motor coordiaetion. Th4s wouio

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, 1 obviously include drug abuse. Those criteria are also reflected in Regulatory Guide 1.134, Rev 1 1979, " Medical Evaluation of Nuclear Power Plant Personnel Requiring Operator Licenses" and ANSI N546-1976, "American National Standard Medical Certification and. Monitoring of Personnel Requiring Operator Licenses For Nuclear Power Plants."

The ANSI standard N546-1976 specifically identifies drug dependency as a disqualifying condition. It should be noted that similar criteria for independent spent fuel storage facility operators exist in 10 C.F.R. 972.93. Also, criteria described in 10 C.F.R.

510.11(a)(10) and (11), which applies to licensees, contractors and NRC employees, would preclude a drug abuser from obtaining a security clearance. However, use of this provision by the nuclear power utilities is limited. Similar criteria in the proposed 10 C.F.R.

O U 973.56, 49 Fed. Reg. 30730, August 1, 1984, " Proposed Insider Safe-guards Rules" would preclude a drug abuser from having unescorted access to an operating power reactor. IE Circular 81-02, "Perfomance

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of. NRC-Licensed Individuals While On Duty" February 9,1981, which was reaff,irmed by IE Information Notice 85-53, " Performance of NRC-L! censed Individuals While On Duty" dated July 12, 1985, alerts -

licensees to the need to establish management controls and a pro-fessional environment which would prohibit activities such as drug use. IE Information Notice 82-05, " Increasing Frequency of Drug-Related Incidents" dated March 10, 1982, reported an increasing frequency of drug related incidents and announced IE's initiation of actions to address the problem on a generic basis. NUREG/CR-3196,

" Drug and Alcohol Abuse: The Bases for Employee Assistance Programs 4

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l 5-In The Nuclear Utility Industry", issued in July 1983, describes the n nature, prevalence, and trends of drug abuse and recommends programs that could minimize drug abuse in the nuclear industry. Criterion II of Appendix 8 to 10. C.F.R. 50 describes a need to assure suitable proficiency of personnel as part of the quality assurance program; while it does not specifically require a fitness for duty program, we would expect applicants to have programs to assure that drug abuse does not impair proficiency or otherwise negate the effectiveness of the required quality assurance program. Other than the above, I am not aware of any specific rule, policy or standard that establishes an NRC position on drug abuse at nuclear power reactors, either under construction or operating.

,n C) The Commission has considered measures to provide reasonable assurance that a person who is under the influence of drugs, or who is, otherwise unfit for duty, is not allowed to constitute a threat to public'hea'lth and safety at an operating nuclear power reactor.

According1y, on August 5, 1982, the Commission published a proposed rule on fitness for duty, 47 Fed. Reg. 33980, August 5,1982. By -

letter dated July 3,1985, NUMARC infomed the Comission that:

(i) all 55 nuclear utilities have committed to have a basic fitness

'for duty program; (ii) the EEI agreed to review, revise, and reissue their guidelines; (iii) INP0 is strengthening its evaluation of utility implementation through development of new perfonnance objectives and criteria for plant and corporate evaluations; and (iv) each utility will upgrade its program to meet the improved p , + - - - -

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standards and criteria. The EEI published, in early August 1985, a

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revised guideline for developing policies in this matter. At this point, it would appear that this industry-developed standard will be used voluntarily at both operating power reactors and those under Note that the guide is not intended to be mandatory

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construction.

or prescriptive. Although this Guide has not formally been adopted by the Commission, the Staff expects the industry to use the EEI Guide in developing a drug abuse program.

Q.4. What are the key elements considered important in a comprehensive drug program recommended by-the EEI Guide?

A.4. The EEI guide describes .the key elements of a drug fitness for duty O program, and is provided as a reference source and guide for electric utilities to use in the continued development of their programs. The guide is intended to set forth a basic framework upon which the utility would develop a comprehensive program tailored to their needs. The guide is not limited to nuclear facilities. The key program elements described in the guide are:

1. Written policy This is the most fundamental element. It ensures that everyone from the company president to the laborers clearly understand what is expected of them and what a

() consequences may result fram violation of company policy.

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2. Top management support It is essential that the Chief Executive Officer and Senior Management involve themselves in the creation and implementation of the drug program and keep themselves informed as to the program's effectiveness on a continuing

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basis and to see that company policy is fully enforced.

3. Effective policy communication -

This element is to ensure that all persons understand and support the program and its implementation. This takes the fonn, in part, of classroom training, briefings, training programs, video tapes, posters, brochures, company newsletters, etc.

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4 .- Behavioral observation training for supervisors The implementation of this element is necessary to enable- -

supervisors to detect changes in employee behavior and to I

initiate appropriate corrective action.

5. Policy implementation training for supervisors It is necessary to train supervisors as to what procedures O should be applied if an employee appears unfit for duty or appears to have drugs in his possession.

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6. Union briefing l It is important to establish a spirit of cooperation and enlist the interest and support of the union leadership in preventing and detecting use of illegal drugs.

7. Contractor notification 4

This element is designed to ensure that contractors abide by the rules and policies issued by the licensee.

8. Law enforcement liaison. -

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• This element ensures that proper notification and coordination is conducted with local law enforcement authorities.

9. Chemical testing of body fluids --

This element provides an objective means of identifying persons who use drugs and may take the form of pre-employment screening, testing for cause, or random or periodic testing.

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Such a program would help investigate a broad spectrum of problems that include drug abuse. Its purpose is to achieve early intervention and encourage both self-referral and referral and support by family and friends.

Q.5. Is the CP&L program consistent with the EEI Guide?

A.5. Yes. I have reviewed the " Applicants' Motion for Summary Disposition of CCNC Contention WB-3 (Drug Abuse During Construction)" and its supporting documents and have compared the elements of the drug policies in effect at the Shearon Harris site as described in those documents with the elements described in the "EEI Guide to Effective Drug and Alcohol / Fitness for Duty Policy Development." Based upon those documents"and the EEI Guide, I have concluded:

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(a) All key program elements of the EEI policy guide are included in the Shearon Harris program. The Shearon Harris program exceeds the EEI Guide in that it includes the following

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specific practices which are not encompassed within the purview of the EEI Guide:

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i (1) Management goes further than providing guidance and being involved. CP&L has fully documented the delineated management responsibilities in documents such as its .

" Company Drug and Alcohol Statement of. Practice and Drug and Alcohol Interdepartmental Procedure."

(2) Employment screening practices include:

(a) Applicants for employmen't are infonned of company drug abuse policies; (b) Background investigation conducted; and

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• such investigations are conducted to identify past actions that would be predictive of

. future reliability and trustworthiness.

, (c) Professional evaluations including the " Minnesota Multiphasic Personality Inventory" psychological ~

test, may be required.

To evaluate objectively some of the .' jor personality traits which influence individual and interpersonal behavior.

To predict behavior.

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employment.

(3) Announced or unannounced inspections, investigations, and searches are conducted.

To respond to alleged or suspected drug abuse To determine if problems' do exist (4) Undercover investigations and drug detector dogs are used.

To respond to alleged or suspected drug abuse To determine if problems do exist

'(5) Employee-signed record of policy awareness is maintained.

To establish record of awareness to support disciplinary action when needed.

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(6) Contractor (Daniel International Corporation) established own program and placed emphasis on quality assurance staff.

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(7) Recognition cf the role that various security measures have in identifying and discouraging drug abuse by site employees.

To provide a deterrent, security measures include cooperation with law enforcement investigations, undercover investigations, patrols and other activities, observation and

, searches, and searches by narcotic detection dogs. ..

k-- (8) Laboratory urinalysis is described in greater detail:

J (a) Drug classes described.

(b) Qualitative analysis conducted first, and when P

positive, followed by quantitative analysis. --

(9) Procedure established to permit confidential and anonymous reporting of known or suspected drug activity. Procedure also established to provide feedback to person making report.

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To provide means of obtaining confidential

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intelligence information.

(10) Interviews of each employee who leaves employment at the site, and interviews of randomly selected employees.

To provide means of obtaining intelligence information;'

(11) Establishment of central point of contact who is coordinator for all information concerning drug activities. .

To effect coordinated planning in determining and taking appropriate actions, including that which may be necessary with respect to the employee's previous work.

.- i (12) Use of expertise of numerous entities, including consultants.

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To utilize the knowledge and experience of others to assure program is viable.

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Q.6. Mr. Bush what is your conclusion regarding the Shearon Harris Drug program?

A.6. The CP&L drug program as described for the Shearon Harris site exceeds the industry guidance as recommended by EEI. . Based upon my review of the EEI Guide and my past pr:fessional experience, the documents I have reviewed describe and set forth an effective program.

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1. 9-4-SueW 1 BY MR. BARTH: (Continuing)

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_ 2 Q Mr. Bush, at this time I would like to ask you 3 to summarize very briefly -- I' emphasize the word "briefly" --

4 what your~ testimony says, sir.

5 A (Witness Bush) Okay. Your Honor, my testimony 6 points out that the NRC has no rules, regulations or policy 7 guidelines regarding control and prevention of drug use for 8 holders of construction permits.

9 The NRC does have rules concerning other matters 10 that do include drug abuse as part of the criteria. For 11 example, the physical and mental qualifications for guards 12 and licensed nuclear operators.

/~3 - 13 Recently, the EEI published in early August 1985

(_/

14 a revised guideline for developing policies in this matter.

15 The guide is not intended to be mandatory or prescriptive.

16 The guide is intended to set forth a basic framework upon 17 which the utility would develop a comprehensive program 18 tailored to their needs.

19 - Although this guide has not formally been adopted 20 by the Commission, the Staff expects the industry to use the 21 EEI guide in developing a drug abuse program. I used the EEI 22 guide as a base line and reviewed the documents contained 23 in the Applicants' Motion for Summary Disposition to determine 24 what the characterization of the Shearon Harris program would Ac i n. pawn, Inc.

25 be.

8655

1. 9-5-SueW I And I concluded that the Shearon Harris. program 2 exceeds the EEI guide and that the CP&L drug program, as 3 described' for the Shearon Harris site, exceeds the industry 4 guidance as recommended by the guide. And based upon my 5 review of the guide, and my past professional experience, 6 the documents I have reviewed describe and set forth an 7 effective program.

8 Q Mr.' Bush, for the benefit of all of us here, would 9 you please define by spelling out what EEI stands for and 10 the other acronyms which are used in your testimony, if you II would, sir?

I2 A EEI is the Edison Electrical Institute. NRC is 13 Nuclear Regulatory Commission. CP&L is Carolina Power and I4 Light.

15 I believe that's all the acronyms I used.

IO Q Thank you, Mr. Bush. Now, Mr. --

I7 JUDGE KELLEY: Could I just ask a questio'n for 18 clarity -- .

I9 MR. BARTH: Certainly, Your Honor.

20 JUDGE KELLEY: -- at least in my own mind. You 2I were here yeste'rday, were you not?

22 WITNESS BUSH: Yes, I'was.

23 JUDGE KELLEY: And the witnesses for CP&L, some 24 of them, particularly Mr. Bensinger, were testifying about nee- of Reporters. Inc.

25 industry standards, and I believe an EEI guide also which

8656 I

1. 9-6-SueW they said that their guidelines, their policy, was consistent (3

~# 2 with EEI.

3 Are we talking about the same EEI guidelines?

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WITNESS BUSH: Yes, Your Honor.

5 Thank you.

JUDGE KELLEY:

6 BY MR. BARTH: (Continuing) 7 Mr. Tobin, on behalf of the second panel, would Q

8 you please briefly summarize what the Staff's testimony states, 9

sir?

10 A (Witness Tobin) Well,'on behalf of Mr. Long and II myself, we are here this morning to present testimony relative 12 ~

to a drug and alcohol abuse survey that Mr. Long and I per-(3 Lj 13 formed at CP&L's corporate headquarters back in February of I4 1983.

15 We met with CP&L top management, and we were 16 briefed on their policy, their programs and their procedures II to implement that policy.

I0 Secondly, Mr. Long and I have recently conducted a review of current documents which reflect the 1985 policy 20 and program of CP&L.

21 Q And did you reach any conclusion regarding this, 22 sir?

23 A Yes, sii. Based up'on what'we were told in our 24 first initial survey and based upon what we have seen by a u.- .I a. pore.rs, lac.

25 review of the documentation available to us, it is our

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8657

' #9-7-SueW I opinion that CP&L has an effective drug abuse program, one 2 that is receiving management's attention, and that we have 3 seen no indication that the program has not been effective.

4 Q Mr. Bush, referring you to your testimony, do you 5 have any corrections, changes or modifications of substance 6 to that testimony, sir?

7 A (Witness Bush) No, I don't.

8 Q Mr. Prevatte, referring to your testimony, do you 9 have any changes or modifications of substance to that 10 testimony, sir?

II A (Witness Prevatte) No, I do not.

12 Q Mr . Long, I ask you the same question?

(( ) 13 A (Witness Long) No.

14 Q Mr. Tobin, I ask you the same question?

15 A (Witness Tobin) No, sir, I do not.

16 MR. BARTH: May I have a moment, Your-Honor?

17 JUDGE KELLEY: Yes.

18 (Mr. Barth is conferring with Mr. Jones and 19 Mrs. Moore.)

20 MR. BARTH: Your Honor, this concludes our intro-J 21 duction of the witnesses and the testimony, and they are 22 available to the Board for cross-examination at this time.

. 23 Thank you, Your Honor.

24 JUDGE KELLEY: Thank you. Mr. Runkle?

of Reporters, Inc.

25 MR. RUNKLE: Yes, sir.

8658 .

1. 9-8-SueW l CROSS EXAMINATION 2 BY MR. RUNKLE:

INDEXX 3 Q Mr. Bush, one acronym that you did not say what 4 it was, on Page 5 of your testimony, the eighth line up, 5 NUMARC, could you define that acronym for us?

6 A (Witness Bush) NUMAR, that's the Nuclear Manage-

-7 ment and Human Resources Committee.

8 JUDGE KELLEY: I would mention to this panel again, 9 you are free to discuss, but speak right up. Do it on the 10 record if you want to help each other out.

11 BY MR. RUNKLE: (Continuing) 12 Q Could you repeat what NUMAP stands for, sir?

() 13 A Nuclear Management Human Resources Committee.

14 Q And this is a committee of what agency or 15 organization?

16 A That's a group that represents the industry.

17 Q And this would be separate then from EEI?

18 A That's correct, i 19 Q Mr. Bush, on Page 2 of your prefiled testimony k

20 in the first full paragraph, you describe investigations 21 that you were involved in when you were with the military, 22 do you not?

23 A Yes, I do.

24 Q How many investigations were you involved with I hpormn. inc.

25 when you -- how many drug investigations were you involved

8659

1. 9-9-SueW l with when you were in the military?

('

\_)- 2 A (Pause.)

3 Could you rephrase the question, please?

4 Q How many drug investigations were you involved 5 with when you were in the military?

6 A In a supervisory and operational control capacity, 7 in the thousands.

8 Q Were you in -- in any of these investigations, 9 'were you the undercover investigator?

10 A No, I was not.

11 0 What was the average length of time of these drug 12 investigations?

I) 13 A (Pause.)

14 MR. BARTH: Your Honor, we object to the question, 15 because actually it does go beyond the scope of the direct 16 testimony which he has filed here.

17 JUDGE KELLEY: Well, it's in the nature-of voir 18 dire. I think within reason this line is allowable.

19 Go ahead.

20 BY MR. RUNKLE: (Continuing) 21 0 Can you give us -- sir, can you give us a range 22 of these investigations?

23 MR. BAXTER: Just a clarification. Is it

, 24 limited to undercover investigations?

Ac* cl Reporters, Inc.

25 MR. RUNKLE: No, any one of the thousands of

1 8660 1

1. 9-10-SueW1 investigations concerning drugs that he was involved with. 1 13 Some of them ran for many months.

\ /

% 2 WITNESS BUSH:

3 Some ran for much briefer periods, several days, a week, 4 l that sort of thing.

5 BY MR. RUNKLE: (Continuing) 6 Q And would some of these investigations be in the 7 time frame of eight weeks?

8 A Some of them, yes .

9 0 In your opinion, based on your experience in 10 various drug investigations, do the longer investigations Il detect a greater amount of drug use?

12 MR. BARTH: Objection, Your Honor. This goes

() 13 beyond the scope of the testimony.

14 As Mr. Bush summarized his testimony, he compared 15 the Edison Electric guide to the program which exists at 16 the present time at Carolina Power and Light and came to 17 certain conclusions.

18 This is beyond the scope of his testimony and 19 is irrelevant and should not be permitted or asked. He is 20 not here to testify on the expertise of the local people 21 to conduct an investigation at the Shearon Harris site, 22 Your Honor.

23 JUDGE KELLEY: Mr. Runkle.

24 MR. RUNKLE: I tnink based on his expertise, he Ace- 1 Repo,te,s, Inc.

25 can -- he certainly can give some generalities about the

8661

1. 9-11-SueWI effectiveness of drug investigations.

r*%

(_) 2 MR. BARTH: That is not an issue. And Mr.

3 Runkle has well made my point, it is beyond the scoes of 4 the direct, Your Honor.

5 JUDGE KELLEY: Well, this direct essentially 6 goes to the program at Shearon Harris, right? It does 7 not -- he is not speaking, as I understand i', c to the 8 undercover investigation here, the eight week investigation, 9 we just spent a day on, right?

10 He's not really speaking to that.

11 MR. BARTH: That's correct, Your Honor.

12 JUDGE KELLEY: That's my understanding. I can

() 13 see you are probing his expertise and in general I think 14 that's okay.

15 There comes a point where the particularity of 16 the probing doesn't fit very well with what the man is 17 proffered for.

18 I will sustain this objection.

19 BY MR. RUNKLE: (Continuing) 20 0 Sir, in your evaluation of the CP&L's drug 21 program, did you review their use of undercover investiga-22 tions?

23 MR. BARTH: Your Honor, we object. That is j 24 beyond the scope of the direct.

w.l__l_.: n.por,.n, inc.

He made a paper comparison 25 of the -- and his testimony makes this clear -- documen'ts

8662

1. 9-12-Sueid which evidence the program which is in existence compared 2 with the Edison Electric guide. He did not go and take a 3 look at what actually went on in the plant to find out 4 whether they had a good investigation, a bad program or not.

5 He compared the program as it is organized on 6 paper. And the question is irrelevant and beyond the scope 7 of his direct.

8 JUDGE KELLEY: Well, he made a paper review, 9 correct? We can agree on that.

10 Might it not be proper, as I understand the

'l question in part to be, did you find anything in those I2 papers about undercover investigations.

13 Is that --

14 MR. BARTH: I have no objection to that kind of --

15 JUDGE KELLEY: -- fair?

10 MR. BARTH: -- question, Your Honor.

I7 JUDGE KELLEY: That's in part what you are asking, 18 I take it, Mr. Runkle.

I9 MR. RUNKLE: Yes. And it's clear from his testi-20 mony on Page 11 that one of the things he reviewed was 21 undercover investigations at the Harris facility.

22 JUDGE KELLEY: Wait a minute.

23 MR. BARTH: Your Honor, that is Answer 4 on 24 Page 11.

Ac I Reporten, Inc.

25 JUDGE KELLEY: Right.

8663

1. 9-13-SueW I MR. BARTH: And my understanding, having worked n .

2 with this testimony, is that that is a misrepresentation by 3 counsel as to what is testified to.

4 He has testified as to what the program is, not 5 to any individual investigation or dog on that site. He has 6 not been on the sito and seen a dog. I will stipulate that, 7 Your Honor.

8 Nor has he gone on the site and looked at an 9 investigation.

10 JUDGE KELLEY: All right.

II MR. BARTH: He looked at the program.

I2 JUDGE KELLEY: Fine. Could I have a restatement

()

,m 13 then of your question, Mr. Runkle?

I4 BY MR. RUNKLE: (Continuing) 15 Q Sir, could I draw your attention to Page 11 of 16 your prefiled testimony under Section 4.

17 MR. BARTH: IVe already done that, Your Honor.

18 JUDGE KELLEY: All right. We are there.

19 BY MR. RUNKLE: (Continuing) 20 0 Sir, in your review of the program at the Shearon 21 Harris plant, did you review any undercover investigations 22 that had occurred at the plant?

23 A (Witness Bush) No, I did not.

24 Aal Reporters, Inc. Q Did you review -- in your review of the drug Ace-25 program at Shearon Harris, did you review the use of drug

8664 l

1. 9-14-SueW l detector dogs?

p V 2 MR. BARTH: Could we ask for a definition of 3 what pu mean " review?" Did he see a dog? Did he see the 4 dog's result? Did he see arrest from the dog? Did he look 5 at a program to bring the dog in? Did he look up handlers 6 handling it?

7 JUDGE KELLEY: Can we shorten this a little 8 bit, and I think we ought to be able to? I gather that 9 the review you conducted was strictly a paper review?

10 WITNESS BUSH: That is correct', Your Honor.

II JUDGE KELLEY: Were you even at the site?

I2 WITNESS BUSH: No, never.

O 13 JUDGE KELLEY: Did you do the review in Atlanta C/

I4 or Washington?

15 WITNESS BUSH: At my office in Washington, D. C.

16 JUDGE KELLEY: And did you, in that regard, have I7 any personal conversations with CP&L or the Daniel people 18 in the sense of calling them up and saying: What do you 19 really do out there?

20 Or, did you just do the paper?

21 I had no such contact, Your Honor.

WITNESS BUSH:

22 JUDGE KELLEY: That narrows the focus I think 23 On that understanding, Mr. Runkle, would you - '

a little bit.

24 proceed?

Ac of hp.,,m, Inc.

25 BY MR. RUNKLE: (Continuing)

8665

1. 9-15-SuewI Q Sir, you have presented on Pages 6 through 9 of 2 your testimony ten elements of the Applicants' drug program 3 that line up with the EEI guide, do you not?

4 A (Witness Bush) What I am setting forth there 5 is the key elements that are contained in the EEI guide.

6 Q And is your testimony to say that based on your 7 review -- based on your paper review -- of the Applicants' 8 drug program they meet all these ten elements?

9 A That is correct. '

. state that later on.

10 MR. BARTH: Objection, Your Honor. He mis-Il characterizes the testimony.

12 The testimony is that they meet or exceed. And

~

13 I object to counsel putting words in a witness' mouth who 14 is not careful enough to consider his answer.

15 JUDGE KELLEY: Well, it is cross-examination. A 16 certain amount of -- I won't say hostility, but less than 17 collaboration can be assumed between the cross-examiner and 18 a witness.

19 MR. RUNKLE: Excuse me --

20 JUDGE KELLEY: I will overrule it. Do you have 21 a pending question here?

22 MR. RUNKLE: The witness answered and responded 23 to the question. Then, counsel responded in a dif ferent way.

24 Now, if counsel wants to testify to what the --

Ace- 9eral Reporters, Inc.

25 JUDGE KELLEY: Gentlemen, let's just see if we

8666

1. 9-16-SueW l can move this on without a lot of by-play. Why don't you 10 k/ 2 move to your next question, Mr. Runkle?

3 BY MR. RUNKLE: (Continuing) 4 Q Sir, in your review of the Applicants ' drug 5 program, did you review their written policy of their drug 6 program?

7 A (Witness Bush) Yes, I did.

8 Q And also the other ten elements on Pages 6 through 9 9 of your testimony?

10 A Those are the elements that are contained in II the EEI guide.

I2 Q Yes. And in reviewing the Applicants' drug rx

() 13 program, you reviewed whether that drug program had each I4 of these ten elements?

15 A That is correct.

16 Q Now, did the Applicants' drug program meet these I7 ten elements?

18 A That is correct.

19 Q And that is based on your -- what counsel has 20 characterized as a paper review?

2I A That is correct.

22 Q Okay. Now that assumes, does it not, that what 23 is on paper is being ef fectively implemented in the field?

24 A (Pause.)

n.portm, tae.

25 My statement concerns the content of the documents

l 8667

1. 9-17-SueW I that were presented for me to review.

f ) 2 Q But your basic assumption in saying that the 3

Applicants' drug program meets these ten elements is that 4

the Applicants' program will be effectively implemented in the field?

END #9 Joo flws 7 8

9 10 11 12 r"'

13 14 15 16 17 18 19 20 21 22 23 24 Ace- ol Reporters, Inc.

25

10-1-Jo:W31 8668, l

1 WITNESS BUSH: That is correct, Your Honor.

- i

)

2 MR. RUNKLE: The question, sir, is doe this 3 paper review assume that the program will be effectively 4 implemented in the field.  !

5 JUDGE KELLEY: I don't see how dhat advances 6 the football, Mr. Runkle.

7 The man just said he doesn't know.

8 MR. RUNKLE: I don't know if he has been able to ,

9 respond to that. j 10 JUDGE KELLEY: He has responded about five times, 11 I think. Do you want to try it again? ,

12 Are you testifying about how things are in the

j

. 13 field or not?

I i

14 WITNESS BUSH: No, sir; I am not.

15 JUDGE KELLEY: Thank you. This is a paper review, 16 Mr. Runkle, and that is all it is. So let's ask questions 4

17 based on that.

18 BY MR. RUNKLE: (Continuing) 19 Q On page 9 of your prefiled testimony, on your '

20 Answer No. 5, you describe various documents that you reviewed l 21 in making your paper review, do you not? l 22 A (Witness Bush) That is correct.

23 Q Did you also review testimony or affidavits i

, 24 supplied by the Attorney General's Office in this matter?

Wederst Reporters, Inc.

25 A That is correct.

8669 10-2-Jo Wal ,

I i

i 1 Q Did you also review any affidavits supplied by i 8 2 the Conservation Council in this matter?

3 MR. BARTH: Could we have the affidavit or j 4 affidavits identified, Your Honor. It would be more precise 5 for the sake of the record. l 6 JUDGE KELLEY: We are talking about a single 7 affidavit in the first instance from Ms. Burch, correct?

8 MR. RUNKLE: Yes, sir.

i 9 JUDGE KELLEY: And you are moving on to testimony 10 --

11 MR. RUNKLE: Yeah, both the affidavit and the 12 testimony.

, l 13 JUDGE KELLEY: The teltimony was due not all on ,

14 I the same date, so he couldn't have relied on the testimony.

15 Can't we stipulate to that?

16 MR. RUNKLE: That would be fine.

I 17 MR. BARTH: And Ms. Burch's affidavit was not 18 submitted by CCNC, Your Honor, which is the question.

19 JUDGE KELLEY: Well, I think the question was 20 whether he relied on submissions by the Attorney General.

21 MR. HARTH: And he answered that.

22 JUDGE KELLEY: He did answer that.

23 MR. BARTH: And then he asked about CCNC, and j i

( j 24 the term plural, affidavits. And I am trying to identify

w. des c.oortm, anc.

25 what affidavit is he referring to?

I l

10-3-Jo Wal 8670 l l

l

-~ .

1 JUDGE KELLEY: Anything besides the Burch affidavit, KJ 2 really. l 3 MR. RUNKLE: Well, CCNC provided an affidavit by l 4 Ms. Miriello.

5 JUDGE KELLEY: You did, that is correct.

6 MR. RUNKLE: And my question was, did he review ,

7 all the affidavits that were filed, or just those by the i I

8 Applicants? l l

9 MR. BARTH: He has testified as to the Attorney  !

i 10 General. We have n'ow before us, did he review the affidavit II of Ms. Miriello, I believe that is the question, is that l 12 right, Mr. Runkle?  !

t's o

(,_) 13 JUDGE KELLEY: It seems to come down to that.  !

I r

14 WITNESS BUSH: No, Your Honor, I did not.  !

15 JUDGE KELLEY: Okay.

16 BY MR. RUNKLE: (Continuing) i i

17 Sir, on page 6 of your testi-ony, you refer to Q  !

18 an EEI revised guideline that was published in August 1985? l 19 A (Witness Bush) That is correct.  !

I i

20 Q And that 1985 revised guideline was the one that 21 you used in making your review?

22 A That is correct.

23 Q Thank you, Mr. Bush. I will go on to the rest

() 24 heneess,es noso,te,i,Inc.

of the panel now.

25 MR. BARTH: If I may ask the question, if he is done

10-4-Jo2Wal 8671 1 with Mr. Bush, could we get him excused so he can make his ,

(y r-

/

2 P l ane, although he has plenty of time now.

l 3 JUDGE KELLEY: Well, I gather -- you have already 4 missed the early one, is that what it comes down to.

5 MR. BARTH: Basically, it is a question to Mr.

6 Runkle. If Mr. Runkle has more questions of him, I would 7 appreciate the questions being asked now, i

8 I probably phrased this very poorly. l 9 JUDGE KELLEY: Well, why don't we go through the l 1

10 normal sequence. I would guess if time becomes a problem j 11 for any of you, please let us know, okay? For now, I think l 12 I would rather just go the usual way.

() 13 MR. BARTH: Thank you, Your Honor.  !

14 MR. RUNKLE: We would have no problem finishing 15 up totally on Mr. Bush and then going to the rest of the i 16 panel if anybody desires that. I i

17 JUDGE KELLEY: Does the counsel want to do that, ,

a 18 or what do you prefer? The Board has no preference. l 19 We have no preference.  :

20 Do you want to go ahead and ask questions of Mr.

21 Bush.

22 (Pause.)

23 Nobody either wants to or doesn't want to.

9 m nepormes. Inc.

24 MR. COLE: It is just a paper trail anyway.

25 JUDGE KELLEY: Excuse me, Mr. Cole?

n

8672 !

i

, I kO-5-JoeWal l I don't think he has answered anything l

MR. COLE:

f 1

has testified more than other than to say -- well, Mr. Barth O 2 discovery, I guess. I he has -- the fact that he made a paper  !

3f Okay. Why don't we go ahead and  !

JUDGE KELLEY:  !

4 If Mr. Bush wants to stay a while l finish up with Mr. Bush.  ;

5 d to leave, then you could.

6 that would be fine, but if you nee I have no questions for Mr. Bush.

MR. BAXTER:

7 Mr. Cole?

JUDGE KELLEY:

8 CROSS-EXAMINATION 9l 10 BY MR. COLE: has Mr. Bush, was it your testimony that CP&L 11 Q 12 an effective drug program?

13 Or did I misunderstand that? l My testimony concluded that the .

A (Witness Bush) 14 n Harris site CP&L drug program as described for the Shearo 15 ded by EEI, and exceeds the industry guidance as recommen 16 d my past professional:

/

based upon my review of the EEI guide an 17 ibe and set i 18 experience, the documents I have reviewed descr 19 forth an effective program. Mr. Bush, is that 0

Is another way to say that, l 1

20 is effectively 21 CP&L has an effective drug program if it 22 carried out? I A Yes.

23, f*

Thank you.

MR. COLE:

h 24 Federal Reporters, Inc.

JUDGE KELLEY:

Mr. Eddleman?

25 L_-__-_ _

8672 i10-5-JosWal' 1 MR. COLE: I don't think he has answered anything

[~)

other than to say -- well, Mr. Barth has testified more than I 2

3 he has -- the fact that he made a paper discovery, I guess.

4 JUDGE KELLEY: Okay. Why don't we go ahead and i 5 finish up with Mr. Bush. If Mr. Bush wants to stay a while 6 that would be fine, but if you need to leave, then you could.

7 MR. BAXTER: I have no questions for Mr. Bush, i

8 JUDGE KELLEY: Mr. Cole?

9 CROSS-EXAMINATION 10 BY MR. COLE: i 11 Q Mr. Bush, was it your testimony that CP&L has j i

12 an effective drug program?

n Or did I misunderstand that? l

' (_/ 13

\

14 A (Witness Bush) My testimony concluded that the  !

15 CP&L drug program as described for the Shearon Harris site i

16 exceeds the industry guidance as recommended by EEI, and  !

i 17 based upon my review of the EEI guide and my past professional 6

18 experience, the documents I have reviewed describe and set 19 forth an effective program. i 20 Q Is another way to say that, Mr. Bush, is that 21 CP&L has an effective drug program if it is effectively 22 carried out?

23 A Yec.

()

m reporten, Inc.

24 MR. COLE: Thank you.

25 JUDGE KELLEY: Mr. Eddleman?

10-6-Jo;Wal 8673 i i

1 CROSS EXAMINATION  ;

s KJ 2 BY MR. EDDLEMAN:  :

3 Q Mr. Bush, on pages 2 and 3 of your revised i l

4 prefiled testimony, you mention that you were responsible  ;

i 5 for consolidating all NRC comments and initially developing l

6 Office of Inspection and Enforcement position on the  !

7 electric utility industry standard on drug abuse issued 8 by the Edison Electrical Institute. l, 9 Can you tell me what that initial position was?

10 A I am not sure I understand the question. -  ;

11 Q Do you have your testimony at pages 2 and 3 12 of the revised in front of you, sir?

) 13 A (Witness Bush) Yes.

l 14 Q Let me call your attention to the sentence beginning i

15 on the bottom line of page 2, beginnhicp I also was responsible.

16 And continuing over to page 3'.

17 Please read that over at your leisure, sir. I l 18 want to ask you a question about it when you are done. I 19 A I understand the words in my testimony. I did 20 not understand the question.

21 Q Well, it refers -- your statement there on page 3, 22 refers to the -- initially developing the Office of Inspection 23 and Enforcement, and I presume that is the NRC Office of lll 24 M federal Reporters, Inc.

Inspection and Enforcement, is that right?

25 A That is correct.

10-7-Jo;Wat 8674 ,

I i

1 Q -- position on the electrical utility industry  ;

i 4

2 standard on drug abuse issued by the Edison Electrical ,

3 Institute.

4 And what I am asking you is : What was that  ;

i 5 initial position of the Office of Inspection and Enforcement? ;

6 MR. BARTH: Objection, Your Honor. The statement ,

7 is in here. His qualifications is to show a background, 8 and that is where he has some expertise.

i 9 The substantive content of whatever the NRC's .

I 10 comments were, are not here relevant. They are not in the 11 direct testinony, and they are not relevant to the contention 12 as proffered. ,

~L s  ;

i

\~/ 13 MR. BAXTER: I have a different objection, Mr.

14 Chairman. He mischaracterized the testimony. It doesn't  !

15 say there' has been more than one position.

16 It says he was responsible for initially developing' 17 the position. And the questioner has gone on to ask what 18 was the initial position.

19 MR. EDDLEMAN: Well, I can say what was the position.

l 20 But if Mr. Barth thinks that it is irrelevant what position ,

21 I&E took on it, then I think he should have not submitted j i

22 this testimony, because this is a comparison of that EEI j t

23 position to CP&L's program, the NRC having no program of its

) 24 own.

Wederal Reporters, Inc.

25 MR. BARTH: That mischaracterizes the testimony, l

10-8-JoeWal 8675 1 Your Honor.

O 2 JUDGE KELLEY: I thought it was in here to show i

3 that the witness was experienced in these matters, and 4 therefore, had a basis for an expert opinion.

5 MR. BARTH: You are correct, Your Honor.

a 6 JUDGE KELLEY: Whatever the position would have j y been.

8 MR. EDDLEMAN: Well, if the position had been j

9 different, then I would think that that says something l 10 about what the NRC Staff had done in reviewing this program. l 11 JUDGE KELLEY: Overruled. That is not the way  ;

12 this is stated.

b v 13 The Board reads it as a description of his ,

14 expertise. Go ahead.

15 MR. EDDLEMAN: Well, if you overrule the objection,i i

I 16 then --

l 17 JUDGE KELLEY: I thought you had another question. !

18 MR. EDDLEMAN: I thought you just overruled the  ;

4 19 objection, so I am waiting for his answer. l l

20 JUDGE KELLEY: I am sorry. I meant to say 21 sustained.

22 MR. EDDLEMAN: Well, I am not going to ask you 23 any questions about your intial position.

24 JUDGE KELLEY: Good.

ham Federal Reporters, Inc.

25 BY MR. EDDLEMAN: (Continuing)

10-9-Jo;Wal 8676  ;

l

,, 1 Q Mr. Bush, in light of the kinds of objections l

\_j) ~

2 that are being raised here, I don't think I want to ask 3 any more questions. Thank you very much.  ;

l 4 JUDGE KELLEY: We don't want to foreclose you  !

5 from any substantive concerns you may have. l 1

6 MR. EDDLEMEN: Well, the only other thing I would '

7 have asked him about would be whether the Army had an i

8 effective drug policy when he was working with them, but 9 they would probably raise the same objection, and get it 10 sustained the same way.

11 JUDGE KELLEY: They probably would, yeah.

12 Okay. So we have been around the horn once. Redirect from

'~' 13 Mr. --

l 14 MR. EDDLEMAN: May I clarify what I said. Effective 15 drug program on paper. I think it still applies.

16 JUDGE KELLEY: Mr. Barth, any redirect?

17 MR. BARTH: We have no redirect, Your Honor.

18 JUDGE KELLEY: Okay. Anything else from 19 anybody else?

20 (No response.)  ;

21 Okay. So, that concludes hopefully,the questioning 22 to Mr. Bush, and if you can stay with us, fine. We would be l

23 happy to have you. But I guess we will go back to Mr. Runkle ;

- i

(,) 24 and start questioning on the remainder of the panel.

Wederal Reporters, Inc.

25 BY MR. RUNKLE: (Continuing) i

8677 10-10-JosWal l l

l 1 Q Gentlemen, on page 4 of your prefiled testimony, l

/~'s I

~

2 Question 7 discussed routine I&E inspections, does it not? )

3 A (Witness Tobin) Yes. l 4 Q Mr. Prevatte, have you ever reviewed the 5 Applicants' drug program?

I 6 A I have read the program. I have not done an i 7 extensive review of the program. l I

8 Q Have you audited, or otherwise investigated any 9 parts of the Applicants' drug program? l 10 A No, I have not as far as investigations and I 11 doing inspections, I have not.

i 12 Q And, have you been able to determine how the j

/" i

(_]/ 13 Applicants' drug program is implemented ~at the Harris site? '

14 A I have made observations of the implementation l i

15 of the program at the site. l 16 Q And have these observations been at all systematic?i 17 A Could you explain what you mean=by, ' systematic?'

18 A Have you -- do you have a procedure for observing 19 how the drug program is implemented? ,

20 A No, I do not. i l

21 Q Do you collect your observations on the drug 22 program in any organized fashion through reports, or do you 23 collect.your observations at all?

() 24 M Reno,te,s, inc.

A The majority of my observations are firsthand 25 observations of what I see in the field as far as the use of l

y y,-e..4 v ,mp .y- --- -y - p--

-r p -

v +--=r

10-ll-JonWal 8678

-- 1 narcotic inspection dogs, doing searches at the gate, i

2 and things of this nature.

3 The majority of information I have on this f I

4 program has been voluntarily supplied to me by CP&L. l 5 They have kept me informed of instances on the j 6 site where people have -- undercover operations have occurred !

i 7 and people have been turned in through the quality check 8 program. They do not give names. They simply say that a 9 person was turned in through the program. They have been 10 screened, and they have found positive or negative, and 11 I report this to my regional office. ,

12 It is not contained in an inspection report. l

~

13 Q So you have been onsite since March of 1983?  !

lid A That is correct.

1 15 Q When did the Applicants' start informing you on .

16 a voluntary basis about drug-related incidents? ,

i 17 A They have informed me since I have been on the j 18 site, and recently in the last year and a half, my contact 19 and information has been supplied by Bill Hyman.

20 Prior to that, it was my Mr. Roland Parson, the ,

21 project general manager for construction.

22 Q Do the Applicants' inform you of all drug-related 23 incidents?

g".

(_

24 A I have no way of ensuring this. I have to take wer omi amomn. is I i

25 in good faith what we have. I have no way of ensuring that I

10-12-Jo Wal 8679

_s 1 that is every incident that has occurred, or whether it is  ;

_] l 2 not. r t

3 Q Sir, on page 8 of your prefiled testimony, under 4 Answer 10, would be the second section, is the purpose of 5 undercover operations at the Harris site to eliminate drug , i I

6 abuse on site?  !

7 A I am not responsible for undercover operations. ,

i i 1 8 These are undertaken not at our insistance or anything 9 else. It is their own initiative, and they are strictly  :

i f

10 informing me when they are done, and as a matter of fact, I am!

Il not informed until the undercover operation is completed, j i

i 12 like on the day when the busts are done and so forth like  !

.(m <

- 13 this. I am informed after the fact, not in advance.  !

I4 Q But are the purpose of these investigations to i

15 eliminate drug abuse onsite? l 16 A I feel it is.

17 Q Now, you are on the site almost daily, are you 18 not?

l 19 A That is correct.

20 Q And you have been able to observe -- you have 21 free access over.the whole plant, do you not?

22 A That is correct.

23 And you can observe workers at any time of day, Q

24 or on any shift or any location, can you not?

W Reporters, Inc.

I 25 '

A Yes.

10-13-JonWal 8680 ,

, 1 Q Based on your observations, is there any drug l 1

LJ '

2 abuse onsite at this time? ,

t 3 A I cannot answer that. I am not -- I feel that 4 if the licensee is aware of it, they would attack any 5 incident that occurs.

6 I have not observed drug use from my firsthand 7 observations on the site. i i

8 Q And at the end of that answer, you mention  ;

9 narcotic detection dogs, do you not? >

1 10 A Yes. i l 11 Q In your observation, how many times a month  ; I I

~

12 are drug dogs brought onto the site? j c1 13 MR. BARTH: Objection, Your Honor. The answer i

j 14 is stated in his testimony, and all we are doing is reading 15 back and forth.

16 He states several times a month. Now, if we ,

17 want, as we have before, these people to read it back and 18 forth, fine. But I object to it as being repetitious.

19 The written testimony states the answer, and it i 20 is clear. 1 i

21 ' JUDGE KELLEY: Are you trying to nail down what 22 several means, Mr. Runkle?

23 MR. RUNKLE: Yes, sir.

\_/ 24 WITNESS PREVETTE: I do not keep a log of each wFederal Reporters, Inc.

25 time they come on the site. That is made to imply that it is i

10-14-JonWal 8681 l 1 more than once in my opinion. I am informed each time the I 2 dog has been brought on the site, and I have been informed 1 I~

3 of the result of the dogs inspection by Mr. Hindman.

4 Q' And when did the -- when did you first observe 5 drug dogs coming onto the site?

6 A I was informed when they started using the dogs  ;

i 7 on the site, which was back in the first part of this year. l i

8 I don't recall the specific date.

i End 10 9 i

MS fols. l 10 t 11 12 s  !

-) 13 i

i 14 i

15 i

16 t

i 17 18 i

19 20 .

21 22 23 24

~ .,_

25

8682 Sim 11-1 1 Q Have you ever observed the drug dogs on site?

() 2 A (Witness Prevatte) Yes, I have.

3 0 Have you ever observed the drug dogs when they 4 first arrived at the site?

5 A No.

6 0 When you do observe the drug dogs on site, that 7 would just be through your normal operation in walking 8 around and checking on things; is that correct?

9 A That is correct.

10 Q And you would do that visually? You would see 11 a drug dog?

12 A That is correct.

(~) 13 0 Sir, in preparing your testimony and in your

\_/

14 normal course of your duties at the Harris site, have pod 15 read the other affidavits or testimony of any of the other 16 witnesses?

17 MR. BARTH: Your Honor, we would object because 18 of the record. This is so general. If counsel could 19 specify what he is talking about and identify it, we will 20 have a bit clearer record.

21 JUDGE KELLEY: Could you restate it at least, 22 Mr. Runkle?

23 BY MR. RUNKLE:

24 Q Sir, in preparing your testimony or in your normal al Reporters, Inc.

25 course of business, have you had the opportunity to review

8683 Sim 11-2 j the testimony and affidavits supplied in this proceeeding by the applicants?

) 2 3 WITNESS PREVATTE: Am I supposed to answer it?

4 JUDGE KELLEY: Yes, go ahead.

5 WITNESS PREVATTE: I have read some of the 6 testimony. I am not sure that I have read it all because 7 some of it is forwarded from the Regional Office to me and 8

I have no assurance that I have read everything.

9 BY MR. RUNKLE:

10 Q Have you had the opportunity to read the testimony 11 supplied by the Attorney General's Office or any of their 12 prior affidavits?

13 A I have seen some of them. I have not reviewed 14 it in detail.

15 Q And in the same line, have you reviewed any of the 16 testimony or affidavits supplied by the Conservation 17 Council?

18 A You would have to ask me for a specific item I 19 think. I have seen some of them. I have stacks of them that 20 I have looked through, but I cannot identify specific ones.

21 Q It would be an affidavit supplied by Patty 22 Miriello and testimony by Patty Miriello.

23 A I have not seen the one filed by Patty Miriello, 24 or whatever the name is.

Ace- of Reporters, Inc.

25 Q Did you investigate any of the allegations raised

l 8684 Sim 11-3 . .

Ms. Miriello?

j .

A No, I did not.

) 2 3 Q Did any of the other inspectors at the Harris site 4 investigate any of the allegations raised by Ms. Miriello?

5 MR. BARTH: Objection, Your Honor, just again f r the purposes of the record. Is he referring to the 6

7 allegations raised in the testimony filed by the Conservation 8

Council of North Carolina?

9 JUDGE KELLEY: Okay, is that the reference?

10 MR. RUNKLE: Yes, sir.

11 JUDGE KELLEY: Okay.

12 WITNESS PREVIATTE: I cannot speak for the other 13 inspectors or Region II personnel I have not reviewed ja any of this or investigated it myself.

15 BY MR. RUNKLE:

16 Q In answering that last question -- or I guess it 17 was two questions before, you did not do any investigations 18 based on Ms. Miriello's affidavit or testimony that the 19 Conservation Council filed in this case?

20 MR. BARTH: Is he referring to the affidavits 21 referring to the drug use, Your Honor?

22 JUDGE KELLEY: I am assuming so.

23 MR. RUNKLE: Yes.

24 W1TNESS PREVATTE: I have not done any investiga-Ace-Aof Reporten, Inc.

25 tions associated with any of the testimony.

8685 bi" 11~4 1 BY MR. RUNKLE:

,o

(_) 2 O Or the affidavit?

3 A (Witness Prevatte) No.

4 Q Sir, in your position at the Harris site as 5 Senior Resident Inspector for Construction, do you investigate 6 or audit other programs of the applicants besides their 7 drug program?

8 MR. BARTH: Your Honor, we object because it is 9 really irrelevant. The contention concerns the drug program.

10 That is the whole purpose of us being here. We are not 11 talking about welding inspection or electrical inspection. We 12 are talking about the drug program.

13 JUDGE KELLEY: All right, Mr. Runkle , where are -

( ')

14 you headed on this?

15 MR. RUNKLE: Sir, one of the applicants' witnesses 16 testified about the safety significance of the central core 17 cooling system, and I can either ask this witness now or 18 call'him back on rebuttal.

19 MR. BAXTER: Oh, that is absolutely inaccurate, 20 Mr. Chairman. No applicant witnesses have testified that the 21 primary cooling system isn't safety related. What the testi-22 many does talk about is whether the examinations done by 23 ConAm were used to verify the adequacy of the construction 24 of the plant, and what the purposes of those inspections l Reporters, Inc.

25 where. The testimony does not at all address whether or not

8686 im.11-5 the steam generators are indeed important to plant operation.

(3 JUDGE KELLEY: Okay.

v 2 MR. RUNKLE: I was trying to use a shorthand to 3

cut around, but exactly what Mr. Baxter said. That is what 4

I am trying to investigate.

MR. BARTH: But that is not in the testimony of this witness. It is irrelevant to your contention.

7 JUDGE KELLEY: This witness I don't think addressed the point. So how do you get there?

9 4

g MR. RUNKLE: I can call him back in rebuttal later g

on, but we have the witness on the stand and I will takesthe PPortunity now.

! 12

• JUDGE KELLEY: Could you just restate this question r

g- once more to make sure I understand it?

BY E RWKM:

15 g Q The question was does he investigate other things besides the drug program?

JUDGE KELLEY: The answer to that has to be yes, 18 g MR. RUNKLE: Right.

JUDGE KELLEY: So then you can go on to the next question.

g BY MR. RUNKLE:

I 22 Q In y ur p sition would you investigate such things 23 as, and let's be specific here, the adequacy of the construc-

!At al Reporters, Inc.

l tion of the steam generator tubing?

25 i

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-M r ,--.7-m --

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8687 sim 11-6 i MR. BARTH: Objection, Your Honor. The conten-() 2 tion is.beyond the purview of the direct testimony, and the 3 direct testimony is related to his observation of the 4 implementation of the drug program at the site. So far we 5 have over dogs.

JUDGE KELLEY: And that I think we can agree that 6

7 there is no testimony here on the subject. Mr. Runkle is 8 saying that he would want to bring a nev witness in later, 9 and I am not sure, your not having indicated any such 10 intention on the due date for witnesses names, that you 11 could even do that. But you are going to have peoplu in 12 here from the applicant at least later on.on the whole 13 CenAm incident.

4 f]

14 MR. RUNKLE: As a rebuttal witness though, we did 15 not have any of the applicant's testimony before us when we 16 submitted our own list of witnesses.

MR. BARTH: Your Honor, on behalf of the staff I 17 18 will stipulate that Mr. Prevatte will not rebut Mr. Pre 7atte ' s 19 testimony, and that should solve the problem.

20 JUDGE KELLEY: Can I try to short-cut this, and.

21 let me just ask the witness in a general way at least,' are 22 you'lamilia7 ?.with'Ms. Miriello's allegations _ add the;ConAm 1 23 involvementcin:.this. drug hearing?

24 WITNESS PREVATTE: No, I am not.

Rmmun.In n 25 JUDGE KELLEY: And may I then infer that you have i

k

8688 Sim 11-7 i not conducted any investigation into those matters that you

() 2 are not familiar with?

WITNESS PREVATTE: I have not.

3 4 JUDGE KELLEY: He just hasn't looked at it.

5 Doesn't that cover it?

MR. RUNKLE: No, it doesn't.

6 7 JUDGE KELLEY: Why doesn't it cover it?

MR. RUNKLE: Because the testimony by one of 8

9 applicant's witnesses will be about the eddy current examina-10 tions required to assure the safe construction of the Harris 11 P lant.

MR. BAXTER: No, they will not. It will be the

, 12

(~l 13 fact that these eddy current examinations conducted by ConAm

, G are not necessary to verify the safe construction of the 14 l

15 P lant. Exactly the opposite, Mr. Runkle.

MR. RUNKLE: That is exactly my point. Does he 16 17 agree with that statement or not?

MR. BARTH: Your Honor, I don't understand this.

18 JUDGE KELLEY: I think we are going to be more 19 20 efficient if we simply say that if when the time coes when 21 we are talking about the ConAm matters the matter seems critical and we can consider calling this witness or even 22 1

23 calling him back if we have to, but it is by no means clear that it is essential now. So I am going to sustain the 24 hSal Reporters, Inc.

25 objection as outside the scope.

8689 Sim 11-8 1 BY MR. RUNKLE:

J

/ 2 If I can direct some questions to Mr. Long and Q

3 Mr. Tobin.

4 On the Attachment No. 5, which is an April 1st, 1983 5 letter, are you familiar with that letter?

6 A (Witness Tobin) Yes, sir.

7 Who wrote this letter?

Q 8 A I did.

9 And then who reviewed this letter?

0 10 Mr. Long reviewed it, Deputy Administrator, Mr.

A II Oshinsky reviewed it, and I believe the Regional Administrator, I2 Mr. O'Reilly -- excuse me, Bob Norton, Deputy Regional 13

(; Administrator would have reviewed it and that is who would I4 have signed it.

15 And it is signed by James P. O'Reilly, is it not?

Q 16 The original is signed by Mr. Martin who is his A

I7 Deputy.

18 So Attachment 5 is not the original letter?

0 MR. BARTH: Just for purposes of clarity, since we 20 are referring to a document, I would ask that the witness 21 take the document and look at it so he can respond better to 22 counsel's questrions.

MR. WITNESS TOBIN: The original of this, and your 24 Ace Sof Reporters, Inc.have a Xerox copy obviously ---

25 MR. RUNKLE: Yes.

8690 Sim 11-9 j WITNESS TOBIN: The original bears the signature 2 of Mr. Robert Martin. He is the Deputy Regional Administrator, 3 or he was at that time.

4 BY MR. RUNKLE:

5 Q Now if you will look at the copy that we have before 6 us, it purports to be from James P. O'Reilly, Regional 7 Administrator and has his name at the end of the document; g is that not correct?

9 A (Witness Tobin) That is a true statement.

10 0 So my question was, this is not the original letter, 11 or this is not a copy of the original letter?

j2 MR. BARTH: Your Honor, I think that has been 13 explained by the witness. It has been asked and answered, (O'

14 and obviously from the form of the letter, this is not the 15 letter that went out because of the occurrence on the bottom 16 of page 2.

17 The witness has explained that in the absence of 18 Mr. O'Reilly it was signed by Mr. Martin. All we are doing 19 is just beating a fact to death that we have already covered.

20 It is repetitious and I object, Your Honor.

21 JUDGE KELLEY: Well, you mean at the bottom where 22 it saysc signed ~ by-and: the Martin name is circled? Is that 23 the reference? Is that what you mean when you say Martin 24 signed it?

Reporters, Inc.

25 WITNESS TOBIN: That is correct, yes, sir.

e*

i 4

8691

.Sim 11-10 j BY MR. RUCKLE:

() 2 Q Where does that happen on the letter here?

3 JUDGE KELLEY: At the bottom of 2.

4 BY MR. RUNKLE:

Q And in Attachment 5 it refers to a summary of 5

6 each of your. visits, does it not?

7 A (Witness Tobin) True.

8 0 And that would include a visit at the Carolina 9 Power and Light headquarters?

10 A Correct.

11 Q As part of this investigation, did you go out to 12 the Shearon Harris site?

This was a survey.

I)

'V 13 A This was not an investigation.

14 Q Okay. As part of this survey, did you go out 15 to the Shearon Harris site?

16 A No, we did not.

17 Q In Attachment 5 you discuss some overall findings 18 for Region II, do you not?

19 A Correct.

20 0 And this would be a conclusion of the surveys 21 you took at the various utilities; is it not?

22 A This is a summary of the surveys done of the 23 various utilities.

24 Q Now on page 6 of your prefiled testimony, and ko- 1 Reporters, Inc.

25 I would like to correct the record while I am right here.

8692 Sim 11-11 j i have been saying Attachment 5, but it is referred

() 2 to as Exhibit 4.

JUDGE KELLEY: The O'Reilly letter signed by 3

4 Martin is Exhibit 4?

MR. RUNKLE: Yes, sir.

5 JUDGE.KELLEY: Okay. Thank you.

6 7 MR. RUNKLE: And the other attachments would be 8

qualifications. This would be Exhibit 4.

9 JUDGE KELLEY: Apart from qualifications, this would be the only exhibit of any substance, right? The 10 11 rest are biographies?

MR. RUNKLE: Yes, sir.

12 13 BY MR. RUNKLE:

ja Q In your answer No. 8 on page 6 you refer to 15 Exhibit 4 and give conclusions with respect to Carolina Power l'6 and Light, do you not?

j7 A (Witness Tobin) True.

Q Now are these conclusions drawn specifically 18 19 for Carolina Power and Light?

20 A These are licensee specific conclusions.

l Q Now in looking at Exhibit 4, which is the O'Reilly 21 22 letter, is Carolina Power and Light specifically addressed?

23 A In the O'Reilly letter?

24 Q Yes.

al Reportws, Inc.

I 25 A No. That is a summary of the survey, which

8693 Sim 11-12 1 included many licensee surveys.

_) 2 Q On that same page, in question 9 you say that you 3 based conclusions on a limited review of the current program; 4 is that correct?

5 A No. The question has limited review.

6 Q Let me rephrase that question then. You have 7 reviewed the current licensing program, have you not?

8 A We have recently reviewed the current licensee's 9 program, yes.

10 Q And this is totally separate from any 1982 or 11 1983 survey you took?

12 A Correct.

I '4 13 Q In the recent review that you made of the licensee 's s.__,

14 program, what documents did you review?

15 A I reviewed four documents that come to mind. In 16 Mr. Ferguson's affidavit, Attachments B and C. In Mr.

17 Hindman's affidavit, Attachment C, and I could get you these 18 specifics you need them. And also in Messrs. Pannill and 19 Flowers affidavit, Attachment E.

20 Q Okay. Now can you give names on those documents?

21 22 nd Sim 23 ua Fols 24 Ace-erol Reporters, Inc.

25

t 8694 1

1. 12-1-SueW1 A (Witness Tobin) If you give me thirty seconds,

()

J 2 JI can dig them out here for you.

3 (The witness is looking through papers. ) I 4 Go ahead and starr with Ferguson?

5 Q Yeah. Ferguson, Attachment B, would be the 6 Company Drug add Alcohol Statement of Practice and Drug and

'2\ 7 Alcohol Interdepartmental Procedure?

8 A Correct.

9 Q C would be the Drug and Alcohol Abuse Reference i .s-10 ' Manual?

11 A Correct.

12 O And then Hindman -- 7 don't have an Attachment B --

() 13 C. Would it be the Drug and Alcohol Abuse Policy?

14 A Affidavit of William Hindman, I have Attachment B 15 as Drug and A1,coh61 Abuse Policy.

fxs 16 Q And that would be the contract amendment that we 17 discussed yesterday?

18 A That's what it is referred as, yes, sir.

19 Q All right. And then what was the last?

20 A on both Mr. Pannill and Flowers, Attachment E, 21 as in Edward, which is the the C. C. Wagner memo to the 22 Daniel and Davis employees dated 12/26/84.

23 Q And that would be the document that added the 24 urinalysis?

Ac i hporem. Inc.

25 A Yes, for the contractor.

8695

1. 12-2-SueW 1 MR. BARTH: For the record, Your Honor, I would

(^)-

(_ 2 like counsel to take a look at the Applicants' submission 3 of exhibits. I think these are Exhibits 30, 31, 32 and 38 4 of the Applicants in evidence.

5 Is that correct, Mr. Runkle?

6 MR. RUNKLE: I would defer to counsel. I don't 7 have that actual sheet right in front of me.

8 JUDGE KELLEY: I think correlating is helpful.

9 Thank you.

10 MR. RUNKLE: Yes.

II JUDGE KELLEY: I know what you mean.

12 BY MR. RUNKLE: (Continuing)

() 13 Q And, in your recent review of the licensee program, 14 did you review any of the other affidavits or testimony 15 filed in this proceeding?

16 A Yes.

17 Q Gentlemen, are you also familiar with the EEI 18 guidance?

19 A I'm Bill. But, yeah, I'm familiar with the EEI 20 policy.

21 Q I said " gentlemen."

22 A Oh, gentlemen. I'm sorry. I thought you said 23 " Jim." I ' m so rry .

24 Q Gentlemen, are you familiar with the EEI guidance?

b I Reporters, Inc.

l 25 A That's correct, yes, I am.

8696 I

1. 12-3-SueW (Witness Long) Yes.

2 V (Witness Prevatte) Yes.

3 Q And that would' be the August 1985 revision?

4 A (Witness Tobin) And prior documents , yes.

5 Q Now, in establishing guidance to utilities about 6

their drug programs, does the EEI guidance require effective 7

implementation of the programs?

O MR. BARTH: We object, Your Honor. We had a 9

witness on the EEI guide who was available to describe that 10 program and what Carolina Power and Light did.

11 It is beyond the scope of the testimony of Mr.

I Prevatte or Mr. Long and Mr. Tobin, and it is not part of

/ 13 t,j their testimony.

I# And we would object, it's irrelevant.

15 MR. RUNKLE: On Page 7, the second paragraph, 16 they discuss the EEI guidance and the licensee going beyond I7 that guidance.

0 MR. BARTH: That is only in relation, Your Honor, 19 to the previous sentence which says, "A drug urinalysis and 20 a psychological test..."

21 It is not the generalized question asked by Mr.

22 Runkle. I have no objection to his question as it relates 23 to the testimony set forth in the first full paragraph on 24 Page 7.

Ace Sal Reporters, Inc. But the question went way beyond that.

25 MR. RUNKLE: And also on Page 9 of their prefiled

8697 l

1. 12-4-SueW l testimony, it talks in terms of the entire program and its i/~T sj 2 relationship to the EEI guidance.

l 3 MR. BARTH: That only states the EEI focuses on ]

4 operating sites. And if he wants to ask these people, does 5 the EEI guidance focus on operating sites, fine.

6 But he is going beyond the purview with these 7 generalizations, Your Honor. And that is really one of the 8 reasons why throughout these hearings in the last several 9 years I've always asked that counsel refer to the testimony

. 10 so that we can see what we are talking about rather than these 11 generalizations in the nither.

12 If we refer to Pages 7 and 9, we could get more 1

(~)

\-

13 precise.

14 JUDGE KELLEY: Okay.

15 1*m. BARTH: And I would say we would all be 16 happier.

17 JUDGE KELLEY: Okay, Well, Mr. Runkle, why don't 18 you for openers anyway limit it to their testimony which 19 refers to drug analysis, psychological tecting?

20 MR. RUNKLE: I will apologize for going outside 21 their testimony. In North Carolina, we have wide open cross.

22 If'you get somebody up there, you can ask them about'their 23 grandmother.

24 BY MR. RUNKLE: (Continuing)

Ac i Reportws, Inc. .

25 Q Gentlemen, on Page 7 of your prefiled testimony,

8698

,#12-5-SueW 1 the second -- actually, the first full paragraph, you state

() 2 that CP&L administers a drug urinalysis exam and psychological 3 test; is that correct?

4 A (Witness Tobin) That's correct.

5 Q Does the EEI guidance require effective implementa-6 tion of the drug urinalysis exam and psychological test?

? A ,_ No. The EEI guidance makes recommendations as 8 to what an effective program would be. Various ingredients 9 are found within that program.

10 0 In regards to the urinalysis exam and psychoiogical 11 test, does the guidance assume that these will be effectively 12 implemented?

O

%.)

13 A Yes.

l 14 Q Now, on Page 9 of your prefiled testimony, would 15 it be fair to summarize'that the EEI guidance refers only 16 to operating sites?

17 A That's true.

18 0 And there is no EEI guidance for plants during 19 construction?

20 A That's true.

21 JUDGE KELLEY: I have to say at this point, I'm 22 very confused if that's true. But, go ahead.

23 I thought we had established right up front here 24 that when we talked about EEI yesterday and the program at

.I a.po,,m, Inc.

25 Shearon Harris, the one they've got now while they are'under 1:

8699 412-6-SueW I construction, that the two were consistent. And then I was m- - 2 told earlier today that the EEI guidance referred to by the 3 first witness, Mr. Bush, referred to the same thing.

4 Now, is it true that the EEI is only spoken with l 5 respect to operating plants?

6 WITNESS TOBIN: The EEI policy is aimed at a 7 utility corporate position, but it's recommended to be 8 implemented at operating plants.

9 MR , BARTH: Your Honor, to hel'p the problem, on 10 Page 5 of Mr. Bush's testimony he does show that these NUMARC/

II INPO/EEI guides do relate only to operating nuclear power I2 plants.

13 This being so, the Staff was in a dilemma without I4 any kind of guide which said construction. So, we --

15 MR. RUNKLE: Excuse me. Counsel is testifying 16 again.

I7 MR. BARTH: I'm explaining to the --

18 JUDGE KELLEY: I may have muddied the water here, I9 but I just confess I am confused what we are talking about now.

O MR. BARTH: The testimony so far by Mr. Bush has 21 been that the EEI guides apply only to operating plants, as 22 has this panel now testified.

23 What the Staff did was to take that guide and say:

24 What would this do for a construction site? Are they doing A rol Reporters, Inc.

25 that kind of work at a construction site?

8700

1. 12-7-SueW1 That's what we did.

f3

( ,j 2 JUDGE KELLEY: I guess we can backfit on this.

3 Mr. Runkle, I know I'm interrupting you. But I --

4 MR. RUNKLE: Feel free to. I am confused myself 5 when I got to that point.

6 JUDGE KELLEY: --just confess that I don't know -

7 where we are now. Perhaps when Mr. Bensinger returns, we 8 can get this clarified.

9 Why don' t I just drop it for now, having high-10 lighted this question at least in my own mind. Go ahead.

11 BY MR. RUNKLE: (Continuing) 12 0 In your 1982 and 1983 surveys of the drug

(} 13 programs at various utilities, how many different utilities 14 did you survey?

15 A (Witness Tobin) Well, the best answer is that 16 I did a task force survey with a headquarters team. We 17 did three utilities asr,ociated with the Southeast.

18 Then, Mr. Long and I teamed up and we completed 19 the utilities that are found in the geographical area of 20 Region II.

21 So, to answer your question the combination of 22 us did all of them.

~

23 Q All right, And how many would that be? Ten?

24 A At that time, there was ten plus the three that Ac of Repo,ters, Inc.

25 I did.

- n -

- , . , , . - - . . - , .,g -.-,._,e,.-n.. .-, , , , . _ - ,~,,n.-. ,n. .. , -n.

8701

1. 12-8-SueW I Q And since the '82-83 survey, have you surveyed

) 2 or otherwise investigated drug programs at any other 3 utilities?

4 Or, have you gone back to review these same 5 utilities again?

6 A Well, that's a two-part question.

7 0 okay.

8 A The second part, the answer is no.

1 9 Q All right.

10 A The first part, we didn't investigate but we II did do a survey outside of Region II where Mr. Long and I 12 were called to assist another region.

.(}. 13 Q So, on Page 9 of your prefiled testimony, the 14 second paragraph from the bottom --

15 MR. BARTH: Your Honor, my Page 9 doesn't have 16 any second paragraph from the bottom..

17 . MR. RUNKLE: Excuse me. The second sentence 18 from the bottom.

l9 BY MR. RUNKLE: (Continuing) 20 You state that the CP&L drug program has not Q

21 ^been a hundred percent effective; is that correct?

22 A It states: We are not surprised that the CP&L 23 drug program has not been a hundred percent effective.

24 And then the sentence goes on to say: No program i Reporters, Inc.

25 13, t.

8702

1. 12-9-SueW l Q Yes. Where did -- what information was provided

,(_,) 2 to you that you could make this conc.lusion?

3 What is the basis for that statement?

4 MR. BARTH: Your Honor, that's a compound 5 question. If we could take it one at a time; the sentence 6 leading up to the semicolon and then the three words follow-7 ing the semicolon we will get a better answer.

8 I object to the question because it's compound; 9 one at a time.

10 JUDGE KELLEY: Maybe you could break it up, Mr.

Il Runkle.

12 BY MR. RUNKLE: (Continuing)

(} 13 Q What is the basis for saying that the CP&L drug 14 program has not been a hundred percent effective?

15 A (Witness Tobin) The fact that you and I are 16 here today at these hearings, and your contention.

17 Q Are you saying that by the very fact that we are 18 having hearings on this contention, that proves that the 19 program is not a hundred percent effective?

20 A That we are saying that the information that is 21 being discussed that I'm privy to as of yesterday and today 22 is pointing out that your utility is not one hundred percent 23 effective.

g 24 Q Okay. How could a utility program be a hundred

u. M aingemn,inc 25 percent effective?

I 8703

1. 12-10-SueW1 A (Pause.)

(3 x/ 2 If I knew that answer, I would be making more 3 money than Mr. Bensinger I think.

4 (Laughter.)

5 I'm being serious.

6 MR. BAXTER: The testimony, Your Honor, is that 7 no program can be a hundred percent effective. And now Mr.

8 Runkle is asking him how can a program be a hundred percent 9 effective.

10 JUDGE KELLEY: I think he has answered the 11 question in his testimony.

12 BY MR. RUNKLE: (Continuing)

() 13 Q What criteria would you use, sir, that would 14 make -- what criteria do you use on the effectiveness of 15 a program?

16 MR. BARTH: Objection, Your Honor. He has asked 17 this question.

18 I think that the testimony stands clear by itself l9 and needs no elaboration. We all know what a hundred per-20 cent effective is and what less a hundred percent effective 21 is.

22 No elaboration, nothing can come of this line of 23 questioning which would elucidate a fact relevant to the 24 contention before us, which is the requirement of Section i Reporters, Inc.

25 801 of the ?ederal Rules of Evidence regarding the relevancy.

8704

-)12-11-SueW 1 It's irrelevant.

r

(,)j 2 JUDGE KELLEY:

~

I thought we were trying to decide 3 whether the program was effective, and this witness concludes 4 on Page 9 that it has not -- we cannot conclude that CP&L 5 drug program has not been effective, which raises a question 6 in and of itself.

7 But we haven' t gotten to implementation at all 8 with these witnesses.

9 MR. BARTH: If that is the s tatement, Your Honor, 10 I withdraw the objection.

11 I thought it was to how a hundred percent ef-12 fective.

13

(~}

s_/

JUDGE dELLEY: You asked what the criteria were I4 for effectivenss, right, Mr. Runkle?

15 MR. RUNKLE: Yeah. And let me break down that 16 question a little bit and --

17 JUDGE KELLEY: Okay.

18 MR. RUNKLE: -- we can take it one step at a l9 time.

20 JUDGE KELLEY: Go ahead.

21 BY MR. RUNKLE: (Continuing) 22 Q Would a hundred percent effective drug program, 23 would that mean that there would be no workers on site that 24 use drugs or sold drugs or possessed drugs?

I Reporten, Inc.

25 Is that what you refer to, a hundred percent

l 8705

1. 12-12-SueN effective?

() 2 MR. BARTH: The objection still stands, Your 3 Honor.

4 JUDGE KELLEY: It does seem to me, Mr Runkle, 5 that sentence is fairly clear. It seems to say, at least 6 to me, that some drug use will happen any place despite any 7 program, but then they go on and make their conclusion in 8 the next sentence.

9 I will sustain the objection to that cart of it.

10 MR. RUNKLE: I will defer to your understanding 11 of the sentence. It was not that clear to me, but we will 12 go on.

() 13 JUDGE.KELLEY: I think we are coming up on an 14 appropriate lunch time break. Are you about done?

15 M.1. RUNKLE: Yeah, if you will give me a minute 16 just to review my notes here.

17 JUDGE KELLEY: Yeah. Finish up.

18 (Pause.)

19 MR. RUNKLE: I have no other questions for this 20 panel at this time. But I would like to reserve the right 21 to recall Mr. Prevatte for rebuttal if necessary.

22 JUDGE KELLEY: You can reserve the right to ask, 23 and then we will hear whether there are objections and so on.

24 MR, RUNKLE: Fine. Thank you.

Reporters, Inc.

25 JUDGE KELLEY: Okay. Let's break until

8706

1. 12-13-SueW I quarter of two for lunch. ,

2 (Whereupon, the hearing is recessed at 12:37 p.m.,

l 3 I to reconvene at 1:45 p.m., this same day.)

END #12 4 Joo flws 5 -

6 7

8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 w ahpmem, 25

I 13-1-Jo:Wal 8707 ,

i i

1 AFTERNOON SESSION l

\ /

'~~  !

2 (Whereupon, at 1:45 p.m., the hearing resumes.)

I 3 JUDGE KELLEY: Okay. We can go back on the I 4 record now.

l 5 We are gcing to move next to Mr. Cole, then l 6 -- just so I have this sequence straight, I understood, Mr. l 7 Cole, that Mr. Eddleman preferred that particular sequences 8 between them. We would then go to Mr. Baxter if he has s

9 questions, and any redirect, and follow the same routine 10 that we have doi:e. Okay.

II Mr. Cole?

I2 MR. BARTH: Your Honor, m q T have a peint of n

(Vl 13 order.

I4 JUDGE KELLEY: Yes. Go ahead, Mr. Barth, 15 MR. BARTH: Your Honor, Mr. Runkle objected 16 to the admission of the memorandum dated October 1, 1983 s

17 from James P. O'Rielly to Richard C. DeYoung, Director, i

18 Office of Inspection Enforcement, which was attacheT to the (.

19 Staff's testimony sui:mitced by Francis J. Long, William J.

20 Tobin, and Richard L. Prevatte. At this time, the Staff 21 will withdraw the proffer of the letter in its entirety.

22 I have spoken to the Reporter, and the Staff's 23 testimony has not been bound into the record, and the t

,7 l

, 1 24 M N w neoon m inc.

reporters will take these two last pages off of the testimony !

I 25 and throw them into the waste basket.

13-2-Jo Wal 8708

.gs 1 Therefore, this is no longer an issue.

() -

2 JUDGE KELLEY: Is that satisfactory to all concerned?

3 (No response.)

4 Okay. So ordered.

5 MR. BAXTER: Thank you, Your Honor.

6 JUDGE KELLEY: So, Mr. Cole?

l l

+ 7 Whereupon, 8 FRANCIS J. LONG s ,l 9 WILLIAM J. TOBIN  :

l 10 ,

- and - j 11 RICHARD L. PREVATTE i i

I 12 were recalled as witnesses and, having been previously sworn 13 by Judge Kelley, were further examined and testified as 1

14 follows:

XX INDEX 15 CROSS-EXAMINATION 16 BY MR. COLE:

17 Q Mr. Prevatte, on page 4 of your prefiled testimony l i

18 you refer to being given information on a voluntary basis  !

19 by the licensee of drug related incidents, I believe, and t 20 I believe you testified that -- well, you didn't know whether i 21 all of them had been related to you, is that corre,ct, sir?

22 A (Witness Prevatte) That is correct.

23 Q How many were, in fact, related to you, if you O)

5. 24 recall, Mr. Prevatte?

m teoorwes,Inc.

25 A I would say over a hundred incidentr. I can't

.a

13-3-JonWal 8709

~

1 come up with a set number, because I did not maintain records :

/ 'i  !

2 of it. I 3 0 Well, without trying to be too specific as to i 4 time, place and name or anything, they would relate that l

5 Employee A was let go because he was selling, or using, or l l

l 6 something of that nature? l 7 A That is correct. I did not ask for names. Some i

.8 of them were released. If some of them were under investi- l 9 gations , I did not request name . And some of them that 10 were released and all, they did give names after they i 11 made a determination to release them.  !

12 Q And so you would say in your best estimate that r^N

(-) 13 maybe a hundred such incidences were reported to you?

i 14 A Or mo re . 1 i

15 Q Or more.

16 A Yes. -

17 Q And this was from a period of time from when to 18 when?

19 A From 1983 through the present.

i 20 Q All right, sir. Well, just to get a handle on, i

21 'or more,' and again not trying to pin you down, but could 22 it have been as many as two hundred?

23 A (Pause) I am not sure of the exact number. I o

!. ) 24 Because like I said, at times there were three or four em Reponm, Inc.

25 people named.

I 13-5-JonWal 8710 r-1 At times such as the large undercover operation, it was like

, )

1

(')T 2 sixty some. You know, it was brought to my attention that I

l 3 sixty some people had been involved in one way or the other. i I

4 In other incidences it may have been eight or ten 5 suspected things, which resulted in two or three releases. l l.

6 It is very difficult to come up with numbers, since I don't i 7 maintain records on it.

8 Q So, in some of those instances reported, it 9 wouldn't necessarily mean that any action had been taken I

10 by CP&L then, is that correct as to the employee?

11 A Some of the instances involved drug screening i i

12 with negative results and no action was taken. l i

(^)h

\_ 13 Q All right, sir. Mr. Prevatte, do you recall j l

14 whether or not in having these incidences related to you i 15 whether or not the classification of the employee involved 16 was also given to you? Classification of his work?

l I

17 A Yes, they were.

18 Q Do you recall what some of those classifications 19 were?

i 20 A It ranged from electricians to various different 1

21 crafts. It involved the span of the crafts. In some areas, i i

22 it involved inspection personnel.

23 Q Would that rise to the supervisory level?

()

W Reporters, Inc.

24 A In some case under construction people, Daniel 25 Corporation, I think there were some supervisory personnel

13-6-Jo:Wal 8711

. 1 under Daniel.

,3.-

t /

2 Q Do you recall whether or not there would have been 3 any supervisory personnel that were CP&L employees?

4 A I do not recall any CP&L supervisory employees.

5 Q Could there have been, or you just don't recall, 6 or don't know?

7 A To the best of my knowledge, I do not remember 8 any.

9 Q To Mr. Long and Mr. Tobin, you start with your 10 testimony on page 4 stating that your knowledge was obtained 11 during a review of the utility drug programs.

12 Can I assume that this was a paper review upon r"%

(_) 13 which you based your conclusions in this testimony?

14 A (Witness Tobin) Near the last paragraph, on 15 page 4?

16 Q Yes, sir.

17 A Yes.

18 0 So your conclusions in this paper or in this 19 testimony is based on a paper review?

20 A True.

21 Q All right, sir. Mr. Prevatte again, on page'8 22 of your testimony, down in the third paragraph where you 23 refer to undercover operations.

r~s 24 You say the licensee provided you with certain N

()

Reporters, Inc.

25 information. Did that information go to the nuts and bolts

13-7-Jo3Wal 8712 1 of the operation as to what they were doing, and who was 2 involved and so forth?

3 A (Witness Prevatte) It involved like the one 4 undercover operation that is ceing dis cussed here, they 5 told me who was involved in it. It would involve the SBI, 6 the Wake County Sheriff's Department, CP&L security 7 Personnel, and it was revealed to me approximately what the 8 results were of their final investigation, you know, as 9 far as the warrants being issued for eight people and a 10 number of other personnel being released from the site.

11 Q Now, when you say, 'they informed,' who was, 12 'they?'

o

__- 13 A Bill Hindman was my contact in that particular 14 area.

15 Q All right, sir. Did Mr. Hindman relate to you 4

i 16 as to why the investigation was called for?  !

l 17 A I think he primarily related to me that they j had had some information, or suspicion or so forth, provided I 18 I

19 to them that indicated that there was some drug activities 20 there, and they had taken this action. I was not informed 21 until the end of the operation.

22 Q Oh. So, then, when you say the licensee provided 23 you with information, this was after the fact information i 24 then?

w.ewei n.conm, Inc.

25 A That is correct. I was informed on the day that the

8713 13-8-Jo1Wal 1

bust finally occurred, and they picked up the people on the 2 site.

3 I was informed at that time.

Q Did he inform you -- did you know when the 4

5 operation terminaF:d?

6 A I assumed the operation end5d on that day.

Q Did Mr. Hindman tell you, or did you inquire as 7

8 to why the operation terminated?

9 A No, I did not.

10 Q All right, sir.

A (Witness Tobin) Could I interrupt for one second?

11 12 O Yes, sure.

13 A I think I might have made a minor error on your 14 question to me about the paper review just a few moments 15 ago.

16 Q Yes, sir.

17 A There was a paper review conducted very cecently 18 of the program and policies, circa 1984 and 1985, oka;r?

l 19 But in addition to that, the -- in 1983 there  ;

20 was a visit to the corporate office where we had round table 21 discussions.

22 I don't know if I misled you or not, and if I 23 did, I apologize.

m 24 Q Well, let me see if this clarifies it. You said Moderal Reporters, Inc.

25 it is not totally a paper because you went to a round table

13-9-Jo1Wal 8714 j discussion someplace other than in Raleigh or Apex, is that

~' correct?

2 3

A We went to the corporate office.

4 Q All right. So, it did not incorporate or ^ include 5

any visit to the Shearon Harris premises, is that right?

6 A That particular visit did not include a site 7

visit, that is true.

8 Q All right, sir. But to be fair, you are saying 9

yostr conclusions are based on conversations with CP&L 10 officials, is that right?

11 A Yes.

12 Q All right, sir. What officials do you recall 13 talking to, Mr. Tobin, at that round table meeting?

14 A Well, the titles, I will probably be very 15 inaccurate, so I won't attempt the titles, but it was 16 Mr. Urey, Utley, and I could come up with the names.

17 Q Were they construction personnel?

18 A No, these were -- I can see this guy in front 19 of me. It was Ben Ferr.

20 A (Witness Long) These gentlemen were all levels 21 of management, including top corporate management, but in 22 particular people who we had concluded from discussions n were responsible for the program in various areas of 24 -- operational.

%4ederal Reporters, Inc.

25 Q But not the people you would expect to find out

13-10-Jo Wal 8715 1 at Shearon Harris on any given day working, is that correct?

'/_

2 A No; the first one was directly related to their 3 Operating plants only, so we had people involved in the 4 program at two operating sites.

5 Q To the panel as a whole, on the last page, or 6 page no. 9, wherein you all conclude that based on our review 7 we conclude that CP&L recognizes the importance of controlling 8 drug use at the plant.

9 Is your conclusion that CP&L recognizes it, but 10 you don't have any opinion as to whether or not they have 11 an effective program?

12 I am having difficulty reading your conclusion i

13 there. Mr. Tobin?

14 A (Witness Tobin) Our conclusion is having talked 15 to the people and having read what their program is and i

16 what the implementation of the program is, that top level i

17 management is recognizing the importance, and passing that i

18 down in the form of a policy in the program and procedures, i I

19 Q Can you conclude from reading this paragraph ,

20 that you all have concluded they had an effective drug 21 Program?

22 A No. Our conclusion is that we cannot -- we can' t 23 make any conclusion that this program has not been effective.

I 24 Q You finish up by saying, 'we can't conclude was ces ceconen, Inc.

25 that the program has not been effective, ' but is that the

1 13-11-Jo:Wal 8716 I same thing as saying that it has been effective?

s 2 MR. BARTH: Objection, Your Honor. He is arguing 3 with the witness and the witnesses written testimony is 4 quite clear.

5 JUDGE KELLEY: It is not clear at all, Mr. Barth, 6 to me. I don't know what they have concluded. I think that 7 is deliberately elliptical statement. You can't tell what 8 they are saying, and it calls out for questioning: What 9 does that mean?

10 ' Overruled.

11 BY MR. COLE: (Continuing) 12 Q Can you answer that question, Mr. Tobin?

13 A (Witness Tobin) Can you give it to me one more 14 time?

15 Q We 11, your last sentence on page 9 says: You 16 can' t conclude that the program was not, or had not been i

17 effective. Is that the same thing as saying that it has l 18 an effective program? l 19 A No, to me that is not -- those two are not the 1

l' 20 same.

21 Q So, you can't testify that CP&L has an effective 22 drug program, is that correct?

23 MR. BARTH: Your Honor, could we ask, is the 24 question directed to the implementation or to the program,

-4w. n.oon... ix. l 25 because the question was not clear as to which he is discussing

13-12-Jo:Wal 8717 1 at the moment.

O/

2 JUDGE KELLEY: The question was whether they have 3 an effective program which, and Mr. Cole can correct me if 4 I am wrong, I think means is the program in fact effective

! 5 to prevent drug abuse?

6 MR. COLE: That is correct, Your Honor. Thank 7 you.

8 WITNESS TOBIN: Anl. we don't have the specific f

9 knowledge to come to that conclusion.

10 BY MR. COLE: (Continuing) 11 Q Mr. Long, could I ask you the same question?

12 A (Witness Long) I think I would give the same r~

13 answer.

14 Q How about you, Mr. Prevatte?

15 A (Witness Prevatte) I agree with Mr. Tobin's 16 answer.

17 Q All right. So, all three of you are in unanimity 18 on the answer then. Mr. Tobin, in ene next to the last 19 sentence'on that same page, Page 9, -- well, let's go back 20 up four lines where you start with: However.

21 Do you see that part?

22 A (Witness Tobin) Yes, sir.

23 0 You say, however, based on our knowledge of the

() 24 me.Fessrs capo,mes, Inc.

present population at the site, even assuming the magnitude 25 of the drug use alleged in the AG's submittal, we

__ 1

l

+  !

' 13-13-JosWal 8718 i

'f I can't conclude and so forth. ^

2 What was the magnitude that you are talking.about 3 there? What magnitude did the Attorney General's Office

'4 refer to in any of its submissions or any documents that 5 you saw?

, 6 A I believe there was an affidavit submitted by the 7 AG.

8 Q Was it Ms. Burch',5 affidavit, do you recall?

i i

9 A I can't rememb,er.the name.

10 All right, sir. Was it an SBI supervisor's Q'

11 affidavit, do you recall thait much?

12 A I believe it was the Attorney General's i 13 affidavit.

Id Q All right, sir. Do you recall what magnitude

. 15 he referred to in that?

16 A That there was approximately two hundred people 17 ' involved in drug abuse at the facility.

18 All righ ,9 1r. Mr. Long, I ask you the same Q

I9 question, sir. What kind c f magnitude were you referring 20 to when you reached that statement?

21 A (Witness Long) My thoughts were more in line 22 with looking at the use of the term, ' widespread,' ,;

23 which to me would mean a fairly sizeable magnitude, and 24 with our knowledge of the number of people on site, we would e.e.es,e noww,.. inc.

25 look at that as a very small percentage, not in my judgment ,

i i

i f.

13-14-Jo Wal 8719 1 of large magnitude.

2 Q You are not saying are you, Mr. Long, that the 3 Attorney General used the term, ' widespread,' are you?

4 A No. We have just discussed the term, and it 5 is used as a measure of the general public. The news 6 media.

7 You see it just about everywhere, the use of 8 the term widespread, and I personally have my-own opinion 9 of what widespread means, which would --

10 Q Yes, sir, but I guess what I am trying to figure 11 out though, Mr. Long, is in your statement, saying even 12 assuming the magnitude of drug use as alleged by the AG's 13 Office.

14 And I am trying to find out, assuming what 15 magnitude? What did we say that you would encompass within 16 your word, ' magnitude?' f 17 A I judge that the implication at least was that 18 it was of a major magnitude, a large magnitude problem.

i 19 In other words, two hundred out of so.many 20 total thousands of employees, the implication was that the l 21 figure was of a high magnitude.

22 Q Well, let me ask the question that is being begged.

23 If using your reference of two hundred, what number in your 24 meF9M Reorurs, W. opinion, Mr. Long, -- when it gets to three hundred, six 25 hundred, or eight hundred, would you change your answer that

i 13-15-JosWal 8720

. - 1 you gave in your conclusion on Page 9, 2 A Well, it would be one of opinion, because I am 3 familiar with the use of the term in defining a problem in 4 various segments of society as somewhere -- I have heard the 5 figure very commonly about ten to twelve percent of the j 6 Population that is being measured.

7 Q So, if we approach tha't number your answer would j

8 change a little bit in your conclusion here, is that 9 correct?

10 A To me personally, that would mean more like a 11 widespread problem.

12 Q Mr. Prevatte, without repeating all those questions, 13 do you disagree with anything either Mr. Tobin or Mr. Long 14 has said in regard to that last question?

15 A (Witness Prevatte)' No, I do not.

't 16 MR. COLE: All ri@rt, sir. I have no further 17 questions.

18 JUDGE KELLEY: I would just like to ask a question 19 on the point we have just been talking abouti;.for the sake i

20 of having the record clear. The questions were put to you

-21 by Mr. Cole about your judgment on magnitude, and then there 22 is a reference to the magnitude of drug use alleged in the 23 Attorney General's submittal, and then Mr. Long at least

() 24 trees,si caponen, Inc.

spoke of 200 as being the basis for that judgment, is that 25 right?

J

13-16-Jo:Wal 8722 1 MR. LONG: I have been referring -- I don't O

k/ 2 know how valid the 200 is, but I have been using that figure 3 as something in the area of what has been --

4 JUDGE KELLEY: What I wanted to get at was 5 where the 200 came from, just for the sake of keeping this 6 as clear as we can.

7 I have only seen the 200, 201 I think, in the 8 Applicants' papers in their motion for summary disposition, l

9 I have never heard the Attorney General put forward that 10 figure.

11 Do you mean the Applicants' 200 number?

12 MR. LONG: It is in the Applicants' paper, but O 13 I did not get that from the AG's testimony, no.

's /

14 JUDGE KELLEY: Well, I wanted to get that clear, 15 because the written testimony does refer to the Attorney 16 General's submittal. It does not use the number 200, but 17 then you indicated that was your basis.

18 So, I thought it was confusing until we got that 19 straight.

5 20 MR. LONG: That is the only number that I have 21 actually heard, and I have no feeling for whether that is 22 very low or reasonable or high.

23 JUDGE KELLEY: So you are assuming the validity,

(() 24 po-Federse Repo,te,s, Inc.

you are not asserting the validity?

l 25 MR. LONG: Yes.

t__

13-17-Jo Wal 8722 1 JUDGE KELLEY: And on that assumption, you would 2 say it is not widespread, the 200 out of five thousand, 3 or sixty-six hundred, right?

4 MR. LONG: Yes. I had in my own analysis, Your 5 Honor, in my personal analysis, if I looked just for numbera, 6 a figure of ten to twelve percent.

7 I could rationale the 200 o four, six, eight 8 hundred or even a thousand, and I would still find a very 9 low figure.

10 JUDGE KELLEY: But if you had a figure of ten l 11 percent of the work force which might be somewhere around 12 six hundred --

13 MR. LONG: Two thousand or more.

Id JUDGE KELLEY: I was taking your number, ten 15 l

percent. Ten percent of six thousand is six hundred. i i

I0 MR. LONG: Six hundred.

17 MR. BAXTER: That is just the current work force, 18 Judge Kelley.

19 JUDGE KELLEY: All right, I think I understand. l i

20 Mr. Tobin, you two were asked about this magnitude statement 21 in relation to the AG's submission. Were you also thinking i I

22 of 200, or some other number?

23 MR. TOBIN: I was thinking of 200.

2d JUDGE KELLEY: Okay. And that is not in the l

> Federal Reporters, Inc.  ;

25 gg s statement, as best as I can recollect. Anybody disagree

13-18-Jo;Wal 8723 I with that?

- 2 MR. BARTH: Your Honor, you are asking if we 3 disagree about the Attorney General's statement?

4 JUDGE KELLEY: Not on disagreement of merits.

5 I am just trying to figure out where this number came from 6 so I understand this last sentence. That is all I am 7 trying to do.

End 13. 8 MS fols.

9 10 11 12 7,

J) 13 14 15 16 l

17  !

18 I l

19 i t

l 20 '

l 21 22 23 24 i.49. neporters, ene.

25

8724 4 Sim 14-1 j MR. BAXTER: I recall no number if Ms. Burch's j

() 2 affidavit, but I do recall a reference to several hundred.

3 JUDGE KELLEY: There is a several hundred reference.

4 MR. BARTH: It is on page 5 of the affidavit, Your 5 Honor, the first line.

6 JUDGE KELLEY: Fine. Thank you.

7 So we have the applicant's number, and that is 8 the whole list and the matrix, and that is the 201; is that 9 right? And then we had Ms. Burch with a reference to several I I

10 hundred at page 5 of her affidavit. l 11 Can I go back to the witnesses then.

12 Did you have one or the other particularly in 13 mind when you made the magnitude statement?

(]) (

I4 WITNESS TOBIN: In my mind I was thinking of the 15 number of 200. I 16 JUDGE KELLEY: Thank you.

17 WITNESS LONG: I was also.

18 JUDGE KELLEY: That is helpful I think. Thank you.

19 Okay, Mr. Cole, I think you had finished. Does that j 20 raise somotjing else in your mind and do you want to ask 21 another question?

22 MR. COLE: Do you know the definition of "several,"

23 Mr. Chairman? l 24 (Laughter.) l w n.nem, w. j 25 JUDGE KELLEY: Do I know the definition of several?

I f

l

8725 Sim 14-2 1 MR. COLE: Well, I think they answered that, and 2 they said they were thinking about 200. So the word "several" 3 woudin't come into play.

4 JUDGE KELLEY: "Several" was with us this morning, 5 as I recall, in another context. Dog visits.

6 Okay. Now Mr. Eddleman, do you want to go next?

7 MR. EDDLEMAN: If that is convenient.

8 JUDGE KELLEY: Yes, why don't you.

9 CROSS-EXAMINATION INDEX 10 BY MR. EDDLEMAN:

11 Q Gentlemen, if we can refer to the section of page 12 9 of your prefiled that has been being discussed here, then

( ', 13 the magnitude of drug use that you are talking about in your 14 last sentence is really the 200 and not that alleged in the 15 Attorney General's submittal; isn't that correct?

16 MR. BARTH: Objection, Your Honor. You asked the 17 question yourself and these people answered it. I am happy 18 with the Board's question and their answer. This is repeti-19 tious.

20 JUDGE KELLEY: Sustained. Let's just move on.

21 BY MR.,EDDLEMAN:

22 0 Now do you gentlemen know where you got the 200 23 number from? This may have been answered.

24 JUDGE KELLEY: I think it was. Go ahead and build Ace Arol Reporters, Inc.

25 from there, Mr. Eddleman.

8726 Sim 14-3 1 MR. EDDLEMAN: Is that allotving the question?

2 JUDGE KELLEY: No. It is disallowing it. We spent 3 10 minutes beating this horse and I think we finally got to 4 the end. So why don't you go ahead and build on it, if you 5 want to.

6 MR. RUNKLE: Excuse me, Your Honor. There have been 7 two times for that 200 figure. There is a 200 figure in the 8 matrix and another 200 figure. I mean that is not clear to 9 me that that in the record will make a distinction between 10 those two times that the 200 figure has been used.

11 JUDGE KELLEY: Where is the other 200 figure, 12 Mr. Runkle?

l ) 13 MR. RUNKLE: Well, they were just testifying that 14 in AG's affidavit they got a 200 figure out of there.

15 JUDGE KELLEY: I thought that we had it clarified 16 along these lines, and maybe I am wrong, but there is a 201 17 figure in the applicants' submission and Ms. Burch's affidavit 18 at pago 5, I am told, she refers to several hundred. And then 19 we asked about where they were coming from as between those 20 two and they said 200.

21 Now is there yet another reference that we have 22 to look at?

23 MR. COLE: The number of 100 is mentioned in one 24 part of Ms. Durch's affidavit, too.

ActArol Reporters, Inc, 25 JUDGE KELLEY: Where is that?

8727 I MR. COLE: Is is on the same page, page 5 at the Sim 14-4 2 bottom, I believe. Under No. 9, the fourth sentence down.

3 MR. BARTH: Your Honor, that is only Mr. Hensley.

4 That is nct the total, which is at the top. 'Ihat is only part 5 of the whole apple, and I do think we ought to move on, Your 6 Honor. You are correct in your surmisal of the several hundred 7 at the top, which includes the 100 at the beginning of 8 paragraph 9 referring to Mr. Hensley.

9 JUDGE 2(ELLEY: Well, gentlemen, if we have got three 10 numbers here, several hundred, 200 and 100, isn't any and !11 II of those 500 or less. And if their point is 500 or less to 12 me isn't widespread, what difference does it make? Isn't that

') 13 sufficient to clarify this?

I4 If you have some point that is escaping me, what 15 is it?

MR. ECDLEMAN: Well, let me take it from there, I I.et me see if I can clarify it.

Judge, if I can.

O BY MR. EDDLEMAN:

Q The 10 to 12 percent that you were talking about, Mr. Long, and I believe the other members of the panol agreed with, that porcontago would apply both to the population working on sito at any one timo and to the overall population?

23 A (Witness Long) I would nave no scientific basis for those figures becauso just this week I heard a report wh,oi n.po,,. .. .

25 of a high school in one area that was found to be as high as

8728 Sim 14-5 25 percent, that one in four had used drugs. In other areas 1

- 2 I have read military reports, and I have shipyard and other, 3 and my analysis seemed to fall somewhere in a general average 4 of about 10 to 12 percent. No real scientific basis for that.

0 All right. But you were saying -- what I am trying 5

6 to get at is as to the population that is on site working 7 at a time, you would define widespread in your terms as being 8

more than 10 to 12 percent of that population working on 9 site, if you had a number for use by those people at one time; 10 is that what you are saying?

11 A I would say if I saw facts and figures based on 12 arrests or admissions or drug dog use or whatever, if there

) 13 was any significant increase from what we have seen in the la past, something icos than one percent, approximately one per-15 cent, if I saw any significant increase in that, I would say 16 that that was a problem. I don't believe I would define it 17 as widespread, but to us as a safety agency, I would recognize 18 that as a significant problem and we would definitely want 19 to follow up on it.

20 Q So more than one percent of the population on 21 site at any one time you would define as a problem, and you 22 would have to go up over 10 to 12 percent before you would 23 call it widespread; in that your testimony?

A Well, as an agency we don't have a figure of 4<. 9. man.pon.,24 inc.

25 10 to 12 percent, and I mentioned that that, in my opinion,

8729

)im 14-6 based on reviews and some research that I have done, that y

1 ks like a fairly good figure to me.

2 I believe I said a moment ago that any significant 3

4 increase in what we presently understand would exist and we w uld be concerped. We observe trends in anything, whether.

5 it is drugs or welding practices or operating practices. We 6

look for trends in the wrong direction.

7 8

S just by definition, we would be concerned and follow up to see what significance there was.

9 Q Well, let me try to clarify my previous question 10

then. In your personal opinion, you would look at any 12 significant increase above one percent of the onsite work 13 force using drugs at any one time as a problem, and you would 34 also call it widespread if the percentage at any one time were above 10 or 12; is that correct?

15 4

16 A I think in my capacity as an adviser to my j7 regional staff, I think that is correct. I would take that 18 position, yes.

19 Q All right. I believe you gentlemen testified 20 earlier that you had read the or reviewed the Burch affidavit.

Did all of you review that?

21 A (Witness Prevatte) Yes.

22 23 A (Witness Long) Yes.

24 A (Witness Tobin) Yes.

d h ,= ws tu.

25 Q Okay. Now do you know approximately what the

8730 Sim 14-7 )

working population is on the Harris site?

2 A (Witness Prevatte) Yes.

Q And would you disagree with what it in the record 3

earlier that it is about 6,000?

4 A Iwu say s about 6,000 at the present time.

5 Q All right. Would you agree that it was also 6

about 6,000 about the time of the undercover operation last 7

8 l 8

A It was that approximato number.

9 0 All right, sir.

10 jj tiow do any of you recall a statomont in the Burch affidavit to the effect that drug uso was widospread 12 at the sito?

13 j4 MR. BAXTER: Why don't we just show the witness the paper instead of relying on their recollections.

15 16 JUDGE KELLEY: Do you have copics, gentlamon.

j7 If you have savoral questions, why don't wo just lot them jg look at it.

j9 MR. EDDLEMAti: I will be glad to lot thom look at it, but first I want to know if they remember what they 20 21 did in their review.

22 JUDGE KELLEY: Could you repeat your ponding 23 question for me, pleaso?

24 MR. EDDLEMAti: Lot ma try.

A.- mi n.p ,,.<i, tac.

25 BY MR. EDDLEMAti:

8731 Sim 14-8 I Q Do any of you gentlemen recall a statement in 2 Burch affidavit that drug use was widespread at the site?

3 A (Witness Tobin) I believe I do.

4 You do.

0 5 A (Witness Provatte) I don't recall whether it was 6 in that Burch statement or not, but I remember hearing that 7- terminology used in some of the documentation associated with 8 this.

9' MR. EDDLEMAN: All right. I only have the ono 10 copy of this I think in hand.

II MR. COLE: I have a clean copy.

I2 Mr. Baxter, I have a cloan copy of the Durch 13 affidavit, or Mr. Barth.

( )

14 MR. BART!!: I have no objection to your showing 15 it to the witnossos and direct them to pago 8.

IO JUDGE KELLEY: Fino.

17 MR. COLE: I havo one that has got highlighting 18 in a few placos and I will be glad to lot thom havo that.

IY MR. DARTI: That would bo casior and if thoro is 20 no objection from counsol or Mr. Eddleman, fino. Thank you 21 very kindly, Mr. Colo.

22 (The document was shown to tho witnossos.)

23 BY MR. EDDLEMAN:

24 S.eroi n.por..,.. w. Q Now I refer you gentleman to tha last comploto 25 santonco on pago 8 beginning about tho 5th lino from the

8732 cim 14-9 j bottom. " Personal observations and intelligence gathered the officers indicated that drug dealings and drug use were

_', 2 3l widespread at the Harris plant."

4 Now do you gentlemen infer was the meaning of the term " widespread" as used there?

5 6

MR. BARTH: Objection, Your Honor. They had no 7 idea what was in Ms. Burch's mind. Thoso people are not here to read the mind of a woman who signed this affidavit. They 8

9 have no personal knowledge of what was in her mind and they 10 never mot her.

11 MR. EDDLEMAN: Judgo, may I bo hoard?

12 JUDGE KELLEY: Yes.

MR. EDDLEMAN: The gontlamon tastified that oven fl 13 ja assuming the magnitudo of drug use allegod in the Attornoy 15 Conoral's submittal, and they woro also asked if they had any 16 corrections of substance to mako to it, and they said they j7 didn't hava any.

18 MR. BART!!: And the definition of that was on tho 19 top of pago 5, savoral hundrod.

20 JUDGE KELLEY: Well, ono at a timo, gontlemon, for 21 oponors.

22 So, Mr. Eddleman, you aro saying that basud on the 23 last sentenco in the reforonco to tho memo that this is fair 24 gamo?

A, 4<ni nevers as. In<.

25 MR. EDDLEMAN: Woll, I think if thoy woro ablo

8733 sim 14-10 y to make that statement that they make on page 9 of their prefiled and not have any correction to it of substance, that 2

then they must have known what that meant. They must know 3

what that means.

4 JUDGE KELLEY: Well, I think it is fair to ask them 5

how, if in any fashion, they took it into account. They 6

can't know what Ms. Burch meant, unless they talked to her, 7

which I assume they didn't.

MR. EDDLEMAN: All right.

9 BY MR. EDDLEMAN:

10 gj 0 Wall, how, if any fashion, did you gentlemen take into account that statement that I have just referred you 12 to in the Burch affidavit on page 8 in your assessment of 13 j4 the effectiveness of CP&L's drug program at the Harris plant?

15 A (Witness Tobin) In our sentence here where we talk 16 about assuming the magnitude of drug abuse alleged in the 37 Attorney General's submittal, when the Attorney General has jg an affidavit that refers to several hundred and then talks j9 about supervisors and it goes on and on and on, and I forget 20 what page it is, at the very top of page 5, including several 21 hundrad people, and then that to ma is the Attorney General 22 making a statement about the magnitude of drug use at the 23 facility. And whether har sovaral hundred aro what CP&L's 24 201 are, I havo to assume that they are the same folks.

m ,w m. w.

Now to take the santonco hora, "Evon assuming the 25

8734 sim 14-11 1 magnitude of drug use alleged in the Attorney General's

-[ 2 submittal," that is the comment about the Attorney General 3 saying several hundred people and then she ranks them and 4 that sort of thing.

5 Q So it is your testimony at this point that that 6 sentence is based on the term "several hundred" in the 7 Attorney Conoral's submittal?

8 MR. BARTH: Whoso statement, their's or Ma. Durch's 9 "widospread"?

10 MR. EDDLEMAN: He just reforrod to the submittal, 11 and I am just asking him ---

12 JUDGE KELLEY: I think I understand the question.

13 Do you? Can you answer the quantion?

{ ')

14 WITNESS TODIN: If I haar it ono more timo, I 15 might be able to.

16 JUDGE KELLEY: Okay. Try it onco moro.

17 BY MR. EDDLEMAN:

18 Q And it la your tostimony at this point that the 19 santonco on pago 9, the laat aantonco n pago 9 of your 20 profilod, that tho magnitudo of drug uno is banod on tho 21 term "novoral hundrod" an used in tho Durch affidavit? In 22 that your testimony?

23 A (Witnona Tobin) You.

24 O All right. Now do you gentlomon mako any

%..G.o n.,...n. w 25 diatinction in torma of widonproad an to tho doaling of druga l

8735 Sim 14-12 1 as opposed to the using of drugs? Does that make any

) 2 difference in your analysis?

3 A Yes, it would.

4 0 What difference would it make?

i 5 A It would make a difference in terms of numbers.

6 You would have "X" number of users and you would have some-7 thing other in torms of users and sollers or distributors.

j I

81 0 And so would you think the problem waro moro 9 serious if solling woro widopsroad in addition to using?

10 A I believo I speak for my colleagues in saying 11 yes.

12 0 Do you gentlemon agroo?

I) 13 A (Witnoss Long) I am not sura that I understood la ovarything, but I boliovo I agroo with what Mr. Tobin said.

15 To mo, you, if the 200 or the figuro that wo havo boon 16 using was a sovoral hundred incidenco and involved all punhors, 17 I would havo to aonumo that they woron't solling tho stuff 18 to each, but they woro colling it to a largo number of 19 othorn.

20 Dut it in my undorntanding that tho figura includon 21 a varioty of incidonts, including unors, nomo punhors,. nomo 22 offatto and nomo onsito, and I undoratood that it included 23 offnito arronto by other than tho utility related pooplo, that 24 it wan local authorition that account for como of thono 4, .G. ,,,i s. ..,. i,...

25 incidonta.

8736 cim 14-13 j 0 Now in the last part of what you were saying

[ J 2 thoro, Mr. Long, is the number there the 201 number?

3 A I am positive in my mind that I have been referring 4 to the 201 number because I have heard that more and have 5

heard figures -- Mr. Prevatte mentioned that something over 6 100 casos had boon brought to his attention. So it is a 7 combination of things whoro I arrivo at my numbor'. I remember 8 reading the savoral hundred in the testimony, but honestly 9

did not uno that as a basis because I came up with the 200 10 or I have heard the 201 numbor beforo I saw that.

11 JUDGE KELLEY: I really hositato to jump into this, 12 but I am just afraid that thoro in a sourco of a lot of

() 13 confusion that is still thoro in my mind, and the reason la 14 this.

15 Tho 201 number from tho applicants, if I am not 16 mtatakon, has to do with tho entiro history of the facility.

17 Now in the sontenco that wo aro talking about on pago 9, 18 by and largo, wo are not talking about the history of tho 19 facility an I road it becauso you rotor to 5,000 workors on 20 tho day nhift I quonn, or 6,000 total, right now. And if 21 you maan 200 out of 5,000, that in ono thing. If you moan 22 200 out of 26,000, that in a vory difforont thing.

23 And whonovor you rofor to tho 201, at loant in my 24 mind, wo aro not talking about curront uito population, but

%. 9,,isepa,.,in,.i i wo aro talking about tho total manpowor that has boon thoro 25l ,

8737 cim 14-14 j all along. And at least I would like it clear as to when j 2 y u say 200, do you really mean 200 on site right now, which 3

might factor out at what, well, 10 percent of 5,000 or 4

6,000 would be 600, correct? So 200 would be about throo 5

r f ur percent.

Is that what you mean or do you mean plant 6

7 history, because otherwise the record is going to have thoso different numbers bounsing around and they maan difforent 8

9 things, and I think we are mixing up applios and oranges and 10 getting in trouble until wo nail it down. -

j] Now that I havo jumpod into this, in your 12 last sentonco thoro, when you say it is not widospread, ovon

) 13 ausuming the number, the magnitudo roforrad to in the y Attornoy Gonoral's submittal, do you maan 200 or savoral 15 hundred, do you mean prosent sito population or do you maan 16 total population since 1970 or '797 WITNESS TOBIN: Wo aro talking novoral hundrod 17 18 vor today's figuro ---

19 JUDCC KELLEY: Today's work forco?

20 WITNESS TODIN: --- of roughly fivo to six 21 thousand.

22 JUDGC KELLEY: All right. And you aro saying that 23 in your vinw that is not widooproad, right?

24 M!t . DARTil: Your !!onor, I think that that in in A4.A. ,ni s. ...,,. int 25 thu tuntimony?

r-8738 l

cim 14-15 ; JUDGE KELLEY: What?

MR. B ART!!: The word " widespread" I don't believe 2

is in the testimony.

3 4

JUDGE KELLEY: It is in the testimony live hero today because I have boon listening to it. We had a 5

discussion about widespread earlier on and Mr. Long I 6

7 believe was suggesting that the 200 number in his view was n t widespread, but that if we got up to 10 or 12 percent 8

that maybe it would be.

9 10 WITNESS LONG: Yes.

j; JUDGE KELLEY: Dut the the 200 has a difforont 12 history and it just doesn't fit in this context, not if r^x y u are talking about the applicant's submission.

13

( )

ja So just to try to got this straight, are you 15 saying in y ur pini n, Mr. Tobin -- doos sovaral hundred mean throo hundred, doos it maan four hundred or it maan 16 d Sim j7 two hundrad?

foin 18 19 20 21 22 23 24i s . e . .. ....... ..

25 c.

8739

1. 15-1-SuoWI MR. TOBIN: I --

2 JUDGE KELLEY: About.

3 MR. TOBIN: Sir?

4 JUDGE KELLEY: About.

5 MR. TOBIN: Savoral hundred could be two, three 6 or four.

7 JUDGE KELLEY: Give or take a hundred, what does 8 it mean to you?

9 MR. TOBIN: To mo --

10 JUDGE KELLEY: Yes.

11 MR. TOBIN: -- it means two or throo .

12 JUDGE KELLEY: Okay. Now, when you look at that against a work force of six thousand, is that widospread 13 14 in your opinion?

15 MR. TOBIN: When I am dealing with thoso sorts 16 o f numbors, two or throo hundred, soveral hundred, I'm 17 comparing that against a population of 1985, roughly fivo 18 to nix thousand --

19 JUDGE KELLEY: Right.

20 MR. TonIN: -- and tha concluulon that I draw 21 thoro in that wo can' t any that that utility out thoro hau 22 an inoffoetivo program. Okay.

23 JUDGE KELLEY: Y<tah, but I wanted to ank you a 24 diffuront quantion.

S.h al e.co,,. .. W.

25 f tR. TonIN: Now, if -- okav. What --

8740 015-2-sueW I JUDGE KELLEY: Do you or do you not think that 2

those kinds of numbers represent widespread drug use?

3

!!R . TOBIN: Well, I'm not happy with your word 4

" widespread" but let me try to deal with it.

5 JUDGE KELLEY: Well, it's in the contention.

6 That's what we have to deal with.

7 MR. TOBIN: Yes, sir.

8 JUDGE KELLEY: It's got to mean something.

9 MR. TOBIN: It's hard to got a handle around 10 what somebody thinks is widespread might not be widespread II to somebody also.

I2 JUDGE KELLEY: I didn't ask anybody but you.

13 MR. TOBIN: So, in my opinion if you take soveral I4 hundred and compara them to five thousand, I would not 15 considor that widespread.

16 JUDGE KELLEY: Okay. Thank you. Mr. Long, 17 how about yourself?

18 WITNESS LOtiG: That's ossentially my position.

19 I would not -- I need to explain --

20 JUDGE KELLEY: Okay.

2I WITNESS LONG: -- my position. I boliovo many 22 of thoso in the novaral hundred that came from one major 23 drug operation, a largo part of thoso that wo are talking 24 about.

4,.h nt e.cor,.,i, tae.

25 But I would bo moro concornod with what anpoarod

8741 l

1. 15-3-SueW1 to be an obvious or definite increase and a problem and

() 2 regardless of whether it reached the ten percent.

3 In other words, if I thought it was running five 4 percent and there was a significant increase, I would be 5 concerned about it from the safety standpoint -- more 6 concerned from the safety standpoint. And the ten percent 7 figure, as I mentioned, is from my own analysis based on 8 various segments of society in general, the figures varying 9 anywhere from a few percent in the Bible Delt maybe to 10 one segment o f the country, fifty to seventy-five percent.

11 So, I came up with something in the range of 12 ten to twelve percent. It seemed to me to be a definition

^

)

13 for my own use of widespread.

14 JUDGE KELLEY: Okay. So, if at Shoaron !!arris 15 there were, let un say, or assume six thousand workers, 16 six or coven hundred users and sollers, that might be wide-17 spread in your view?

18 WITNESS LONG: I would say that -- I personally 19 think that would be widespread, yes.

20 JU DGE KELLEY : And using these numbers, just 21 one more thing so I understand what we are talking about, 22 when we say several hundred which we defined as two or 23 three hundred, we mean numbers of people who are out there 24 buying and selling, not necessarily how many you caught.

A.6 ni n.c.,. .. w.

25 Just the exintance of that kind of -- that level of drug use I

l

8742

1. 15-4-SueW I going on. Is that correct? Do I understand you correctly?

i 2 WITNESS TOBIM: You are speaking of a confirmed 3 two or three --

4 JUDGE KELLEY: No. You can never confirm these 5 things. Let's assume that you've got a magic ball and some-6 how you find out there are three hundred, you will never 7 in the world find out how many are out there.

8 WITNESS TOBIN: Yeah, but --

9 JUDGE KELLEY: Can we stipulate to that?

10 WITNESS TOBIN: But o f the three hundred that 11 you find, you've confirmed that they are users?

12 JUDGE KELLEY: If my hypothetical is unreasonable, 13 we can scrap it and got a botter one.

~]

14 I'm simply putting this to you. If you knew --

15 you don't, but if you did know -- that there are two or 16 thrco hundred users and sollors out at Shearon liarris now, 17 you would consider that not widespread?

18 I'm not talking about thu arrest records; I'm 19 not talking about how many you caught. I'm saying, assuming 20 you know, you would still say that's not widespread, right?

21 WITNESS ToutN: Wall, remember now I mado a 22 distinction betwoon users and sollers.

23 JUDGE KELLEY: Can you annwor my question first?

24 ' Or, in that not possible without your distinction?

4.hai n.cortm, W.

25 WITNESS TonIN: I will be very honest with you,

8743

1. 15-5-SueW l I make a distinction between users and sellers. And I 2 can' t answer that question if you want to lump them together.

3 JUDGE KELLEY: All right.  !!ake your distinction.

4 Go ahead.

5 MR. TOBIII: If they are users, then I wouldn't 6 think that that is a very large and serious percentage.

7 But if there are sellers grouped in there and 8 we will take the number two hundred and a hundred and ninety-9 nine o f them are sellers, then that to me paints a far 10 different picture of a problem.

II JUDGE KELLEY: You didn't make that distinction 12 in the last sentence of your testimony.

q 13 The problem I'm having is finding out what your

j I4 bottom line is and where you have to get in order to conclude 15 that you've got widespread drug use, that you've got a 16 problem.

I7 And I'm still not sure where we are on that.

I8 You said awhile ago two or three hundred without distinguish-I9 ing betwoon users and sellers was not widespread, right, 20 Mr. Tobin?

2I WIT!1 CSS TODI1  !!o , I -- ,

22 JUDGE KELLEY: I believe that's what you said.

23 WIT!1 CSS TODIti tio . I think I made the distinction 24 between the two.

A.hne e. core.<i. Im, 25 Mn , CDDLrJtA!!: Judge, I think hn was saving that

l 8744

1. 15-6-SueW1 if there were two or three hundred users not involved in 2 selling that wasn't widespread but if there were sellers 3 involved --

4 COURT REPORTER: Excuse me, would you turn the 5 microphone on, please?

6 MR. EDDLEMAN: I'm sorry. -

7 JUDGE KELLEY: Well, I knew I would regret 8 getting into this.

9 Are you saying, Mr. Tobin, that if we had two 10 or three hundred sellers at Shearon Harris right now that 11 that would represent widespread drug use?

12 WITNESS TOBIN: Sellers?

r' 13 JUDGE KELLEY: Yeah.

14 WITNESS TODIN: Yes.

15 JUDGE KELLEY: That would? Do you agree, Mr.

16 Long?

17 WITNESS LONG: Yes. I would like to make one 18 mo re comment, too. I don't think -- it was not my under-19 standing when we are talking about the two hundred or 20 soveral hundred as being of the five thousand on sito today, 21 because I don't believe that many identifications or arrests 22 or incidents could be attributed to ano group of fivo 23 thousand people.

24 I havn had the assurption that the five thousand 4.$>n.po,,,,.ia<.

25 tiguro may bo -- it's an averago number for a period of timo I

8745

1. 15-7-SueN1 on site. And it could easily have been more than five 2 thousand different people during the period when the two 3 hundred or three hundred cases were identified, because 4 some --

5 JUDGE KELLEY: That's why we wanted to get 6 away from the 201 because that's a historical number that 7 encompasses some twenty-six thousand pecole.

8 Okay. Well, Mr. Eddleman.

9 MR. EDDLEMAN: Thank you, Judge.

10 BY MR. EDDLEMAN: (Continuing) 11 Q Gentlemen, let me ask you one little question 12 about the two hundred one here.

] 13 Do you know how many sellers were involved in the 14 two hundred and one number?

15 (No response.)

16 None of you know?

17 A (Witness Long) No.

18 (Witness Tobin) Most of what I believe I have 19 been reading hac been talking about users or susoccted users.

20 Q Okay. But you don't know how many sellers are 21 involved in the two hundred and one number?

22 A I don't, no.

23 0 Okay. Likewise for you, Mr. Long, and you, Mr.

Prevatte?

wha n.po, . . w.

24 25 A (Witness Long) I don't.

I

8746

$ #15-8-SueW I (Witness Prevatte) I do not know how many sellers

.O V

2 are involved in it. I've seen listings of something like 3

this, but I could not quote a figure.

Q All right. Now, let me come back to the Burch.

5 And I would Af fidavit if you still have that before you.

0 refer you to the bottom of Page 4 to Item 8.

7 I beg your pardon. Let me switch back one more 8

time here.

9 Mr. Long, you were referring early to a significant 10 increase in drug use, for example, above the level that you 11 had been experiencing in the region of about one percent.

12 Can you define for me what kind of an increase you would call significant, how much of an increase?

MR. BAXTER: I'm sorry. I didn't hear Mr. Long 15 testify earlier that -- maybe I misunderstood him -- there 16 was an av'erage drug use of one percent in the region.

II I thought he was testifying about if he saw a 18 For instance, if it were one percent change in the trend.

19 and it got bigger, that any change in the current pattern 0

would be of a problem.

MR. EDDLEMAN: I thought he said one percent was 22

.what they had been seeing.

BY MR. EDDLEMAN: (Continuing)

, g Q But at any rate, Mr. Long, what I'm trying to 25 ask you is --

8747

1. 15-9-SurW 1 MR. BAXTER: Well, it's --

2 JUDGE KELLEY: Could we establish which you said, 3 Mr. Long?

4 WITNESS LONG: In the summary that we wrote, we 5 used a figure for those that we interviewed back in '83,

,6 something less than one percent was a figure that we report-7 ed.

8 But the point that I emphasized, that if we had 9 found a two or three percent average we would be concerned 10 about the increases because our job is one of monitoring 11 trends, very important to us, any type of trend to identify 12 a good trend or a bad trend as far as safety is concerned.

13 And we would certainly be interested in any 14 increase of drug use among many other types of problems.

15 BY MR. EDDLEMAN: (Continuing) 16 Q So, you are saying if you had observed a rate 17 of two or three percent at Harris in drug use, you would 18 have been concerned, very concerned, about that increase 19 from a safety standpoint?

20 A I think I personally would register some concern, 21 yes.

22 Q All right. Now, so a significant increase there 23 means like a doubling or tripling? Is that how you define 24 a significant increase?

g ne, lac. 25 A I think a lot would have to do with the population.

8748

1. 15-10-SueW I If we are talking about a reduction in the total number of 2 people on the site day to day, and the percentage-wise 3 showed a doubling, I would certainly be concerned without regard to how many, purely on the basis of percentaces.

5 But with using a figure of two hundred or 6 several hundred, to me the site population is part of the 7 concern. It may get as high as seven or eight thousand on 8 a large site, and I really don't know just what the maximum 9 has been at this site but I would guess somewhere around 10 six or seven thousand, somewhere in that.

II O All right. Mr. Prevatte, you began work at the 12 Harris site in early 1983 I believe.

13 Do you recall how many people were working at

(~]

I4 the site at that time?

15 A (Witness Prevatte) I seem to recall it was 16 approximately five thousand people at that time.

I7 Q All right, sir. And this was approximately I0 the same time frame in which the survey that Mr. Long and I9 Mr. Tobin performed took place; is that correct?

20 Early '83?

2I A You will have to ask Mr. Long and Mr. Tobin.

22 I was not involved --

23 (Witness Long) The end of '82 and early '83.

24 Okay. So, aoproximately the same time frame?

Q A. gal Repo,+., . inc.

25 A Yes.

8749

1. 15-11-Sued (Witness Prevatte) Yes.

4 2 Q All right. Mr. Prevatte, did you receive allega-3 tions of drug use or drug abusa other than those reported 4 to you by CP&L?

5 Have you ever?

6 A (Pause.)

7 Are you talking about a formal allegation or 8 complaint made to me by somewhere out there, or heard a 9 rumor or what?

10 Well, let's start with the formal allegation or Q

II complaint.

I2 A I have received no formal allegations or complaints 13 about drug use.

14 Has anybody told you informally or by confidential Q

15 means -- and I don't mean to compromise your confidential 16 means, so if you don' t want to answer on that basis, please I7 say so -- about drug use but not formally?

18 A There may have been comments made by someone, I9 you know, we hear there's a lot of drugs; or, we hear there's 20 drugs, or something like this.

2I But, no specifics or any detail like this, okay.

~

22 If anything like that was ever brought to my attention, I 23 ask for additional information and so forth and attempted 24 to follow up on it. I have received no allegations to this AceSal Reporters, Inc.

25 extent, though.

l i

1

8750

1. 15-12-SueWI Q All right. So, no allegations saying there is

(] 2 a cliche here dealing drugs and this one is the chief of 3 it, or naming individuals is what I'm talking about?

' 4 A Not reported to me.

5 0 All right. Now, is the -- the construction 6 inspection is your job and startup is Mr. Maxwell's job

7 since he came on; is that right?

8 A Mr. Maxwell has operations. I have construction.

9 Q Okay. In which of those does the eddy current 10 testing of the steam generators fall?

II MR. BARTH: Objection,'Your Honor. There is 12 no relevance to the direct testimony about eddy current

. 13 testing. It has nothing to do with the price'of the

. 14 contention.

15 It's beyond the scope of the direct. It's ir-16 _ relevant to this proceeding.

17 JUDGE KELLEY: It appears to be beyond the 18 scope.

19 MR. EDDLEMAN: It's beyond the scope of the 20 testimony, but I think it's relevant to the proceeding.

, 21 And,I may have to act like Mr. Runkle and ask to call the s 22 gentleman back.

23 (Laughter.)

24 JUDGE KELLEY: Something like that might be ai it.po, n. inc.

25 appropriate. I sustain the objection.

[rs y, ,

, <-, . , , - - - - - - - e . . , w- , - , - , - , - ., , , ,-. ,-. , , - , , - . - . .

= _ - _

8751

1. 15-13-SueW1 BY MR. EDDLEMAN: (Continuing)

Mr. Prevatte, do you have any training in conduct-

.() 2 Q 3 ing undercover drug operations?

4 A (Witness Prevatte) No, I do not.

5 Q Okay. Mr. Prevatte, I believe you said in re-6 sponse to an earlier question that -- and also in your 7 prefiled -- a purpose of undercover investigations is to 8 eliminate drug use on site.

9 If that's so, wouldn't it be important to 10 complete such investigations and follow up on all available 11 leads to achieve that objective?

12 A Undercover operations conducted by CP&L does 13 not come under my inspection program, and I'm not at the 14 site to guide and direct them in how they should do these 15 operations.

16 Q I'm not sure that's an answer to the question.

17 If it's true that a purpose of undercover investigations 18 is to eliminate drug abuse on the site, wouldn't it be 19 important to achieve that objective that the investigations 20 be completed and all available leads be followed up?

21 MR. BARTH: I object to the question, Your 22 Honor. If we refer to Page 8, Answer A-10, third paragraph,

. 23 this is where Mr. Prevatte addresses this matter.

24 And if you will look at the prefacing beginning

,%oi n.pene, inc.

25 of that, he stated he is aware that undercover operations

8752

1. 15-14-SueW I have been conducted. This is the extent of his testimony.

I 2 I would like also, Your Honor, to suggest that 3 we have not prof fered Mr. Prevatte as an expert in under-4 cover operations, To my knowledge, he is not.

5 He has testified he is not. And how they should 6 be conducted and what should be done is beyond his expertise, 7 therefore, he is not qualified.

8 Secondly, of course, the question goes beyond 9 the purview of the direct testimony as set forth in Page 8, 10 Answer A-10, third full paragraph.

II MR. EDDLEMAN: Is counsel willing to stipulate 12 that the information provided in response to Answer 10

/ 13 really comes straight from the Applicants and has no relation 14 to Mr. Prevatte's expertise except that they told him that?

15 JUDGE KELLEY: Let me just get clear here. Mr.

16 Barth, you don't have this broken down by responding 17 for particular questions, as I read it.

18 Is that correct?

l9 MR. BARTH: No, Your Honor. At the bottom of 20 Page 7, Question 10 is addressed to Mr. Prevatte. Mr.

21 Prevatte, as a result, says, yes, I'm aware of that.

22 JUDGE KELLEY: Okay. You just don't use the 23 initial system but all right.

24 MR. BARTH: Correct, Your Honor.

AceGrol Reporters, Inc.

25 JUDGE KELLEY: But, M r. Prevatte is testifying

8753

1. 15-15-Sued then to that answer. .

() 2 MR. BARTH: And that answer solely is that he 3 is aware they have had undercover operations.

4 Beyond that, he has no expertise in the questions 5 asked by Mr. Eddleman, which is beyond the scope of the 6 direct.

7 JUDGE KELLEY: Well, isn't the main point 8 though, Mr. Eddleman, that Mr. Prevatte has just said that 9 this is really outside of his purvuew, which I take it 10 means he doesn' t know about these undercover operations II other than the fact they've occurred.

12 MR. EDDLEMAN: I could accept that if that

{} 13 was his testimony.

I4 JUDGE KELLEY: I thought that's -- I don't want 15 to testify for you, Mr. Prevatte. But that's how I under-16 stood it.

17 WITNESS PREVATTE: That is correct, Judge Kelley.

18 MR. EDDLEMAN: All right, Judge. I am prepared I9 to move on on that basis.

20 JUDGE KELLEY: Okay.

21 MR. EDDLEMAN: -May I have just a moment?

22 JUDGE KELLEY: Yes.

23 (Pause.)

24 BY MR. EDDLEMAN: (Continuing)

Ac i n.p.,,.n. inc.

25 Q Mr. Prevatte, if you personally observed or had

8754

1. 15-16-SueW1 a specific allegation made to you about drug use on the 2 site or selling of drugs, would you as an NRC inspector 3 have a responsibility to follow up on that, to report it 4 to the authorities or to CP&L?

5 MR. BARTH: Objection, Your Honor. It has been 6 asked and answered before, that Mr. Prevatte does not 7 inspect. He testified when he hears these things on 8 an informal basis he notifies his management, and that's 9 the end of this.

10 We've been through this at great length, Your 11 Honor. I object to the question as being repetitious.

12 MR. EDDLEMAN: He testified that he hadn't had 13 any specific allegations of this type come to him. And 14 I believe that it has also been said that the NRC has 15 no rules on it.

16 I want to know if he gets an allegation or 17 observes something himself, what follow up does he need 18 to do as an NRC inspector.

19 MR. BARTH: That was not the original question.

20 He has testified that he hasn' t observed it himself and 21 with regards to allegations he has testified he hasn't had 22 any.

23 JUDGE KELLEY: He has testified that he hasn't 24 heard anything more than an occasional rumor. So, for 4 of Reporters, Inc.

25 present purposes, it seems to me it's pretty far afield

8755

1. 15-17-SueWI from this contention.

2 So, I will sustain the objection. Go ahead.

3 MR. EDDLEMAN: All right.

4 BY MR. EDDLEMAN: (Continuing) 5 Q Mr. Prevatte, you earlier stated I believe that 6 you hadn't observed any drug use at the site. I wasn't 7 clear as to the timing of that.

8 Was that just currently or since you had been 9 there?

10 A I have not observed anyone using drugs since 11 I've been at the site.

12 MR. EDDLEMAN: Thank you. That's all the 13 questions I have.

v 14 JUDGE KELLEY: Okay. Let's see, that brings 15 us to -- I guess Mr. Baxter would be next. Do you have 16 questions, Mr. Baxter?

17 MR. BAXTER: Just two.

18 JUDGE KELLEY: Go ahead.

19 CROSS EXAMINATION 20 BY MR. BAXTER:

INDEXX 21 Q Mr. Prevatte, do you have any reason to suspect 22 that CP&L has not been providing you with all of the 23 information that they have about drug incidents at 24 Shearon Harris?

Ace- of Reporters, Inc.

25 A (Witness Prevatte) No, I do not.

8756

1. 15-18-SueW1 Q And, Mr. Tobin, there was some discussion

~

2 about your conclusion and your ability to conclude 3 whether or not the program has been effective.

4 I understand you've done a review of the docu-5 mentation of the program and discussed it with corporate 6 personnel. Given what a private industrial employer 7 can do in terms of attempting to deter and curb drug 8 abuse, would you say that if CP&L has implemented the 9 program described to you that it would be effective in 10 that effort?

11 A (Witness Tobin) The --

12 (Pause.)

7 ,

13 Q Do you understand the question?

(  !

~_,

14 A Yes. And the answer is yes.

15 MR. BAXTER: Thank you.

16 JUDGE KELLEY: Okay.

END #15 17 Jo] flws18 19 20 21 22 23 24 A al Reporters, Inc.

25

8757 16-1-JosWal XX INDEX 1 BOARD EXAMINATION

() 2 BY JUDGE CARPENTER:

3 Q I would like to follow up on a question Mr. Baxter 4 asked you with reference to- whether you had any basis for 5 any reservations as to whether Carolina Power and Light 6 revealed fully to you drug incidences.

7 I think in the context of your testimony on page 8.

8 Do you, as part of your inspection duties, review the quality 9 check reports, or do you wait until -- considering the 10 special nature of the quality check program -- do you wait 11 for CP&L to report to you the results of their quality check 12 program?

() 13 A (Witness Prevatte) I have no formal inspection 14 requirements that direct me to look into their quality check 15 program.

16 CP&L on a monthly basis, gives me a summary of the 17 results of their quality check program. That is the extent 18 of it.

19 Q Well, during 1985, looking at those monthly reports, 20 have you seen an increase or a decrease in the reports of

'21 suspicions, or identification of drug use?

22 A The majority of their reports are not classified 23 as to -- it is more classified into management-type items, 24 safety items. On their reports, that is primarily how ,

r..oonm. inc.

25 they address it.

8758 16-2-Jo Wal 1 As far as whether there has been an increase x_) 2 in use of drugs reported to the quality check progam in 3 1985, information provided to me indicates that there-4 has been an increase in reports of this through quality 5 check program in 1985.

6 Q In view of the testimony by your colleagues 7 that upward trends are of interest to the NRC, what has 8 been your response to that observation?

9 A I think the drug program has become more active --

10 CP&L's drug program has probably become more active in the 11 last year, and has consequently resulted in it being brought 12 out into light the involvement of people on the site.

I ,) 13 There has probably been stronger emphasis through 14 the quality check program, through the use of detection 15 dogs, undercover operations and everything else. Many of l

16 these things have occurred in 1985, and consequently there I

17 has been more drug involvement cases identified as a result 18 of this.

19 I couldn't say it is an increase. It is more  ;

I 20 of an identification as relates to the issue in 1985 than 21 in previous times.

22 Q I understand that view. You don't think the 23 frequency of the disease has increased, but the diagnosis 24 has increased?

-F Ceponm. Inc.

25

8759 16-3-Jo;Wal 1 A That is probably correct.

) 2 Q Turning over to the popular page 9 of your 3 testimony, I would like to ask --

4 MR. RUNKLE: Excuse me, Doctor. I am having 5 a hard time hearing. Can you sort of focus that toward 6 you a little bit.

k 7 Thank you.

8 BY JUDGE CARPENTER: (Continuing) 9 Q I would like to ask in view of the affidavit 10 by the Attorney General's Office that drug use at the 11 Harris site is widespread in their opinion, I would like to 12 find out whether you spend most of your time inspecting

( 13 documents, or hardware, or specific to the point, how much 14 time do you spend walking around the site in position to 15 observe the behavior of the workers on the site, as a l

16 percentage of your work time? l l

17 A (Witness Prevette) The majority of my time is i

18 spent in actual inspection in the field, and even though 19 I do some documentation review, I rely more on hardware- i 20 type inspections, which is in the field.

21 Q How, in your mind, do you resolve these views 22 that drug use is widespread with your personal observations?

23 A I don't really understand what you are trying to 24 ask.

co-F9at Reporters, Inc.

25 0 Well, as Judge Kelley said earlier, it is:only

8760 16-4-JosWal I hypothetical, so I am thinking hypothetically.

() 2 If I were a resident inspector and walking around 3 the site, and I suddenly began to read in the newspapers 4 and hear on the radio and see contentions that drug use 5 was widespread and that workers were incapacitated, I think 6 it would give me some cause for thought as to whether I 7 was unable to observe adequately, or whether I just perhaps 8 wasn't looking at that issue?

9 A It gives me concern also. I have looked -- as 10 part of my routine inspections out there, I have even 11 discussed things of this nature with people, and asked them 12 do you think it is a widespread problem, and this is people

(~)

V 13 in the field.

14 I talk to many people on the site. You may get 15 a passing comment about yes, I think there are some drugs, ,

l 16 and you will ask well what do you think should be done about l 17 them, could you identify them and so forth, do you use your 18 quality check program in reporting.

19 You get a cross-section of responses. Some people 20 say if I see it, I will report it. I believe they will.

21 I believe the average worker there, if he saw drug use on 22 the site would probably report it through the quality check 23 program or some other means.

24 I think it is evident that there has been drug c.oo,w n. Inc.

25 use on the site. In many of these cases we relate to and

8761 16-5-Jo Wel 1 all involves use off the site detected on the site.

[,: 2 I have some heartburn when we start using the 3 word, ' widespread, ' because I am not an expert such as Mr.

4 Bessinger (sic) in this area to classify and quantify what 5 is widespread and what is not.

6 I know there has been, you know it is evident 7 by the things that have occurred, there has been some drug 8 use there.

9 I just don't believe it is a dominant factor 10 that is occurring continuously that high percentages of Il people are using it on the site, and that is the indicators 12 I get from being on the site.

13

Q Thank you very much. I realize I was asking 14 a qualitative question, but I found it irresistable since 15 you are the eyes of the Commission walking around the site i 16 to get your firsthand reaction to this allegation.

I 17 A I report anything I see or hear -- anything that i i

18 becomes available to me to my management in the region, and i 19 ask their guidance and direction in those areas since I '

i i

20 do not have any specific criteria that directs me on how  ;

i 21 to address this.

22 BOARD EXAMINATION 23 BY JUDGE KELLEY:

24 Q Following up on that a little, Mr. Prevatte.

ce+S6 Reporters, Inc.

25 We have heard testimony about the CP&L programs for training l i

i

16-6-Jo:Wal 8762 1 as supervisors in drug awareness, such that they will

, 2 recognize symptoms of certain kinds of drug use.

3 Have you had any training of that sort?

4 A (Witness Prevatte) Have I received any of the 5 training?

6 Q From CP&L, or NRC, or anybody? Are you trained, 7 or do you have some source of knowledge that sets you apart 8 from the rest of us in being able to tell whether somebody 9 is under the influence of drugs?

10 A I received training in the military, in the navy, 11 I attended workshops and all on how to identify it and so 12 forth as part of the normal programs conducted in the

/^ 13 military.

v 14 Q So, do you feel based on that training that if 15 you are at the Shearon Harris site four or five days a week 16 or whatever it is, and you are walking around the site l 17 all the time, that you would be able to detect drug use 18 if it were prevelent or widespread, to use our usual term?  !

19 A I believe I would be able to detect someone 20 under the influence, strong influence of drugs, even though i i

21 I would not consider myself an expert in this field.

I 22 O How would you do that?

23 A I think it could be done by observing their 24 reactions. How.they act. Dilation of pupils. Just their asGa ceponen, nee.

25 general reactions and all in working with them and in doing i

16-7-Jo:W21 8763 I the inspections and all, and seeing the quality and the j 2 type of work they do, how responsive they are to questions 3 and so forth.

4 Q But would this be with someone that you were 5 directly working and asking questions of, you are checking 6 out some system, is that where you could do this?

7 A I think this is where I would detect it. I 8 have no way of knowing if I walked by -- I have smelled 9 marijuana being smoked before as part of the training in the 10 military and all, but I don't see how in any way a guy 11 could pass in twenty feet of them -- if there was an odor 12 there, maybe I could detect it.

13 It would depend upon the environment.

v.

14 Q I got the impression yesterday from some of the 15 testimony that since a lot of these symptoms are things that i 16 happened to people; red eyes, or get a little bit distracted 17 or whatever, could be true for a lot of reasons.

18 You could walk through the site, you could almost  !

19 trip over drug use and not know it was there, I suppose, I

20 if you were just walking through, is that right?

21 A It is probably possible. l 22 0 Your point, if I understand you correctly, is 23 if you work directly with somebody and you are checking out 24 some valve or other and you talk to them for fifteen naSsneconen,snc.

25 minutes, that if he were really gone on drugs, you would catch l l

8764 16-8-Jo W21 1 on, i j 2 A I think I would.

3 Q Do you think, given the fact that you do inter-4 act with employees on the site on virtually a daily basis, 5 that over time if -- to use that word again, drug use 6 were widespread at the site, you would over time positively 7 detect some numbers of people who were under some influence 8 of drugs?

9 A I belive that if people were aware of drug use 10 on the site and -- would report it to their management, l

11 and their management failed to respond, take corrective 12 action on it, they would report it to us also, l

(^)

v 13 Q I want to know whether you think you would.

14 If you were the resident inspector at Shearon Harris for 15 a couple of years, and if there were widespread drug use i

16 out there, whatever exactly that means, co you tnink you l l

17 would see airect evicence of it over time?

18 A Yes, I believe you would. I 19 0 In some numbers of people; not just one, not just 20 two, but some significant number. ,

I 21 A I believe you would. l 22 Q Are your activities on the site known in advance? l 23 A Most of my inspections are -- obviously , half  ;

24 of them I contact people, and tell them I am looking in the w 4 .inwon.ri. w.

25 area. j i

16-9-JocWal 8765 1 I want certain documentation. I am going to look

) 2 at this , and this, and this . I may request their inspection 3 personnel to accompany me in the field to verify what we 4 find.

5 Probably thirty percent of my inspection is just 6 going out in the plant, seeing what is being done, and 7 inspecting work as it is in progress. That is probably 8 thirty percent of it.

9 Q What I am getting at, and it is probably obvious, 10 is if people know in advance the NRC inspector is coming, I

11 and they have a choice of whether to use drugs or not, I 12 assume they would not on that particular day.

) 13 A I don' t think they know when I will be there.

14 They know I am on the site all the time, and they can 15 anticipate that they may be working and I am looking over 16 their shoulder.

I 17 0 I am going to go back to the last sentence just 18 for a minute also, if I may, to all three of the gentlemen l 19 if they wish to speak to it.

20 It is the question of implementation. As -- putting 21 Mr. Prevatte's daily activities to one side, there seems to I

22 have been a largely paper review of the program with some 23 discussions with top level management, but not in a sort of

& 24 hands-on NRC inspection at the site specifically, wrM nwoners, w.

23 As I understand it, the NRC I&E people have not  !

l

16-10-Jo:Wal I conducted any investigation about the extent of drug use I 2 at the site, is that right?

3 A Not to my knowledge.

4 0 And you say in your last sentence, assuming 5 the magnitude of the drug use alleged in the AG submittal; 6 you just assume that part of it.

7 So, as I hear it, the Staff doesn't have an 8 opinion on the magnitude of the problem at the site.

9 You are not taking an official position saying 10 whether it is widespread or not, in fact.

11 A (Witness Long) Yes, sir. l 12 Q Okay. So, you -- by the same token, as to the 13 issue of whether it is widespread, you don't really have 14 a position of whether this Board ought to find a reasonable 15 assurance in favor of licensing as to drug use problems?

16 I am putting aside what you might have to say l 17 about corrective action, that is different. But on the i i

18 issue of whether it is widespread or not, the Staff -- you  !

1 19 haven't done an investigation, and as I understand it, i

20 you are not taking a position on that, is that correct? ,

l i

21 A (Witness Tobin) That is true. '

22 A (Witness Prevatte) I know of no plans to do 23 an investigation.

24 JUDGE KELLEY: Okay. We should take a little '

W 4et Reporters, Inc.

25 break here. Do you have some redirect, Mr. Barth?

__. - - - . - _ _ _ . - ~ . - - - - - . ~ -

16-ll-Jo:Wal  !

I MR. BARTH: I have no questions on redirect,

) 2 Your Honor.

3 JUDGE KELLEY: Okay. Do you have further cross, ,.

4 Mr. Runkle?

5 JUDGE KELLEY: Yes, I just need to clear up 6 one point.

7 JUDGE KELLEY: Go ahead with one point.

8 BY MR. R UNKLE : (Continuing) 9 Q Just -- I think we have a pretty clear record, 10 but just to pin down the one number that was used earlier 11 by Mr. Long, you referred to a -- and correct me if I am 12 wrong -- you referred to the conclusions of your 1982-1983

(]) 13 survey, and you used the figure typically about one percent 14 of drug use at the different utilities you surveyed, is that 15 correct?

16 A (Witness Long) I think there actually were less ,

t 17 than one percent. We used the figure one percent or less.

18 As I recall, the maximum would have been one percent. It 19 was very small.

20 Q So that one percent or less was based on the survey 21 of the thirteen utilities in Region II that you conducted, 22 is that correct?

23 A That is correct.

24 MR. RUNKLE: No other questions.  ;

newwn.im. t 25 JUDGE KELLEY: Mr. Colo, anything else?

16-12-Jo:Wal 8768 I MR. COLE: No, Your Honor.

2 JUDGE KELLEY:

Gentlemen, anything else?

3 MR. EDDLEMAN: Judge, I think I had a few, but 4 if you give me a break I might be able to decide not to 5 ask them.

6 JUDGE KELLEY: That is a very powerful inducement.

7 (Laughter) 8 JUDGE KELLEY: Let's take a short break.

9 MR. BAXTER: I have one, Mr. Chairman.

! 10 Just to follow up on the Chairman's last question to Mr.

Il l Prevatte. In your opinion, -- while you haven't done your 12 own investigation, does CP&L have a reasonably effective l

, s 13 capability to identify violators of its drug abuse policy?

14 MR. PREVATTE: Would you restate your question.

15 l I am not sure what you are getting at.

i 16 MR. BAXTER: Based on your familiarity with the i 17 measures CP&L employs at the plant, security, quality l 18 check, observations by employees and supervisors, does CP&L 19 have an effective capability to identify employees who are l

20 violating their drug abuse policy?

2I MR. PREVATTE: I believe that their program 22 out there as implemented and all, is having an effect on 23 -- in reducing or eliminating drug activities on the site.

24 e-Fg Reporters, Inc. It is having a positive effect on it. Is that what you are 25 saying? I am, not sure what you are asking. l l

16-13-Jo:iW31 8769 1 It is having an effect on reducing drug use at

( 2 the site is my opinion, okay?

3 MR. BAXTER: I am not going to try again. Thank 4 you.

5 JUDGE KELLEY: Let's take a break.

6 (Short break taken.)

End 16.

MS fois.

8 9

10 11 12

~

13 14 15 i

16 I 17 i

18 l 19 l

20 21 -

22 23 e-F Reporters, I .

25

8770 Sim 17-1 1 JUDGE KELLEY: We can go on the record.

2 You know in law school, Mr. Eddleman, they teach 3 you about a concept called promissory estopple ---

4 (Laughter.)

5 Go ahead. So you want to ask those questions or.

6 not? .

7 MR. EDDLEMAN: It was intended to reduce, but 8 it did not eliminate all of the questions, Judge, but I 9 only have I think ---

10 JUDGE KELLEY: Mitigation of damage, that is also 11 a concept in law school.

12 (Laughter.)

13 Go ahead.

14 CROSS-EXAMINATION (Resumed) 15 BY MR. EDDLEMAN:

16 Q Mr. Prevatte, in response to some questions from 17 the Board I believe you stated that with respect to the 18 drugs you would report anything you see to your Region II 19 management. Have you made any such reports?

20 MR. BARTH: Objection, Your Honor. He testified 21 he hasn't seen any onsite. His testimony was that he.roports 22 to hin management what CP&L tells him. .And'.the imprecision 23 of the question leads to a further imprecision of this -

24 record. So I object to the question because it is improper

.. g .. .,_

25 and mischaracterizes the testimony of the witness so far,

8771 Sim 17-2 1 Your Honor.

2 MR. EDDLEMAN: If the staff will stipulate that a

3 that is what that answer meant, I will withdraw the question.

4 JUDGE KELLEY: Do you so stipulate, Mr. Barth?

5 MR. BARTH: Certainly not, Your Honor. The objection 6 stands as it is. The question was improper and mischarac-7 terized the testimony of the witness.

8 JUDGE KELLEY: I don't think quite this point has 9 been made in the testimony to date. So we will allow the 10 question.

11 Go ahead and answer the question.

12 WITNESS PREVATTE: I think I stated that I have 13 not physically seen drug use on the site. I have not had 14 reported to me through allegations and so forth any drug 15 use. What I have reported to my management in Region II 16 is the information on each individual drug case that has been 17 provided to me by CP&L, and any specific information regarding 18 those cases.

19 BY MR. EDDLEMAN:

20 Q And that is it?

21 A (Witness Prevatte) Yes.

22 Q Okay. When you were talking about working closely 23 with people in reference to being able to tell if someone 24 were strongly under the influence of drugs, Mr. Prevatte, A<.hni n.p.n.n, Inc.

25 would the majority of the people that you would be working

8772 lim 17-3 j closely with be the people that you had called, or that had 2

been called or somebody in their department had been called 3

and told that you were going to cone and look at a certain 4 area?

5 A My normal routine when I got to inspect an area, 6

if I require assistance from some CP&L or Daniel's personnel, 7 I call their supervisor and so forth immediately before going to the field, and the longest would probably be 30 or 45 8

minutes notification to them to provide the personnel. At 9

10 times I may request individuals or I may request inspection n personnel in some area or some other particular individual 12 or craft to assist in the inspection. And the other times 13 I will go in the field and observe then without any prior 14 notification.

MR. EDDLEMAN: Thank you. That is all the questions 15 16 I have.

17 JUDGE KELLEY: Okay. Does anyone else have any is question they want to put to this panel?

19 (No re sponse '. )

20 Okay, gentlemen, we appreciate your being with 21 us and responding to the questions as you have. Thank you 22 very much. You are excused.

23 (The panel was excused.)

24 JUDGE KELLEY: Can we move right on to the next h,.,ws, W.

25 applicant panel?

8773 Sim 17-4 1 MR. BAXTER: Yes, sir. Applicants recall Mr. Bensinger, Mr. Hindman, Mr. Kind and Mr. Joyner.

( ). 2 3 JUDGE KELLEY: All previously sworn I believe.

4 Whereupon, 5 - WILLIAM J. HINDMAN, JR.

6 MICHAEL W. KING 7 D. GLENN JOYNER 8 - and -

9 PETER B. BENSINGER 10 were recalled as witnesses on behalf of the Applicant and, 11 having been previously duly sworn, were further examined 12 and testified as follows:

13 MR. BAXTER: Mr. Chairman, before I proceed with 14 the direct examination on the next piece of testimony, we 15 had one piece of unfinished business from the last appearance 16 of this panel, and I thought we might just do that first.

17 The Board asked for a copy of the weekly security 18 report that Mr. Joyner had prepared in August of 1984 and 19 which went to Mr. McDuffie and served as the basis for the 20 initiation of discussions about the undercover drug 21 investigation.

22 And I have distributed during this break to 23 counsel and to the Board a copy of that report, and I would 24 just like to ask Mr. Joyner to identify it for the record.

h hows w. 25 WITNESS JOYNER: This is an exact copy of the f

8774 a m 17-5 weekly report that I wrote to Mr. McDuffie.

1 2 JUDGE KELLEY: Thank you.

[)

3 MR. BAXTER: Is there any significance to the 4 blank signature line there, Mr. Joyner?

WITNESS JOYNER: Yes. This is the copy that 5

6 we received. The original has been signed by me.

MR. BAXTER: Mr. Chairman, it is not a very long 7

8 document, and if anyone wants to question on it now, I 9 think this would be the time.

10 I would also ask for the record that it be 11 physically incorporated into the transcript at this point 12 and I have given a copy to the reporter.

JUDGE KELLEY: The Board asked for this and

{} 13 we would like to include it in the transcript.

14 15 Are there questions on it at this point?

16 Mr. Runkle. If I could just have a moment 17 to review it.

18 (Pause.)

19 MR. RUNKLE: Mr. Joyner, this is the entire 20 report, is it not? ,

21 WITNESS JOYNER: This is just a summary of the 22 events that we do as a unit for the week.

23 MR. RUNKLE: But this report is the entire report?

24 WITNESS JOYNER: That is correct. 4 Ia ,*,s. inc.

25 MR. RUNKLE: No questions. l 1

8775 Sim 17-6 1 JUDGE KELLEY: Okay.

2 Mr. Cole?

-(J)

3 MR. COLE: Was any conversation had with Mr.

4 McDuffie as a result of your sending this to him?

5 WITNESS JOYNER: The telephone conversation was 6 made with Mr. McDuffie as a result of my sending this 7 weekly report to h~im.

8 MR. COLE: Had we talked about this previously?

9 WITNESS JOYNER: We did discubs it, yes.

10 MR. COLE: And the content of the phone conversa-11 tion is in the record then?

12 WITNESS JOYNER: 'To my knowledge, it is, yes.

13 MR. COLE: All right, sir.

14 JUDGE KELLEY: Mr. Barth, any questions?

15 MR. BARTH: No questions, Your-Honor, or 16 objections to the admission of this.

17 JUDGE KELLEY: Okay.

18 (Board conferring.)

19 JUDGE CARPENTER: Mr. Joyner, we have been beating 20 this around quite a bit, but I am still trying to understand 21 why your program of responding to any sorce of information 22 about possible drug use by an employee and pursuit of that.

23 and in many cases leading to termination of employment wasn't 24 functioning without calling in outside help from law

% n.p.,ws, Inc.

25 enforcement. As a layman I am perhaps missing the point.

8776 Ci" 17~7 WITNESS JOYNER: I think I understand your 1

auestion, sir.

^

2 m

We felt, or at least I felt that the amount of information I was getting took up more time than I could give it, and there being one law enforcement on the job site that everyone knew, I felt like it was not a possibility for me to go down and visually observe these employees without them knowing who I was. And that is the basis for the request to ask for agents to come in that people on the job site did not know.

JUDGE CARPENTER: Thank you. That helps my perspective.

JUDGE KELLEY: There is a motion to include this one-page document in the record, and I have heard no objectior.

to that. We will grant the motion and ask the reporters S

g to do that.

g (The document referred to above follows:)

NDEX 18 19 20 21 22 23 24 Ac hol n. port.n inc.

25

CONSTRUCTION SECURITY UNIT WEEKLY REPORT AUGUST 13 - 17, 1984 l

The Construction Security Unit at the Harris site has been involved with investigating drug allegations involving both Daniel and CP&L employees.

The investigation has reached a point where additional law enforcement help is needed. The Wake County Sheriff's Department has been contacted for additional guidance.

INPO reported on site Monday, 8-13-84, for a total of three weeks to i begin inspecting the progress and manner of construction. Badges and

, vehicle passes were issued to ensure a smooth entrance.

Telephonic communication was made with the Brunswick Plant, and they have no major security problems to report.

Mr. Mike King, Construction Security Agent, has been in summer camp with the Army Reserves during the week.

DGJ/nk 8/17/84 4

O 5

1 O

- - - , - - - - - -e- - - - - - - - - - - - . _ -~ -- - -- -- - - - - , - - - -n-,-v ~ - - , , - - - + ,,m

8777 Sim 17-8 JUDGE KELLEY: There is one other piece of 1

unfinished business that I generated during the last panel i

2 and I would like to ask Mr. Bensinger maybe to help me 3

on this.

4 We talked yesterday about the CP&L policy and its conformity to an EEI policy on drugs, and you have 6

in your testimony, the joint testimony, there is quoted a couple of paragraphs which we discussed at some length of why doesn't it just say no drugs.

And then today I heard or realized that the EEI 10 policy, according to the staff, is just an operating plant policy.

Now is that because the EEI policy is generally 13

(-

phrased and could apply to either and the EEI itself has only made it applicable from its perspective to operating plants or are there two different EEI policies involved here?

17 WITNESS BENSINGER: I don't think there are 18 two different policies involved. Background. The EEI staff in September of 1982 met Pat Sanders of Commonwealth Edison, Michal Twastoe of Public Service Electric and Gas, Ed Bombsey and myself, having been a consultant to Commonwealth Edison on the issue of drugs and public 23 utilities.

"* k ' "#"' '"*- And from that discussion emerged a special task 25

• 8778 oim 17-9 1 force of dif ferent elements and representatives of public utility companies and Edison Electric's staff and a guide, (7 j 2 3 the first guide which was put out in 1983.

4 It was the thrust then that this would not 5

exclude construction sites, and in the revision in '85, there 6 are page references to two real sections, one dealing 7 with contractors and one dealing with drug testing.

8 My sense is that the Edison Electric Institute 9 and its task force participants and this consultant was 10 retained by them to give them advice did not intend to 11 eliminate construction sites from reviewing and making use i

12 of those guidelines.

I interpreted the NRC staff to say well, their I

{} 13 l 14 basic responsibilities are directed to operating -- well, 15 they looked upon that as to apply to operating stations and 16 their testimony will speak for itself.

17 I think the Carolina Power and Light Shearon 18 Harris plant exceeded the guidelines requirements, and my 19 testimony is to that effect. But I certainly am not 20 operating as a consultant under the impression that it doesn't 21 apply to construction sites. ,

1 22 JUDGE KELLEY: As I understand it from the way it 23 has been described, it is not drafted to be only applicable

{ 24 to an operating plant.

Ac of Reporters, Inc.

25 WITNESS BENSINGER: There are sections that make i

---

,...,c. - , , , , . . . , . . - . - , , . . _ ____,_._.__._.,_..n ,.n._ , _ , , , _ _ . _ , _ ,w. , . , , , , _ . , , . _ . . , , _ . , _ . - , . _ , ,, _ , . , , , . , ,

8779 Sim 17-10 1 clear reference to contractors, and my interpretation of

() 2 a contractor would not be limited to comeone going in on 3 an outage of an existing nuclear plant.

4 JUDGE KELLEY: And it is not drafted? I mean I understand the NRC has this fitness for duty package out 5

6 for comment at the moment which, I gather,,is aimed mainly 7 at operators. But you are talking about a different EEI 8 policy when you were describing yesterday's policy, are you 9 not?

10 WITNESS BENSINGER: Well, I think the EEI's 11 program is always a guideline, and the EEI and public utility 12 representatives met with the NRC after they issued in 13 '82 a proposed fitness for duty regulation, first requiring assurance that people with unescorted access would not be 14 15 impaired, and then reasonable assurance, and that has a 16 reference, or I:think the; background _ informationf on' this .f .

17 matter would indicate that it has not been voted on by the 18 Commissioners in lieu of industry compliance through NUMARC 19 and INPO.

20 And that is the status of the fitness for duty 21 reg. It is not a formal binding Federal Register issued 22 regulation.

23 JUDGE KELLEY: I understand that.

WITNESS BENSINGER: And wh'at" the industry has 24 hporan. Inc.

25 said is it will through its mechanisms have its own

8780 Sin 17 -11 membership respond to the general objective, and the EEI 1

guidelines are designed to give guidance and direction to 2

that end.

3 JUDGE KELLEY: Well, I think that helps me any-4 way, and maybe I just need to do more reading than I have 5

done. Okay.

6 DIRECT EXAMINATION 7

BY MR. BAXTER:

8 INDEX Q Gentlemen, I call your attention to a document 9

that bears the caption of the proceeding dated September 10 23, 1985 and entitled " Applicants' Testimony of William J. Hindman, Jr., Michael W. King, D. Glenn Joyner and 12 Peter B. Bensinger on the Assessment of Employee Drug 13 Activity (CCNC Contention WB-3)" consisting of 21 pages of 14 questions and answers.

15 Is the testimony associated with your initials in this document prepared by you or under your supervision for presentation at this hearing, Mr. Bensinger?

A (Witness Bensinger) It is.

O Mr. Hindman?

A (Mr. Hindman) Yes.

21 Q Mr. King?

A (Witness King) Yes, it is.

Q Mr. Joyner?

^' '"***"*"'"** A (Witness Joyner) Yes, it is.

25

8781 Sim 17-12 1 0 Do you have any changes or corrections to 2 make to the testimony, Mr. Bendinger?

3 A (Witness Bensinger) No changes.

4 Q Mr. Hindman?

5 A (Mr. Hindman) No changes.

6 Q Mr. King?

7 A (Witness King) No changes.

8 Q Mr. Joyner?

9 A (Witness Joyner) No changes.

10 0 Is the testimony true and accurate to the best 11 of your knowledge and belief, Mr. Bensinger?

12 A (Witness Bensinger) Yes.

13 Q Mr. Hindman?

14 A (Mr. Hindman) Yes.

15 Q Mr. King?

16 A (Witness King) Yes, it is.

17 Q Mr. Joyner?

18 A (Witness Joyner) Yes, it is.

19 MR. BAXTER: Mr. Chairman, I move that the 20 testimony be received into evidence and physically 21 incorporated into the transcript as if read.

22 JUDGE KELLEY: Mr. Runkle?

23 MR. RUNKLE: Yes, I have several objections. We 24 can take them one by one.

Ac al Reporters, Inc.

25 JUDGE KELLEY: Okay.

8782 Sim 17-13 MR. RUNKLE: The first one is on page 8 of the 1

2 prefiled testimony starting with the last two sentences 3 of the paragraph at the top of the page where it quotes 4 a newspaper article that alleges to quote a worker at the 5 plant. And then the last sentence of that paragraph was 6 another worker reported to be quoted in a newspaper 7 article.

8 This is clearly hearsay on hearsay, and we would 9 move to strike it upon that basis.

10 MR. BAXTER: Mr. Chairman, I don't favor newspaper 11 articles myself as a basis for testimony. In this peculiar 12 instance, however, the Conservation Council's proposed 3 13 contention was filed in January of 1985 and refers to in

(. ,

14 the very body of the contention as the asserted basis for 15 their allegation that drug use at the plant is widespread 16 an attached newspaper article from the Raleigh News and 17 Observer.

18 These witnesses attempting to address whatever 19 basis they could get their hands on advanced by the proponent 20 have included an excerpt from that newspaper article here.

21 JUDGE KELLEY: Okay.

22 A comment, Mr. Barth?

23 MR. BARTH: Yes. This is the same observation 24 we had made previously, Your Honor, and I think that the m.g.. .. . -

25 Board should not only deny the objection, but I think

8783 Sim 17-14 you should order that Mr. Runkle is estopped from asserting

' this kind of objection on newspaper which is the fundamental 2

basis of his own contention. He has made the assertion 3

and he is no position in equity in law to make this kind 4

of assertion at this time if you go to the premise of hi's' own assertions previously in the contention.

MR. BAXTER: One further comment. There is 7

nothing misleading about the testimony. It clearly indicates that it is a newspaper article and what it is 9

1. ** " " '" ""Y E# Y * * " " 9 10 jj the Board.

JUDGE KELLEY: Any thoughts, Mr. Cole?

MR. COLE: Your Honor, I have no problems with the newspaper articles. Nortnally I would. say it. is a.: rank --

g

• ' " *^Y ^ '#" " "^#8 Y' "

15 g of newspapers are just rank period.

(Laughter.)

In this instance, and obviously it is into 18 evidence, I would say that, assuming no one is going to g

g object to those portions of the newspaper articles that are being referred to, I certainly have no problem with their admission.

JUDGE KELLEY: All right. Mr. Runkle.

MR. RUNKLE: There is a different evidentiary standard which provides the basis for contentions, and 5

8784 Sim 17-15 )

the Board has already ruled that the contention does have

() 2 basis. And we feel that as testimony there is a different 3 standard, and for this hearing there should be a different 4 standard, and this is clearly hearsay.

5 MR. BAXTER: The Board has not ruled that there is 6 basis to the contention as far as I am aware. The Board has ruled that there is an asserted basis with requisite 7

8 specificity.

9 JUDGE KELLEY: We let the contention in and it 10 had enough specificity we thought. The newspaper article 11 in question is not itself in-evidence in the evidentiary 12 record. Nobody has offered it, just the couple of quotes that we now are focusing.on here.

(} 13 Well, okay.

I think the Board understands the 14 15 objection and arguments. So let's pass on to the next one.

16 We will rule on this probaby tomorrow morning.

17 MR. RUNKLE: We would further object to all of 18 page 14 and page 15 down to 0-15 for several reasons, and 19 there are several different parts.

20 The entire page and a half, we would object to 21 its relevancy to this proceeding, particularly this panel's 22 testimony. It doesn't add anything to their testimony.

23 There are several hearsay statements included 24 in this page and a half, and I will point those out to you.

w h hp.mn, Inc.

25 The last sentence on page 14 about statements

8785

, y reported from alleged co-workers and the last sentence right 2

before question 15, which is the rankest hearsay I have seen 3 yet in this proceeding, some unnamed worker in a bar stating nd Sim 4 something in quotes, no doubt out of context.

u3 fois 5

6 7

8 9

10 11 12 13 O^

14 15 16 17 18 19 20 ,

B 21 22 23 24 e up inc.

25 i

--__----__--.------------,--__,---,--,---__.-.,-,--,,-------_---_--_--------------------,--a.__-----_---_.-----_---_-----_-_---------.__--_---aa,_---------

8786

1. 18-1-SueW 1 JUDGE KELLEY: Okay. Well, let's go to the

() 2 Applicants' and perhaps the other parties. We will come 3 back to you, Mr. Runkle.

4 MR. RUNKLE: Thank you.

5 JUDGE KELLEY: Mr. Baxter.

6 MR. BAXTER: Turning first to the relevance 7 of the material to the testic.ony, whether or not Mr.

8 Runkle feels it adds something to our case is really not --

9 is really a decision for us to make.

10 But, in terms of relevance, this is a piece of 11 testimony on the assessment of the extent of employee drug 12 activity. We have an affidavit that was filed on Seotember 13 6th, 1985 by Ms. Miriello alleging that there is drug

)

14 activity, which I then asked the witnesses: Have you 15 included the employees she names in your two hundred and 16 one and in your quantified assessment?

17 And they say: No. And I ask them to explain 18 why no t. And then Mr. Joyner, who is in charge of the 19 construction security at the plant, describes the investiga-20 tion he has conducted and what it reveals about, as best we 21 can determine it, given these employees are gone, no longer 22 working at Shearon Harris, whether her allegations have any 23 substance.

24 And the material both goes to the best evidence Shel hp n.n, lac.

25 he can find as to whether or not the Conam Inspection employee s

8787

1. 18-2-Suew I were working at Shearon Harris under the influence of drugs 2 and whether there are other reasons why Ms. Miriello's 3 credibility ought to be questioned in terms of the weight 4 to be given to her accusations.

5 The two specific hearsay complaints Mr. Runkle 6 has made are purported statements by Ms. Miriello herself.

7 Consistent with the Board's previous rulings about Sheriff's >

8 Department personnel and Agent Williams, who are going to i 9 appear later here, Ms. Miriello as I understand it is also 10 going to be offered.

II And Mr. Runkle can ask her if he has some doubt 12 about the authenticity of these reports, whether she indeed O '3 mede ehese eeeeemenee.

I4 JUDGE KELLEY: I guess the word that we haven't 15 heard yet is lawyers looking at a legal question. Mr.

10 Runkle, doesn't this discussion here in general anyway come 17 under the heading of impeachment of a witness?

18 . And, if so, and if impeachment in some ways is I9 permissible, why is this objectionable?

20 MR. RUNKLE: What Mr. Baxter said was correct, 21 that in part of the investigation you look at the various ,

22 Conam personnel.

23 Now, is the purpose of this to investigate the hceAel Reporters, Inc.allegations of drug use, employee drug activity, which is 24 25 the purpose of this testimony; or is it the purpose to

8788

1. 18-3-SueW I attack credibility of the witness?

2 JUDGE KELLEY: Bo th .

3 MR. RUNKLE: If it's --

4 JUDGE KELLEY: I read it as both. I thought 5 that the Company was saying: liere is our case on widespread 6 use, and we are also going to seek to undercut the credibilitf 7 of your witness.

8 Is that your intention in general terms, Mr.

9 Baxter?

10 MR. BAXTER: Yes. In this particular instance, II Ms. Miriello's credibility is involved in our assessment I2 of employee drug activity, or alleged employee drug

. 13 activity.

14 JUDGE KELLEY: So, I guess what I would like to 15 hear -- let me see what the other lawyers might have to 16 say on the topic, and we can come back, Mr. Runkle.

I7 Mr. Barth, any comment?

18 MR. BART!!: Yes, Your lionor. As we have pre-I9 viously stated on these hearsay objections, in our view 20 Rule 801 of the Federal Rules of Evidence, subparagraph (d) (1: ,

21 . does not make this hearsay.

22 This is a statement by declarant who is going 23 to testify at trial, Mrs. Miriello, if she can refute this.

24 JUDGE KELLEY: Okay.

Ace Grol Reporters, Inc.

25 MR. B ART!!: I would like to point out that the l

l

8789

1. 18-4-SueW I Rules of Evidence, what we call the Federal Rules of 2 Evidence, have been adopted by the Supremo Court of the 3 Stato of North Carolina and also bind tha State Courts in 4 North Carolina, so we are all familiar with them down here.

5 MR. RUNKLE: I disagroo with --

6 MR. B ART!!! Second of all --

7 MR. RUNKLE: Excuso me.

8 MR. B ARTli : 11old your peaco, please. Second of 9 all, Your lionor, this is clearly rolovant. In regard to 10 tha relevanco argument, wo havo had questions about Mrs.

II Miric11o's Conar oddy current testing, ad infinitim. And 12 it's relevant to what has boon going on before, including 13 questions by her counsel.

I4 I think he is now estopped from asserting an 15 objection to the relevance of his own questions. That just 16 is not good to say the sauco for me is not sauco for you.

I7 It cuts both ways.

18 So, I think that it is rolovant. I'm not certain 19 that it is hoarsay in this Stata. And in spite of all of 20 those words I might uttor, Your !!onor, should you rulo 21 that this should be excluded, I think you should extend 22 you'r rule to exclude all hearsay involving Mrs fliriollo 23 which would include the testimony of Mr. Runklo's witness.

24 You cannot have it both wayn. If you are going 2<.Sain. gor.r,w.

25 to throw out Mrs. Miriello for the Power Comp.tny, you've I

i 4

8790

1. 18-5-SueW I got to throw it out for CCNC, too, Your lionor. l 2 Thank you.

3 JUDGE KELLEY: Do you have any view, Mr. Barth --

4 and I guess this is what I would like to hear from all the 5 counsel -- whether or not this is proper impeachment given f i

6 the general rules applicable to impsachment of adverse  ;

7 witnesses?

r 8 The old rule at least was -- and I'm not trying  !

i i 9 to be too precise -- that you could impeach a witness based  :

10 on the witness' reputation for telling the truth. And j

l i 11 that was about it. You could not go into specific instances l  !

12 of conduct, as this testimony does. [

I  !

13 The Federal Rules of Evidence which I think most I4 of us have availcble to us, which I mentioned befors, that l l

15 we look to for guidance, has some specific provisions as to I 16 whether -- which has some bearing on this point. l 17 And frankly the Board is going to consider this  !

I 18 and give a ruling probably tomorrow morning, not right now.

19 I don't think we are going to have any problem with the 20 hearsay point if there are statements by Ms. Miriello and i

21 she is going to come. That's not what is going to give us l l

22 any pause.  ;

i 23 It's whether it's proper impeachment. That 24 is certainly the focus of our concern. -

he mes. W.

25 MR. DARTill Your !!cnor, I would like to address i

8791

1. 18-6-SucW I that. Rulo 608(b) of the Federal Rules of Evidence, which 2 are also law in the Stato of North Carolina, provides for 3 impeachment of the charactor of a witness by using soocific 4 examplos of the conduct of a witness for the purposes of 5 attacking or supporting his credibility.

6 And, therefore, this is perfectly propor under 7 both the Federal courts and the St ato courts in North 8 Carolina on that point. I'm not certain that that's what 9 this point is.

10 Dut, answering your question, Your lionor, it is II a legitimato attack, if that's what it is.

I2 JUDGE KELLEY: Excuso me a minuto.

13 MR. BAXTER: Aro you going to rulo now, Mr.

')

14 Chairman?

15 Jugag ggttgy: no, 10 MR. DAXTER: Okay.

I7 (Pauso.)

18 JUDGE KELLEY: I'm looking at 60'3 (b) . And --

19 well, it roads as follows: " Specific instancos of the 20 conduct of a witnans, for the purpose of attacking or 2I supporting his or har credibility, other than conviction 22 of crimo as providad in another section, may not bo 23 proved by oxtrinsic evidenco," whatever extrinsic ovidenco 24 is. "They may, however, in tho discretion of the court, if A$as n cor,.<i i,w.

25 probativo of truthfulness or untruthfulness, be inquired

8792

1. 18-7-SuoW1 into on cross-examination of the witness (1) concerning 2 his charactor for truthfulness or untruthfulness, or (2) m 3 concerning the charactor for truthfulness or untruthfulness 4 of another witness as to which charactor the witness being 5 cross-examined has testified."

6 It scoms to bo portinent. I just would like 7 to hear what the parties, what the counsel, had to say 8 on that.

9 Mr. Barth, you believe that that authorizos 10 this lino of impeachment?

Il MR. B ART!!: It allows it for impeachment 12 purposes, Your lionor.

13 JUDGE KELLEY: It's also in the discretion of

']

14 tho -- in this caso -- Board. So, if tho Doard thought 15 under all of the circumstancos wo shouldn' t got into those 16 matters, we could precludo it.

17 MR. B ART!!: That is also true, Your !!onor. But 18 I must further observe as a lawyor that a fair reading 19 of this would make this applicable on cross-examination, 20 not on direct tautimony.

21 JUDGE KELLEY: I guess our concern is partly 22 with -- part of it would be with getting drawn off into 23 some very collateral points. We also have somo concorn 24 for fairness to the witness whose voracity is under attack A<.$ al sepo,+.es. Inc.

25 and whether it's all worth it.

8793

1. 18-8-SuoW I Let mo go over to Mr. Colo and then we can got 2 back. Mr. Cole, any thoughts on the proper procedure hora?

3 MR. COLE: Your lionor, I do have some problems 4 with the method here. Obviously, you said the credibility 5 is involved. Well, of course, ovaryone's credibility is 6 involved hero.

7 And I assume taking this attack that we could 8 spend a wook digging up dirt to talk about my friend sitting 9 right hero, that, you know, he -- well, I won't say what --

10 you know, I could just make some wild accusation, you know.

II And, of courso, he would have a chance to deny it.

12 But here we are sitting with an affidavit.

~

13 The witness, Ms. Miriollo, is available for cross-examination.

Id Now, if that woro not the caso it might be a little dif-15 forent. She is going to be hora.

16 Those matters can be inquired into. And I guess 17 I'm talking f airness among a whole lot of things, that it 18 just appears -- and it is different when you put matters 19 like this in an af fidavit when it's going to be some timo 20 later when that witness takos the stand.

21 This statomont just stands. And we have allowed 22 in a lot of hearsay so f ar, Your lionor. But I don' t think 23 tha t we -- I would like to think that none of us think that 24 we havo gono far enough to allow in the statomont about A<$nt it.norveri, i,w.

25 someono -- what someone in the bar said. Now, again that

8794 918-9-SueW 1 may be provable. That witness may be coming in.

2 And I realize that you can ask certain questions 3 on cross-examination. And, of course, if the witness

! 4 denies it, you are going to be bound by probably what she 5 says and can' t inquire any further.

l 6 But just something about basic fairness. This 7 is ingonious, I will say that. But in basic fairness it L 1 ,

l l 8 doesn't pass the smell test with me, I guess, Judge.

9 JUDGE KELLEY: Okay. Mr. Baxter.

l 10 MR. BAXTER: Well, I don't know how much time -

11 Mr. Cole has spent reviewing Ms. Miriello's testimony either, 12 or how that test would apply.

13 The problem, Mr. Chairman, we are not talking l

0 14 about an allegation of a definable safety deficiency that 15 we can go out and investigate'and provide you with quantita-16 tive proof on. To the extent we can do that, we have with F

17 Mr. Brombach's testimony which is coming later.

l l 18 The testimony of the witness itself is based on j 19 what she states she was told by a former employee at Shearon l

20  !!arris, a contractor employee, who happens to have been in l ,

I 21 a social relationship with the witness.

l l 22 .And I think that the timing at which these '

l 23 events occurred, and the time at which she allegedly reported 24 it to the F.D.I are very pertinent to the credibility of l p h ,.m t=.

25 the allegation; the timing of her termination with Carolina

8795

1. 18-10 SueW1 Power and Light company, and the timing of this affidavit are m

2 very pertinent to the credibility of the allegation, and 3 other events in the past which would tend to show that the 4 witness has a propensity for revenge and vindication.

5 I think they go very much to the credibility 6 o f the witness. We -- she has no physical proof of anything 7 she is saying. I t ' s h er wo rd . And except for one instance 8 at the Mission Valley Inn, whcih is not on the oremises of 9 Shearon IIarris, she claims she saw a drug transaction.

10 The rest of it is all what sha claims she was II told. And to the extent that testimony, just based on her 12 word, is going to be considered here I think it opens up 13 these kinds of inquiries into not just -- not her reputation, Id her character, but whether the events and the timing sur-15 rounding the allegations don't draw into serious question 16 whether there is a motivation for the statements other than 17 just advancing the health and safety of the public here, 18 which would cause one to doubt their veracity.

I9 And that's the basis upon which we've described 20 them here.

2I JUDGE KELLEY: llave you had an opportunity to --

22 prior to my just picking up my green book here -- focus on 23 Rule 608, particularly Rule (b)?

24 And, do you want an opportunity to do that? I Ac rol Reporters, Inc.

25 raise it because I think this is fairly significant. You j

8796

1. 18-11-Sued don't have to read too many NRC decisions before you 2 realize that the Federal Rules of Evidence do carry some 3 weight in these Boards.

4 I don't find the wording complately self-5 explanatory on one reading. It seems to suggest that 6 this procedure is a far better rule. But I'm not sure 7 that's true.

8 MR. BAXTER: Well, I --

9 JUDGE KELL::Y: If you are not roadv to comment 10 on it, maybe we can let you look at it overnight. But 11 I would like to have a reaction.

12 MR. BAXTER: I don' t have any o f tho -- I I3 haven't researched the care law construing the rule. I 14 have read the rule.

15 And I would just offer a practical interpreta-16 tion of it, that if a given witness is up on the stand 17 it is not fair to try and put on evidence of a personal 18 naturo, character naturo, or reputation nature, that doesn't I9 go to truthfulness or doesn't go to the f acts surrounding 20 the witness' own testimony.

21 Does the witness have a propensity to boat their 22 pets or be late for meetings or whatever it might be that 23 just has some impact on character and reputation and not 24 truthfulness.

A<.g al n.por.n, Inc.

25 That's not what we are doing here. These are

8797

1. 18-12-SueW I not gratuitous, those are not unrelated. These are, in

) 2 fact, very closely related we believe to its. Miriello's 3 allegations, the timing of them, the motivation for them 4 and, therefore, the truthfulness o f them directly.

5 JUDGE KELLEY: Would you -- I'm a topped by this 6 phraso " extrinsic evidence" in the first sentence. It 7! aays that you can't go to specific instancos of conduct, l

0I that they may not be proved by extrinsic ovic'enco.

9 What may I ask is extrinsic ovidence? Do you 10 know?

11 Again, vou may want to take this home and toll 12 us in the morning.

m 13 tiR . BAXTER: I don't have a definition of J '

14 oxtrinsic for you now.

15 JUDGE KELLEY: Excuso ma a minuto.

16 (Pause.)

17 It scoms to no the second sentonce barn this.

18 That isn't to say wo have to follow it, becauso wo aro 19 not bound by the Rulos. But a lot of very wise p00010 20 dovised thoso Rulos and so it gives us cause to ao anainst 21 it.

22 And I just ask you in that regard, or any of 23 the counsel, if you could look at this we could hear from 24 you first thing in the morning on this local point, sort A.$ai n.po,,m, su.

25 of narrow loge.1 point, on whether Rulo 600, if it woro

f 8798

1. 18-13-SuoW1 coing to be followed here, would bar this proffor. That's 2 not to say that that is the controlling considoration at 3

all but rather one that la a consideration.

4 Mr. Runkle, do you want to sneak further?

5 MR. RUNKLE: Yos. I would also draw your 6 attontion to Rulo 607 whoro it talks about the credibility 7' o f a witness.

8 And I think that may stronathon our position, 9 in that you havo to havo a witnann before you can attack 10 his or har credibilitv.

11 JUDGE KELLEY: Woll, wo are going to have a 12 witnoas, aro wo not, Mn. Miriollo in coing to tostifv?

,7 t

13 MR. RUNKLE: Wo will have a witnans. And that's 14 difforont than atticking the crodibility of a witnoon.

15 Now, thoro is a lino thore that I think vou nood to draw.

16 .7UDGE KELLEY: I'm not nuro I'm with you.

17 MR. RUNKLE: All right.

18 .TUDGE KELLEY: The thrust of this is who may 19 impoach. And the annwor in, anybody can it. poach, tho wav 20 I road it.

21 It navn simply the crodibility of a witnoon may 22 be attacked bv any party, includino the party calling him.

23 I think that's just an offort to overrulo the old common 24 law notion that you are a aconsor of your own witnenn and u.gasup.,,.,,.In<.

25 couldn't attack your own witnenn. That would ho my aunan.

8799

1. 18-14-SuoW I MR. RIPIKLE : Okav.

2 JUDGE KEI. LEY: I would like you all to tako a 3 look at 608 over the ovenino. I can givo vou a conv if 4 vou nood one. And advisorv notes aro horo. And I just 5 think it may be useful and comothing we would be obligod 6 'to tako a decont look at beforo wo decido not to follow 7 it, if indood it doos apolv. 'taybo it doesn't.

8 Anything 01:30 at this coint, fir. Runkle, that 9 you want to add? Ho havo all sort of had a bito at thic.

10 In thoro anything cluo that you want to sav?

II MR. RUNKLE: Only that the obioction noon to tho 12 ontiro pago and a half thoro.

13 .TUDGE KrLLEY: I undorntand. Right.

14 f tR . RUNKLE: And if tho Board would docido to 15 allow nomo in now and -- wo havo no orablomn. No oxcoctod 16 tho Applicanta to, vou know, impoach the crodibility of 17 thin witnano, or try to.

18 And that should bo dono on crona-oxamination, 19 bocauno thorn aro cortain rulon about tho imoonchmont on 20 cro9n-oxamination. You havo to buy tho snower of nomo 21 witnonnon.

22 And rathor to out- it in horo and than havo un 23 have har nav no two <tavo from now and oo back and atriko it, 24 lot'n atriko it now.

A$,oi n.p. ..,i, la<.

25 st R . HAXTER: It nooms to mo --

8800 418-15-SuoW I JUDGE KSLLEY: All richt.

2 MR. BAXTER: -- that, !!r. Runkle , you are iust 3I proconing we como back with rebuttal a d ter Ma. Miriollo 4 appears. Tho way it goon hero in we are going first.

5 And the af fidavit was available prior to the 6 testimony boing filod.

7 JUDGE KELLEY: I thoucht tho substance of the 8l objection wan that thoso mattors should not bo out in tho 9 record and bo tho subject of litication. If it's just a 10 nort of who goon first oxorciao, than it hocomoa much lonn 11 nignificant.

12 ttR. RU!!KLC : No,

~

13 f t9. DAXTER: Mr. Runklo'n objection wan rolovancy, 14 an I rocall it.

15 JUDGE KELLEY: nut you asked to striko it, richt?

16 You are asking that wo atriko 14 and 15 down to Question, 17 whatover it in?

l 18 MR. rut 1KLC You.

19 JUDGC KELLEY: Gkay. Noll, I don't soo any 20 roanon why, ninco it'n ton af tor four in tho af tornoon, 21 that nood dotain un thin aftornoon an wo just ninniv won't 22 not to it or ank quoationn about it ponding the Board'a 23 ruling in tho morning.

24 Wo will hoar f rom counnol ' tofiv on what they 44.g,,.in.p.....la<.

25 think of tho apn11 cation or inannlication of Rulo 608, and

8801

1. 18-16-Suo4 then we will rule. And it can be a subject for questions

, 2 tomorrow.

3 Do you have other objection:, Mr. Runklo?

4 MR. RUNKLE: No, iust those two.

5 JUDGE KELLEY: Okay. So, Mr. Baxter, with that 6l we've heard the obioctions. Thov are conding be fore us.

l 7' Dack to you.

1 8l MR. DAXTER: And the rulings are doforred on the 9 newspaper articlo and tho --

10 JUDGE KELLEY: von. Wo will civo them both in 11 the morning. And I would iust say in the moantimo thoro 12 is plenty to talk about thoro other than the nownpaper s

13 articles and Dago 14, and let's just do that and we will u

I4 know tomorrow carly the status of the matorial that is the 15 nubject of tho obioctions.

16 DY MR. BAXTER: (Continuing) 17 0 Mr. Ilinlman, would you provido a brief oral 18 nummary of your writton toatimony, oloano?

19 A (Witnosa Ilindman) You. The tantimony of thin 20 witnona panol doncribon tho moana unod to idontify drug 21 activity among flarrin alto employoua and providos our annaan-22 mont of tho oxtent of that activity.

23 CPt.L han omployod numeroun and divorno moano 24 for idontifying violations of its drua policy at llarris, 4,. .1 sen... .. w.

25 includino nocurity measuron, urinalysis drug acroon tantino,

9802 Ol8-17-SueW 1 and the observations of managers, suocrvisors and other 2 employees.

3 My testimony describes these measures. A total 4 of two hundred and one persons have been confirmed or 5 suspected of some level of drug involvement over the life-6 time of the project. More than twenty-six thousand persons 7 have been employed at the project.

8 We havn taken a very conservative aporoach in 9 acting upon information of drug activitv. Based on the 10 information availablo, CCNC's allegation that drug abuse 11 is widespread at the Itarris plant is not correct.

12 Thank you.

3 13 0 Mr. King, would vou summarizo your testinony,

)

14 pleaso?

15 A (Witness Kina) My testimonv describes the 16 naasures that Carolina Power and Licht Company has used 17 to identify activity, drua activity, amona workers at the 18 Ilarris project, including cooperation with local law enforce-19 mont of ficials.

20 I also describo the amounts of illocal druos 21 that have boon confiscated at the !!arris site. The results 22 of the numerous and diverso means being used to identify 23 drug activity at !!arris demonstrate that drug uso is not 24 widospread at the liarris proioct.

A<.g al n.por,.,,, Inc.

i Etw # 18 25 0 Mr. Jcyner, would you summarizo your testimony, p1< >asc7 Joa flwn

. - - - _-. _ _ ~ _ . _. - - . . _ - . . . .

19-1-JoeW21 8803 1 A (Witness Joyner) My testimony describesnthe

() 2 security measures that CP&L uses to identify drug activity 3 at Harris, including security patrols, observation of employees, personnel searches, and inspection of belongings, 4

l 5 and the use of a drug detection dog.

6 The drug detection dog will be discussed more 7 fully in Ms. Mackonis' and also Mr. Methias' testimony l 8 later.

i -

9 My investigation -- I also discuss my investigation to of Ms. Miriello's allegations of drug activity among a group 11 of contractor employees.

12 My investigation did not substantiate any of her

(]) 13 allegations. As a trained law enforcement officer who has 14 worked at the IIarris project for over six years, it is my

, 15 firm professional conclusion that drug use has not been l

16 widespread.

17 Q Mr. Bensinger, would you summarize your testimony, l 13 please?

l 19 A (Witness Bensinger) My testimony assesses the l

l 20 measure of programs and policy used by Carolina Power and i

21 Light to address drug activity at the job site. '

t l 22 It is my professional opinion that these measures 23 Provide a reasonably effective capability to identify 24 violators.

tesene,,,Inc.

l 25 Further, that Carolina Power and Light's program l

1

19-2-Jo Wal 8804 1 reflects aggressiveness when compared to other utilities.

2 And substantial awareness and initiate compared to other 3 business interprises.

4 My testimony will reflect that within the current 5 legal, practical environment in the United States society, 6 there is no problem or initiative that a company could embrace 7 that would guarantee the elimination of all drugs from a 8 job site.

9 I think the statistics, and I will cite them in 10 my testimony, will reflect an increase in drug abuse in 11 society. Reference will be made to indirect indicators, 12 such as Carolina Power and Light safety record, which have s

13 impact from an interpreter standpoint on drug use.

14 My testimony will address the type of drug buys 15 and level of drugs found. Quantities uncovered. My l

16 conclusion will be that there is not indication of widespread 17 drug abuse among workers at the Harris construction site.

I 18 MR. BAXTER: Mr. Chairman, before I turn the  !

l 19 panel over.for cross-examination, there were two requests 20 made by the Board during the examination of the first 21 panel, I believe, which we deferred to -- for this panel.

22 One on quality check, and one on a gross sense 23 of the distribution over time of the 201 terminations.

g 24 I would like to do that before the cross-wMe Reponen. Inc.

25 examination.

l 1

05 19-3-Jo:Wal i

)

1 JUDGE KELLEY: Please do.  !

(\ BY MR. BAXTER:

x_) 2 (Continuing) 3 Q Mr. Hindman, do yoi have scme information as the 4 Board requested about the extent to which the quality check 5 Program has been utilized to surface indormation about 6 alleged drug activity at the site?

7 A (Witness Hindman) Yes, I do. Based on the 8 information I could find, the quality check. program has several 9 means of getting information.

10 Those include exits of people who are leaving 11 the site. It includes a program of random interviews of 12 people working on the site.

It includes other stipulations, such as quality check

(}) 13 14 boxes where forms can be filled out. The provision of 15 telephone calls, and other means of getting information 16 to the quality check program.

17 Considering all those opportunities and all those 18 communications with the quality check program, there have 19 been six thousand, one hundred and sixty-nine communications 20 to date.

21 Of that number, 46 have dealt with drugs. My 22 computation comes out to 0.75 percent of the total have 23 dealt with drugs.

24 Q Okay. Now, with respect to the distribution of n.conm, inc.

25 the termination of the 201 identified employees -- the

19-4-Jo:Wal 8806 1 number identified in your testimony, I might suggest the

() 2 Board and parties get their pencils out because we don't 3 have this typed, and it may be convenient to write it down 4 as you hear it.

5 We have the distribution of those by year. Mr.

6 Hindman, would you give those numbers slowly, so people 7 can write them down, please?

8 A Yes. For 1979, we had one. For 1980, we had two.

9 For 1981, there were nine. For 1982, there were eight.

10 For 1983, there were eight. For 1984, there were 27, 11 For 1985, there were 146.

12 Q These are the year in which the terminations took 13 Place?

14 A That is correct.

15 Q Is there a precise correlation between when you 16 identified the drug activity, and when the termination took 17 place?

18 A In this case, there is some difficulty with the 19 numbers I have given you for 1984 and 1985, in that a large 20 chunk of the numbers which I have included in the 146 for 21 1985 were identified in 1984.

22 In fact, by my estimate, 60 in round numbers of the 23 146 identified -- of the 146 stated for 1985 were actually 24 identified in 1984, but not released until the beginning cosmewe..inc.

25 of '85.

19-5-Jo3Wal 8807 1 0 So, if I can do a little math without offending

() 2 anyone, there is roughly an equal distribution between 3 '84 and '85 in terms of when the drug activity was identified?

4 A That is correct.

5 MR. BAXTER: That is all I have for the panel, 6 Mr. Chairman.

7 Is the court reporter to place the testimony in 8 the transcript, pending the evidentiary rulings?

9 JUDGE KELLEY: Maybe in the case of the pending 10 objection.

11 MR. BAXTER: If not, the cross-examination is 12 going to be strange from now on for those parts.

() 13 JUDGE KELLEY: What do you suggest, that they 14 go ahead and bind in subject to the ruling?

15 MR. BAXTER: I think so, yes.

16 JUDGE KELLEY: Of course, if we grant a motion 17 to strike, we can direct everybody to get out their sissors 1

18 and take it out I suppose.

19 MR. BAXTER: I don't think that is the way it ,

l 20 works with a motion to strike.  !

I 21 JUDGE KELLEY: It would go up on appeal.

22 MR. BAXTER: The appeal board --

23 JUDGE KELLEY: The appeal board would have to 24 do the sissor work if anybody does. It wouldn't be us.

wa- al Reporters, Inc.

25 If the motion were granted, it wouldn't be in our

19-6-JosWal 8808 1 case for purposes of our decision, but the filing would be

() 2 there for appeal, I assume.

3 So, therefore, doesn't it make sense to go ahead 4 and bind it in now?

5 MR. BARTH: Your Honor, in View of the sensitivity 6 of the fundamental basis of the objection, not the legal 7 nature, and the material covered, it would be our 8 recommendation that the testimony not be bound in until 9 the Board makes its ruling tomorrow.

10 I think it would be a travesty should you so 11 rule in accord with Mr. Runkle, to have this matter put 12 in the transcripts which are sent to public document 13 rooms and all over everywhere.

('Jl 14 This does not mean that I agree with Mr. Runkle.

15 I well disagree with him, but I think that the personal 16 sensitivity of what the information is can well sit for one 17 more day in abeyance until the three Judges make up their 18 mind as to what they would do with it, and hear argument l

r 19 tomorrow.

20 JUDGE KELLEY: I might just note too that the 21 word bound in in our case is literally what happens. It l

22 is a red string that goes through a hole, right? l 23 Is there any real problem in waiting until 24 tomorrow for binding in?

a.conwi, Inc.

25 MR. BAXTER: There is no real problem except as

19-7-JoeWal 8809 1 you just stated the testimony is going to be filed for J 2 appellate review even if you decide it is not to be admitted 3 here, and I just think that in terms of the chronology of 4 the record the cross-examination we are going to have today 5 is going to be totally ununderstandable without direct 6 testimony there.

7 JUDGE KELLEY: Nobody suggested that we put it 8 in in some In Camera fashion. I guess we can cross that 9 bridge tomorrow.

10 Mr. Cole, what is your sense of the urgency of 11 binding this into the record or not?

12 MR. COLE: I offer maybe a solution, Your Honor.

13 Assuming that we are not going to stay until 6 :30 tonight, 14 can I assume that -- well, let me just tell you what my 15 solution is, and you don't have to answer that.

I 16 JUDGE KELLEY: Okay.

17 MR. COLE: If you let me take the panel first, i

18 I don't believe my inquiries will touch that area at all.

19 I. assume that others will, and maybe by the time I finish 20 it will be time to adjourn for the evening.

21 MR. BAXTER: That doesn' t help.

22 JUDGE KELLEY: I have a sense we are wrestling 23 with- a rather small problem?

24 MR. COLE: I must have misunderstood the problem.

to-F Ai Reporters, Inc.

25 JUDGE KELLEY: Mr. Baxter, maybe I am not real

19-8-Jo:Wal 8810 i clear why it needs to be in today for purposes of the cross.

) 2 What do we lose by deferring the insertion?

3 MR. BAXTER: It is not the most critical thing 4 in the world, I agree, Mr. Chairman. I just think that 5 a reviewing body picking up the transcript typically would 6 want to read the direct testimony before they read the 7 cross-examination.

g That is the only point in having it go in.

9 JUDGE KELLEY: Let's assume that Mr. Runkle's 10 motion is denied, and it goes in as is. What is the matter 11 with bindin g it in, so to speak, retrospectively?

12 It is just a piece of red string.

<~1 13 MR. BAXTER: I agree, yes. If you can get the

)

14 transcript back and put it in there tomorrow in some form.

15 JUDGE KELLEY: Well, it won't leave -- will the i 16 transcript -- I ask the reporter, you are going to distribute l I

17 copies to people who order them tomorrow, I understand that. l l

18 Are you mailing them out of here right away or not?

19 (Discussion between Judge Kelley and Reporter j i

20 ensues.)

21 JUDGE KELLEY: Okay.

22 MR. BAXTER: The panel is available for cross- -

23 examination.

24 JUDGE KELLEY: The Board would just like to wh : neconm, inc.

25 express our thanks to you for digging up those statistics.

19-9-Jo:Wal 8811 1 That isn't always the easiest thing in the world to do,

,,, 2 we know, from some experience, and it was some useful information 3 to have, and we appreciate it.

4 Okay. Mr. Runkle?

xx index 5 CROSS-EXAMINATION 6 BY MR. RUNKLE:

7 Q Yes. If -- I would like to address my questions 8 to the rest of the testimony, and if I finish with the 9 rest of them, I would like to let some of the other people 10 cross-examine, and then come back to it.

11 JUDGE KELLEY: Well, I think it was our 12 expectation, as I thought I said earlier, that in any

( ,

13 event we wouldn't get to the disputed material until 14 tomorrow.

15 BY MR. RUNKLE: (Continuing) ,

16 Q Mr. King, in your testimony of yesterday, you l 17 described a 1982 undercover drug investigation did you ,

18 not?

i 19 A (Witness King) Yes.

20 Q And further went on to tesify that that 21 investigation uncovered 42 instances of drug abuse, is 22 that correct?

23 A That is correct.

24 Q And that those workers were terminated, were

>Fg Reorurs, lm 25 they not?

19-10-Jogwal 8812 1 MR. BAXTER: Excuse me. We haven't equated

, 2 instances with workers yet.

3 JUDGE KELLEY: Would you do that?

4 BY MR. RUNKLE: (Continuing) 5 Q Yes. Is there a difference between instances 6 and workers?

7 A (Witness King) Yes, there is.

8 Q Okay, what I am basically getting at, when you 9 say in '82, eight workers were terminated, can you describe 10 the difference between the 42 incidences and the eight workers 11 that you just gave us.

12 A The 42 instances were not all site-related.

, 13 The activities of the undercover operative during that 14 operation were not restricted to the Harris project.

15 He did significant work in what has been referred 16 to as the grocery store and other offsite locations. l 17 He identified during the course of the operation 18 29 individuals. Based on his identification, it was not I 19 conclusive that they were definitely involved in drug 20 activity.

21 They were monitored for extended periods of time, 22 and have been released since that date. They were not 23 released in mass, nor were they all necessarily released 24 in 1982.

I Reporters, Inc.

25 Q So these 29 identified individuals from the 1982

19-ll-Jo:,Wal 8813 1 investigation, would they all -- do they all work at the 2 Harris plant?

3 A Had they not worked at the Harris plant, I would 4 have had no jurisdication over them.

5 Q So, of those -- what you are saying is that 6 some of them were -- had their employment terminated in 7 1982. Some maybe the next year. But all of these 29 8 individuals either are in those numbers that you gave us 9 previously, or your later investigations found that they 10 were not involved with drugs?

11 A That is correct.

12 Q All right. Okay. Of those 29 individuals,

-')

13 how many of them were later -- either immediately terminated 14 or terminated for involvement with drugs?

15 A I don ' t have the results of that with me . All 16 of the individuals that were determined at some point in l 17 time to be involved in drug activity were released.  ;

i 18 I would have to go back and individually 19 evaluate termination dates by specific individuals, i l

I 20 Q When you say that they were released, is that 21 -- what does that mean when you use that?

22 A People are released from the job site under 23 various conditions. They are not always terminated 24 outright, as we have indicated in testimony, having been kmAW Reporwrs, im.

25 caught in possession of drugs or having failed the urinalysis.

09-12-Jo;Wal 8814 1 We have termined and we have classified them

() 2 as suspicion. We had less than actual proof that we could 3 go to court with that they were involved, so we invoked our 4 contract option, and had them removed from the job site.

5 Q Okay. Now, in basically the matrix -- the 6 figures that you just gave us year by year, now would you 7 include in those people that you had some suspicions of 8 drug abuse and you laid off -- you decided to lay them off 9 in your normal course of business?

10 You didn' t have enough information on them to 11 say this is a drug user, or we suspect this person, but 12 you thought they could have been using drugs, and you laid

() 13 them off?

14 A Yes, what was the question?

15 MR. BAXTER: Are you referring to page 12 16 in the direct, Mr. Runkle?

17 MR. RUNKLE: And also the figures that he gave 18 us, which is the breakdown of this -- of the 201 incidents.

19 I am just trying to discover if there were more 20 individuals that may have been suspected of using drugs?

21 A (Witness King) There are no more individuals 22 to my knowledge.

23 Q All right, thank you. I think that answers the 24 question.

et teoorwes.inc.

25 Now, at the present time, how many workers at the

19-13-JoLWal 8815 1 Harris site are using drugs or selling or possessing drugs

,~,

2 while they are on the site?

3 A Are you directing that question to me?

4 Q Yes, sir.

5 A I have no knowledge of anyone at the Harris site 6 that is currently using or possessing drugs.

7 Q Is your testimony then that there are, to the 8 best of your knowledge, there is no one at the Harris site 9 using drugs?

10 MR. BAXTER: Ob jection, asked and answered.

II JUDGE KELLEY: It is not quite the same in my 12 mind. The witness said that he didn't know of any

) 13 specific person, be it John Jones or Harry Smith, using 14 drugs.

15 I assume if you did, you would get rid of them.

16 But then, your question was, if I understood you, was 17 a little different. Whether he had any knowledge of any 18 drug use on site, was that the phraseology?

19 I an just saying does that MR. RUNKLE: No.

20 mean that to his knowledge there is no one on site using 21 drugs.

22 JUDGE KELLEY: That is different in my mind.

End 19. 23 Overrule the objection.

MS fols .

24

>F R eporun, lm.

25

I 8816 1 A (Witness King) To my knowledge, there is no one Sim 20-1 2 at the job site at this time using drugs.

3 Q Okay. Now you have been at the site for quite 4 a while and you are trained as a law enforcement officer and 5 you have had a lot of experience in this kind of thing.

6 Do you have a best estimate of how many people 7 on site are using drugs?

8 MR. BAXTER: If the question to Mr. King?

9 MR. RUNKLE: Yes, sir. These are continuing to 10 Mr. King.

11 MR. BAXTER: he is not the person who is on site 12 all the time, and I just wondered about your characterization

, 13 of his role.

m 14 MR. RUNKLE: All right, based on his familiarity 15 and experience.

16 BY MR. RUNKLE:

17 Q Mr. King, do you have a best estimate as to how 18 many people on site are using, selling or possessing drugs?

19 A (Witness King) As stated, I have no knowledge 20 of anyone that is using drugs and I have not formulated 21 an estimate.

22 Q Mr. Joyner, how about you, do you have a best 23 estimate of the number of people at Harris that are using 24 drugs and also possessing and selling drugs?

Ac ol Reporters, Inc.

25 A (Witness Joyner) I would reiterate Mr. King's

8817 Sim 20-2 statement. I have no knowledge of that and I have not based 1

2 an estimate.

3 Q Have any of the applicants' employees, consultants 4 or anyone else made an estimate of the number of employees 5 using drugs on site?

6 A Not to my knowledge. If we knew that information, 7 Mr. Runkle, we have already gotten rid of them.

8 Q No. If you knew of an individual, you would get 9 rid of an individual, would you not?

10 A That is correct, and I can't base an estimate on 11 something I have no knowledge of.

12 0 So you do have experience in drug investigations, 13 do you not?

14 A Yes, I do.

15 Q And you do have knowledge of drug use in different 16 commercial situations, do you not?

17 A I am sorry?

18 Q You have experience with drug use at the Harris 19 site, do you not?

20 A I have experience from the information and 21 figures we have gotten. I could give you any of that 22 information you need, but I can't give you an estimate based 23 on the people we have gotten or the people I suspect are using 24 drugs at the Harris site.

Reporters, Inc. -

25 Q Now are you also saying that there is no one at

8818

Sim 20-3 1 the Harris site that is using drugs?

A g 2 A I am saying to my knowledge, there is no one at 3 the Harris site that is using drugs.

4 '

And if there would be someone at the Harris 0

5 site that was using drugs, you would not know who they were 6 or you couldn't even give an estimate of how many there were?

7 MR. BARTH: Objection, Your Honor. This is too 8 hypothetical. It goes beyond all human reason to speculate 9 on speculation about how many there are that you don't know 10 That just is ridiculous. The question is anything about.

II meaningless and I object to it.

12 Yes, but I think the general line JUDGE KELLEY:

(] 13 14 is legitimate enough.

MR. BAXTER: I didn't understand that particular 15 question. Could we have it restated?

I0 JUDGE KELLEY: All right. Could you restate it, I7 Mr. Runkel?

18 MR'. RUNKLEcl I.was asking him the same questions I9 I had asked. Mr.: King; and!I think thatt.he had answered. them.

20 So.thatcif I.have:A: question outstanding,.J.letcme withdraw 21 Lt ,, -

. v - .

.t- >.

22 JUDGE KELLEY: Okay.

BY MR. RUNKEL:

Q Mr. Bensinger, you have looked at a lot of drug 25 programs at different utilities, have you not?

8819 Sim 20-4 j A (Witness Bensinger) Yes.

~

2 0 In fact, you or your company has made an analysis 3 of drug use at various utilities, have you not?

4 A I don't think the question is quite on point. We 5

have been retained by a number of public utilities: to advise 6 them on drug policy, training and other programs and 7 initiatives that would be responsive to the threat and reality 8 of drug use. That we have done.

9 In addition, we participated with the Edison 10 Electric Institute in 1982 in a survey of public utilities 11 with respect to basically drug policy.

12 Q Based on your knowledge and experience in various 13 studies, do you have an estimate of how much drug use there

)

J 14 is on site at this time?

15 A I don't have a basis by which I could feel 16 comfortable with a site specific estimate. My sense is, as 17 I have indicated in testimony and in prefiled testimony, with 18 respect to any employer location the assurance of a 100 percent 19 drug-free work force is lightly not to be obtained.

20 Now some of that will be the result not of onsite 21 use, but of drug use offsite which has implications for the 22 site location.

23 And I think the way I would try to answer the 24 question best would be to review the prefiled testimony with Ac.gai nepoem inc.

25 respect to the drug detection dog which is a method by khich

8820 yu nd what took place though a canine on site.

Sim 20-5 1 My sense is, and I looked through this when you 2

3 started your line of questioning of the other applicants and 4 co-panelists, that there has been over the last three months a number of searches and about once a month on August 30th, 5

6 there was a plastic bag ---

Q Excuse me, sir, where are you looking?

7 A Excuse me. I am looking at applicants' testimony 8

of Dana MacKonis and Kenneth A Mathias, and I am looking at 9

10 page 11 of that. It is in that exhibit.

jj Q So on page 11 it would describe various searches 12 that the drug dogs have made, and based on that and your 13 other knowledge and experience, do you have an estimate of 14 how many people ---

MR. BAXTER: He is trying to answer your previous 15 16 question, Mr. Runkle, if you would let him finish.

j7 WITNESS BENSINGER: I appreciate that, Mr. Baxter.

18 That is exactly what I was trying to do.

MR. RUNKLE: Excuse me. Rather than have you go 19 20 down each of the different searches ---

WITNESS BENSINGER: I will refrain from identifying 21 ,

22 the searches.

23 MR. BAXTER: Mr. Chairman.

24 JUDGE KELLEY: All right, gentlemen. I thihk' wee i Re, lac. l 25 had the witness not through. He should be allowed to l

8821 Sim 20-6 j finish reading, and I do wonder about getting very much 2

into testimony from another panel we haven't heard from O-yet at least in detail, but you can finish your answer, 3

and then Mr. Runkle will have a follow up.

4 As long as I am commenting, maybe we could do 5 ,

6 that and have,the follow-up, take a short break. Here is what we are thinking about. We will break here in a few 7

minutes briefly, and I will ask you to get back in five 8

minutes or so, and then we will go on until 5:30 or so, 9

let the panel go and talk a little bit about logistics and 10 jj then quit for the day.

12 Does that program sound acceptable?

MR. RUNKLE: Yes, sir.

13

, O V j4 MR. BAXTER: Yes, sir. We hope to have a scheduling discussion before we leave today.

15 16 JUDGE KELLEY: That is what I meant and talk about where we are, right. So let's do that.

37 18 Why don't you finish your answer, and Mr. Runkle 39 may have a follow up and then we will take a short break.

WITNESS BENSINGER: Thank you, Mr. Chairman.

20 21 My best response will be a guesstimate. I would 22 say that it is likely that some contraband, drug contraband 23 is on site. The extensiveness of it would be difficit for me to predict. I have no knowledge in any location. I am 24 Reportws, Inc.

25 just saying in a construction site with 6,500 employees and

8822 Bim 20-7 without a daily urinalysis of each and every person coming

~

to the site and a daily urinalysis of each and every person 2

V- leaving the site, failing that, my ability to assure you 3

and this Board that there is not use during a given week, 4

I couldn't give that assurance.

MR. RUNKLE: I have some other questions, but we could take a break now.

7 JUDGE KELLEY: Let's do that. About five minutes.

9 (Recess taken.)

JUDGE KELLEY: Okay, let's resume.

jj MR. BAXTER: Mr. Chairman, one preliminary matter.

.g JUDGE KELLEY: Yes.

MR. BAXTER: During the recess I have distributed g

g to the Board and the parties inforamtion that we have just received this afternoon, which are affidavits by some 16 ConAm inspection employees discussed in Ms. Miriello's testimony and attached medical reports. I am not doing p

anything with these right now. They have simply just become 18 available to the Board and the parties. So we are providing l 39 them for your information at this point.

20 JUDGE KELLEY: Do you contemplate offering them 21 1

later?

22 MR. BAXTER: I can't say that I am,. no. j 23 JUDGE KELLEY: You are serving them?

24 I Repeten. Inc. i MR. BAXTER: I am serving them as just available  :

25

8823 Sim 20-8 inforamtion. What we will do with them from an evidentiary 1

2 standpoint, I don't know yet.

3 JUDGE KELLEY: Okay, Mr. Runkle. I thought you 4 were going to comment. Do you have a comment?

5 MR. RUNKLE: No. I just received these myself.

6 JUDGE KELLEY: All right. So did we. So why 7 don't you resume the questioning.

8 CROSS-EXAMINATION (Resumed) 9 BY MR. RUNKLE:

10 Q Mr. Joyner, let me ask the question of Mr. Joyner, 11 are you confident at this time that there are no employees 12 at the Harris site that are using or are otherwise involved 13 with drugs?

J 14 A (Witness Joyner) I don't know how to answer 15 your question.

16 Q A simple yes or no would be okay.

17 A I don't know.

18 Q You don't know if you are confident or not?

19 MR. BAXTER: Is another way of saying it are you 20 certain there are not employees using drugs; is that what 21 you mean?

22 MR. RUNKLE: No. I am not talking about whether 23 he is certain or not. I am talking about if he is confident 24 that there are none.

Ac cl Reporters, Inc.

25 WITNESS JOYNER: Well, I cannot honestly say that

8824

.Sim 20-9 j I am confident that there is no drug use being donevat.the 2

Harris site, no.

3 BY MR. RUCKLE:

4 Q Mr. Joyner, if I can draw your attention to page 4 of your testimony. Starting at the second paragraph 5

6 where you begin your testimony and starting with the second 7 sentence you talk about the Wackenhut security guard 8

service; is that correct?

9 A (Witness Joyner) Yes it is.

10 Q And you say that there are 849 man-hours per 11 week?

12 A That is for the Wackenhut Corporation. We have 13 two security services there.

O 14 Q Okay. And what is the other security service?

15 A It is Burns International.

16 Q And how many man-hours per week do they put in?

17 A At the time this was written, 1740.

18 0 Has that changed recently, or is that still 19 approximately how many hours?

20 A It is a constantly changing thing. As the plant 21 turns over certain saystems, they do add manpower.

22 Q So would it be fair to say therer are.approximately 23 2500 man-hours per week of these contract security people 24 on site?

Rep., vers tac.

25 A Approximately.

8825 Sim'20-10 1 Q Now what percent of those man-hours is spent 2 in trying to detect drug use on site? .

.{ }

3 A Their primary concern is not there to detect '

4 drug use. Their primary concern for the contract security i

5 people is to control the ingress and egress of personnel,

6 observations through foot patrols, observations through

7 gate patrols, mobile patrols involving vehicles. I can't 8 say that they spend a particular or certain amount of time 9 in trying to detect drugs.

10 Q And the overall integrity of the plant in terms i II of the overall security and safeguards of the plant?

12 A That is correct.

]

13 Q So do they spend -- let me try the question O 14 again and see if we can get any kind of number on it.

15 What percent of their hours is spent on 16 detecting drugs?

j 17 MR. BAXTER: Objection, Mr. Chairman. The witness

18 has already said he can't allocate a particular portion l I9 of their time, which is devoted to detecting drugs, and 20 now he has asked for a percentage.

1 21 JUDGE KELLEY: Mr. Runkle, it sounds like a 22 repetition. ,

i 23 MR. RUNKLE: All right.

24 BY MR. RUNKLE:

W lac-25 Q Now at the last full sentence of that page you 4

~ , , . . - , - - - . . - , - - ~ ~ , - ---- . - ...,,,,, ,.,--,.- - . .._ , - .--,,.- ---,._,- . , .-,--,.--,.-. - - ,,,-- -

8826 Sim 20-11  ; state that operation security turnover, if any personnel 2

violate any site drug policies, then they turn that over to

)

3 you; is that correct?

4 A (Witness Joyner) That is correct.

5 Q Now how many construction personnel are turned 6 over to you in this context?

7 A I am sorry, I don't have a number. I do know 8

that this occurs when the Burns security people observe what 9 they feel to be an abuse of a drug and that individual is

-10 turned over to me primarily because of my dealings with 11 Mr. Plueddemann and with the industrial relations people 12 for Daniel and they take action on the individual.

13 0 And is this a frequent occurrence or it just O 14 happens occasionally?

15 A It is an infrequent occurrence.

I 16 Q Infrequent?  !

17 A Yes. [

~

18 Q All right. Thank you.

19 You state again on page 5 of your testimony that 20 the security personnel are able to provide management with 21 intelligence information on drug activity. The question 22 is do they do this?

23 A The answer is yes, they do.

24 Q Do they do this frequently or infrequently?

W Im 25 A It is my opinion that it is done in an average

8827 Sim 20-12 amount of time between frequently and infrequently. I can't j

2 say that it was a real frequent thing and I can't say 3

it is an infrequent thing.

4 0 Are the security personnel one of your prime sources of intelligence information on drug activity at the 5

6 pl nt?

7 A No, they are not.

Q What is the primary intelligence information 8

9 on drugs, or what is the primary mechanism of intelligence 10 information on drug activity at the plant?

jj A I can't say there is a primary one. I get 12 intelligence from all areas to include the QCP program, 13 searches with the drug dog, anonymous tips, known informers,

~3 14 through telephone calls or through personal contacts.

Q In that second full paragraph on page 5, the 15 second sentence from the bottom, you say that the construc-16 j7 tion personnel are rigidly controlled from the moment that they have access to the site until they leave. Can you 18 19 explain what ridigly controlled means?

20 A Yes, I can. Assuming that I am an employee of 21 Daniel Construction Company on the craft side, when I 22 approach the gate I am being observed by security guards and supervision of Daniel. I get my little piece of brass 23 24 which sets up my time-keeping for the day. I got through A$olnepo,em,Inc. a little set of cattle shoots in which my lunch box is checked 25

8828 a

Sim 20-13 1 on a random basis by the security guards. I am then expected

(} 2 to report to a particular area of the site that I am

< 3 assigned to while I am working at the project under the 4 direction of a foreman, a. general foreman and a. superintendent 5 the area.

l 6 During the time that I am at work, I am allowed 7 to take bathroom breaks. We do not have at the Harris 8 project, there is no such thing as a " break." .The breakr 9 referredrto in here would-be if you were.in a no-smokin-c g 1

10 area and you wanted to smoke a cigarette, you probalby could 11 step outside and do it with your foreman's permission and 12 he would know where you were at.

[ ~-

13 If I were to venture away from my work area without 14 my foreman's knowledge, I am subject to termination.  ;

15 Q so the workers' foremen or a line supervisor 16 would know where that worker was at all times?

I 17 A He is supposed to know, yes, sir.

18 Q Okay. On page 6 of your testimony in the first 19 full paragraph you discuss how identified employees are 20 directed to submit to a search. How are these employees

! 21 identified?

22 A Through the various means that I described to 23 you earlier.

24 O And for identifying employees for a search, what  !

% W. lac. 25 are those means?

8829 Sim 20-14 1 A By getting any kind of inforamtion, either 2 randomly or through a known source, we take action.

3 Q And that would all flow through you at the site; 4 is that correct?

5 A That is correct. I am sorry. Most of the 6 information flows through me. Some of the information will 7 slow through Mr. Plueddemann with industrial relations.

8 If there is action taken against the individual, I am 9 notified of it.

10 Q So Mr. Plueddemann would be our counterpart 11 with Daniels?

12 A That is correct.

13 Q In the last sentence of that paragraph it says 14 any vehicles within the construction security fence are 15 also subject to search. Are the cars in the parking lot 16 within the construction security fence?

17 A They are included.

cnd Sim 18 Sua fois 19 20 21 22 23 24 u.gosR. pore.rs,inc.

25

8830

1. 21-1-SueW I Q All' cars in the Harris parking lot are included?

(~) 2 A (Witness Joyner) They are included as far as

\,_/

3 the scope of the search is concerned. Every search that 4 we conduct includes their vehicle. We don't just do a 5 person, return him back to work.

6 It includes a search of his person and a search 7 of his vehicle.

8 Q So that would be for an identified employee, 9 you would search his person, his belongings and his vehicle?

10 A That's correct.

Il Q Do you make any random searches of vehicles 12 within the parking lot?

13 A There are some random searches made by Daniel 73

(/

14 Industrial Relations.

15 Q And they would open up vehicles in the parking 16 lot to look for contraband and particularly drugs?

17 A Yes.

18 O How frequently do they do this?

19 A I don't know how to put a number on it, but 20 it's done fairly frequently.

21 Q Now, in your Answer 7 at the bottom of that paae, 22 Page 6, you describe a criteria for directing an employee 23 to undergo urinalysis, do you not?

24 MR. BAXTER: That's Mr. Hindman's testimony.

Iflopor w s,Inc.

25 MR. RUNKLE: Excuse me.

l

f' 8831

1. 21-2-SueW I BY MR. RUNKLE: (Continuing) 1

() 2 O Mr. Hindman, if I can direct your attention 3 to the bottom of Page 6, are you the person that has the 4 authority to direct employees for urinalysis?

5 A (Witness Hindman) Okay. I am the person who 0 is involved when an employee is directed to ur'inalysis. I 7 insure that the Section Manager who is in charae of super-m a/ ',, , ; 8 -vision for these people become involved.

9 The line of supervision for the peopic actually i- 10 make the decision, but I insure that the information flows -

II l

. to the right people.

i h- Now, you used the phrase " good cause for

~

12 Q 1

13 reasonable suspicion." -

Can you describe that test?

)

, -14 What provides good cause for reasonable suspicion?

15 A I think each case would be different. When in-16 formation is made available, that information is analyzed

'l7 and when the information appears to have some justification, 18 some merit or substantiation, that is when we. decide that y .

' I9 something must be done.

20 And is it your decision whether there is aood Q

2I cause for reasonable suspicion?

n 22 A I alone do not make a decision like that. We 23 get the line of supervision involved. We get security 24 representatives involved. In the case of Daniel, we get -

n ,= w n. ine.

25 their Industrial Relations and their personnel representative 1

. - , _ . - . _ _ _ . _ . , _ , , . _ _ , _ - . , _ , . - - _ . . - _ _ , _ . . _ . . . _ , _ , _ _ _ _ . . . _ _ _ ., _ _ _ ___,m

8832

1. 21-3-SueW l involved. All the appropriate people who need to be in-2 volved in that decision are involved in it.

(vi 3 Q In getting the line supervisors and cettina 4 everybody involved that needs to be involved, how long does 5 that take?

6 A It can be done fairly rapidly when it has to 7 be done rapidly. It can be done within the same day.

8 Q So, if you would have good cause for reasonable 9 suspicion that an employee is involved in drug activity, 10 you would then go -- get everybody together that needs to II be part of making this decision and then conduct the employee 12 for urinalysis?

First of all, we would get all those people

(')

\_/

13 A I4 involved that need to be involved in the decision. Then 15 we would analyze the information available, and if they 16 need other information or they need to seek other counsel I7 they would do that in order to make a decision which we 18 feel would be a good one.

I9 But, once that decision has been made to submit

.20 an employee to urinalysis, we can do it and croceed.

2I Q Does this ever take longer than can be done 22 within one shift?

23 A What do you mean, does this ever take loncer?

24 Q Say, an employee, you have a good cause for Ac of Reporters, Inc.

25

8833

1. 21-4-SueW I reasonable suspicion at three o' clock and the shift is 2 over at four o' clock, do you detain that emplovee af ter 3 his shift is over?

4 A Not necessarily. He could be detained if we 5 felt it necessary, but if we felt we needed more informa-6 tion we could also seek that.

7 So, each case would be handled individually.

8 Q So, occasionally it could take overnight?

9 A Yes.

10 0 Now, I think we earlier discussed how new II employees and those employees that transfer to the site 12 may need urinalysis.

- s 13 Now, besides those how many employees received 14 a urinalysis last year?

15 A I don't have that statistic with me.

I6 Q How many employees were required -- were --

I7 how many employees did you determine needed a urinalysis 18 and refused a urinalysis last year?

I9 A Let me refer to testimony. That may be covered 20 in there.

21 (The witness is looking through testimony.)

22 On Page 12 of my testimony, I have a number there 23 that indicates those who refused to submit to urinalysis 24 test or a search of their person, property or vehicle.

Acegral Reporters. Inc.

25 That's the total that we have encountered thus far.

8834

1. 21-5-SueW l Q And that would be the forty-one, and that I)

xs 2 would be since 1979?

3 A Yes.

4 Q And then at the top of that column would be 5 nineteen who had the presence of druos confirmed through 6 urinalysis?

7 A That's correct.

8 Q And that again would be since 1979?

9 A Correct.

10 Q Can you give us an estimate of how many, other 11 than these sixty individuals, that you felt there was a 12 good cause for reasonable suspicion and required a urinalysis?

<s 13 A I'm sorry?

's-)

14 MR. BAXTER: It sounds to me like we are asking 15 for how many negatives have there been.

16 JUDGE KELLEY: What is the sixty, Mr. Runkle?

17 MR. RUNKLE: That is -- on Page 12, the nineteen 18 that had their pr'esence of drugs confirmed through urin-19 alysis and --

20 JUDGE KELLEY: Oh, forty-one plus nineteen is 21 sixty?

22 MR. RUNKLE: Yes.

23 JUDGE KELLEY: That --

24 MR. BAXTER: Forty-one includes, though, Mr.

Ac I Reporters, Inc.

25 Chairman, the people who refused a search of their person,

8835 I property or vehicle. It's not just people who refused

1. A$-6-SueW

. %)

(~) 2 urinalysis.

3 JUDGE KELLEY: With that, maybe you can rechrase 4 the question.

5 MR. RUNKLE: Let me back up a step and then 6 go forward.

7 JUDGE KELLEY: All right.

8 BY MR. RUNKLE: (Continuing) 9 Q Sir, out of this forty-one that refused to submit

-10 to urinalysis tests or search, how many of those refused to 11 submit to a urinalysis?

12 A I don't have the breakdown on that.

13 0 Would ~it be half, or can you -- you cannot give 14 us any estimate?'

15 A I simply don't have it and can't guess at it.

16 Q Okay. Now, to use counsel's phrase, how many 17 negative urinalysis tests have there been?

18 Can you give us any estimate on that figure?

19 A No.

20 0 There have been negative urinalysis done?

21 A That's correct.

22 O continuing on Page 12 at the bottom of that 23 first paragraph, right before Question 12, you state that 24 thirteen employees have been identified for whom it was Reporters, Inc.

25 established that a controlled substance was being consumed

8836

1. 12-7-SueW l on site.

2 Is that correct?

3 A That's correct.

4 Q And would that be part of the number of fifty-5 three found in the column preceding that which is found to 6 be in possession of a controlled substance on site?

7 A Correct.

8 Q And so the other forty would be possessing drugs 9 but not in -- under your system to be -- under your 10 procedure to be identified as consumina that substance?

II A That's correct.

12 O On Page 7 of your prefiled testimony, and again 13 Mr. Hindman, the last sentence of that first caragraph, 14 you state that employees involved in quality confirmation 15 roles can be administered the urinalysis on a lesser proof 16 than the other employees?

17 A That's correct.

18 Q All right. How many people -- how many employees 19 in the quality confirmation roles have been so required 20 to have a urinalysis?

21 A How many have been required to have a urinalysis?

22 0 Yeah.

23 A I don't know the number that has been required 24 to have it.

Ac I Reporters, Inc.

25 Q Okay. How many employees in the quality

8837 confirmation roles have either -- have tasted positive

1. J2-8-SueW l 2 on the urinalysis?

3 A I don' t know if I can answer that, anstrer that 4 from memory. I believe the number of quality related 5 people that have been involved in the two hundred and one 6 that we've talked about has been I think twenty-three.

7 But I would have to check that to confirm it.

8 MR. BAXTER: Let's not let the record get 9 confused here. The question was about particularly how 10 many had been identified through drug screen urinalysis.

11 Is that your understanding of the question?

12 WITNESS HINDMAN: Yes. But I can't answer that "3 13 specifically.

14 BY MR. RUNKLE: (Continuing) 15 0 So to clarify the record, those twenty-three 16 would be in any one of the classifications on Page 12?

17 A I think that's correct.

18 Q They could be. I'm not saying that one would 19 be and one would -- they may not be in one of the classifi-20 cations.

21 A But they would be in the 201.

22 Q Yeah.

23 A That is a correct statement.

24 Q If we can turn to Page 8 of the prefiled testimony ,

Ac rol Reponers, Inc.

25 and I guess Mr. Hindman this is your testimony. In the

8838 I

1. M-9-SueW second paraaraph on the page, it describes the quality

.?%

V 2 check procram, does it not?

3 A Yes. It talks about the quality check program.

4 Q And earlier, I think it was you that described --

5 gave us a figure that there were forty-six quality check 6

program -- shall we call them inputs of drugs, drug 7

allegations?

8 A Yes. There were forty-six inputs.

9 Q Yeah. And that would include all the ones that 10 you --

II A That would include all inputs.

12 Q Now, of those forty-six inputs alleging drug use,

( ) 13 when -- those have all occurred since the quality check 14 program began; is that correct?

15 A That's correct.

I0 Q So that would be in the last year or --

I7 A I believe the quality check program has been 18 a little bit longer than that. But I don't have the I9 exact time that it was instituted.

20 Q I think some -- one of the other witnesses gave 21 us a date for the initiation of that.

22 A That could be.

23 Q So, of those forty-six inputs about drug involve-24 ment, how many individuals were identified?

Ac of Reporters, Inc.

25 A What is your question again?

8839

1. 21-10-SueW l Q Of those forty-six inputs on drug allegations --

2 of drug involvement, how many individuals were identified?

3 MR. BAXTER: Identified as what?

4 MR. RUNKLE: As being involved in drucs.

5 WITNESS HINDMAN: Okay. Of the forty-six 6 indicators that came through the quality check program, 7 twenty ended up in our matrix of two hundred and one people.

8 BY MR. RUNKLE: (Continuing) 9 Q And those twenty would be those that you 10 confirmed their involvement into drugs?

11 A How do you mean by confirmed?

12 Q That you later somehow proved had been, or 3

13 suspected, involved in drugs?

14 A Okay. Those twenty would be included in this 15 column which is shown on Page 12 of several categories.

16 Some of that might have been refusals and other things, 17 but they were finally removed from the site. I can say 18 that about the twenty.

19 Q Almost a third of the 201 is included in the 20 last category, suspicion based on less than search or 21 testing; is that correct?

22 A That's correct.

23 0 If a worker was to submit an allegation --

24 submit that another worker was involved in drucs, would Ac rol Reporters, Inc.

25 that be enough suspicion to terminate that ' employee?

8840

1. 21-11-SueWI A Say that one more time, please?

2 Q I will make it simpler. If Worker A submitted 3 something in the quality check orogram, one of the boxes, 4 that said Worker B was on drugs, would you terminate Worker 5 B?

6 A Okay. If Worker A said Worker B was on drugs, 7 if Worker B was associated with our quality program he 8 would get immediate attention and would be subjected to 9 urinalysis.

10 Q Uh-huh.

11 A If Worker B was not related to the quality 12 program, then we would have other measures to try to gain 13 some information to sunport that allegation or not. In 14 other words, we would get security people, we would get 15 Industrial Relations, we would get other forms of data to 16 support that before we would take affirmative action if 17 they were not part of the quality orogram.

18 JUDGE KELLEY: When you say part of the quality 19 program, do you mean working on safety-related matters?

20 WITNESS HINDMAN: In my definition, I am referring 21 to those people who are quality assurance, quality control, 22 or construction inspection.

23 JUDGE KELLEY: All right. Thank you.

24 BY MR. RUNKLE: (Continuing)

Ace 4rol Repor+ers, Inc.

25 0 And you state that in your testimony at the top

8841

1. 21-12-SueW1 of Page 7, do you not?

(q

,j 2 A Yes., that's correct.

3 Q Gentlemen, if I can draw your attention to Page 15 4 and your Answer 15, if I may paraphrase your answer here, 5 would it be fair to say that -- well, strike that.

6 Is your testimony that no employee has ever 7 worked at the Harris plants whose job performance was 8 impaired by drugs?

9 A (Witness Joyner) I would like to answer on that 10 first. I've had dealings with a maiority of the people 11 that have been alleged to have been drug abusers on the 12 job site. And through my personal observation, T can say

.,m

(/)

r 13 now that I did not feel at the time that I conducted the 14 search on the individual or escorted the individual down 15 for a drug screen that his mental or physical faculties 16 were impaired.

17 Q And that would be -- okay. And that would be 18 physical or mental faculties that were impaired by the 19 actual -- the consumption of the drug?

20 A From any reason.

21 Q I'm having a little hard -- I'm having a little 22 trouble understanding it.

23 A What I'm trying to tell you is that in many 24 cases through interviews with these individuals that they Ac hpon.n. inc.

25 may have admitted to me that they smoked a marijuana

8842 021-13-SueW I cigarette a week ago and that was the last time they did, 2

x and they still go down and even though they are not 3

mentally or physically impaired by the drug, it is still 4 in their system and they are still terminated.

5 0 And that's from the consumption of the drug?

6 That's what I was asking.

7 A Correct.

8 O And, Mr. King, do you agree with that statement?

9 A (Witness King) I have never received any 10 information on any employee at the job site that was Il found to be at the job site while impaired due to the 12 consumption of any type of controlled substance.

) 13 Q I guess, Mr. Hindman, do you agree with that?

I4 A (Witness Hindman) I agree. I've also not seen 15 anyone on the job site that I thought was impaired or 16 received information about that.

17 MR. RUNKLE: I have no other questions for this 18 panel except questions depending on the ruling in the morning I9 on the admissibility of various other matters.

20 JUDGE KELLEY: I understand. Well, it's pushing 21 5:30. We said before we would quit around here. At least, 22 we can excuse this panel for the evening and then talk 23 a bit about schedule.

24 Is it appropriate to excuse the panel at this Ace- of Reporters, Inc.

25 point? Any problem from anybody?

8843

1. 21-14-Sued (No response.)

2 Gentlemen, you are excused for this evenina.

3 Thank you. And we will see you in the morning.

4 We might just jump right to that question, the 5 starting time in the morning. Eiaht-thirty was partly 6 in deference to making sure we got the Staff heard today, 7 and we did.

8 We sort o f lean towards 9. Is there any reason 9 not to start at 9 tomorrow?

10 (No response.)

11 okay. Let's say we will pick up in the morning 12 at 9. We will probably talk about evidentiary matters for

() 13 a bit, but shortly after 9. So, if you could be here around 14 then.

15 Thank you.

16 (The witnesses stood aside.)

17 We might go off the record at least for a bit 18 to discuss these matters, and if we get into disagreements 19 and so on we can go back on. Let's just go off for now 20 and give the reporter a rest.

21 (An off-the-record discussion ensued.)

END #21 22 Jo2 flws 23 24 Ac i Reporters, Inc.

25

8844

1. 22-1-JoeW l JUDGE KELLEY: All right. Thank you. We

~

2 will see you in the morning at 9 o' clock.

3 (Whereupon, the hearina is adjourned at 4 5:36 p.m. on Tuesday, October 1, 1985, to reconvene 5 at 9:00 a.m. on Wednesday, October 2, 1985.)

ENDDDD 6 ****.******

7 8

9 10 11 12

my 13 v

14 15 16 17 18 19 20 21 22 23 a R.porem, 25

NO PAGE NUMBER CERTIFICATE OF OFFICIAL REPORTER A

V This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSISON in the matter of:

NAME OF PROCEEDING: SHEARON HARRIS NUCLEAR POWER PLANT EVIDENTIARY HEARING 50-400-OL DOCKET NO.: ,

PLACE: APEX, NORTH CAROLINA DATE: TUESDAY, OCTOBER 1, 1985 were held herein appears, and that this is the official O tra scrive thereof fer the fi1e ef the U 1eed States Nec1 ear Regulatory Commission.

(sigt) M '

(TYPED) Garrett J.galsh (sigt),

(TYPED) Sue Walsh (sigt Ny M ~

(TYPED) Mary pmons .

Official Reporters Reporter's Affiliation C

(

1 ,

, RECEIVED ime' Washington Public Power Supply System P.O. Box 968 3000 GeorgeWashingtonWay Richland, Washington 99352 (SQSg 5 0 REG 10,'4 ygg Docket No. 50-397 September 18, 1985 Mr. J.B. Martin, Regional Administrator U.S. Nuclear Regulatory Commission Region V 1450 Maria Lane, Suite 210 Walnut Creek, California 94596 Sub,iect: NUCLEAR PLANT NO. 2 LICENSE NO. NPF-21 NRC INSPECTION 85-29 EXIT '

INTERVIEW COMMITMENTS The Washington Public Power Supply System hereby replies to concerns expressed by your staff during the NRC Inspection 85-29 exit meeting of August 21, 1985 Our reply pursuant to verbal commitment made consists of this letter and Appendix A (attached).

In Appendix A, a statement of the concern with background comments is presented and the commitment, as we understand it, is stated.

Should you have any questions concerning our response, please do not hesitate to contact me.

e&

G.C. ' orensen Manager, Regulatory Programs GSC/la 8510080142 850918 Attachment gDR ADOCK O y7

,\i sf-D/

1 Appendix A I APPENDIX A Page 1 of 2 During an NRC inspection exit meeting conducted on August 21, 1985, areas of concern were identified. These concerns involved requalification training for HP/ Chem Technicians and the Radioactive Waste Management and Transportation Program. In accordance with the agreement made, the commitments resulting from the concerns are listed below:

A. Concern-The WNP-2 Radioactive Waste Management and Transportation program should be reviewed to provide additional assurance of regulatory compliance.

Response -

o WNP-2 will review its radioactive waste management program and pro-cess control program for compliance to 10CFR61 and 10CFR71 with emphasis in the areas of quality assurance and quality control and will make appropriate procedural changes by 11/1/85.

o WNP-2 will not ship quantities of Type B radioactive materials until the above mentioned review and procedural changes are completed.

B. Concern The first cycle of the two year requalification program for Health Physics and Chemistry Technicians should be completed by December,1985 (two years following licensing). The current schedule at WNP-2 indicates

. completion by March 1986, two years after implementation of the program.

Background

The plant has experienced delays in the implementation of our requalifi-cation program. Some important factors creating these delays include labor relations concerns and Plant startup manpower needs. While the program is an ambitious one, we are not willing at this time to reduce it either in scope or in depth. We have choosen instead to provide addi-tional flexibility in the schedule of requalification cycles to more effectively allow for manpower needs associated with Plant evolutions.

Response

o comensurate with the scheduling flexibility recently developed in the Supply System Health Physics Program Description (HPD 3.1.20),

the requalification program will be revised to reflect the following:

- Each journeyman health physics and chemistry technician will complete the requalification training program within a two year time interval with:

W m

i i

• f ..

l . Appendix A

! APPENDIX A Page 2 of 2

a. A maximum allowable extension not to exceed 25% of the j requalification interval, but I b. The combined time interval for any three consecutive re-l qualification intervals shall not exceed 3.25 times the two year interval.

C. Concern As a result of NRC Inspection 85-20 conducted on May 29-31, 1985, a Notice of Violation response was issued July 11, 1985. Appendix A page 3 of 5 Date of Full Compliance contains a statement concerning the modifi-cation of the Health Physics Technician training curriculum to reflect increased emphasis on radioactive material and area labeling / posting requirements. The statement indicated that the increased training was scheduled to be completed by August 16, 1985. The training of all personnel was not completed on August 21, 1985 the date of the exit.

Response

The additional training committed to in the response to Inspection Report 85-20 was not completed on August 16, 1985. This training was completed on August 27, 1985.