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Transcript of 860813 Hearing in Joliet,Il.Pp 10,422-10,670. Supporting Documentation Encl
	ML20205F251
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Site:	Braidwood
Issue date:	08/13/1986
From:	; Atomic Safety and Licensing Board Panel
To:	;
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O UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF: DOCKET NO:

BRAIDWOOD STATION 50-456/457-OL UNITS 1 & 2 COMMONWEALTH EDISON O .

LOCATION: J0LIET,.ILLINDIS -

PAGES: 10422 - 10670 DATE: WEDNESDAY, AUGUST 13, 1986 o

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O OfficialReporters 444 North CapitolStreet 860819o1 14 e50u14 Washington, D.C. 20001 PDR /,pCCa O 5 g o g j c, g-r Ptm (202)347-3700 NATIONWIDE COVERAGE L -- - _ _ _ _ _ _ . . _ __ _ . . . _ . _ _ . _ . .

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1- UNITED STATES OF AMERICA 2' NUCLEAR. REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ;

4 X

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5 :

In the Matter.of: :

6 : Doc ke t No. 5 0-4 56 ~ OL

. COMMONWEALTH EDISON COMPANY- : 50-457 OL 7 :

(Braidwood Station, Units 1 :

8 and 2) :

_ _ _ _ _._ _ _ _ _ _ _ _ _ _ _ _ _X 9

10 Page: 10,422 - 10,670 11 College of-St. Francis 500 North Wilcox q 12 Joliet,- Illinois

-) 13 Wednesday, August. 13,'1986.

14 The hearing in the above-entitled matter reconvened 15 at 9:00 A. M.

16 17 BEFORE:

18 JUDGE HERBERT GROSSMAN, Ch$irman Atomic Safety and Licensing Board 19 U. S. Nuclear Regulatory Commission Washington, D. C.

20 JUDGE RICHARD F. COLE, Member, 21 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission.

L22 Washington, D. C.

23 JUDGE A. DIXON CALLIHAN, Membe r ,

Atomic Safety and Licensing Board 24 U. S. Nuclear Regulatory Commission Washington, D. C.

APPEARANCES:

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1 On behalf of the Applicant:

2 >

MICHAEL I. MILLER, ESQ.

3 ' JOSEPH GALLO, ESQ.

ELENA Z. KEZELIS, ESQ.

4 Isham, Lincoln & Beale Three First National Plaza 5 Chicago, . Illinois 60602-6 On behalf of the Nuclear Regulatory Commission Staff:

7 ELAINE I. CHAN, ESQ.

8 GREGORY ALAN BERRY, ESQ.

U.'S. Nuclear l Regulatory Commission 9 7335 Old 'Georgetown Road Bethesda, Maryland 20014 10 On behalf of the Intervenors:

11 ROBERT GUILD, ESQ.

2

([) 13 14 15 16 17 18 19 20 21 22 23 24 25

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1 TESTIMONY OP- JOHN H. NEISLER and ROGELIO MENDEZ 2 DIRECT EXAMINATION BY MR. BERRY 10430

~3 VOIR DIRE EXAMINATION 4 BY MR. GUILD 10439 5 VOIR DIRE EXAMINATION BY MR. GUILD 10443

6 VOIR DIRE EXhMINATION 7 BY MR. GUILD 10456 8 VOIR DIRE' EXAMINATION BY MS. CHAN 10459

.9 VOIR DIRE EXAMINATION 10 BY MR. MILLER 10463 11 ' VOIR DIRE EXAMINATION BY MR. MILLER 10471

,eg 12

() 13 VOIR DIRE EXAMINATION BY.MR. GUILD 10483 14 PREPILED DIRECT TESTIMONY 10490 15 CROSS EXAMINATION BY MR. MILLER 10493 16 17- TESTIMONY OF W. J. SHEWSKI 18 RECROSS EXAMINATION (Continued.)

19 BY MR. GALLO: 10525 20 RSDIRECT EXAMINATION BY MR. GUILD 10527 21 TESTIMONY OF JOHN H. NEISLER AND ROGELIO MENDEZ

'22' CROSS EXAMINATION 23 (Centinued.)

BY MR. MILLER: 10530 24.

BOARD EXAMINATION l (~'i - 25' BY JUDGE GROSSMAN: 10581

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(f IL CROSS EXAMINATION BY MR. GUILD: 10586 2

EXHIBIT INDEX 3

Marked Received 4

Staff's Exhibit No. 17 10437 5

Intervenors' Exhibit No.-89 -10610 10613 6

Intervenors' Exhibit No. 90- 10618

-7 Intervenors' Exhibit No. 91 10659 10663 8

9 10 11

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1 JUDGE GROSSMAN: Are we ready to go?

2 MR. BERRY: I have-a preliminary matter 3 before we start.

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4 JUDGE GROSSMAN: We don't need the witness 5 yet because we have some motions to strike.

6 Well,'I guess we do need the witness.to offer the 7 testimony.

8 MR. BERRY: Before we do that, we have one 9 prelimina ry matte r, Mr. Chairman.

10 JUDGE GROSSMAN: Okay. The hearing is 11 reconvened. This is the 52nd day of hearing.

12 Mr. Berry has a preliminary matter.

13 ' MR. BERRY : Mr. Chairman, I do recall we had

'14 a discussion last week over production of Staff 15 documents; and the Board suggested that the Staf f 16 re-assess its position on relevancy and scope of 17 production relating to documents in its possession.

18 Staff has done that. We have identified another 19 allegation that has been received by the Staff recently.

20 It relates to allegations raised by a QC Inspector 21 employed by Comstock.

22 We propose -- well, those allegations are subject 23 to an ongoing inspection.

24 What we propose is to produce the documents to the

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25 parties under the same terms and conditions that we

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10427 (o) 1 ' produced allegation file 0079, because' that was --

lL JUDGE GROSSMAN: Limited only to trial 3 counsel.

4 MR. BERRY: Yes..

5 I have represented that to the counsel for.the 6 other parties already and they have agreed to that.

7 So the Staff at the next recess will have the 8 documents in our possession and will produce them.

O 9 JUDGE GROSSMAN: That's fine.

10 If counsel want to go further, then we will make

-11 whatever ruling is appropriate, but that's fine. The fs 12 Board accepts that. stipulation as to a protective order

()

13 at this point.

14 MR. GUILD: Mr. Chairman, excuse me.

15 I guess that would also include my associate, Mr.

16 Margulies, who is'the --

17 JUDGE GROSSMAN: Yes, that is correct.

I 18 MR. BERRY: That is fine.

19 The other matter I bring to the Board's attention 20 is the question of the Board's notification.

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, 21 The Board did express some concern that they 22 weren't being notified in a timely fashion by Staff on 23 matters bearing on the hearing.

24 I would just bring to the Board's attention that it

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V 25 is the new Board notification procedure, the policy l.

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'l statement,-which requires that the Staff conduct an

! 2 initial-inquiry.into an allegation to see that it's not l~ 3 frivolous before-it makes a. notification.

4 It is my understanding that with respect 1to the 5- documents that we produced last week and the documents 6 we propose to produce th'is afternoon,.that the initial

~

f-- 7 investigation to determine whether there:was any merit 8 to the allegations in terms of not frivolous hasLnot yet 9 been completed. I would just- like the Board to be ' aware 10 of that.

I 11 With respect to the Staff, at'least, that before 12 they make Board notifications, they are obligated to 13 conduct an initial inquiry into it to see if it's 14 something that requires notification.

15 JUDGE GROSSMAN: With regard to that,-Mr.

} -16 Ber ry, the fact that it might be frivolous makes it 17 relevant, since the alleger was a witness here; and the t- 18 fact of its being potentially frivolous would have some j 19 impact on his testimony, at least for someone who wishes 20 to discredit the witness.

I

21 MR. BERRY: I was speaking more generally,

.22 Mr. Chairman, just as to what the statement of policy n

i 23 requires with respect to the Staff before Board i 24 notification, j() 25 JUDGE GROSSMAN: Okay. But just as this is 1

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1 an example, it suggests that, perhaps, you, that is 2 Staff, you in the plural, are. construing the 3 notification a little too narrowly and you ought to be a 4 little more expansive on it.

5 MR. GUILD: Mr. Chairman, I would just ask:

6 Is-there a recently published policy on Board 7 notifications?

8 MR. BERRY: I believe-we have that, also.

9 We will make that available at the next recess..

10 MR. GUILD: Thank you.

11 MR. BERRY: At this time, Mr. Chairman, Staff

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U 12 would call Mr. John Neisler and Mr. Roger Mendez.

MR. MILLER: I am 13 Your Honor, excuse me.

14 sorry. I do have one preliminary matter.

15 I believe we have found the missing original of the 16 July 9th transcript.

17 Shall I tender it to the Court Reporter at the

-18 break? Is that the procedure?

19 JUDGE GROSSMAN: Yes, that's fine.

20 Gentlemen, would you please stand, raise your right 21 hands?

22 (The witnesses were thereupon duly sworn.)

23 JUDGE GROSSMAN: Please be seated.

24 Fine. Proceed, Mr. Berry.

() 25 JOHN H. NEISLER Sonntag Reporting Service, Ltd.

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'uJ 1 ROGELIO MENDEZ 2 called as witnesses :by Staff, having been first duly sworn, 3 was examined and testified as follows:

4 DIRECT EXAMINATION 5- BY MR. BERRY 6 Q Please state your name and spell your last name . for the 7 record.

8 A (WITNESS NEISLER) John H. Neisler, N-E-S-L-E-R.

9 A (WITNESS MENDEZ) Rogelio Mendez, R-O-G-E-L-I-0,

-- 10 M-E-N-D-E-Z.

11 MR. GUILD: Mr. Chairman, I think maybe we 12 need some mikes.

-13 MR. BERRY: Mr. Mendez, you might want to put 14 on the microphone.

15 JUDGE GROSSMAN: Well, as we have ruled 16 earlier, they are only going to be on shortly jointly 17 and then we are going to excuse one of the witnesses and 18 you will be entitled to examine the other alone and then 19 you will take the other witness afterwards. .

20 So we only need one mike for this.

21 MR. GUILD: I don't want to jump too far 22 ahead too quickly, Judge; but, first, it's our position

23 that Commonwealth Edison Company, the Applicant, should 24 go first, should precede us in examining the witnesses,

() 25 on the grounds that their testimony reflects an identity Sonntag Reporting Service, Ltd.

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\l 1 or compatibility of interest between the Staf f- on these 2 issues and the Applicant and that in order to protect 3 Intervenors' rights to confront and cross examine 4 adverse evidence, we should be privileged to follow 5 Applicant.- That's one point.

6 Secondly, though, I have discussed with both 7 counsel that I am willing to examine them as a panel, 8 having reconsidered the matter, when my turn arrives, so 9 long as I am able to direct questions and elicit. answers 10 individually to questions where it's appropriate.

11. MR. MILLER: Your Honor, Mr. Guild told me 12 just before the hearing started this morning that he 13' anticipated that I would go first on behalf of the 14 -Applicant in cross examining these witnesses.

15 This is somewhat of a departure from practice that 16 we have had previously, where, when Applicant witnesses 17 were tendered, Mr. Guild examined and then the Staff 18 conducted such further Cross Examination as seemed 19 appropriate; and I think that accurately reflected the 20 general alignment of the positions expressed by the 21 parties in this proceeding.

22 I am certainly prepared to conduct an examination; 23 but, frankly, it is really, on the basis of prepared 24 testimony, quite brief. It is more in the nature of

() 25 clarification of some points.

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10432 V. n 1 My anticipation is that it is only after the 2 conclusion of Mr. Guild's examination, whenever it 3 comes, that I will be able to assess what substantive 4 examination will be necessary on behalf of the 5 Applicant.

6. I had not . unde rstood, f rankly, before ten minutes 7 ago that there was going to be this change in the 8 approach.

9 JUDGE GROSSMAN: Well, the order that Mr.

10 Guild suggests seems to be appropriate.

11 I am a little disturbed that he didn't notify you 12 ea rlie r, or the Boa rd.

13 MR. GUILD: Mr. Chairman, it just seemed to 14 me that it was implicit; and I apologize if it comes as 15- a surprise to anybody.

16 But, on reflection, we are beginning a new party's 17 case and we are on-a substantially different footing 18 than we had when I was examining Applicant's witnesses.

19 JUDGE GROSSMAN: Yes, that is understood.

20 I agree that what we did before really doesn't' bear 21' on this question. They were a different party's 22 witnesses and the only order that we had that was any 23 different than the usual with regard to presenting 24 witnesses is that Staff went last on all of these

() 25 witnesses and the party offering the witness went first.

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1 It seems to me that what Mr. Guild is suggesting is 2 logical.

3- Now, if you are prepared, I understand that the 4 bulk of your examination will be on rebuttal or for 5 recross, actually. So that's fine.

6 If you are prepared to go forward on your regular 7 cross, which is going to be somewhat in the nature of 8 direct examination, we will do it that way.

9 MR. MILLER: .Yes, I am prepared to go 10 forward, although I will represent that it is likely to 11 be relatively brief.

12- JUDGE GROSSMAN: Well, we wouldn't mind that, 13 even if your Recross were relatively brief.

14 MR. MILLER: I am sure that's correct.

15 -JUDGE GROSSMAN: But we understand that that 16 will be more extensive than your original cross.

17 So, fine. Why don't we proceed that way?

18 MR. GUILD: Then, I guess, Mr. Chairman, the 19 next point on the agends would be:

20 There is a motion to strike that is pending after 21 the witnesses are tendered.

22 JUDGE GROSSMAN: Yes, that is fine. We are 23 prepared to deal with that.

24 MR. MILLER: That may solve the whole issue.

() 25 BY MR. BERRY:

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1 Q By whom are you employed?

.2 A (WITNESS NEISLER) Region 3 in the Nuclear Regulatory 3 Commission, Chicago office, field office, in Glen Ellyn.

4 A (WITNESS MENDEZ) Region 3, Nuclear Regulatory 5 Commission, Glen Ellyn.

6 0 Will you move your microphone up, Mr. Mendez?

7 JUDGE GROSSMAN: Yes, we are having trouble 8 hearingLyou even with the microphone, Mr. Mendez. The 9 loop tightens.

10 A -(WITNESS MENDEZ) Okay, okay.

11 BY MR. BERRY:

r'mg 12 Q Gentlemen, do you have before you a document entitled,.

V 13 "NRC Staff testimony of Rogelio Mendez and John H.

14. Neisler regarding Bridget Little Rorem, et al.,

15 Subcontention 2"?

16 A (WITNESS NEISLER) Yes.

17 A (WITNESS MENDEZ) Yes.

18 Q Was that document prepared by you or under your 19 direction?

20 A (WITNESS NEISLER) Yes.

21 A (WITNESS MENDEZ) Yes.

22 Q Are there any changes that you would like to make at 23 this time to that document?

24 A (WITNESS MENDEZ) I have a change for Question 2, the

() 25 answer to Question 2, and the change would read, "As Sonntag Reporting Service, Ltd.

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%l 1 Reactor Inspector, from about April, 1985, to March, 2 1986, I was responsible for performing inspections in

'3- the electrical and instrumentation areas to assure that 4 Braidwood Station is constructed in accordance with 5 regulatory requirements."

6 I would like to add to that --

7- MR. GUILD: Excuse me. Can he slow down and 8 let me copy that again, please?

9 MR. MILLER: Would you repeat it, please?-

10 BY MR. BERRY:

11 Q Would you repeat it?

-(3 12 JUDGE GROSSMAN: You are going to speak V

13 louder. The Boa rd membe rs are having a problem with it 14 and so am I.

15 A (WITNESS'MENDEZ) "As Reactor Inspector, from about 16' April, 1985, to March, 1986, I was responsible for 17 performing inspections in the electrical and

-18 instrumentation areas to assure that the Braidwood 19 Station is constructed in accordance with regulatory 20 requirements."

21 And to that I was going to add, "My present duties 22 consist of performing inspections of safety-related l

c.

23 plant systems and components to ensure compliance with 24 regulatory requirements."

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()' 25 MR. GUILD: Could I ask the second of those i

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1 additions be repeated again, please?

2 A (WITNESS MENDEZ) "My present. duties consist of 3 performing inspec6. ions o c safety-related plant-systems 4 and components, to ensure compliance with. regulatory

.5 requirements."

6 BY MR. BERRY:

7 O Are there any other changes?

8 A (WITNESS NEISLER) And Page 2, Answer A 3, delete the 9 word "also."

10 On Page 31e Answers 79 and S0 refer to., *NCR 2900."

11 Th6 t should be, "ICR 2900.'"

12 JUDGE CA%LIHAK: TCe came in Answer'80?

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13 A (WITNESC NEISLER) The came in Answe r 80.

14 BY MR. BERRY:

15 0 How about 717 16 A (NITNESS MENDEZ) '/1, ye s , 71.

17 A (UITNESS NEISLER) Ansyer 71, also. It should be ICR.

18 A (WITNESS MENDEZ) Page 9 --

19 MR. GUILD: BFCuSc foe. .Page 29, fir. Neislet?

( 20 A (WITNESS NEISLBR) On Page -- No. 71 on Page 30, where - it 21 says, *NCR 2900.' That should be, "ICR 2900,"

4 22 MR. GO,ILD: Thank you.

'I 23 A (WITNESS MENDEZ) Page 9, Question 18, the last number 24 should read "0062."

25 JUDGE COLE: 54? ',

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.1 A (WITNESS MENDEZ) 62.

2 Page 22, Answe r 5 0, that should read, "The Oc 3 Inspectors interviewed by me identified Irv DeWald."

4 BY MR. BERRY:

5 0 With those corrections is your testimony now accurate i 6 and complete, to the best of your knowledge?

7 A (WITNESS NEISLER) Yes.

8 A (WITNESS MENDEZ) Yes.

9 Q Mr. Mendez, Mr. Neisler, in your Answer 7 you refer to 10 an inspection report.

11 I want'to show you a document. I would ask the ej v

12 Reporter to ma rk it as Staf f Exhibit 17.

13 (The document was thereupon marked Staff's 14 Exhibit No. 17 for identification on 15 August-13, 1986.)

16 BY MR. BERRY:

17 0 I would ask you: Is the document identified as Staf f 18 Exhibit 17 the document to which you refer- in your 19 Answer 7?

1-20 A (WITNESS NEISLER) That is correct.

21 A (WITNESS MENDEZ) Yes.

22 MR. BERRY: Your Honor, at this time I would 23 ask that the testimony of Mr. Neisler and Mr. Mendez be 24 admitted into the record and bound in at this point and 4

() 25 received as if re.ad.

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1 I understand there is an outstanding motion-to 2 strike.

3 JUDGE GROSSMAN: Okay. We will discuss the-4 motion to strike and make the appropriate rulings.

5 So why don't we begin now? We will start with 6 Answe rs 10 and 11.

7 It seems to me that these are technical objections 8 that really don't amount to any real objection. I would.

9 expect Mr. Guild would withdraw that, those objections.

10 MR. GUILD: No, si'r, we do not.

11 10 and 11 essentially go to the competence of f' 12 Messrs. Neisler and Mendez to speak to issues that are,

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13 indeed, beyond their personal knowledge. They are 14 material facts and they are in dispute.

15 JUDGE GROSSMAN: Oh,.are they in dispute?

16 MR. GUILD: Yes, sir.

17 The Answers 10 and 11 essentially focus on a time 18 frame to which these witnesses either have no personal 19 knowledge or very limited personal knowledge. ,

20 Of course, it was Messrs. Schulz and McGregor, who 21 were the NRC inspectors, at least as I understand the 22 record as it has unfolded so far in this case, who 23 informed, if anyone did, at Answer 10 and would have

24 knowledge of informing the allege rs that .it would notify

() 25 Commonwealth Edison Company of the complaints, et Rnnntag Report i ng Se rvice . Ltd.

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1 cetera.

2 "This course of action was acceptable to the QC 3 Inspectors." I take it that if'that is, indeed, a fact 4 or reflects some perception on the part of an NRC-5 Inspector --

6 JUDGE GROSSMAN: Okay. I had no idea that 7 these were matte rs that are still in dispute.

8 Why don't you voir dire the witnesses with regard 9 to Answer 10 and we will make our ruling.

10- MR. GUILD: All right, sir.

11 VOIR DIRE ' AMINATION 12 BY MR. GUILD U

13 Q Mr. Neisler, I take it that you had no personal-14 involvement in any of these matters until later in the 15 year in 1985 when you were assigned to assist Mr.

~

16 Mendez, I believe in August; is that right?

17 A (WITNESS NEISLER) That-is correct.

18 0 Mr. Mendez, you had, in fact, recently been assigned as 19 an electrical inspector to Braidwood at about the time 20 these allegations were made?

21 A (WITNESS MENDEZ) Yes, I was.

22 Q I understand that you were present in the Regional 23 Office later in the day when the matters were discussed 24 and after the 24 inspectors made their complaints to the

() 25 residents?

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.v 1 A .(WITNESS MENDEZ) That is correct.

2 Q All right, sir. You were not present, though, atLthe 3 Braidwood site in dealing directly with the _24 Comstock 4 'inspectots that day? m

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5 A (WITNESS MENDEZ) No, I wasn't.

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6- MR. GUILD: All right, sir. I believe that 7 is sufficient, Mr. Chairman.

8 JUDGE GROSSMAN: I take it.neither of you has 9 pe rsonal knowledge of what is stated in this answer? It 10 was only something that might have been told to you by 11 people on the Staf f?

12 MS.-CHAN: Your Honor, I.believe there are 13 two matte rs in question here. One is.in 10 a'nd one is 14 in 11.

15 Are we covering them together?

16- JUDGE GROSSMAN: No. We.are covering 10 17 right now.

18 MS. CHAN: The second matter in 10, your 19 Honor, is relevant without regard to its truth.

20 It's what the Applicant told the NRC and the 21 inspectors relied on that as part of the basis for their 22 conclusion.

23 MR. GUILD: There are, of course, different 24 objections there; but the first point is what the

() 25 inspectors told the NRC; and I believe it's clear that Sonntag Repor ting Se rvice , Ltd.

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1 neither of' these gentlemen have personal knowledge of 2 that.

3 JUDGE GROSSMAN: Well, that is wha't we are 4 trying to establish definitely.

5 I take -it, then, you really have no personal 6 knowledge "of this?

7 A (WITNESS.NEISLER) Not me. I don't.

8 MS. CHAN: - Your Honor, if I might point out, 9 Mr..Mendez was present at-the second telephone 10 conversation when the Applicant stated what their 11 inquiry into the matter would be.

/~T 12 JUDGE GROSSMAN: Is that correct, Mr. Mendez, V

13 that you have personal knowledge of the third sentence 14 -- well, the fourth sentence, " Applicant stated," in 15 Answer 10?

16 A (WITNESS MENDEZ) Yes, I was present at the Applicant's 17 telephone conversation.

18 MR. GUILD: I recede from the motion with 19 respect to that answer.

20 JUDGE GROSSMAN: Okay, fine. We will accept H21 only that last sentence in Answer 10 and we will strike 22 the first three sentences.

23 Now let's go on to Answer ll.

24 MR. GUILD: May I voir dire, Mr. Chairman?

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() 25 JUDGE GROSSMAN: Hold on just for a second, i Sonntag Reporting Service, Ltd.

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1 because I first want to ask you whether these matters 2 are actually in dispute.

3 MR. GUILD: Certainly, the sum and substance 4 of the communication is a matter in! dispute.

5 I guess if the witness's answer is consistentuon v,

6 this question with the last one,'it would be apparent 7 that he was present but I would like.to establish that 3

8 for the record.

9 If, in fact, Mr. Mendez was present and heard that 10 conve rsa tion , then I will recede from'my motion with-11 respect to Question 11, at least as it relates to Mr.

p 12 Mendez.

\)

13- JUDGE GROSSMAN: Fine. Why don't you voir 14 dire then, though I really see nothing that there has 15 been any indication of being in dispute here; but 16 continue, Mr. Guild.

17 MR. GUILD: I believe there may have been 18 other matters that were stated in the conversation and I 19 don't mean to accept that this represented the sum and 20 substance of what was communicated.

21 JUDGE GROSSMAN: Well, yes; but that's a ,

22 matter for cross examination, not for --

23 MR. GUILD: That's why I say it is in 24 dispute, Judge, and that's why I am unwilling to accept

() 25 without hearing --

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v "jy[ -l' JUDGE GROSSMAN: Hearing what further was

.2 stated.

3 MR. GUILD: Exactly.

4 JUDGE GROSSMAN:- Proceed to voir dire,'then.

5 VOIR DIRE EXAMINATION.

> 6 BY MR. GUILD 7 Q Mr. Mendez, in the answer to Question 11 you indicate a 8 4:30 telephone conference call.

9 Were you a participant it; that conversation?

10 A (WITNESS MENDEZ) Yes, I was.

11- Q You were present at the Region and heard Edison's t'T 12 state.nonta stated in this answer?

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11 3 A (WITNESS MENDEZ) Yes.

14 0 That's based on your pe rsonal knowledge of that?

15 A (WITNESS MENDEZ) Yes.

.16 Q I take it, Mr. Neisler, you were not' there?

l'7 A (WITNESS NEISLER) I was not there.

18 MR. GUILD: I recede with respect to Mr.

19 Mendez on Answer 11.

20 JUDGE GROSSMAN: Then we will accept your 21 receding from that and we will deny the motion to strike 22 with regard to ll.

23 Let's go on to 21.

24 MR. GUILD: Mr. Chairman, with respect to 21

() 25 and following questions and answers that are the subject Sonntag Reporting Service, Ltd.

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r~ i N.y!i 1 of Intervenors' motion to strike, in short, these go to 2~ the heart of what is offered by way of Messrs. Neisler 3 and Mendez prefiled testimony and also the inspection 4 report that I understand is to be offered in evidence.

5 In short, they 'are interviews that took place by, 6 in part, Mr. Mendez, in part, Mr. Neisler, of certain-7 Comstock quality control pe rsonnel, inspectors and 8 management people.

9 The identity of the persons who were identified and 10 the substance of the questions asked them and the 11 answers elicited were the subject of extended probing in fS 12 discovery depositions, both by Incervenors and by

'%.)

-13 Applicant, to little avail.

14 We object generally to the admissibility of the 15 testimoni on these matters on grounds that the testimony 16 of fered is classic hearsay and that it, essentially, 17 ' recites through these witnesses what was purportedly 18 told them by othe rs, indeed,-as to central facts in this 19 case, as to material facts that are in dispute,.

'20 We recognize, of course, that this Board has 21 latitude with respect to hearsay. The overriding 22 consideration should be the trustworthiness of the 23 testimony, the probative value of the testimony and the 24 opportunity of an adversary to ef fectively conf ront and

() 25 cross examine testimony that is not being offered from Sonntag Report ing Se rv ice. Ltd.

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1. the source but is being offered by way of secondhand 2 recital.

3 , Here we believe there are substantial reasons why 4 this testimony should not be received.

5 First,-the testimony was -- the interviews were not 6- conducted in what we believe can be called a 7 scientifically reliable fashion.

8 Both Applicant 1and Intervenor counsel sought to 9 identify first the questions that were asked.

10 We understand from the witnesses in deposition that 11 there were a series of written questions used in each of 12 the inte rviews. -Those questions were not available at

(~)

\_/

13 the time of the witnesses' deposition.

14 I understood whatever questions had been formulated 15 had been -- the writings had been destroyed and there 16 were -- the witnesses did not recall the substance or 17 the specifics of questions that were asked of these 11 8 witnesses.

19 Second, the answers to these questions were 20 memorialized in writings by the prospective witnesses, 21 notes were taken.

22 Those notes presumably identified the speaker, the 23 subject of the interview, the declarant, if you will, as 24 under the hearsay rule; and also identified the 25 substance of the declaration, memorialized the substance

.( )

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10446 !

~ J 1- of the declaration.

2 We were informed at deposition that those notes as 3 well were destroyed and don't exist.

4 At the conclusion of the initial. session of the 5 deposition of Messrs. Neisler and Mendez January 13, 6 1986, both counsel for Intervenors and counsel for 7 Applicant insisted that the deposition simply be 8 recessed in order that the witnesses could search 9 whatever docunentation, memories,- sources of refreshment 10 that they might find, so that a meaningful preparation 11 in discovery could be had on investigation that these 12 gentlemen performed, the basis for the inspection report 13 that is being offered in evidence and, indeed, the basis 14 for-their testimony.

15- A resumed deposition was conducted March 13th and 16 March 14th; and althougn the witnesses had- resort to 17 documents that are now matters of record in this case, 18 in particular the Schulz and McGregor memos, the March 19 29th and April 5th memo, the April 5 memo, in 20 pa r tic ula r , that lists names in the in-camera version, 21 Intervenors' Exhibit 42-A, aside from simply referring 22 to the names that were contained in that memo and 23 matching those names up with subject matter that was 24 contained in their inspection report, neither Mr.

25 Neisler nor Mr. Mendez was able to -- were able to

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                                                                                ~10447 l~      refresh their recollection in any detail .as-'to the 2       identities of specific persons -they interviewed or the 3-     . specific content 1NE questions asked ~or answers given.

14 that are the basis for. the inspection report. 5 There are, of course, general answers given; and 6 both witnesses now sat through lengthy parts of this: 7 hearing and may have -independent knowledge, now having 8 listened to testimony from a numbe r of the - allegers - that-

9 they didn't have at the time the' deposition was taken. 10 We look at the rules'against hearsay and the 11 exceptions and I think that underlying all of the-1:2 exceptions is the notion that there should _ be guarantees 13 of trustworthiness,'either guarantees that are. implicit-14_ in the establishment of an exception to the hearsay rule 15 or where no particular exception is applicable 16 guarantees a trustworthiness or the basis for 17~ consideration of whatever otherwise hearsay should be 10 - admissible. 19 We think there are simply circumstances-here, 20 where, because of the central character of the facts I 21 that are documented in the inspection report and j [ 22 testimony and because of the lack of safeguards, 23 safeguards maintained by these witnesses and by the NRC i 24 Staff to assure trustworthiness, that it is simply 25 improper to admit this testimony, just largely hearsay, (]) L l Sonntag Reporting Service, Ltd. ! Geneva, Illinois 60134 l' (312) 232-0262

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           -                               _                                                                                                      10448
     ,A?
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1 and unfair "to Intervenor to expect us to meet adverse 2 evidence?where.we simply can neither identify the 3 declarant nor with confidence establish the

J4 trustworthiness of the' unrecorded' statements that were-2 5- .made ostensibly;by those declarants to these witnesses. 16 So unde r Rules -- one moment. . I am referring to 17 - Rule 803, Federal Rules of Evidence, - the hea rsay 8 . exception 24 --- one moment, ' Judge '-- and the other 9 - exceptions provision, if you will; and, there' again, I' 10- point out the language that refe rs to circumstances -

               - 11               'where there is the guarantee of trustworthiness.

12 JUDGE GROSSMAN: Okay.. Mr.. Guild, I don't r%) v 13 think we ought to 'take 'any -longer on that. 14 For one thing, what we have-here is not really 15- hea rsay, so those specific - rules don'.t apply. 16 What we'are dealing with is, basically, an 17 allegation that the witnesses are incompetent to testify; 18 to these matters because they have no specific i 11 9 recollection of these matters and nothing to refresh 20 their recollection; but as to their having heard these 21 concerns expressed by the QC Inspectors, that just-22 doesn't fit under the category of hearsay. i 1 23 They have direct knowledge of these expressions and i . 1 24 that's all they are testifying to in the first part of l . 1 25 Answer 21. i i Sonntag Reporting Service. Ltd. Geneva, Illinois 60134 ;

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 ~V 1                        The . second part is, of course, a dif ferent matter.

2 MR. GUILD: Well, I am referring really in 3 general. 4 I appreciate, Judge, there are some distinctions in 5 each of these questions; but my argument really goes to 6 the balance of my motion to strike and not specifically. 7 one part. of Answer 21, because what will follow now -- 4 4 8 and I don't mean to repeat this argument every time, 9 needless to say -- is, essentially, "So.and so, an 10 unidentified declarant, told me this and told me this." 11 This is the substance of the response to an inquiry that _(~) 12 -is material to this case. V 13 On Allegation X I interviewed an unknown declarant, 14 an unknown declarant told me in substance this; and the 4 15 substantial then is related first in the testimony and, 16 second, in the inspection report, where there is also a 17 failure to identify the declarants. 18 JUDGE GROSSMAN: Well, all I can suggest is 19 that you voir dire their specific recollection of these 20 matters and we will have to rule on that basis. f 21 Now, also, part of your objection is based on what

      ~22              appears to be an allegation of, perhaps, some wrongdoing 23              in the failure to produce the notes that would support l

24 the testimony. 25 Mr. Berry, what is the -- x Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10450

   .( S LJ l                                                                    MR. GUILD:     It is not, Judge, let me be clear 2                                                         about that.

3- I have no basis for assuming that there is any 4 .w rongdoing on the part of either of these gentlemen. 5 That should not be understood. 6 It is what I think is, frankly, a negligent 7 approach to the conduct of a very serious business; and 8 that is failure to maintain supporting notes and 9 memoranda that were, indeed, performed in the course of l 10 performing the official duties that are documented in l 11 the inspection . report. 12 I don't mean to suggest and I am not suggesting e-) s_- 13 that there was a conscious decision to withhold 14 information from a party. I have no reason to believe -) I 15 so. 16 JUDGE GROSSMAN: Mr. Berry, do you want to be 17 heard on this? 18 I would suggest, Mr. Guild, that you just voir dire 19 or reserve your questions, if you prefer, for cross 20 examination to undermine the foundation for the answers 21 given; but, basically, all you can do is undermine the 22 quality of the answers rather than pose a specific 23 objection to these matters, because they don't fall 24 under the category of hearsay. MR. GUILD:

   .( )       25                                                                                   Maybe I am just not Sonntag Reporting Service _, Ltd.

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1 communicating, Judge. 2 I certainly would respect your ruling to the 3- contrary' of me taking my position; but Y understand that 1 4 these witnesses, indeed, do intend to show the or to 5 demonstrate the underlying facts, that is through their 6 testimony, that are contained in these' declarations-that 7 are recited in their testimony. 8 That, indeed, this is hearsay. 2 9 That, indeed, the Staff of the Nuclear Regulatory 10 Commission is -- 11 MR. BERRY: May I be heard from? 12 MR. GUILD: -- isitaking statements from 13 individuals and on the basis of those statements is 14 taking a position in this case, establishing that 15 certain facts did or did not exist at L. K. Comstock. 16 That is classic hearsay it seems'to me. 17 JUDGE GROSSMAN: Okay. Mr. Berry. 18 MR. BERRY: The Staff agrees. 19 The Staff's position on this general position is 20 it's not hearsay and it's not hearsay because this 21 evidence is relevant just simply for the fact that it 22 was heard by these inspectors. The purpose of this 23 testimony is to report what the result 3f the 24 witnesses' inspections were. () 25 They were told certain things by the inspectors and Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10452

/~N $~) 1, they relied on what they learned in the course of their 2 inspections to reach-certain conclusions. 3 N ow , they are free to be examined on what they 4 remember, what they learned in the course of that

      -5  inspection and, you know, I think. that is appropriate 6  for cross examination.

7 The other point I would bring 'out is it's simply 8 not true'that these witnesses have no recollection as to 9 who the declarants were, what information they received 10 from particular inspectors. 11 Mr. Guild is correct that the first deposition was: r 12 recessed to enable the -- for two reasons, your Honor: 13 One, to produce the documents to the Intervenor and the 14 Applicant that are relevant to this whole subject matter 15 and also to enable the witnesses to refresh their 16 recollection as to the individuals who are identified in 17 their inspection report. 18 Subsequently, that was done and those individuals 19 were identified by these witnesses at their deposition. 20 So just to that answer, these witnesses do have 21 independent and present recollection as to the sources 22 of the information that they used to reach certain 23 conclusions. 24 The other point that I would just make for the 25 record is that it's true that the inspection report f')T Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

P 10453 [O 1 itself'does not identify the inspe~ctors they spoke.with; ) - 2 but that's customary'and the Staff doesn't -- the 3 Staf f's practice is not to identify allegers who come to-4- the NRC in confidence. 5 MR. GUILD: Mr. Chairman, I would like to.say 6 that -- 1 7 JUDGE GROSSMAN: No.. Mr. Guild, we are 8 dealing right now with 21. I hate to shoot at a-moving

9 target.

10 MR. GUILD: All right,. sir. We.will deal 11 with'21 then. 12 JUDGE GROSSMAN: You may have like objections

,                 13                     for later answers, but we are going to rule on 21 right

14 now.

15 The ruling is that there is no hearsay and that you. 16 are entitled to cross examine on the quality-of'the 17 answers and the foundation for giving those answers in

18 light of what may be an absence of present recollection.

19 MR. GUILD: All right, sir. 20 JUDGE GROSSMAN: So we are denying your i 21 objection to 21. 22 MR. GUILD: Mr. Chairman -- 23 JUDGE GROSSMAN: Now, are we going further? 24 MR. GUILD: I hope so, Mr. Chairman. 25 JUDGE GROSSMAN: Okay. Fine.

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                  ?1                                   MR.. GUILD:    At your pleasure.

2: JUDGE GROSSMAN: Fine.- Wh;; don' t _ we . go on to 3 22? 4 MR'. GUILD:- Judge, if I may, there isla

                   '5             reference under 21 to Rule .703; and -if I may just' be 6            -heard so I ' don't'- have to repeat myself over ~and over 7             aga in .-                                                 4 8                     I understand your ruling on 21.               I' understand _you-9             have overruled the argument based on Rule _703 which you
                                                                 ~

10 haven't heard yet; but Rule 703 addresses the~ question 11 of whether this testimony and the-underlying inspection

12 report'ought to be admitted on the basis _~of opinion L13 - basis, fact or expert testimony, either -as to opinion or 14 as to fact.

                 '15                     While it is true that the Federal Rules now provide 16              that expert testimony can be given without demonstrating 17              the admissibility of the factsaor data on which'that 18              testimony, that expert testimony, is founded.

l 19 That requirement is only applicable -- that l 20 privilege is only applicable -- where such facts or data

                  ?.1             are of a type reasonably relied upon by experts in the 22              particular field in forming opinions or inferences upon

[ 23 the subject. i 24 Now, I would direct the Board's attention to the () 25 notes to the rules, where it makes very specific that -- t Rnnntna RennrFina Rervice. Ltd. Gedeva", Illi5ois 60134 (312) 232-0262

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1 a specific point that -- I am reading the language, the 2 fine print, if I may. 3 The last paragraph -- on my copy of the notes of 4 the Advisory Committee to the Rule, the last paragraph 5 -- under the Rule essentially states that the language 6 of the new rule should not be understood to warrant 7 admitting evidence in opinion form of a so-called, 8 quote, accidentologist, unquote, as to the points of 9 impact in an automobile collision based on statements of 10 bystanders, since the requirement would not be 11 satisfied. 12 My point here, Judge -- and you can consider this (~} L, 13 as to 21 and the others -- is we have the identical 14 circumstances here. 15 The Staf f is of fering the testimony of or may be 16 purported to of fer the testimony of supposed experts, 17 who are harassmentologists, who essentially go out and 18 take statements from these people, the statements 19 themselves not in evidence, the declarants not 20 identified, and then form an opinion and offer opinion 21 testimony much the same as decried by the notes to the 22 rule. 23 We would just simply add to the argument that you 24 have already hea rd that calling Mr. Neisler and Mr. 25 Mendez experts for this purpose, while I don't mean to ( }) Sonntag Reporting Service, Ltd. Geneva, Illinois 6Df34 (312) 232-0262

10456 p

^/_

1 decry their expertise, doesn't solve the problem of 2 getting in what is, indeed, not admissible evidence with 3 respect to what they were told. 4 I just wanted-to add-that to the record. 5 JUDGE GROSSMAN: Okay. That is' fine. 6 We are still denying the objection, and you can 7 certainly examine them with regard to the basis for 8 their conclusions. 9 MR. GUILD: All right, sir. 10 22? 11 JUDGE GROSSMAN: Now let's go onto 22.

 ,   12                 I think you ought to voir dire on this.

13 VOIR DIRE EXAMINATION 14 BY MR. GUILD 15 Q Mr. Neisler and Mr. Mendez, which one of you gentlemen 16 responsed to Question and Answer 22? 17 A (WITNESS MENDEZ) I did. 18 Q Mr. Mendez, I take it, then, your answer is based on 19 what someone told you at Comstock -- 20 A (WITNESS MENDEZ) That's correct. 21 0 -- and not on the basis of your personal knowledge of 22 what Comstock did except as related indirectly from some 23 source at Comstock? 24 A (WITNESS MENDEZ) I am not really sure I understand the () 25 question. l Monntag Reporting _ Service, Ltd. Geneva, Illinois 60134 232-0262 (312)

10457 . ,m b 1 Q All right, si'r. You were told what Comstock did; you

    -2   didn't observe with your eyes, hear with your ears?

3 You were told what Comstock did and that's the 4 basis for this answer; is it not? 5 A (WITNESS MENDEZ) Not exactly. 6 I interviewed QC Inspectors. I had asked them who 7 was certified, who wasn't certified. 8 I was given a list of names. I looked to see 9 whether they had certification in those areas; and 10 looking through records, I ran across the QA Audit 11 Report by Commonwealth Edison that identified ~that 12 deficiency. 13 0 Well, you are looking at 21 now and I am down to 22. 14 The first sentence reads, of the answer, "The LKC 15 QC supervisors were required to obtain Level II. 16 certification in the areas they supervised." 17 I take it that answer is based on what someone told 18 you at Comstock? 19 A (WITNESS MENDEZ) No, that's not correct. 20 0 All right, sir. Would you tell me what the basis'is? 21 A (WITNESS MENDEZ) Comstock subsequently changed the 22 procedure. 23 Q Yes, sir. That's not exactly responsive. 24 The statement says, "The LKC QC supervisors were () 25 required to obtain Level II certification in the areas Sonntag Reporting Service, Ltd. Geneva, Illinois 60T14 (312) 232-0262

10458 Gi 1 - they supe rvised. " l 2 How do you know that to be a fact,' sir?

           "3               A'    (WITNESS MENDEZ) Procedure 4.1.2 requires that QC 4                   supervisors be certified Level II's.

5 Q All right, sir.- So you relied on a. procedure? 6 A -(WITNESS MENDEZ) Yes. 7 Q Your interpretation of a procedure? 8 A (WITNESS MENDEZ) Yes. 9 JUDGE GROSSMAN: When was that procedure 10 adopted that required that certification? 11 A (WITNESS MENDEZ) I believe from about 1981, '82, up r3 12 until 1985. It existed in that time frame.

    .g 13                BY MR. GUILD:

14 Q All right, sir. This does not refer then to a

         -15                     corrective action?

16 This refers to a procedural requirement.that was 17 outstanding during the entire time that you conducted ? 18 your investigation? 19 A (WITNESS MENDEZ) That's correct. 20 MR. GUILD: All right, sir. I just 21- misunde rstood the answer. 22 I will recede from that one, Judge.

         ~23                                 JUDGE GROSSMAN:                             I am not sure I am 24                     satisfied.     .

25 MS. CHAN: Your Honor. ('_l s / Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10459 r^s

 . N.]

1 JUDGE GROSSMAN: Yes. 2 MS. CHAN: May I voir dire the witness?

        '3                          JUDGE GROSSMAN:-       You certainly may.

4 VOIR DIRE EXAMINATION 5 BY MS. CHAN 6 Q Mr. Mendez, when you in your testimony discussed the 7 requirements of- the LKC inspectors, can you . please tell 8 us if you are reporting what was recommended or required 9 by the procedures or are you reporting what was actually 10 carried out? 11 A (WITNESS MENDEZ) If you are referring to this first 12 sentence to Answer 22, it's=what the. procedure requires. 13 JUDGE GROSSMAN: Okay. We will allow that 14 - an swe r , the first sentence there, though I am not sure 15 that there shouldn't be further cross examination on 16 that. 17 But since Mr. Guild recedes from that, I am sure he 18 will handle that in cross examination; but I am also 19 concerned about the third sentence and Mr. Mendez' basis 20 for stating what he states there.

21 Could you read that third sentence and indicate

, 22 what your basis is for that statement? 23 A (WITNESS MENDEZ) You are referring to, "This is because 24 LKC QC supervisors did not perform Level II reviews"? () 25 JUDGE GROSSMAN: Yes. Sonntag Reporting Service, Ltd. Geneva, Illinois 6Cl34 (312) 232-0262

1 . n 10460

s 1 How. do you know that? - 2 A' '(WITNESS MENDEZ)'Itreviewed documents. 'The~re:were quite-3' a number of documents I reviewed;' and'since there'are-4' only.four or five-QC supervisors,.I was aware.who they -

5. were'and I cross-checked.them againstJthose QC-

        -6~              Linspection checklists.
        -7                           JUDGE GROSSMAN:     And you matched their 8                certifications with their sign-offs?

9 A= (WITNESS MENDEZ) Okay. I -- ' 10- JUDGE GROSSMAN: In other words, you checked 11 to see what area they signed the documents off in Jandf 12 also checked their-certifications.to see whether.they.

O 13 were certified in those areas?

141 A (WITNESS MENDEZ) I have got'to explain. ' 15- Before September,1984, in order- to perform .a Level' 16 II review, all you had to be is a Level II -in one area.

17. That is, if.you were a Level II in welding, you 18 could sign off a QC checklist in calibration, if all you 19- were doing was reviewing that checklist, before 20 September, '84.

21 JUDGE GROSSMAN: Well, your third sentence 22 indicates that the LKC QC supervisors did not perform 23- Level II reviews in any areas for which they were not 24' certified. () 25 A (WITNESS MENDEZ) That's correct. Ronntag Reporting Se rv ice,_Ltd. Geneva, Illinois 60134 (312) 232-0262

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l JUDGE GROSSMAN: Now you are telling me that-2 they could have performed reviews in areas that they 3 were not certified in but that's not what your statement 4 says here. 5 A (WITNESS MENDEZ) Okay. May I explain that? 6 I subsequently did 'see Saklak sign off the review 7 column in welding -- I believe it's welding -- and he-8 was certified in welding. 9 That it didn't matter at-the time frame, because if 10 you were certified in that area, you can sign off the 11 review column. 12 JUDGE GROSSMAN: So you saw'that he had f~%- w) 13 signed something in which he was certified? 14 A (WITNESS MENDEZ) Yes. 15- JUDGE GROSSMAN: But now your statement goes 16 beyond that one instance with that one supervisor. You 17 seem to cover the waterfront here; and if.that's not 18 what your answer intends, maybe you ought to modify your 19 answer. . 20 You are indicating that you reviewed the area 21 sufficiently to determine that the QC supervisors only 22 performed Level II reviews in areas in which they were 23 certified. 24 I take it from what you are saying now you are not 1 () 25 prepared to go that far? Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

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

10462 m k.) 1 A (WITNESS MENDEZ) As a rule, QC supervisors don't do 2 Level II reviews; but if they were, that's an acceptable 3 practice.

4. JUDGE GROSSMAN: Well, I believe you are 5 withdrawing.that answer now. You are obviously not 6 supporting it.

7 So I think we are just going to strike that answer;- 8 and if you wish to -- that sentence in the answer. 9- -You will be permitted to examine your witness 10 further and elicit what you can with regard to that 11 area, Mr. Berry; but right now he is telling me that-he

    .;  12      is not prepared to support that.

() 13 So we will strike that third sentence in answer to 14 22. 15 MR. MILLER: Your Honor, could I just -- 16 JUDGE GROSSMAN: Ce rta inly. 17 MR. MILLER: I don't know if the Staff wants 18 to conduct any additional voir dire on this subject but 19 if they don't, may I? 120 JUDGE GROSSMAN: You certainly may. 21 MR. GUILD: Mr. Chairman -- 22 JUDGE GROSSMAN: I appreciated the fact that 23 you didn't speak when it wasn't necessary, but, 24 certainly, you are a participant in this. {} 25 MR. GUILD: Mr. Chairman, before the Sonntag Reporting Se rvice, Ltd. Geneva, 111TrIUlr6tr174 (312) 232-0262

10463 { v(3 1 . Applicant goes forwa rd, may I ask the Board to remind 2 the witnesses that they should not. confer while they;are-

            -3               standing Cross Examination, please.
           -4' That is the purpose that -- I would have them
           .5                individually on the stand but for;that' instruction.

6 JUDGE GROSSMAN: That's fine. 7 We do instruct.the witnesses not to confer with 8 each other; and, as I might point out,e w had already 9 ruled that Mr. Guild had the right to. examine them 10 individually and this is a modification on his~part to 11 accommodate Staff's reference for a panel interview. 12 So'that is correct. They shoul'd not. 13' Mr. Miller, you may proceed in voir dire.

14. MR. MILLER: Thank you.

I 15 VOIR DIRE EXAMINATION 16 BY MR. MILLER 17 Q Mr. Mendez, in order to attempt to establish whether or 18 not Comstock QC supervisors performed Level II reviews 19 in' areas for which they were not certified, what 20 documents, if any, did you review? , 21 A (WITNESS MENDEZ) I reviewed quite a few QC inspection 22 checklists. 23 0 That is the inspection checklists on which a Level II 24 review would be indicated? () 25 A (WITNESS MENDEZ) Yes. $ Sonntag Reporting Service, Ltd. Geneva, Illinois 66F34 (312) 232-0262

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4 10464

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()) - ' '! 1 Q At the time yeO performed review, did you 'lator who the 2' ., LQC: supervisors were over time at Comstock?

         "3       A1  -(WITNESS MENDEZ) Yes,. I did; yes, I did.

4 Q -All right, sir. And, in a.4dition to Mr. .Saklak, do you 5 .have any other' names that:you can provide for the 6 record? 7 A (WITNESS MENDEZ) I had never seen any other QC 8 supervisor sign the Level II review. 9 0 Well, that's helpful; but I_ don't think it's quite 10 responsive to my question.- 11 Can you identify now any other QC supervisors whose 12 names you were looking for? f-)

13 A (WITNESS MENDEZ) It was a long time ago, but I believe 14 Worthington, Tuite were supervisors. 15 0 All right, sir. And your review of the inspection 16 checklists did not disclose any instance in which either 5 17 Mr. Tuite or Mr. Worthington had signed a Level-II 1B review? 19 A (WITNESS MENDEZ) That is correct. 20 0 You did find some where Mr. Saklak had signed them; 21' correct? 22 A' (WITNESS MENDEZ) Yes, I did. 23 0 And were you able to ascertain in what areas or for what 24 ' types of inspection Mr. Saklak had performed Level II D 25 rev iew? l - Q, r Sonntag Reporting Service, Ltd. 4 Geneva, Illinois 60134

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                   .11         A'   (WITl4ESS MENDEZ) I am not quite sure but I believe it 1

2 was. welding, I think. I believe Saklak was certified tn 3 velding. 4 Q All right, sir.. And it is en that basis that you i 5 prepared the third sentence of the Answer 13 -- Antwer 6 227- I-sm sorry. 1 7 'A' (WITNSSS MENDEZ) Yes. 8 MR. MILLER: Your Honor, I believe that the 9 sentence oughtL to remain in the testimony. 10 g7UDGE COLE: So do I. 11 JUDGE GROSSMAN: Were those tl.e only kinds of l r~g 12 inspections that were being perforraed in welding? C' 13 A (WITNESS MENDEZ) Saklak does not perf0rm inspections.

                 '14                           -JUDGE GROSSMAN:     Well, no. I am caying I

15 didn't you check any other -- li 16 A (WITNESS MENDEZ) Yes. 17 JUDGE GROSSMAN: -- inspection reports in 18- which there were Level II reviews -- 19 A (WITNESS MENDEZ) Yes. < 20 JUDGE GROSSMAN: -- other than in welding? i 21' A (WITNESS MENDEZ)' Yes. I remember calibration, 22 configuration, junction box equipment. 1 23 JUDGE GROSSMAN: Did you check these other i l 24 areas to determine whether Oc supervisors who were not ! () 25 certified performed Level II reviews? Sonntag Reporting Service, Ltd. ~~ Geneva, Illinois 60134~~~ (312) 232-0262 o

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  ;7                 :1          A  (WITNESS MENDEZ) Yes, I did.            I checked the review t:
                        ?. ~        cdlumn.

3- JUDGE GROSSMAN: AndLdid!you find any QC 4 a supervisors who signed these documents who were not? E certified? 6~ A (:4ITNESS 'MENDEZ) No, I didn't. 7 JUDGE GROSSMAN: Now, you say Mr. Saklak was 8 certified in welding? 9 A (WITNESS MENDEZ) Yes.: 10 JUDGE COLE: In that instance where you 11 observed Mr. Saklak to sign as a Level-II review, sign-:a' q l '- form, did you then check to make sure that that was an 13 . area in which he was, in fact, certified, whether it was-14 welding or some other area? 15 A (WITNESS MENDEZ) Yes, at the time I would have had to. 16 Whatever he was certified in -- 17 JUDGE COLE: So it might have been'some other 18 area, other than welding? 19 A (',TITNESS MENDEZ) That is possible. 20 JUDGE COLE: Do you recall specifically 21 checking to see whether that was in fact an area that he 22 was certifled at the Level II? 23 A { WITNESS MENDEZ) Yes, yes. 24 JUDGE COLE: All right. Thank you. 25 JUDGE GPOSSMAN: Did you have some further (])

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1: :que.itions onLvoir dire?' 2 MS..CHAN: No further questions.

                                                                                ~
            '3                       ' JUDGE GROSSMAN:     Okay. . We will allow the ll.          answer, though:I am.not sure whether everything we haveL i

_5 heard.was inte rnally consistent.- 6 MR. BERRY: :I believe it'was consistent, Mr.

            -7            Chairman.

8, JUDGE GROSSMAN: Fine. Let's go on-to 28. 9 With regard to the second. paragraph, you have a i 10 sentence.In here that says, "However, none of'the ! 11 inspectors actually had been told by LKC management that 12 production was more important than quality and all.

  -(.-      13            indicated that they had not and would not accept 14            discrepant work for sake of. increasing the number of

15 inspections."

16 I don't see anything objectionable about the last l 17 half of that sentence; but as to what inspectors had i l 18 actually been told by LKC management, that appears to be

19. hearsay to me and I don't see any reason for. allowing l 20 that.

l [ 21 MS. CHAN: Your Honor. 22 JUDGE GROSSMAN: Yes. 23 MS. CHAN: Your Honor, it might be just 24 inartfully stated and what Mr. Mendez means to say is (} 25 that none of the inspectors told me that they had been

             '                  Sonntag Reporting Se rvice, Ltd.

Geneva, Illinois 60r3'4 (312) 232-0262 u

10468 cm ' ' x /- 1 told. 2 JUDGE GROSSMAN: Okay. As restated, is that

    .3 what you intended to say, Mr. Mendez?          m 4  A (WITNESS MENDEZ) Yes, none of the inspectors told.me.

5 JUDGE GROSSMAN: Okay. As restated, we will t 6 accept it; and, of course, that just.goes to what the-7 inspectors actually said and doesn't actually prove the 8 -- that they had actually beenJtold that by LKC 9 management. 10 MR. GUILD: Mr. Chairman,,,perhaps we would 11 save a bit of time if we reached,an understanding that 12 Staff is not attempting to use this testimony.to prove i 13 the truthfulness of the content of"what are related as 14 only statements made to Messrs. Mendez and Neisler by 15 other persons, by these declarants. 16 If it 's understood that they are reciting to the 17 best of their knowledge what was told them by others, 18 not to prove the substance of what was told them, only 19 that it was told them, I have less difficulty; but, I 20' frankly, expect to see both Applicant and-the Staff 21 relying on this testimony to prove these matte rs. 22 JUDGE GROSSMAN: Then maybe we ought to go 23 ahead and see where we have to limit it. I don't know 24 that there are that many examples as in Answer 28. () 25 So why don't we just go forward and go on to 30. nnnnean nnpnreing snevico. r.t a _ Geneva, Illinois 60134 (312) 232-0262

10469 f) Q,1 1 MR. GUILD: I take it that the Board is-2 ' denying'the motion to strike with respect to the balance 3 of :28 then? 4 JUDGE GROSSMAN: Yes. I don't see anything' 5 objectionable in the rest of.it. 6 .MR. GUILD: Again, I understand that it's not 7 offered to prove the substance of the matters? 8 JUDGE GROSSMAN: Right. It is only offered-9 to-prove that those expressions were made. 10 MR. GUILD: I see. 11 JUDGE GROSSMAN: And that was the basis for 12 the investigation. {v~}- 13 30. 14 MS. CHAN: I believe on 30 it's the same 15 situa tion , that Mr. Mendez asked them if they knew of 16 any instance where a junction box had not been grounded; 17 and no one told him. 18 JUDGE GROSSMAN: Yes. Well, okay. That's 19 fine. I don't see any hearsay there or any problems. 20 Let's go on to 33. 21 MR. GUILD: Aga in , it says, "none did"; and I 22 guess if that is to be read, "no one told me they did," 23 that is acceptable; but, "none did," seems to suggest a 24 more definitive fact. () 25 JUDGE GROSSMAN: I see. Okay. Sonntag Reporting Service, Ltd. Geneva, Illinois 60T34 (312) 232-0262

[ a 10470

l c ~1 .MR. ' GUILD: Page 16?at the top. 2 JUDGE GROSSMAN: That's.right. We willL 3 change that to, "None of; them 'in'dicatEd thati they knew 4 'of such an instance." 4 5 ,

                                                        ~33,fthe objection is. denied on that.                                             That is P

6 obviously.not hearsay. . 7 Let 's go on . to' 35. It' appea rs:- to me as though the ; 8 third, fourth'and fifth sentences.are objectionable. :( I' 9 MS.- CHAN: He did not object'to 3,-your i

i 10 Honor. f i 11~ JUDGE GROSSMAE: Pardon? , 12 -MS. CHAN:. The Intervenors did not object'to i: , 13 3, the third sentence. .

~14 Are you looking at Answer 357-5

[ 15 JUDGE CROSSMAN: I am'looking at-35, the. i 16 second -pa ragraph. i ~ !. 17 MS. CHAN: They objected to starting with the ; ! 18 fourth. sentence. 6 t O l 19 MR. GUILD: This lack of qualification. i 20 JUDGE GROSSMAN: I counted wrong. I am , i 21 sorry. " Initially," is the beginning of the fourth 22 sentence.

1 23 MS. CHAN: This lack of --

! 24 JUDGE GROSSMAN: Yes, I am sorry. Let's , 1 25 change that.

     -:{ )

i Sonntaa Reoortina Service. Ltd.

f Geneva, Illinois 60134 : (312) 232-0262

10471

   ^ ()

1 The fourth, fifth and sixth sentences and 2 . seventh sentence, unless there is some founda- t 3 can be offered for the seventh sentence; but 4 stands now, it appears that the objection is valid. 5 MR. MILLER: Your Honor, in view of your 6 earlier rulings with respect to the testimony, again, I 7 don't know if the Staf f is going to do it; but if I 8 could just conduct a brief voir dire of Mr. Mendez and, 9 perhaps, at the conclusion of that offer some argument 10 as to whether or not it ought to be admitted. 11 JUDGE.GROSSMAN: Fine. Why don't you 12 proceed, Mr. Miller? (~]s 13 VOIR. DIRE EXAMINATION 14 BY MR. MILLER 15 0 Mr. Mendez, did you pe rsonally look at Commonwealth 16 Edison Braidwood QA Surveillance Report No. 3372? 17 A (WITNESS MENDEZ) Yes, I did. 18 0 Who provided it to you? 19 A (WITNESS MENDEZ) Ed Netzel. 20 Q What is Mr. Netzel's position? 21 A (WITNESS MENDEZ) He is the electrical QC supervisor for 22 Commonwealth Edison. 23 0 The QC supervisor or is he in the Quality Assurance 24 Department? () 25 A (WITNESS MENDEZ) Quality Assurance, that is correct, Sonntag Reporting Service, Ltd. Geneva, Illinois 60134

i. (312) 232-0262 I

        ,.    , , - ,               c    . , . - , , , ,   n  .-  ,       , - - - - , . . . - , - < - ,.-------,...y  . , -

10472 h. U 1 that's right.

2 Q Did Mr. Netzel provide that document in response to a 3 request from you?

4 A (WITNESS-MENDEZ) Yes, he did. 5 0 The sentence in your testimony, Page 18, that begins. 6 with the word, " Initially," how did you determine that 7 -- what is the basis for the statement that Braidwood 8 quality assurance found problems and so forth? ! 9 A (WITNESS MENDEZ) They rejected his certification. . 10 Q How did you know that? 11 A (WITNESS.MENDEZ) The QA audit explains-that, states it. 12 The QA audit states that. 13 0 Which QA audit, sir? 14 JUDGE GROSSMAN: You are talking about an 15 Audit Report or an audit section of the company? 16 A (WITNESS MENDEZ) I believe there is a QA Audit Report on 17 this. It's just not documented in the -- in this 18 testimony, in the prefiled testimony. 19 MR. MILLER: One second, if I might have just 20 a second. 21 JUDGE GROSSMAN: Sure. 22 A (WITNESS MENDEZ) Here it is. Okay. I am sorry. 23 It is part of the QA Surveillance Report 3372. 24 BY MR. MILLER:

 '() 25   0   All right. So it was on the basis of your review of Annntag Roporting Aprvicp_ Ltd.       _

. Geneva, Illinois 60134 (312) 232-0262

e d 10473' i ... 1 that document that you made E the statement thatL the 4 2 Braidwood QA Department found problems with the: 3 certification of the individual; correct?" ! '4 A (WITNESS MENDEZ)-Yes. 1 5 Q. You didn't go . behind that document: to determine what 6 other action,.if any, had been taken? l- 7 A (WITNESS MENDEZ) Yes, I did. - He.was recertified at a

8- later time.

It 9 0 . How could ' you . tell -that? l(WITNESS MENDEZ) Part..of the corrective action to-

10 A i 11' Surveillance Report 3372. o ] . . 12 I don't recall what that -- what form that took.

        . ,)s .

13 JUDGE'GROSSMAN: So these four' sentences then' : f

14 are alllbased on what you read in that Surveillance j '15 L . Report No. 3372?
;16 A~ -(WITNESS MENDEZ) Yes; and,L also, a . review of his actual: .

I 17 background as --far as his experience.- I actually-saw his j 18 experience and his background, records of his background- [ i ~ f 19- and experience. , l l20 MR. MILLER: Well,~;your Honor, again, without t

21- vouching for the accuracy of the surveillance report I .

22 itself, nonetheless, it.is clearly the basis on which c23- Mr. Mendez conducted his investigation and stands, it j, 24 -seems to me, on the same footing as his interviews of 25 the QCLInspectors in that sense. ({J i l Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 i (312) 232-0262 _u. . - _ . . _ _ _ _ _ _ . _ ~ - - _ _ _ _ _ _ _ . _ . . _ _ _ . _ _ . , . . _ . - . _ . . . _ - -

N 10474 1 JUDGE GROSSMAN: Is that surveillance report 2 admitted into evidence? 3 MR. MILLER: I am confident that-it is not; 4 but should that be appropriate, we can certainly arrange 5 to have a witness -- Mr. Netzel, perhaps -- come in and 6 sponsor it. 7 JUDGE GROSSMAN: Mr, Guild, do you wish to -- 8 have you seen that surveillance report? 9 MR. GUILD: It doesn't leap to mind, Judge, 10 if I have. I can't represent that I haven't. 11 The fact of the matter remains that it is classic 12 () r~s 13 hearsay and it's clear that the witness is not testifying based on personal knowledge. 14 He is testifying based on what he read in a report 15 prepared by Applicant; and it certainly cannot stand for 16 anything more than a recital of what he recalls that 17 report telling him, not facts that he claims co r 18 establish by the direct statements that are given in his 19 answer. 20 JUDGE GROSSMAN: Well, whether we have a 21 hearsay problem or a best evidence problem -- 22 MR. GUILD: We have both. 23 JUDGE GROSSMAN: -- we really don't have 24 competent evidence to prove the truth of the assertions

J 25 here. 4 Ronntag unpnreing Rnrvice, T.E d . Geneva, Illinois 60134 (312) 232-0262

10475 b,.

       .1                                  MS. CHAN:     Your Honor?

2 JUDGE GROSSMAN: Yes. 3 MS. CHAN: Even if this document is hearsay, 4 it is relevant; and it does fall under hearsay 5 exceptions. A business record exception makes it 6 independently admissible. The surveillance report is a 7 business record of the Applicant. 8 And, secondly, that Mr. Mendez is just citing what 9~ he read in the business record, and it's independently 10 relevant because it's part of a public document. It's 11 -part of his inspection report. r3 12 JUDGE GROSSMAN: The problem is we don't have

 -V   13                         that business record here and that's why>we have this 14                         concern.

15 So I think we will strike it now and allow-you to

     -16'                        supply a foundation for --

17 MS. CHAN: Your Honor, it's a collateral 18 matter; and, as I understand, the best evidence rule 19 does not apply to collateral matters. 20 Additionally, I don't believe that we have the. ! 21 surveillance report. The Applicant does. l 22- MR. MILLER: Your Honor, I~would just point 23- out that, in essence, this testimony and the inspection l ! 24 report are after-the-fact investigations. l 25- Obviously, the inspectors weren't there when these {} Sonntaq Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10476 v 1 events took place. They didn't witness them. They must 2 rely on documents and interviews. 3 In that sense Mr. Guild's objections earlier that 4 referred to Federal Rules of Evidence 703 seems -to me to 5 be pertinent here. 6 It seems to me it is certainly reasonable for an 7 NRC investigator, who is truly offering opinions _with 8 respect to each of the allegations made by the Comstock 9 QC Inspectors, to rely on documentary sources that are-10 maintained by Commonwealth Edison Company or by Comstock 11 itself. 12 Whatever flaws there may be in the investigative 13 technique, it seems to me, go to the weight that the 14 Board may attach to the evidence; but I think to strike-15 the testimony, given the circumstances of the 16 investigation and the reason for which this testimony is 17 offered, is erroneous._ 18 MR. GUILD: Mr. Chairman, I -- 19 JUDGE GROSSMAN: Well, the problem is the 20 witness is vouching for the company having found this 21 problem initially and having taken the action it did on 22- a certain basis and he really has no knowledge of that 23- and he is not the proper person to say that. 24 The company people who took the action are the

() 25 people who are competent to do that. He can't --

i AnnnFan ponnreinn Roruico. TFd_ Ge5eva', Illinois 60134 (312) 232-0262

10477

         -s r

l' JUR. MILLER:- Your Honor -- 2 JUDGE GROSSMAN: He'can't' vouch ~for the 3 company's actions when th~ey just told him they did-a 4 certain thing, so it really isn't competent evidence. 5 N ow , I don't' recall. I seem to; recall - .it's 6 somewhat hazy in my mind now -- that there was. some- - 7 testimony on this; but perhaps not. 8 If there wasn't -- 9 MR. MILLER: You are testing' my recollection 2- 10 as well; but, your Honor, if he, Mr. Mendez, 11 inappropriately relied on 'a document that is not 12 authentic, it seems to'me' that, again, that_goes to the-

13 weight to be ascribed to his testimony. 14' It is a basis for the conclusions that he reached;- , 15 and it. seems to me that- it is up to the parties to 16 challenge this, who have been on notice of the fact that-17 he relied-on Surveillance Report No. 3372 since this-18 prefiled testimony was submitted, to challenge him on i 19 that basis. I 20' JUDGE GROSSMAN: Well, let's-just solve this 21 problem. 22 We will accept these sentences only with the -- we 4 23' will accept them with the limitation that these are -- i 24 these matters are -- what was represented to him by the () 25 company either through its reports or through their Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10478

          )
         /

1 . statements and it was the company's expression; but.that 2 the contents of these: statements are not being proved 3 and we are not accepting these sentences as proving the 4 ' contents.

5 Let's go on to the next one, which is 39; and these 6 sentences just represent the QC Inspectors' expressions 7 and we accept it in that limited area, and, as such,. 8 they are not hea rsay. That is -- yes. 9 JUDGE COLE: Just a minute. 10 JUDGE GROSSMAN: Okay. Let's go on to 45; 11 and we assume that alloof the sentences represent r~s 12 expressions by the QC Inspectors, including the last O 13 sentence there, which is phrased otherwise. 4

14. But I assume that what is meant is that none of the 15 inspectors expressed any awareness of an instance in 16 which an inspector had actually been dismissed, and we 17 will accept that entire answer within that limited area.

18 47, Mr. Neisler, Mr. Mendez, who is responsible for

              -19          .that?
              .20    A      (WITNESS NEISLER) I did that one.

21 JUDGE GROSSMAN: How'do you know whether 22 Applicant initiated a training program? 23 A (WITNESS NEISLER) I reviewed the syllabus of their 24 program'and looked at the results of their first -- the

              -25          earlier classes.

snnntag popnreing servico, tha_ Geneva, Illinois 60134 (312) 232-0262

1 10479 1 JUDGE GROSSMAN: .Okay. So the objection is 2 overruled. You can certainly cross examine further on 3 that, Mr. Guild. 4 Let's go on to 50. I see nothing objectionable, 5 certainly_'in the first paragraph.' 6 Let's go on to the second. With regard to the f7 second sentence of the second paragraph, we will allow 8 it only as an expression by LKC management but not, 9 certainly, to prove the contents of what is stated 10 there. 11 Now, as far as the third sentence goes, that would T 12 be an impermissible conclusion, given our-limitation on (Q 13 the second sentence. 14 MR. BERRY: Mr. Chairman, it seems to'me that 15 the third sentence in.the second paragraph represents

       '16   the conclusion we reached based on what the inspectors 17  'were told and the information they received from this 18  LKC management.

19 JUDGE GROSSMAN: Well, let me change the 20 ruling. 21 The third sentence here represents -- we will allow 22 it only as representing the witness's conclusion, which,

       '23   obviously, was based on his believing the contents of 24  what management told him as expressed in the second 25   sentence. That's all it stands for.

([ ) Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10480

1 Now, as far . as the last sentence here, I don't 2- think that is in dispute and so I don't know that Mr. 3 Guild would persist. 4 MR. GUILD: It is not, Judge. 5 -JUDGE GROSSMAN: So we will allow the last 6 sentence in. 7 Let's go on to 53. I, again, don't see any problem 8 if we accept that third paragraph as being the 9 individual's expression to the NRC Inspector,' whoever 10 that was.

          -11      A   (WITNESS NEISLER) That was me.
      ~

12 JUDGE GROSSMAN: Mr. Guild can certainly 13 examine on that. 14 MR. GUILD: Particularly that sentence on 15 Page 24 that reads, "He was detailed to the vault," et 16 cetera. 17 Again,-it's framed as if it'is a fact; and, 18 obviously, it's relying on what the individual told him.- 19 JUDGE GROSSMAN: Right. I indicated that we

          ~ 20         are accepting all this as an expression by the 21          individual and, as such, is not hearsay.
          . :22:            Let's go on to 62; and, that's, again, not hearsay 23         and Mr. Guild can certainly examine further on that.

24 Let's go on to 65. I assume that there is no l () 25 actual dispute with regard 'to the last sentence, is i Ronntag Report ing Se rvice, Ltd. Geneva, Illinois 60134 (312) 232-0262

J+ . , -10481

4. -

7,y1-A.s - _

                                'l                                                    there?

2- Is that correct,JMr.' Guild?

3 MR. GUILD: Are you looking at 65, Judge? -
, 4 JUDGE GROSSMAN: - Yes.

5 MR. GUILD: Yes. The motion goes to the 6 .second sentence in the answer, "The-inspectors'I 7' inte rviewed told me." 8 JUDGE GROSSMAN: Okay. That is not hearsay, _ 9 so we deny-the objection on.that. 10- Let's go on to 68. -That is not hearsay there and- ; 11 Mr. Guild can further examine that statement. 12 MS. CHAN: Your Honor, I believe~the

13 Intervenor meant to say, instead of.the fourth'and fifth-14 sentences, fifth and sixth?

11 5 JUDGE GROSSMAN: I am'sorry. Did.I miss'one?-

                            -16                                                                                             MS. CHAN:                      71.

4 17 -JUDGE GROSSMAN: I am sorry., You are going i-18 on to Answer 71. 19 MS. CHAN: I am sorry. I was-trying to clear 20 up 71.

                              -21                                                                                           JUDGE GROSSMAN:                      71, we are just reaching 22                                                    that right now and I am just rereading it, first, fourth 23                                                    and fifth sentences, okay.

24 I don't see any problem with the first sentence. (} 25 MR. GUILD: I would include the second Sonntag Reporting Servica, Ltd. Geneva, Illinois bu134 (312) 232-0262 e >

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

10482' e

     - j-       ;

L) 1 sentence,' Judge. 2 It's~not mentioned in our motion; but as long-as

                       .3     -it's unde rstood that it was simply something that was

4. told the inspectors, I have no objection to it; but if 5 ~it's --

6, JUDGE GROSSMAN: Okay, fine. That is how we 7 are accepting that. 8 MR. GUILD: The next sentence I read -- I am 9 not sure we counted correctly in the motion. 10 JUDGE GROSSMAN: That seems to-be what you 11 were focusing on.

       -.             12               I should note, however, that -- is there an. issue-13      with regard to that, Mr. Guild, with' regard to either
                    '14        that sentence or the next?

15- MP. GUILD: Well, I guess it really depends 16 on the. language used by the witness.here. 17 It certainly is in' dispute if it is understood that-

                     .18      an NCR can be closed out without verifying the condition 19      to the extent that it involves a field condition.

20 There has been abundant testimony about inspectors 21 closing an NCR by going to the field and looking at the 22 installation.

23. I am not sure really that the testimony that is 24 being --

      '( )            25                                  JUDGE GROSSMAN:     Do you wish to respond to RnnnF ag Ropor t i ng Se rv i ce . Ltd.
.                                                     Geneva, Illinois      60134 (312)   232-0262

                                                                                        '10483=

1 Mr. Guild on that? Why don't you? 2 MS. CHAN: We are talking about the fifth and-3- sixth sentences, not the fourth? 4 MR. BERRY: Are we. talking about the sentence

              '5           that-reads --

6 JUDGE GROSSMAN: We are talking;about 7 Sentence No. 3 and Sentence No. 4.

              -8                               VOIRE DIRE EXAMINATION 9                                       BY MR. GUILD 10          Q Gentlemen, which of you is responsible for that. answer?'

11 A (WITNESS NEISLER) 71? J 12 O Yes.

      ' (d~  13                  Is that you, Mr. Mendez?
            -14          A (WITNESS MENDEZ) I was.

15 Q If an NCR, Mr. Mendez, relates to a field-observed 16 condition, say the deficiency of the workmanship 17 involved in a hanger, let's say, wouldn't the procedure 18 for closure-of an NCR, disposition of the NCR, call for 19 a verification of the adequacy of the field' condition 4 20 after the deficiency was corrected?- 21 A (WITNESS MENDEZ) I don't remembe r exactly what the 22 procedure said; but if it's something that is identified 23 and this is used as is, the deficiency is always 24 identified. It wouldn't be necessary for somebody to go ('} 25 back and look at it again one more time. Sonntag Reporting Se rvice, Ltd. Geneva, Illinole 60134 i (312) 232-0262

10484.

Q l For example, if it was a weld that was off an 2 . eighth of an inch and engineering found that acceptable, 3 that it should have been an eighth of an inch or a 4 quarter inch longer-but it.wasn't, it wouldn't be 5 necessa ry to go back again if that .was the. only problem. 6 0 If, as I1 stated, there was a field-observed. deficiency 7 that required correction of that deficiency, then the 8 procedure as applied to that circumstance.would call for

        -9    a QC verification of the field condition as corrected, 10    would it not?

11 A (WITNESS MENDEZ) Yes. 12 MR. GUILD: I guess I have no problem, Judge, bgs . 13- as long as we understand we are talking about two 14 dif fe rent things. It sounds like we are. 15 JUDGE GROSSMAN: Okay. With-that 16 clarification then, you have withd'rawn your objection? 17 MR. GUILD: Yes. 18 JUDGE GROSSMAN: So we will go on to the 19 next, which is 90. 20 MR. GUILD: No, sir. There is a little bit 21 more on 71 there. 22 JUDGE GROSSMAN: I am sorry. The first 23 sentence, second paragraph. 24 MR. GUILD: Well, no. I am getting down to (} 25 the sentence that reads, "None did," or the phrase, Sonntag Reporting Service, Ltd. Ueneva, Illinois 60134 (312) 232-0262 -- i

10485

 -f j    i. -

v 1 "None did," on Page 29. - 2, JUDGE GROSSMAN: None indicated they did is 3 what you meant, I take.it? 4 A (WITNESS MENDEZ) Yes. 5 JUDGE GROSSMAN: All right. :We will accept 6 it as that and we will- go on to the _ first sentence of - 7 the second paragraph. 8 I assume you mean that they indicated that they did 9 not feel comfortable with the use' as the disposition; is _ 10' that-correct? 11 A (WITNESS MENDEZ) That is correct. s 12 . JUDGE GROSSMAN: And we will accept it as 13 that. 14 Let's go on to 90 now. We will accept ~it as your 15 conclusion; but, certainly, Mr. Guild can cross examine 16- you on that, so we-have completed this. 17 Aga in , let me say to counsel that you. understand 18 you can't rely on what we have ruled out either through' 19 limiting the answer or through striking the answer, 20 except by pointing out that you object to our ruling. 21 MR. MILLER: Your Honor, I -- excuse me. 22 JUDGE GROSSMAN: But we are not going to be 23 policemen, of course, and have to make sure that you 24 don't rely on something that is excluded without having 25 you point out that you have objected to our ruling and {} Sonntaq Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

I l 10486 i i

 .r~T U

l 1 that you are relying on something contrary to our i 2 ruling. 3 MR. MILLER: Your Honor, to the extent that 4 there is independent record evidence establishing the 5 facts that are relied on by Mr. Mendez and Mr. Neisler, 6 it seems to me that the parties should be free to rely 7 on the facts as set forth there. 8 That is, one example that leaps to mind is their 9 recitation of what the inspection practices were like 10 when people reported inspections .in informal documents. 11 Mr. Martin has been here and has testified that 12 that was, in fact, the case. He supplied the notes he 7-) V 13 kept and.so on. 14 Therefore, it seems to me a limitation on the 15 evidence that is in the testimony of Messrs. Neisler and 16 Mendez is, in a sense, somewhat artificial; and I am not 17 sure, really, that it is going to add or detract-from 18 the record. 19 JUDGE GROSSMAN: Well, if you have 20 independent evidence, rely on the independent evidence. 21 If you wish to say that the NRC accepted that, I 22 suppose you are free to say that; but if it's 23 undisputed, you don't need the NRC testimony; and if it 24 is in dispute, the fact that the NRC, through (} 25 incompetent testimony wished to support that, really , Sonntag Reporting Service, Ltd. l Geneva, 1111nois 60134 l (312) 232-0262

             - - , ,   ,,--n.      ._ . . , . - ~ -  .-,r   --

10487 73

Lj-

1 doesn't of fer you any weight. So I don't see that we 2 have any; area of concern here. 3 Okay. I assume there is no further matter before 4 ~we proceed. 5 Mr. Guild? 6~ MR. GUILD: There is the question of the 7 status of the inspection report, .Mr. Chairman.. 8 I know Intervenors -- excuse me -- NRC Staff 9 counsel.has not formally offered it in evidence but I 10 would anticipate that they would do so. 11 MR. BERRY:. I would do that at this time. I 7- . 12 would ask that Staff Exhibit 17 be received into

13 evidence. 14 JUDGE GROSSMAN: Well, we are not going to 15 receive it until after the testimony, at which time,- 16 subsequent'to that, the rules provide that we can 17 receive it; but we are not going to give it an 18 independent basis without having.the witnesses subjected 19 to' cross examination. j 20 So we will reserve our ruling on accepting or 21 receiving that document until after examination is 22 complete.

23 MR. MILLER: Your Honor, I guess I can assume 24 Mr. Guild's comments to indicate that he objects.

(} 25 MR. GUILD: I do, indeed. l Sonntaq Reporting Se rvice, Ltd. ' Geneva, Illinois 60134 (31 2) 232-0262

W 10488 i n s./ (% _ 1 MR. MILLER: Perhaps, if we knew the basis 2 for that objection, at least my examination might 3 . proceed in a manner calculated-to obviate some of'the 4 objections. 5 MR. GUILD: Yes. I would object on many of. 6 the~ grounds that I objected to the testimony of the 7 witnesses. 8 We now have the same' infirmity stated in-a

                  '9                          1 documentary form as opposed to what would otherwice be -

t 10 prefiled testimony, oral testimony from the witness

11. under oath, without reciting all of the previous bases.

           <-(   12                                          The point, essentially,.is that-it_ recites hearsay 13                            f rom a number of sources, is indeed ' of fered . by the Staff
                '14                            without a reservation or, I assume, proof of the matters 15                            that 'are asserted in - the inspection. report that are not
                .16            .               within the firsthand knowledge of the witnesses who are 17-                           tendered to support that report, but, indeed                                                    , relies on 18                            the same infirm basis as the testimony and that is the 19                            statements of persons who were not present or not even 20                            identified nor whose declarations are available,. simply-21                            the recitation of --

n 22 JUDGE GROSSMAN: Well, let me tell you right 23 now that we will only accept the report to the extent I 24 that the' witnesses are shown to have been competent to 25' produce that report; and for the other matters, they j } i I - Sonntag Reporting Service, Ltd. ! Geneva, Illinois bu134 (312) 232-0262 4 n- - . . , , - . , . , -- ---,-,n, , ,,.---..,-n.,,- ..w.. ,,,.--,,r -

                                                                                                                 ,,w n e,   .,,,,,.,..,,.-,e       ---a- e,a_,,.,-, e m. s

10489. s' l'

                        -can't use the report as-a-back-door.means of getting in; i:

2 what they ares not competent. to _: testify to.

                   '3          I would assunie that cross examination will'

{ " 4 establish:and further direct. examination williestablish

     .              .5   exactlyf what the areas of. their competence are. :
   ~

6. Anything less will;just not be~part of what.we are l

7 accepting as evidence in the case. 8 So why don't we proceed on that basis? 9 MR.1 BERRY: Your Honor,1under or pursuant to 10 the sequestration rule, Mr. Mendez can be excused; and

                ~11      it is Mr. Miller 's prefe rence, - if - need - be.

12 If not, I would.suggest that we takeLa short I 13' recess.

14 JUDGE GROSSMAN: Oh', okay. 'Why don't'we do
- '15 that. I assume that you are not going to'-- are you,.

16 Mr. Miller,' going to -- ! ' l'7 MR. MILLER: I have no desire to sequester 1 0 1 18 oneJor the other of the witnesses.

                 .19          :I will direct specific questions to each of~them,.

- 20 'and I agree with Mr. Guild that they not consult prior - 21 to the time the one to whom we give the question has , 22 directed answers; but I believe it perfectly' appropriate 23 to have both of them present. 24 JUDGE GROSSMAN: Okay, that's fine. (} 25 We will take a ten-minute recess and we will Sonntaa Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

A 10490 o O 1 -institute that procedure when welget back._ - 2 (WHEREUPON, a recess was had,.after which 3 the hearing was resumed as follows:) 4 JUDGE GROSSMAN: We are back on the record.. f- 5 Mr. Berry, I take it you have concluded with j 6 presenting your. direct prefiled testimony? 1 7 MR. BERRY: The witnesses are available for . 8 Cross Examination. 9 10 t ! 'll 4. 12 , ' 0: 13 14 15 16 17 18 19 20 21 22 23 24 4 25

- C).

Sonntag Reporting Service, Ltd. l

;                                                                              Geneva, Illinois 60134 (312)   232-0262

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of )

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456 -

                                               )                   50-457 (Braidwood Station, Units 1 and 2)       )

NRC STAFF TESTIMONY OF ROGEL!O MEND 2Z AND JOHN H. NEISLER REGARDING BRIDGET LITTLE ROREM, ET AL. SUBCONTENTION 2 Q1. Please state your name, position and business address. A1. My name is Rogelio Mendez. I am employed by the U. S. Nuclear Regulatory Commission as a Reactor inspector in Region lit, Division of Rear. tor Safety. My business address is United States Nuclear Regulatory Commission, Region lit , 799 Roosevelt Road, Glen Ellyn, Illinois, 60137. My name is John H. Neisler. I am employed by the U. S. Nuclear l Regulatory Commission as a Reactor inspector in Region Ill, Division of Reactor Safety. My business address is United States Nuclear Regulatory Commission, Region ill, 799 Roosevelt Road, Glen Ellyn, Illinois, 60137. Q2. Mr. Mendez please describe .your responsibilities as a Reactor inspector. Erem Asafblhol espons MM 9ng inspections,ink or perform A2. As Reactor Inspector, y := the electrice' and instrumentation areas to assure that the Braidwood Station is constructed in accordance with regulator requiremen s.

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l p I Q3. Mr. Nelsler, please describe your responsibilities. A3. As a Reactor inspector, I am sponsible for performing l Inspections of safety-relsted plant systems and components to ensure compliance with regulatory requirements. Q4. Gentlemen, have you prepared a statement of your professional qualifications? A4. (Mr. Mendez) A statement cf my professional qualifications is attached to this testimony as Exhibit 1. is (Mr. Neisler) A statement of my pCofessional qualifications attached to this testimony as Exhibit 2. O QS. What is the purpose of your testimony? AS. (Messrs. Mendez and Neisler) The purpose of our testimony is to address that pset of Subcontention 2 which states;

2. Contrary to C.riterion I, " organizations of 10 C . F . R . Pa rt 50, Appendix G, Commonwealth Edison Company and its contractors have failed to provide sufficient authority and organizational freedom as well as independence from cost and schedule as opposed to safety considerations to permit the effective identifica-tion of and correction of quality an safety significant deficiencies. Systematic and widespread harassment, intimidation, retaliation and other discrimination hn been directed against Comstock QC inspectors and other employees who express safety and quality concerns by Comstock management. Such misconduct discourages the identification and correction of deficiencies in safety-related components and systems at the Braidwood

( Station. Instances of harassment and intimidation include at least the following: s

1. At various times since at least August 1984, including in March 1985, more than twenty-five (25)

i j l 0' Comstock QC ' inspectors have complained to' the NRC l i about harassment and intimidation by Comstock super- l Such harassment and intimidation has been l visors. l carried out or participated in by QC Manager Irv DeWald, Assistant QC Manager Larry Seese, QA Manager Bob Seltman, and QC Supervisor R. M. Sakalac. Such harassment included widespread pressure to approve deficient work, to s.acrifice quality for . I production and cost considerations and to knowingly violate established quality procedu:*es. Harassment and retaliatory treatment included threats of violence, i verbal abuse, termination of employment, transfer to undesirable jobs or work in areas v.here quality deficiencies could not be noted, assignments to perform i burdensome or menial "special projects" and other l adverse treatment. Such discriminatory action was taken because of the victim's expression of quality or safety concerns. 1 QS. Did you inspect the matters referred to in this part of O subcontention 2? A6. Yes we did. Q7. Did you document your inspection findings in a report? A7. Yes. The results of our inspection is documented in inspection Reports Nos. 50-456/85021; 50-457/85022 (IR 85/21-22) which was issued November 4,198'5. During our inspection, we found nothing to indicate that 10 C.F.R. $ 50.7 had been violated by L. K. Comstock (LKC) management or that any LKC QC inspector I;ad been penalized by LKC management for expressing a safety or ( quality concern. i Q8. What part of Inspection Report No. 85/21-22 did you author? i

AB. (Mr. Neisler) I was responsible for Concerns (1), (2), (3), (5), (6), (7') , l9), (13), (14), (15) and (16) of Allegation R i t t A-0072. (Mr. Mer> dst) I was responsible of Allegations R i l l A-0062, Ritt-65-A-GOG7, Will-65-A-0068, and Concerns (4), (8), (10), (11), (12) and (17) of Allegation RI)l-85-A-0072. Q9. Mr. Mendez, how did yoiJ become involved in the matter described in the quoted portion of Subcontention 2? A9. On March 29, 1985, at approximately 1;00 p.m., my Section Chief, , Cordell Williams, informed me that the Staff had received allegations of harassment and intimidation frcm LKC QC inspectors at the Braidwood site. i had been previously assigned as Plant Lead Electrical Inspector at B raidwccd. Since LKC war the electrical contractor at Braidwood, Mr. Williams invited me to attend a telephone conference, scheduled for 1:15 p.m. that afternoon, involving the Staff and Applicant. During that conference, , Applicant was advised by the Staff that it had received allegations from twenty-four LKC QC inspectors concerning alleged production pressure from LKC QC supervisory personnel and harassment and intimidation by Richard Saklak, a LKC QC supervisor. . Q10. Had the QC inspectors been informed that the Staff would inform ] Applicant that it received complaints from them regarding LKC ] J ) management? I 1 I 1 I l

.s.

O A10. Yes. The Staff had earlier inftermed the allegers that it would notify Commonwealth Edison that complaints had been lodged against LKC and that Applicant might conduct its owr, inquiry into the matter. This course of action was acceptable to the QC inspectors. Appli-cant stated it would conduct a preliminary inquiry into the matter and advise Region ill of the actions it would take to address the QC inspectors' concerns. Q11. Did Applicant later notify the Staff of the actions it planned to take? All . Yes. At .ebout 4:30 p.m. that same day, a second telephone ' conference was held in which Applicant informed the Staff of its short term plan to address the LKC QC inspectors' concerns. That plan consisted of four actions, including the suspension, effective immediately, of Mr. Saklak, the LKC QC supervisor against whom allegations of harassment and intimi.dation had been made. Applicant also indicated that a meeting would be held the following Monday morning with LKC QC inspectors to reemphasire Commonwealth Edison's commitment to quality and to infor.m the QC inspectors that it would invastigate their concerns. Q12. Who made the decision to assign the LKC OC inspector.s' allegations to you Mr. Mendez? Braidwood Allegation Review Roard. During a A12. The Region lil April 12, 1985 Soard meeting, the allegations of the 24 LKC QC inspectors were assigned to me. These allegations were assigned In addition, the Region til Track'.ng item No. Ri ll A-0072. also assigned rne responsibility for allegation Nos. ) Board _- f

O Rill-85-A-0062, 0067 and '0068. These allegations expressed concerns similar to those documented in Allegation Rlli-85-A-0072. 1 Q13. Mr. Neisler, how did you become involved in this matter? A13. On August 27, 1985, I received a telephone call from my Section Chief instructing me to go to Braidwood the next day and assist Mr. Mendez in his inspection of these allegations. Q14. Gentlemen, please describe your prior experience in investigating allegations. l A14. (Mr. Neisler) I have investigated allegations relating to hardware deficiencies, personnel qualifications, harassment, intimidation, and quality assurance program deficiencies at the LaSalle, Callaway, Byron, D.C. Cook, Fermi and Perry facilities. (Mr. Mendez) I have investigated allegations at Marble Hill and Perry Nuclear Stations. The results of the Marble Hill allegations are documented in Report No. 50-546/83001; 50-547/83001. The alleger's concerns involved material traceability and traveler control problems by the electrical contractor, Commonwealth-Lord Joint Venture. The results of the Perry allegations are documented in Report No. 50-440/84021; 50-441/84019. The allegations concerned procedure controls, inadequate procedures and rework controls involving the electrical contractor, L. K. Comstock Company. l O : Q15. Mr. Mendez, please describe the method you employed to investigate the LKC QC inspector allegations.

9

                                                                                                                                                                                       \
                                                                                                                ~7-O A15. Prior to interviewing the allegers at the Braidwood site, I developed a series of about 50 questions to ask QC inspectors,                                                                                                 in formulating these questions, I used a memorandum prepared on March 29, 1985,                                                                                                               1 by Leonard McGregor and Robert Schulz, the Senior Resident inspectors at Braidwood, and an April 5,1985 memorandum prepared Charles                             Well,                     the                 Region ill                            Allegation  Specialist. These by                                                                                                                                                                           ,

memoranda described the events of March 29, 1985, and summarized the LKC QC inspectors' allegations. I also reviewed the allegation files for Allegation Nos. R ill A-0062, 0067 and 0068. The ' materials relating to Allegation Nos. Rill-85-A-0062, 0067 and 0068 given me by Mr. Weil were redacted so as not to disclose the However, the April 5, 1985 Weil identity of the allegers. memorandum contained the names of 12 f.KC QC inspectors. I chose to interview eight of those 12 LKC QC inspectors in connection with Soon after i began my inspection of Allegation No. Rlli-85-A-0072. my inspection, I decided to interview eight other inspectors. These QC inspectors had been identified as having knowledge of quality control deficiencies or were claimed to have accepted discrepant work. The QC inspectors were not chosen at " random" but rather l ' on the basis of whether they were thought to possess information material to my inspection. Q16. Mr. Mendez, what did you ' do after you formulated your inspection plan? A16.I arrived at Braidwood on April 30, 1985 and met with the NRC I later arranged to resident inspectors to discuss the allegations. Shroeder, the Braidwood Project Licensing meet with Charles l

.g.

O Superintendent,' and explained to him the nature of my inspection. I asked Mr. Shroeder to provide me records relating to the actions taken by Applicant to address the LKC QC inspector's concerns. (Applicant had completed its investigation of these concerns on April 25, 1985). A summary of the LKC QC inspectors concerns addressed by Applicant are summarized in Ceco documents which I believe are called "Braidwood Record of Concerns." I reviewed Braidwood Record of Concerns Nos. QF-85-1188,1229 and 2026 since they related to some of the concerns I had been assigned to address. g After completing my review cf these records, I called Mr. Shroeder and asked him to make available eight named LKC QC inspectors. Two days later, I asked Mr. Shroeder to make available eight additional LKC QC inspectors for interviews. Q17. Mr. Neisler, please describe the method you employed to investigate tne LKC QC inspector allegations. [ A17. Mr. Mendez had alresdy developed the inspection plan for the inspection. Therefore, there was no need for me to develop a second plan. When I arrived at Braidwood, Mr. Mendez and I discussed the allegations and how I could assist him in completing , the inspection. We' decided that I would inspect the allegations identified as Concerns (1), (2), (3), (5), (6), (7), (9), (13), (14), (15) and (16) of Allegation Rlli-85-A-0072.

O The method I employed differed from Mr. Mendez' in that I did not l use a p red checklist or questionnaire to interview personnel relative to the allegations. Instead I interviewed about six of the QC inspectors by questioning them relative to their knowledge concerning the allegations I was investigating. Also, I revit wed appropriate quality assurance documentation, personnel qualification records, manning tables and interviewed Applicant's Quality Assurance and engineering personnel, and L.K. Comstock managers.

Q18. Mr. Mendez, were you responsible for Allegation Rill-85-A-A18. Yes. O Q19. What was the substance of that allegation? A19. There were two parts to this allegation, both of which concerned LKC QC supervisors and lead inspectors who had supervisory responsiblity in areas in which they were not qualified. Q20. Could you be more specific? A20. Yes. One of the alleger's concerns involved a LKC' QC supervisor who was not certified as a Level 11 inspector in the areas of cable concrete expansion anchors, and receipt inspection. The tray, alleger also named two other QC supervisors who were not certified in the areas' they supervised. According to the alleger, LKC Procedure 4.1.2, Section 1.21, required that a " Quality Control 6 triao adkaaida bi iat" ==ia"d r > O uarviar of responsibility and certified to Level 11 capability in those areas."

O . Q21. What did your investigation of this allegation reveal? A21. Many of the QC inspectors interviewed by me expressed the opinion I that most of the LKC QC supervisors were not certified as Level ils l In the areas they supervised and also not very knowledgcable with respect to the areas under their supervision and thus unable to answer questions in these areas. My review indicated that deficiencies in LKC QC supervisors' certifications already had been identified by Applicant in Braidwood QA Audit Report No. QA-20-84-556, dated December 19, 1984. This audit report identified certain LKC QC supervisors who did not have sufficient prior work experience to qualify as a QC supervisor. The O report also noted that some supervisors lacked certification as Level it inspectors in all the areas they supervised. Q22. What action, if any, was taken by LKC to correct these deficiencies? A22. The LKC QC supervisors were required to obtain Level 11 certifica-tion in the areas they supervised. Although LKC Procedure 4.1.2 required a QC supervisor to be certified as a Level 11, this This procedural violation is not significant from a safety standpoint. is because LKC QC supervisors did not perforrr Lcvel 11 reviews in any areas for which they were not certified. Q23. What was the second part of Allegation Rill-85-A-0062? l A23. The alleger was concerned that two QC inspectors who had been selected as lead inspectors did not have sufficient experience and training for their positions. The alleger stated that one of the lead

O inspectors did not have any qualifications and that the second lead According inspector. had qualifications only in receipt inspections. to the alleger, LKC Procedure 4.1.2, Section 1.22, raquired that QC inspectors be certified as Level li's in the area for which the inspector has lead responsibility. Q24. What did your inspection of this part of the allegation reveal? A24. During the course of my interviews, this same concern was raised with respect to six additional lead QC inspectors. Consequently, I reviewed the qualification records of these eight LKC lead QC Level it inspectors. My review indicated that all but two of the lead inspectors had the required background, training, and certifications. As noted on pages 4-6 of my report, of these two lead inspectors, one was certified as a Level 11 by LKC and was made a lead concrete expansion anchors (CEAs) before his inspector in This inspector certification had been approved by the Applicant. had passed his written and practical examination on March 5,1985 His certification, ' and was assigned as lead on March 10, 1985. however, was not approved by the Applicant until March 21, 1985. My review indicates that during this 11 day period , this QC inspector did not sign any quality documents in the area of CEA's. Therefore, the above was only a technical violation of LKC procedure

          '4.1.2   and did   not compromise the quality of any inspection.

However, this same QC inspector was made a lead in calibration and ' one other QC inspector was made a lead in CEA's, although they were not certified in those areas. This was a violation of LKC

l l ! O procedure 4.1.2, which requires that QC inspectors be certified as Level li's in the area the inspector has lead responsibility. Q25. What is the significance of the violations you have described? A25. There is no significance to the first two instances because neither QC inspector performed inspections in areas where they lacked certification. Consequently, the quality of QC inspections would not be affected by these violations. LKC issued NCR 4527 to address the violations. No additional violations were identified. l l The other violation noted in my report involved two instances where a QC inspector, uncertified in calibrations, signed the review column of two LKC calibration inspection checklists. The Staff has withdrawn this violation because it now appears that there was no violation of LKC Procedure 4.1.2. At the time of this particular inspection, the procedure was interpreted by LKC to require only than an inspection report be reviewed by a 1.evel ll inspector; there was no explicit requirement that the reviewer be a certified Level ll in the discipline that was the subject of the inspection unless the inspector who performed the inspector was a Level 1. Since the ( inspector who performed the calibration inspection was a Level 11, it was not impermissible under the existing procedur e for the reviewer (who is a Level ll In ccnfigurations) to review and sign the calibration checklists. Effective September 1984, LKC has changed its interpretation of Procedure 4.1.2 to require the Level 11 reviewer to be certified in the area he is reviewing. Thus, under the

O present interpretation of LKC Procedure 4.1.2, the situation described above would be a violation of LKC procedures. Q26. Mr. Mendez were you responsible for Allegation Rlil-85-A-0067? A26. Yes. Q27. What was the substance of that allegation? A2-l. This allegation consisted of three parts, two of which were reviewed by me during the inspection. The third issue involved welding and was assigned to another NRC inspector. One part of the Allegation No. Rill-85-A-0067 that I looked into related to a reprimand given to a LKC QC inspector for absenteeism and poor work performance. According to the alleger, this reprimand was based on the alleger's failure to meet inspections quotas set by LKC QC management. Q28. What did your inspection of this part of the allegation reveal? A28.In addressing this allegation, I interviewed the alleger and asked him whether he had been told to perform a certain number of inspections per day. The alleger stated that although he had never actually been told to perform a certain number of inspections he felt LKC was " pushing numbers" and he thought it was not right for LKC to push production. I also reviewed the alleger's personnel file. That file indicated that the alleger had been given verbal warnings regarding excessive absences on September 21, 1984, and i January 27, 1985, and a written warning on February 20, 1985. On March 19, 1985, the alleger received a second written warning for poor werk performance. The March 19, 1985 absenteeism and

O reprimand indicated that the elleger had taken a total of 16 sick / personal days between June 1, 1984 and March 18, 1985. The reprimand also observed that during the period between January 28, 1985 and March 19, 1985, the alleger had performed 34 inspections (an average of 1.6 inspections per day) while the average of his particular speciality (welding inspections) was 9.3 inspections per day. (The 9.3 average was computed by LKC at my request since it was not information that was readily available. I had asked Mr. Seese, the Assistant QC Manager to obtain the I average for welding during January and February of 1985. Mr. Seese took about a day to obtain the average number of welding inspections for me). i O With respect to the allegation regarding pressure by LKC management to meet quotas, I interviewed the alleger and other QC inspectors. All of the QC inspectors stated that LKC management,

especially Mr. Saklak, appeared to be more interested in production rather than the quality of the inspections. Some of the inspectors indicated that LKC management was probably concerned about losing j the electrical contract with Applicant. However, none of the inspectors actually had been told by LKC management that production was more important than quality and all indicated that they had not and would not accept discrepant work for sake of increasing the number of inspections. All of the inspectors impressed me as being professional and quality conscious.

It should be noted again that the alleger was reprimanded primarily for excessive absenteelsm and for failing to notify LKC when he took sick or personal days, not for failure to meet any production quota. Q29. What was the second part of Allegation Rill-85-A-0067? A29. The second part of the allegation was that QC inspectors were not being properly trained in conduit specifications. The alleger cited Procedure 4.3.13, " Installation of Junction Box and Equipment," which referenced the conduit specifications for grounding of junction boxes. Q30. What did your inspection of this part of the allegation reveal? A30. Section 3.5.6.1 of LKC Procedure 4.3.13, states that " Junction boxes

         ...      will be grounded in accordance with the conduit specifica-                                                     l l

tions. " LKC Procedure 4.3.13 also references S&L Standards and approved dr awings. Currently, QC inspector , who are certified Level 11 QC inspectors in the area of " Equipment / Junction Box installation" are required to have knowledge of LKC Procedure 4.3.13. My review of training records of 5 of the 12 QC Level ll conduit inspectors indicated that each had attended !cctures and demonstrations regarding LKC Procedure 4.3.13. Additionally, records indicated that the QC inspectors had been trained to Specification L-2790 and S&L drawings 20E-0-3391 A and 20E-0-3000D, which identify grounding spe.cifications. , i l O Finally, I should add that during my interviews with LKC inspectors, I asked if they knew of any instance where a junction

O box had not been grounded per the applicable conduit drawing or specification. None did. Q31. Mr. Mendez were you responsible for Allegation Rill-85-A-0068? A31. Yes. Q32. What was the substance of that allegation? A32. This allegation had three parts. The first part of this allegation was similar to Allegation R lli A-0067 in that here again the allegers claimed LKC ; l management was more concerned with production than quality. As I stated earlier, none of the inspectors interviewed by me provided any example or instance in which inspection quality had been compromised by this alleged emphasis on production. In the second part of Allegation Rlli-85-A-0068, the alleger stated that he found a structural steel base metal reduction problem in the auxiliary building. When he brought this problem to the attention of his lead, allegedly he was told that he was to concentrate on his ; assigned electrical inspections. The alleger said he then told his QC l supervisor of his concern and that the supervisor responded, " Keep I up production or l'Il take you off of overtime." The individual did not think this problem was being handled in accordance with applicable procedures and he believed he was being pressured into overlooking problems by having his overtime taken away.

O Q33. What, if anything, did your inspection reveal regarding this allegation? I A33. I interviewed the lead inspector and QC supervisor involved in this allegation. Both of these individuals denied that the alleger had been threatened with loss of overtime if he continued to identify deficiencies. My review also indicated that the alleger had not been taken off overtime because he had identified the base metal problem. In fact, the alleger documented the base metal reduction problem on December 8,1984, in a memo to the QC manager. On December 18, 1984, the QC manager sent the memo through the proper channels to the G. K. Newberg, the civil / structural contractor, for resolution. The alleger also referred the base metal reduction proolem to a LKC Field Engineer. On July 30, 1985, inspection Correction Report (ICR) No. 10991 was issued to correct the base metal reduction problem identified by the alleger. Q34. What was the third allegation in Allegation No. Rill-85-A-0068? A34. The third part of the allegation alleged that newly hired LKC QC inspectors were belig qualified and certified in the areas of welding and configuration in one week. According to the allegers, it was not possible to become knowledgeable in one week regerding all of the detailed reference tables and drawings necessary to perform welding and configuration inspections. Q35. What did your inspection reveal concerning this allegation? A35.I reviewed the certifications and qualifications of 10 recently hired LKC QC welding inspectors (this group does not include the eight

l O lead inspectors involved in Allegation Rlli-85-A-0062) to determine whether they possessed sufficient prior experience as a QC inspector and/or craftsman under a quality program and had passed written and practical exams necessary for certification as a LKC QC Level 11 inspector. My review indicated that all but one of the inspectors had the proper background and training to be certified as a Level ll inspector pursuant to ANSI N45.2.6 and LKC Procedure 4.1.3,

         " Qualification and Training of QC Personnel."

hone of the newly hired QC inspectors did not have sufficient experience to warrant certification as a welding inspector. CThis Individual was hired by LKC on November 21, 1983, and was certified as a Levei ii weidino iasPector on aanuarv 4, ,984. This O person's background was in the electrical area and he had no prior weld inspection experience. This lack of qualification had been identified by Applicant on February 5, 1984 in Braidwood QA r/) t/ Surveillance Report No. 3372.' initially, Braidwood QA found problems with the certification of thisi individual since the person's certification package only contained documentation of previous electrical experience. hhere was no documentation of welding or welding inspection experience. Braidwood site QA accepted the individual's certification based on the person's background as a QC , i supervisor in the use of vernier calipers, scales and torque ) I wrenches. Later this person was again certified as a Level it weld inspector based on his weld inspection experience at Braidwood. Although I was satisfied that this individual now possesses sufficient experience to warrant certification as a Level ll weld inspector,1

O was not as certain that the welds accep'ed by this inspector during the period when his certification / qualification was questionable met applicable acceptance criteria. This concern is identified in my report as an unresolved item (456/85021-02; 457/85022-02). Q36. What action, if any, has been taken to address this concern? A36. To date, Applicant ha not indicated to the Staff that this item is ready for further Staff evaluation. Consequently, this matter is still being carried as an unresolved item. Q37. Mr. Neisler were you involved in the investigation of the allegation identified as Concern 1, in Allegation Rill-85-A-0072? A37. Yes. Q38. What was the allegation? A38. The QC inspectors alleged that LKC is asserting the quantity of inspections rather than the quality of inspections t.n d that the quality of the LKC inspections was suffering. Q39. What were the results of your investigations? A39. We interviewed most of the QC inspectors who had concerns in this area. The QC inspectors stated during their individual interviews that none of them had ever personally performed an inspection in which they compromised quality because of production pressure. The QC inspectors also stated to me that they were not aware of any other QC inspector who had piaced the quantity of inspections before quality; nor, had they any knowledge of inspection quotas. --- - - - - . ~ _ - , - - - - - - , - - - , , - . - . ,_,_,___~_---__-v,--,. _ - , - . - _ - . _ - - - , , - - , - - - - , , - --,-n-- - - , , ~ , - , - - , - _ , - , - - - - - - , _ , - -, - , , - , , - - , - -_ , - - ,

l 20 - O I also reviewed trend analyses of Applicant's Quality ' Assurance (QA) audit and surveillance report findings for the previous year and LKC quarterly trend analysis reports for the last three quarters of 1984. These records did not reveal a significant decline in the number or type of identified deficiencies. I also reviewed LKC personnel , records. These records indicated that the number of inspectors onsite had been increased in proportion to the increase in workload. Thus, my inspection did not substantiate that the quality of the inspections by LKC QC inspectors suffered because of alleged production pressures. Q40. Mr. Nelsler did you investigate Concern 2? A40. Yes. Q41. What was the substance of the allegation? A41. This allegation was related to Allegation Rlli-85-A-0062 in that some of the inspectors alleged that a LKC QC supervisor, Mr. Saklak, was not certified in all of the inspection areas which he supervised. Q42. What were the results of your inspection? A42. I confirmed that Mr. Saklak was not certified as a Level 11 in all of the areas he supervised. This was a violation of LKC procedures but not of NRC regulations or ANSI standards since neither requires quality control supervisors to be certified in all inspe<: tion areas l they supervise. P f

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Q43. Mr. Nelsler were you responsible for investigating Allegaticn 3? A43. Both Mr. .Mendez and I investigated Concern 3. Q44. What was the substance of the allegation? A44. QC inspectors alleged that one QC supervisor was constantly intimidating / harassing the LKC inspectors to sign-off NCRs and ICRs. Q45. What did your investigation reveal? A45. We interviewed QC inspectors, including the allegers. The QC inspectors each stated that . the supervisor, Mr. Saklak, had an abrasive and aggressive personality and was very quick to lose his

temper when inspectors' findings or interpretations were counter to his interpretations of procedures or requirements, in which case it was alleged that he would become abusive and berate and threaten the inspector with dismissal. However, none of the inspectors were aware of any instance where an inspector had actually been l

dismissed or had " signed-off" an inspection as a result of pressure from Mr. Saklak or any other supervisor. Q46. Is Mr. Saklak still employed as an LKC QC supervisor at Braidwood? A46. No. He was terminated by LKC after it had learned that Mr. Saklak had made a threatening remark to a LKC QC inspector. Q47. What other actions, if any, have been taken to prevent a recurrence of this type of conduct on the part of QC supervisors?

i ! 22 - O A47. Applicant initiated a training program for LKC QC supervisors to improve their management and supervisory skills. Q48. Mr. Mendez, did you investigate Concern 4? A48. Yes. Q49. What was the substance of Concern 4? A49. It was alleged that 93 hangers containing more than 1100 welds had been inspected and accepted in a single day by an identified inspector. The allegers considered this to be too many inspections for a single inspector to make in one day without the quality of the inspections suffering.

O Q50. What were the results of your nvestigation?

A50. The QC inspectors interviewed WW .~ f rv{ DeWald, ..:.Lkt now LKC QC Manager, as the inspector alleged to have performed this inspection. I interviewed Mr. DeWald regarding this issue and he responded that to his knowledge this did not occur. The LKC inspectors could not identify the inspection report or the date of the alleged occurrence. Consequently, I was not able to find an inspection report signed by Mr. DeWald documenting the acceptance of more than 1,000 welds inspected in a single day. However, I did locate during my review of LKC inspection reports an i

'             inspection report dated November 12, 1980, which documented the O          acceptance of 129 hangers containing 1,215 welds. I discussed this matter with LKC management, and was informed that the practice in

_ -__.--.-.,---.----.--.-,-___-,,.m.-- . , , , - , - _ . - _ , - .

O 1980 was for QC welding inspectors to keep daily logs of their hanger inspections and after he had completed all his hanger inspections in a given area, to sign-off for all of the inspections on a single inspection report. Thus, the date of the inspection report did not necessarily indicate the date of the inspection, but rather the date on which the results of the inspection was documented. I understand that the current practice at LKC is for an inspector to document his inspections on a daily basis. Q51. Mr. Neisler, did you investigate Concern 5? A51. Yes. Q52. What was the substance of the allegation in Concern 5? A52. A QC inspector alleged that an LKC QA Engineer was assigned to the records vault for the sole purpose of closing nonconformance

'                                                                      reports. The alleger stated that this individual never went into the field to verify the condition (work to be accomplished per the NRC)

I before closing the nonconformance reports. Additionally, this individual was alleged to be both a QC Inspector and a QA auditor who audited his own inspections. Some LKC inspectors also indicated that QC inspection reports were being signed without the inspector going into the field to verify completed work. ! Q53. What did your investigation reveal? A53. I interviewed the alleger and the individual who allegedly closed the reports and performed the audits. I also reviewed the closed out

O reports and audits, and discussed the issue with the LKC QC manager and the LKC site QA Manager. The alleger stated that although he had no personal knowledge that the other individual had closed nonconformance reports in the vault or performed audits of inspection activities in which he was involved, he had heard that this had happened. He stated that this had occurred over a period of about two weeks or maybe two days, but was not sure. My interview with the other individual was conducted by telephone since the individual was no longer at Braldwood. He stated that he O had been assioned by txC Q4 mana ement to assist in the prepara-tion of a report to be submitted by LKC to Applicant. He was detailed to the vault to research nonconformance and inspection reports for material to be included in the report. He further stated that he had not closed any reports during that period. He also told ) me that he had never participated in an audit involving LKC at Braidwood. The QA and QC managers confirmed that the individual did not close reports or perform audits during this period. i My examination of the nonconformance report log did not reveal any ; reports that had been closed by the individual during the two weeks he was working in the records vault. I concluded that the QC inspector was not assigned to the vault to close nonconformance reports and that he did not close reports while he was in the vault.

1 1 l l J O Q54. Mr. Nelsler were 'you also responsible for investigating Concern 6? AS4. Yes. Q55. What was the substance of Concern 6? A55. Several of the QC inspectors stated that they had spoken to the i Braidwood Quality First Team without gaining any satisfactory response to their concerns. Q56. What were the results of your investigation? A56. This allegation is addressed as Concern (6) on Page 17 of our report. Our inspection revealed that the QC Inspectors did not go to Quality First with concerns. Rather, they were interviewed by O Quality First in February 1985 as part of Quality First's baseline survey of concerns of QC inspectors and of other persons regarding the con::truction of the plant. The concerns expressed by the LKC inspectors were investigated, the results of which vicre published in a report by Quality First on April 25, 1985. Quality First had not i completed its investigations by the time the QC inspectors complained to the NRC that they had received no response from Quality First. Q57. Mr. Neister did you investigate Concern 7? A57. Yes. i . Q58. What was the substance of the concern? 4 A58. An LKC QC inspector alleged that hangers were not being inspected pursuant to LKC procedure. According to the alleger, no inspection report or nonconformance reports were written for the hangers, but l

t 26 - O rather walkdowns were being done and drawings made to reflect the as-built configuration. Q59. What did your investigation reveal? t.59. This allegation is addressed as Concern (7) on Page 18 of our report. This matter involved walkdown inspections by the architect / engineer (S&L) in response to Nonconformance Reports (NCR) 708 and 709. S&L engineers performed the walkdown accompanied by LKC QC inspectors. The alleger was one of the QC inspectors. His complaint was that S&L did not follow LKC procedures to document the walkdown. Our review of the circum-stances surrounding this matter indicated that LKC procedures O were not an iicabie. Tnis inspection was properiv performed by s&L pursuant to NCR 708 and NCR 709. Q60.1/r. Mendez, did you investigate Concern 8? A60. Yes. Q61. What was the substance of the concern? A61. A LKC QC inspector alleged that he was constantly watched by his i supervisor. According to the alleger, after he had visited the NRC resident inspectors' office he was transferred without reason from field inspections' to a job in the records vault. Q62. What did your investigation reveal? A62.I examined an Applicant surveillance report that identified deficiencies in the alleger's weld inspections. The alleger had been

    . __ _         ._ _     _ .._-- .._ _ _ _ _ ___ _ _.                 _ _ ._ ___ _ .___ _ _ _ _.. _ _____ _ ._ _ .....-._..: ~ __

observed with copies of the same inspection checklist on which the acceptance box had already been marked. Applicant ordered LKC to

 -      remove him from field inspections in October 1983.       Items inspected by the alleger using the copied checklists were reinspected by other inspectors. I determined that the alleger has not been permitted to perform weld inspections since October 1983 when he was transferred to the records vault.

I discussed with the alleger the reason for his transfer to the vault. The alleger stated that since his welding certifications had been invalidated by the Applicant's site QA department, he could no longer perform w'elding inspections. Consequently, he was assigned to perform document reviews in the record's vault. When I spoke with the alleger, he denied being singled out by the LKC management for having gone to NRC resident inspectors' office. Based on my review of documentation relating to the alleger's transfer from the field to the records vault, I could not substantiate that he had been transfe; red because he had visited the NRC resident inspectors' office. Q63. Mr. Nelsler, did you investigate Concern 9? l A63. Yes. i I Q64. What was the substance of Concern 97 A64. It was alleged that an inspector cannot remain proficient in multiple disciplines without a decrease in the quality of his inspections but

that LKC management promised more money to inspectors who were certified in multiple areas. l Q65. What did your investigation reveal? , A65. This allegation is addressed as Concern 9 on Page 19 of our report. The inspectors I interviewed told me that they could maintain the c(uality of their inspections in all the creas in which the were

                        ' certified . Additionally,   Mr. Mendez   and  I  verified   that LKC provides refresher training for any inspector who feels the need for more training and also maintains a current listing of revisions in LKC's procedures on the QC bulletin board.

Q66. Mr. Mendez, were you responsible for investigating Concern 10? A66. Yes. Q67. What was the substance of the allegation? A67. It was alleged that lead QC inspectors were selected on the basis of their willingness to sign-off quality documents, (i.e. NCRs and ICRs). Q68. What were the results of your investigation? t A68. Some of the inspectors told me that the selection of lead QC in'spectors may have been based on who signed off the most quality documents; however, none could give an example where this actually ; occurred. No examples were provided regarding improper signing of O inspection reports or violations of procedures. My examination of personnel records did not disclose any irregularity in this regard.

29 - O I also reviewed the NCR logbook and ICR logbook for the period January 1984 to April 1985. This review did not disclose any irregularities. No examples. were provided of any one signing off . NCR's and ICR's without verifying the work activity. Q69. Mr. Mendez, were you responsible for investigating Concern 117 Q69. Yes. Q70. What was the substance of the allegations? A70. It was alleged that some NCRs had been dispositioned by LKC Engineering as " retrain inspectors", and that some NCRs had been initiated and dispositioned by field engineering without the involvement of QC inspectors. Q71. What were the results of your investigation? Q71. Some of the LKC inspectors I interviewed were concerned that NCRs were being initiated and dispositioned by field engineering without any involvement of QC inspectors. However, none could provide an example. I should note, however, that there is no requirement that

                                                                                                                                             .-T a QC inspector concur in the disposition of an NCR.                                                       An NCR generally documents a deficiency or identifies a concern requiring evaluation by the engineering department, which has more expertise
                                                                                              ')

than the QC inspector. I also asked the inspectors whether they knew of any instance where a NCR was improperly dispositioned. None did. Some of the QC inspectors told me that if they did disagree with the disposition of an NCR, they were free to try to persuade LKC Engineering to change its position. My review of l

l i 30 O LKC's NCRs did not disclose any significant deficiencies in this regard. A few of the LKC QC inspectors dio t fee! comfortable with a "use-as-is" disposition. NCR 1616 and' R 2MO were provided as

         / examples.               I reviewed NCR 1616 anc

R 2900 and found the dispositions acceptable.

Q72. Mr. Mendez, Svere you responsible for investigating Concern 12? A72. Yes. Q73. What was the substance of the allegation? A73. It was alleged that if inspection quotes were not met, overtime was not given to individuals. Q74. What were the results of your investigation? A74. As I indicated in my testimony regarding Allegaticns Rill-85-A-0007 and 0068, I found nothing to indicate that inspection quotas were employed by LKC. Q75. Mr. Nelsler, were you responsible for investigating the affegation identified as Concern 137 A75. Yes. , Q76. What was the substance of the allegation? (q) A76. It was alleged that three LKC QC inspectors (not identified) were to to be terminated for improper reason.

O Q77. What was revealed by your investigation? A77. My revi6w of LKC's records of personnel departing the Braidwood site during April, May, and June 1985 revealed that no QC inspector had been fired or involuntarily terminated during that period. Q78. Mr. Neisler, did you investigate the allegation identified as Concern 14? A78. Yes. Q79. What is the substance of the allegation?

79. It was alleged that NCR 1616.and CR 2900 had been inappropriately dispositioned O

Q80. What were the results of your investigation? A80. This allegation is addressed as Concern 14 on Page 22 in our report. My review of NCR 1616 and CR 2900 indicated that they had been properly reviewed and dispositioned by the appropriate engineering staff. The corrective action had been completed and the NCRs closed on August 8,1985. 081. Mr. Neisler, did you also investigate Concern 157 A81. Yes. I f Q82. What was the substance of the allegation? A82. It was alleged that one QC supervisor continually violated applicable I procedures in connection with the certification of inspectors. l l l

O Q83. What were the results of your investigation? l I A83. This allegation is addressed as Concern 15 on page 23 of our report. I found no evidence that the supervisor violated procedures. The QC supervisor did not certify inspectors. Rather, certifications were handled through LKC's training department. Q84. Mr. Neisler, did you investigate the allegation identified Concern 16? A84. Yes. Q85. What was the substance of the allegation? A85. An unidentified alleger stated that there were no certified calibration inspectors. O Q86. What were the results of your investigaticn? A86. I found from personnel records and manning tables showing the number of inspectors certified in each area that Comstock had certified calibration inspectors since they began work at Braidwood. Q87. Mr. Mendez, were you responsible for investigating Concern 17? f A87. Yes. Q88 What was the substance of the allegation? A88. It was alleged that a QC supervisor lied to get a QC inspector fired. i Q89. What were the results of your investigation? A89. During discussions with the alleger, he stated that the circurristances surrounding the incident in which he was threatened with dismissal

j involved a lost company owned tape measure. According to the alleger, he was asked by Mr. Saklak, the QA supervisor if he had a tape measure that had been in the QC inspector's possession. The alleger stated that he did not, at which point Mr. Saklak is alleged to have made a " profane" statement. According to the alleger, Mr. Saklak accused him of being negligent with his equipment and continued to use profanity and told him to get out of his office. On January 13, 1983, Mr. Saklak initiated action to fire the QC inspector for being " remiss and insubordinate actions in performing those duties assigned by his supervisor along with not being responsible for company tools he was issued." However, the alleger was not fired then and is currently employed at Braidwood. O ar s ki x, no r, i= ao ioma r -aiov a av 'xc- rir o by LKC after it learned that he had made a threatening remark to a QC inspector. Q90. Gentlemen, does this complete your testimony? A90. (Messrs. Mendez and Neisler) We would add only that, as reflected i in our report, it appeared to us that the problems between the QC inspectors and LKC QC management could have been avoided had LKC management communicated more effectively with its QC inspectors and taken stronger or earlier action regarding Mr. Saklak. O

b w' f 10491-

.l' ' JUDGE GROSSMAN: M r. Miller,1please.-

2 MR.fMILLER: ~ Thank you, your Honor.. 1 3 I would -- 4 MR . : GUILD: LBefore Mr. Miller starts.out, let-5 me ask the. record to reflectIthat over the recess, p 6 counsel distributed a series oof. documents; and I fhope he-

                                                                                                                       ~
                                                                                        ~

7_ gave copies to the Board, because-I think there are

8 matters - here that the Board ought'to be ' informed about.

9 JUDGE GROSSMAN: -Is:this the policy?

l 10 MR. GUILD: No, sir,:not the' policy ~ statement

- 11 but the more recent allegations about production -

4

12. pressure at Comstock that we are now being told ab'out .

f 13 for the first time today. 4 14 JUDGE GROSSMAN: We haven't received a copy.

                       ' 15                                  but I assume that Ms. Chan will make' copies available to' 16                                 -the Board membe rs at the earliest opportunity.

17 Fine. Why-don't we continue then with the.witnoca?' 18 MR. GUILD: I 'just would note, Mr. Chairman,-

f7 h 19. before I leave 'the matter,' that I' have been handed for

                       - 20                                  the first time what I believe are 25 pages of material 21                                   that date back to June of~1986, that appear to relate to

22. wide-ranging expressions of concern about poor quality 23 control practices from new people; and I am being asked 24 to examine the NRC inspectors who supposedly concluded a

c

      '(}                25-                                  there was no such production pressure, having been given
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10492 (s. > Y l' these documents only today. 2 I have' only reviewed them for about two minutes; 3 but IJws ' ask the Board to examine the documents and I 4 hope we-could discuss them at some time later this day 5 before we go any further with Staff's case. 6 MR. BERRY: I would only note, Mr. Chairman, 7 that the documents that have been made available to -the 8 parties during the recess, the allegations contained in

      -9  those documents were not investigated by the witnesses.

10 They are being investigated by other inspectors in the 11 Regional Office. 12 These documents, .as I stated earlier, relate to an ('y/

.f-13  allegation recently received by the NRC. It wasn't 14  produced earlier for the reasons that I have stated on
     .15' prior occasions.

16 It's being produced now to the extent -- well, it's 17 being produced now for the benefit of the parties. 18 JUDGE GROSSMAN: Well, we will review the 19 documents and we will t ry to discover which category, 20 from your prior statements, these documents fall into. 21 We will continue now with Mr. Miller's Cross 22 Examination. 23 MR. MILLER: Thank you, Judge Grossman. 24 Good morning, gentlemen. We have met before at 25 deposition taken on March 13, 1986; but, for the record, {~} Sonntag Reporting Service, Ltd. ueneva, 1111nois 60134 (312) 232-0262

r

                                                                     ~10493
 ,/"T cv-l_   my name is_ Mike Miller and I am one of the attorneys for 2    Commonwealth Edison Company.
           '3-                    CROSS EXAMINATION 4                        BY MR. MILLER 5  Q Mr. Mendez, you made an addition to Answer 2 in the
          '6     prepared testimony --

7 A (WITNESS MENDEZ) Yes, sir. l 8 0 -- in which you described what your present duties

9. consist of.

         .10          Are you currently assigned to the Braidwood site or 11     do those duties comprise other stations as well?

gg 12 A (WITNESS MENDEZ) At one time I was assigned just to

  \
   i 13     Braidwood.

14 I am no longer assigned to Braidwood and I am no 15 longer in the same section but have responsibility for 16 electrical construction work at Braidwood. 17 Q Since Ma rch of 1986, have you routinely conducted 18 inspections at Braidwood on any occasion? 19 A (WITNESS MENDEZ) Since March, '86? 20 0 Yes. 21 A (WITNESS MENDEZ) No, I haven't. 22 Q At which stations are you assigned? 23 A (WITNESS MENDEZ) My new assignment is with the test 24 program section, so that I have all plants in our region 25 now. Sonntag Reporting Service,_Ltd. Geneva, Illinois 60134 (312) 232-0262

10494

v 1 Q These are plants that are operating? 2 A (WITNESS MENDEZ) Operating, some construction. 3 O All right, sir. I would like to turn to Answer 9 on 4 -Page 4, Mr. Mendez. 5 That answer generally describes a telephone 6 conference call that took place at approximately.1:15 in 7 the af te rnoon on March 29th. 8 What, if.anything, were you told about the 9 situation at Comstock and the complaints made by QC 10 Inspectors prior to the time that you attended the 11 telephone conference call that went at 1:15? g- 12 A (WITNESS MENDEZ) I believe my Section Chief, Cordell 13 Williams, mentioned something about QC -Inspectors 14 walking out of the plant. If something wasn't taken 15 care of, they were threatening to walk out. 16 Q Did Mr. Williams tell you how he had learned that 17 inf orma tion? 18 A (WITNESS MENDEZ) No, he didn't.

19 Q All right. Who were the participants in the 1: 15 P. M.

20 conference call, if you recall? 21 A (WITNESS MENDEZ) I think in our office Bob Warnick was 22 there, Paul Pelke, Cordell Williams and me; and I think 23 in the residents' office it was McGregor and Schulz and 24 for the Commonwealth Edison it was Lou Klein and (} 25 Fitzpatrick. Sonntag Reporting Service, Ltd. ueneva, Illinois 60134 (312) 232-0262

m-H fn 10495

,=u.

l~h

   -Q l' O. All right. I_am going to ask you to identify by 2     position Mr. Warnick at that time.

3 A (WITNESS MENDEZ) He is the Branch. Chief for the: division 4 of reactor projects. 5 Q What responsibility, if any, did he have for Braidwood?- 6 A (WITNESS MENDEZ) He is the Branch Chief.for Braidwood, I. 7 believe. 8 Q All right. Mr. Pelke? 9 A (WITNESS MENDEZ) He was sitting in for Bob Learch. 10 Dob Learch is the Braidwood -- I believe at the 11 time -- let's see. g- 12 Bob Learch was sitting in for Pelke. Pelke wasn't U 13 there. 14 Q I am sorry. All right. 15 And Mr. Williams? 16 A (WITNESS MENDEZ) He is the Plant Systems Section Chief. 17 Q You identified Mr. Klein and Mr. Fitzpatrick as being 18 the individuals from Commonwealth Edison Company who 19 were identified to you. 20 What did you understand Mr. Fitzpatrick's title was 21 at that point in time? 22 A (WITNESS MENDEZ) I believe at the time he was the 23 Assistant QA Manage r. 24 0 Mr. Klein? ('T 25 A (WITNESS MENDEZ) He is a licensing -- he is in

     ~r w

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10496

   .eD (j

1 licensing. 2 Q I_take it the last sentence of. Answer 9 talks about what 3 ' occurred during that conference. 4 Who did the talking for the Staff _during that-5 conference call? 6 A (WITNESS MENDEZ) It was mostly Cordell Williams and Bob. 7 Wa rnic k . 8 Q Did you understand that !!r. William and !!r. Warnick had 9 received information regarding the alleged production 10 pressure from Mr. McGregor and Mr. Schulz earlier that 11 day? 12 A (WITNESS MENDEZ) I remember them having knowledge of it, O 13 yes. 14 Q Now, at that point in time, that is on March 29th, you 15 pe rsonally had not received any assignment to inspect or - 16 investigate these allegations; is that correct? 17 A (WITNESS MENDEZ) That's correct.

18. Q Do you know whether or not there had been any decision 19 by the NRC Staff management to conduct such an 20 inspection or investigation at that point in time?

21' A (WITNESS MENDEZ) At what point? 22 0 on March 29th when the allegations were received. i (WITNESS MENDEZ) I believe the management decision at ~ 23 A l 24 that time was to try and let commonwealth Edison, at 25 least Braidwood, review those allegations for us,

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(312) 232-0262 2

I_ o 10497 j-L /- 1 Q All right, sir. Did Mr. Schulz or Mr. McGregor make any 2 recommendations in either.of the telephone conference 3 calls in which you participated on March 29, 1985? 4 A (WITNESS MENDEZ) I think they suggested that region send 5 an inspector to review those allegations. 6 Q All right. When you say "they," was it both 7 individuals, that is Mr. McGregor and Mr. Schulz, who 8 made such a recommendation? '

9 A (WITNESS MENDEZ) I am not'sure, one or the other or 10 both. I l

11 Q Do you recall what the response of anyone from the NRC 12 to such a suggestion was?

'~

13 A (WITNESS MENDEZ) I think our office had already -- our ( 14 management, at least, had already decided to let l l 15 Commonwealth Edison handle the allegations. l 16 Q Did Mr. Schulz and/or Mr. McGregor express any reason as 17 to why the NRC should send inspectors out immediately? { 18 A (WITNESS MENDEZ) I can't say. I -- I don't recall. 19 0 All right. Did anyone, either Mr. Fitzpatrick.or Mr. l 20 Klein, of Commonwealth Edison Company express any l 21 opinion as to whether or not the NRC should send i 22 inspectors out? 23 A (WITNESS MENDEZ) No, they didn't, they didn't. 24 Q Now, from the response to Question 12, which is found at (} 25 the bottom of Page 5, it appears that it wasn't until l Sonntaq Reporting Se rvice, Ltd. Geneva, Illinois 60134 I (312) 232-0262 L

10498 g U

  -1    April 12th that these allegations were assigned to you 2    for inspection; is that correct?

3- A (WITNESS MENDEZ) That's correct. ) 4 0 When the allegations were assigned to you what -- well, 5 first of all, who made the assignments? 6 A (WITNESS MENDEZ) I believe it was the Allegation Review 7 Boa rd. 8 Q Did you attend the meeting of the Allegation Review 9 Boa rd at which that assignment was made?. 10 A (WITNESS MENDEZ) No, I didn't. 11 0 Who informed you of the decision of the Allegation

- 12    Review Board?
~

13 A (WITNESS MENDEZ) It was a memo through my Section Chief, 14 and he assigned me those allegations. 15 They were assigned to me already. It was just a 16 matter of him presenting the memo to me. 17 Q And your Section Chief was Mr. Williams? 18 A (WITNESS MENDEZ) Yes. 19 0 When Mr. Williams made the assignment, did he make any 20 further comment to you about what you were to do or 21 anything else relating to the scope of your inspection? 22 A (WITNESS MENDEZ) Just very generally, to get all the 23 flies on those allegations. 24 I believe the allegations that were assigned to me n v 25 were 62, 67, 68 and 72, right. lie had asked me to Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10499 ('N Q l collect all the files on those allegations. 2 Q You referred to four numbers in your preceding answer. 3 Are those -- well, would you describe what those 4 numbers are and their significant? 5 A (WITNESS MENDEZ) Right. Each time our office receives 6 an allegation, they are given a number by our allegation 7 specialist and they usually start off with Region 3 and 8 it's the year '85, dash A for allegation and there is a 9 four-digit numbe r af te rwa rds. l 10 Q So you were. assigned four separate allegatioc.s or sets I 11 of allegations; is that correct? l 12 A (WITNESS MENDEZ) Yes. p), b 13 0 Were all of them allegations that had arisen at the 14 March 29, 1985, meeting? 15 A (WITNESS MENDEZ) No; just 72. 16 0 That is 0072 was the number that was designated for the 17 March 29, 1985, series of allegations; correct? 18 A (WITNESS MENDEZ) That's correct. 19 Q The other allegations that you were assigned, do you 20 know how it came to be that you were assigned those 21 allegations at the same time that you were assigned 22 0072? 23 A (WITNESS MENDEZ) They pertained to the electrical 24 contractor, L. K. Comstock; and since I was reviewing i () 25 72, I was also given the responsibility for the other i Sonntaq Reporting Se rvicef Ltd. l Geneva, Illinois 60134 (312) 232-0262 i

10500 1 three allegations. 2_ Q When Mr. Williams let you know that the Allegation

         ~3    Review Board had assigned these allegations to you for 4    inspection, what, if anything, did he say about the 5    Commonwealth Edison investigation that had been agreed 6    to by the NRC Staff on March 29th?

7 A (WITNESS MENDEZ) I think I asked hita the question when I. 8 can go'to the site and review those allegations; and he l 9 said something about letting the -- letting Commonwealth 10 Edison complete their review of the allegations before I l 11 went to the site.. 12 Q Do you know whether or not Mr. Williams had received any t .i l 13 progress report, for example, on the status of the j 14 Commonwealth Edison investigation? 15 A (WITNESS MENDEZ) No, I don't. 16 Q Your prefiled testimony indicates that you arrived at 17 Braidwood on April 30, 1985, and that prior to that time [.- ! 18 you had reviewed certain documents. 19 During the time period between March 29th and . April 20 30th, do you know whether the resident inspectors, that l l 21 is Mr. Schulz and Mr. McGregor, had conducted any l 22 investigation into the allegations? 23 A (WITNESS MENDEZ) I don't think they looked into the 24 allegations, that is, except to look at some documents, 25 like NCR 1616 and ICR 2900. i Sonntag Reporting Service, Ltd. Gen ~evaTTitincir60134 (312) 232-0262

10501 1 Q Those are the two nonconformance documents that are 2 referred to in your testimony later ont correct? 3 A (WITNESS MENDEZ) Yes. 4 Q How did you happen to pick April 30th as the. day to go l 5 there? 6 Was that just a convenient date for you or is that 7 the date on which Mr. Williams indicated that the 8 company's investigation was completed? 9 What were the circumstances? 10 A (WITNESS MENDEZ) By that time Edison had completed its 11 review of the allegations. 12 0 All right. 13 A (WITNESS MENDEZ) Before April 30th. 14 0 Now, I have asked your counsel to put before you a copy 15 of Intervenors' Exhibit 42-A, which is a collection of 16 three memoranda -- 17 A (WITNESS NEISLER) It's all there. 18 0 -- two of which are dated March 29, 1985, and the third 19 of which in dated April 5, 1985. 20 Do you have that before you? 21 A (WITNESS MENDEZ) Yes, I do. 22 MR. BERRY: (Indicating.) 23 A (WITNESS MENDEZ) Okay. 24 BY MR. MILLER: ! () 25 Q Looking at Answer 15 on Page 7 of your profiled i Sonntag Reporting Service, Ltd. ' ceneva, ITITnols do1T4 (312) 232-0262

10502 j/"'" 1 testimony, Mr. Mendez, am I correct that at the time 2 that you arrived at Braidwood on April 30th, that the 3 only documents that were available to you with respect 4 to allegation 0072 were the three memoranda that have 5 been received in evidence as Intervenors' Exhibit 42-A? 5 JUDGE GROSSMAN: Excuse me. 7 Are there three memoranda in 42-A? 8 MR. MILLER: There may not be. 9 It should be 42 and 42-A together, because there 10 are only one or two of them that have the allegers' 11 names identified; and those are the ones that are 42-A. g 12 A (WITNESS MENDEZ) That's correct. 13 MR. GUILD: Could I ask, for the record to be 14 clear, that the witness is referring to the two March 15 29th memos and the April 5th memo; that collectively 16 they are 42 and 42-A. 17 BY MR. MILLER: 18 0 In your Answer 15 you state that you chose to interview 19 eight of the 12 Comstock QC Inspectors that were 20 identified in the April 5, 1985, memorandum. 21 I would ask you to state for the record the names 22 of the inspectors that you chose. 23 A (WITNESS MENDEZ) That's a little difficult, only because 24 oventually there turned out to be 12 QC Inspectors that (} 25 had gone to the residents' office that I interviewed. Sonntag Reporting Service, Ltd. GEnWs7 titin 61rf- 60134~~~-

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10503 \ 1 I don't recall the first eight. I don't recall the 2 first eight, then the next four, I just recall them 3 collectively. 4 That is, I can tell you who I talked with from this 5 list. 6 JUDGE GROSSMAN: You chose eight and they led 7 you to four more; is that it? 8 A (WITNESS MENDEZ) Four more QC Inspectors had gone to the 9 residents' office. 10 I also interviewed other QC Inspectors, 11 BY MR. MILLER: 12 O All right. Let's start with the first group that you 7-) ! )

'~'

13 identified, that you are able to identify for us that 14 you selected. 15 Could you do that based on your recollection? 16 A (WITNESS MENDEZ) I can only tell you the first 12, the 17 first 12. 18 Q All right. Who are the 127 19 A (WITNESS MENDEZ) I can't say this inspector the first 20 time and this is the inspector that was the second time. 21 It was Rick Snyder, Francisco Rolan, Therman 22 Bowman, llerschel Stout, Terry Gorman, Rick Martin, Larry 23 Perryman, Mark Klatchko and I believe I also interviewed 24 Dan llolly. /~; 25 MR. GUILD: The record should reflect that G Sonnt ag _ Repor t irig_Se rv ice , Ltd._ Geneva, Illinois 60134 (312) 232-0262

3 f 10504 (_) I the witness is referring to the document that lists 2 names in his answer to the' question. 3 BY MR. MILLER: 14 0 Yes. Which document are you' referring to? 5 A (WITNESS MENDEZ) It's the April 5th memorandum from 6 Chuck Weil to Charles Norelius. 7 Q Those are. by my count nine individuals. 8 Are there three additional? 9 A (WITNESS MENDEZ) Larry Bossong, it was Wicks and I can't , 10 remember the other one. , 11 Q All right, sir. Well, your testimony states, Mr. 12 Mendez, that soon af ter you began your inspection I O 13 decided to interview eight other inspectors, which would 14 appear to make a total of 16.

,         15  A    (WITNESS MENDEZ) That's correct.

16 0 Can you expand the list of 11 that you have given us by 17 any additional names that you recall interviewing? 18 A (WITNESS MENDEZ) I also talked to four individuals who a 19 hadn't made allegations, consisting -- those consisted 20 of Sam Rissman, Kermit Williams.

21 I can't remember the other two. 1 22 0 All right,- sir. 23 MR. GUILD: Excuse me. I am just unclear.

24 Are those four of the eight others you decided to i

{} 25 interview? 1 , Sonntag Reporting Service, Ltd. I

G51GVa, IITinWi r 601'34 (312) 232-0262

10505

 ,     '4 s

1 BY MR. MILLER: 2 0 In other words, Mr. Rissman, Mr. Williams and the two 3 othe rs whose names you can't recall right now were 4 individuals who, together with the 12 that you said you 5 selected, constitute the total of 16 that are identified 6 in Answer 15 on Page 7 of your prepared testimony? 7 A (WITNESS MENDEZ) That la correct. I believe the other 8 individual's name is also another one that hadn't gone 9 to the residents' office to make allegations. 10 JUDGE COLE: I didn't get that name. I am 11 sorry. g3 12 What was the name? 13 A (WITNESS MENDEZ) Ne ma th . 14 MR. MILLER: Nemath, that is N-E-M-A-T-II. 15 BY MR. MILLER: 16 Q Ilow did you determine in the last sentence in your -- am 17 I too far away f rom this mike? 18 JUDGE GROSSMAN: No. 19 BY MR. MILLER: 20 0 The last sentence in Answer 15 states they were not 21 chosen at random but whether on the basis they were 22 thought to possess information material to my 23 inspection. 24 Initially, I take it you determined that basis on 25 your review of the three documents; is that correct? { ') Sonntag Reporting Service, Ltd. Geneva, IITinoIs 60lW (312) 232-0262

                                                                     ]
   '~

10506 O V 1 A (WITNESS MENDEZ) That's correct. 2 0 Now, Answer 16 states that you arrived at the Braidwood 3 site on April 30th and met with the residents to discuss 4 the allegations. 5 That is Mr. Schulz and Mr. McGregor; correct? 6 A (WITNESS MENDEZ) Yes. 7 Q How long was your conversation with Mr. Schulz and-Mr. 8 McGregor on the subject initially? 9 A (WITNESS MENDEZ) I believe about a half hour. 10 0 All right. What, if anything, did they say to you about 11 the Commonwealth Edison' investigation that had been 12 taking place in the preceding 30 days or so? 13 A (WITNESS MENDEZ) I don't think it came up. 14 0 What, if anything, did they say about the fact that it 15 had now been 30 days and you were just arriving to 16 conduct your inspection? 17 A (WITNESS MENDEZ) They expressed displeasure over having 18 to -- over having to wait so long, having our office 19 wait so long before reviewing those allegations. 20 0 Did they tell you why they were displeased at the fact 21 that it had taken approximately 30 days for you to begin 22 your investigation on behalf of the NRC? 23 A (WITNESS MENDEZ) They just felt it was better -- felt it 24 would be better to -- for the region to send somebody {} r 25 there as soon as possible. Sonntag Reporting Se rvice, Ltd. Genova7 71tino1s 60134' (312) 232-0262

10507

 . e m.-

v 1 I don't think they elaborated on or gave any 2 particular reasons why. 3 Q _ Did you understand that the reason that they believed 4 there should have been somebody from the region their 5 earlier was because evidence, if you will, might have 6 been destroyed or overlooked or somehow interfered with 7 as a result of the Commonwealth Edison investigation? 8 A (WITNESS MENDEZ) I suspect there is a -- I think they 9 know that it's ve ry difficult to destroy documents or to 10 falsify documents, so that wouldn't have been a reason. 11 Q Well -- 12 A (WITNESS MENDEZ) And I don't believe they actually 13 brought that up. 14 They thought it was just better for show, the NRC 15 evaluating those allegations as quickly as -- as quickly 16 as possible. 17 MR. GUILD: Could the Reporter read the last 18 answer? 19 MR. MILLER: Yes, please. 20 (The answer was thereupon read by the l i 21 Repor te r. ) 22 IW MR. MILLER: l 23 0 When you say, "better for show," Mr. Mendez, what do you 24 mean? l (~) 25 A (WITNESS MENDEZ) I -- it's difficult to recall what l %- Sonntaq Reporting Se rv ice;_Ltd. Geneva, Illinois 60134 (312) 232-0262 l L

10508 }]. 1 exactly he said at the time; but it was my impression 2 that that is what they meant: to send somebody as 3 quickly as possible to the site and review those 4 allegations. 5 0 To indicate thattthe NRC was, in fact, attentive to 6 these concerns? 7 A -(WITNESS MENDEZ) Was being responsive, . yes. 8 0 When you talked with Mr. Schulz and Mr. McGregor on 9 April 30th, did.they indicate that the Comstock Q: 10 Inspectors had made any observations to them about the 11 response or lack of response by the.NRC Staff to the

 -  12    compla ints?
 ~

13 A (WITNESS MENDEZ) Repeat the question, please. 14~ Q Well, you met with Mr. Schulz and Mr. McGregor on April 15 30th. 16 _Did you receive any indication from them that the 17 Comstock QC Inspectors were concerned or had indicated 18 one way or the other as to the fact that it had taken 30 19 days for a Staff investigator, inspector, to come and 20 look into the allegationa? 21 Did that come up as far as you know? 22 A (WITHESS MENDEZ) I don't think any QC Inspector 23 subsequently went to the NRC office af ter March 29th. I j 24 don't -- they hadn't received any complaints from l l (~T 25 anyone, j U Sonntag Reporting Service, Ltd. Geneva, 1111MEi r 60134 (312) 232-0262

                                                                       '10509 I~')
   \_/
        .                                                                     1 1  Q You talked to, I think you'said, approximately 16 QC 2    Inspect ors .
                                                    ~

3 During the course of these discussions, did anyone 4 make an comments about the speed or lack thereof with - 5 which'the NRC was investigating the concerns?

          .6  A (WITNESS MENDEZ) I don't recall any.

7 Q Your Answer 15 on Page 7 says-that prior-to interviewing

8 the allegers -- I take it by that you mean not only the 9 allegers but the three or four inspectors in . addition to

10. the allegers that you interviewed; is that right?

11 Did you use the 50-question approach with each of 12 the individuals that you interviewed? 1O 13 A (WITNESS MENDEZ) Yes, that's correct. 14 Q Now, did you prepare the 50 questions or so just from 15 the three memoranda, Intervenors' Exhibits 42 and 42-A, 16 or did you have any other sources? 17 A (WITNESS MENDEZ) There was a few questions that I wanted 18 to ask myself. 19 Additionally, I obtained or got'several other 20 questions from the quality concern documents that Edison 21 provided to me when they reviewed those allegations. 22 0 Did you stick strictly to your script in these 23 interviews, Mr. Mendez? 24 A (WITNESS MENDEZ) Yes. (} 25 Q Did you re-intetview any inspectors as a result of Sonntaa Reporting _ Se rvice,__Ltd. Geneva, Illinois 60134 (312) 232-0262 ;

~ 10510

     /~T-Q,)

1 information that you obtained from second or third 2 individuals?

             '3       A           (WITNESS MENDEZ) Yes, I did.

4 0 Do you have an estimate as to the amount of time that 5 you spent conducting these interviews? 6 A (WITNESS MENDEZ) I would say about five, six days. 7 Q At some point, Mr. Neisler, you were asked to assist Mr. < 8 Mendez in his investigation; correct? 9 A (WITNESS NEISLER) That 's correct, in August of last

.           10                    year.

11 Q Approximately how much -- well, how did you determine 12 which inspectors you would interview? 13 A (WITNESS NEISLER) I asked Mendez'which inspectors or 14 which allegations that needed -- he needed assistance 15 with; and I picked then the people who were responsible 16 for that, for those allegations, and a few, a couple of 17 more names and I did it. 18 So I selected the people that way. 19 0 So initially Mr. Mendez, by identifying the allegations 20 to you, identified the individuals that were most likely 21 to have information; correct? < 22 A (WITNESS NEISLER) That's correct. 23 0 After that you expanded the interviews somewhat based on 24 the information that you developed? 25 A (WITNESS NEISLER) I didn't, not with the information I

r Sonntag Reporting Se rvice, Ltd. Geneva, iltinci r 60134 (312) 232-0262

l 10511 , t { (3 s/- 1 developed as -far as. interviewing the Oc Inspectors, no. 2 I stayed with the ones that I selected initially. 3 0 I see. So you did not add any additional individuals? 4 A (WITLESS NEISLER) I did not add any additional l 5 individuals, no. 6 Q All right, sir. So the number 16 or so constitutes the 7 universe of inspectors that both of you interviewed; is 8 that right? 9 A (WITNESS NEISLER) No, it didn't constitute all of them.

          -10   I interviewed possibly some of the people he had 11   interviewed. I interviewed Walters,. Holly, Bullock,

, 12 Bowman. L ., 13 MR. GUILD: Can I get you to slow down there, 14 Mr. Neisler? 15 A (WITNESS NEISLER) And -- ready? l 16 MR. GUILD: Could the Reporter read back so 17 fa r, please? L 18 (The record was thereupon read by the l 19 Reporte r . ) 20 A (WITNESS NEISLER) And Peterson and I think either 21 Perryman or Hunter. I am not sure which one of those 22 two. l 23 Then there was another Oc that didn't have any 24 allega tions. Ile was just a filler. I needed another. (} 25 I liked to talk to somebody else, so he really wasn't i Sonntag Reporting Servicef Ltd. Geneva, Illinois 6Dff4 (312) 232-0262

10512 v 1 involved and I forget what his name was. 2 BY MR. MILLER: 3 Q When you say he was just a filler -- 4 A (WITNESS NEISLER) It was fill in time. 5 I had a time between one or two of the individuals 6 that I wanted to interview who was not available. 7 I said, " Send me somebody else." 8 Q Did you ask that individual the same types of questions 9 that you had asked the other QC Inspectors? 10 A (WITNESS NEISLER) Yes. Most of my questions were not a 11 formal list of questions.

              - 12             I don't find that to be -- to work too well for me, 7

13 so I generally ask them questions regarding all of the 14 allegations that were on the list of allegations, listed 15 in this memo and the complaints that the people had had 16 to us. 17 Then I used their responses to more or less reach 18 my conclusions as far as what I put in my inspection 19 report. 20 0 Approximately how much time did you spend in the 21 inte rview phase of your inspections, Mr. Neisler? 22 A (WITNESS NEISLER) I scheduled a half hour per 23 indiv id ual . 24 0 Did some of them go longer, some shorter? (} 25 A (WITNESS NEISLER) Mont of them were shorter. Usually it Sonntag Reporting Service, Ltd. - GEnEV5, irrinUIU~~601~34-(312) 232-0262

( L 10513

 . i I   was 15 to 30 minutes.

2 O All right, sir. Did you spend any additional time in 3 document review besides the interviews? 4 A (WITNESS NEISLER) Well, I spent time in document review. 5 I spent time in interviewing both Commonwealth 6 Edison and Comstock management or technical personnel 7 and the quality assurance pe rsonnel, quite a bit of time 8 with those. 9 Q Mr. Mendez, did you also interview individuals that were 10 not QC Inspectors but who, in your judgment, might have 11 knowledge of some of the facts relating to the 7ss 12 allega tions? ('~ ! 13 A (WITNESS MENDEZ) Yes, I did. 14 0 Is that interview time included in your six days on 15 site? 16 A (WITNESS MENDEZ) No. 17 0 In total, Mr. Mendez first, approximately how much time 18 did you spend at the site investigating these 19 allegations? 20 A (WITNESS MENDEZ) I would say approximately 15 days. 21 0 Mr. Neisler, how much time were you at the site? 22 A (WITNESS NEISLER) August 28th, 29th and until about 2:00 23 o' clock in the af ternoon on the 30th. 24 Q Mr. Mendez, I would like to first go to the allegations (^') 25 that you investigated and ask you if you can identify L_/ Sonntaq Repo r t i n.g_Se rv ice , Ltd. Geneva, Illinois 60134 (312) 232-0262

r 10514 i /~ .

s 1 for me the individual who made the allegation and the 2 individuals that you contacted in an effort to resolve 3 the allegation.

L 4 I believe the first one is an allegation that is 5 identified as R3-85-A-0067,.found at Page 9 of your. 6 prepared testimony. 7 JUDGE GROSSMAN: Do we have any problem now 8 with confidential matter? 9 MR. MILLER: I am not certain. 10 JUDGE GROSSMAN: Well, okay. We will take 11 care or chose matters as they arise then. l 12 A (WITNESS MENDEZ) I think I mentioned before, that's l g3 l (_/ 13 incorract. The numbe r should be 0062. 14 MR. MILLER: I beg your pardon. l ! 15 BY MR. MILLER: 16 Q Now, if we turn to Staff Exhibit 17, which is your 17 inspection report, I think we will find that that same 18 allegation is described at Page 3 of the report; is that 19 correct? 20 A (WITNESS MENDEZ) Yes. 21 0 I would also like to put before you a document that has 22 been received in evidence as Intervenors' Exhibit 41, 23 which is a memorandum from Mr. McGregor to Mr. Forney, 24 dated Ma rch 13, 1985, and I would like you to just 25 briefly scan Intervenors' Exhibit 41, if you would. l (-)/ Sonntag Reporting Se rvice, Ltd. ueneva, Illin61s 60134 (312) 232-0262

~*

5 10515 ('T 'V 1 I wanted to ask-whether we can agree that 2 Intervenors' Exhibit 41, the allegation that is found at 3 Page 3 of Staff Exhibit 17, and the allegation that you 4 have identified as 0062 on Page 9 of your prepared 5 testimony, all relate to the same set of circumstances? 6 A (WITNESS MENDEZ) It's the same allegation, set of

7 allega tion s . 8 Q Now, I asked a question and I am afraid I then went off-9 and didn't let you answer, as to whether or not you can 10 identify the individual who made the allegation on the-11 basis of your knowledge. 12 A (WITNESS MENDEZ) This particular individual? J 13 (Indica ting. ) 14 0 Yes, sir. t 15 A (WITNESS MENDEZ) Who made that allegation? 16 0 Yes, sir. 17 A (WITNESS MENDEZ) During the course of my inspection, I 18 determined that it was Rick Snyder. 19 0 Ilow did you determine that was Mr. Snyder during the 20 course of your investigation? 21 A (WITNESS MENDEZ) There is another McGregor document that 22 -- this particula r McGregor document, Ma rch 29, 1985, 23 from McGregor to Warnick, which identifies an Inspector 24 X, that Inspector X is the same one in that particular (} 25 memo. Sonntag Reporting Service, Ltd.

   '                  Geneva, Illinois 60134 (312)   232-0262                     .          j j

10516

 .p L) 1 Q You are referring to the March 29, 1985, memorandum from 2   Mr. McGregor and Mr. Schulz to Mr. Warnick and Mr. Weil; 3   is that correct?

4 A (WITNESS MENDEZ) That's correct. 5 Q Mr. Snyder was one of the individuals that you l 6 interviewed; correct? I 7 A (WITNESS MENDEZ) Yes. 8 Q Did you have the document that I have shown you that has-9 been received in evidence as Intervenors' Exhibit 41 i 10 before you when you interviewed Mr. Snyder? 11 A (WITNESS MENDEZ) Yes, g- 12 0 Approximately how long was your interview with Mr. 13 Snyder on this subject? 14 A (WITNESS MENDEZ) On this particular subject? 15 0 Yes, sir. 16 A (WITNESS MENDEZ) A few minutes. 17 0 Why? Why did it take so little time? 18 A (WITNESS MENDEZ) It was something I could easily verify 19 through comstock procedures, Comstock records. 20 0 Did you then review the documents and records? 21 A (WITNESS MENDEZ) Yes, I did. 22 Q Now, your testimony at Page 10 indicates that you 23 determined that the same deficiencies existed that had 24 been identified in the Commonwealth Edison Company (} 25 Quality Assurance Audit Report that was dated some Sonntag Reporting Service, Ltd. ueneva, ilTitrots 60134 (312) 232-0262 1 _ _ _ _ _ _ _ - _ _ - - _ - _ - _ _ _ _ _ - _. . _ _ _ _ .

r 10517 O 1 months prior to the allegation by Mr. Snyder. 2' Of what significance, if any, was that in you'r 3- investigation? 4 A (WITNESS.MENDEZ) Of what significance? What the -- 5 Q That Commonwealth Edison had .already; identified this , 6 matter. 7 A (WITNESS MENDEZ)-It's of significance, since-8 Commonwealth Edison had identified, thatLis had taken -- 9 they were taking corrective action at the tine. It 10- wasn't something they didn't know about. 11 Q All right. Now, then, that dealt with theffirst part of S 12 this allegation 0062. 13

There was a second part about the lead QC-14 Inspectors; correct? 15 A (WITNESS MENDEZ) Yes. 16 Q At Page 11 of your prefiled testimony, in Answer 24,.you. 17 say that this same concern was raised.with respect to 18 six additional lead QC Inspectors. ' ~ 19 I take it that Mr. Snyder raised it initially and 20 then there were other inspectors who added to.the 21 concern in this regard; is that right? 22 MR. GUILD: Where is counsel referring to, 23 please, for the record? 24 MR. MILLER: It's the first sentence of , 25 Answe r 24. i i Sonntaq Reporting Service, Ltd. !' Geneva, Illinois 60134 ! (312) 232-0262 L _ _ _ _ ~ - ..

10518 7-(_) 1 A (WITNESS MENDEZ) Rick Snyder was only one of the QC 2 Inspectors that raised this concern. There were other 3 QC Inspectors that raised other concerns about other 4 leads. 5 BY MR. MILLER: 6 0 All right, sir. My question to you is this: 7 Do you recall which other inspectors raised these 8 concerns about the Lead Inspectors? 9 A (WITNESS MENDEZ) It was Bowman, Bossong, Rick Martin. 10 Q And -- 11 A (WITNESS MENDEZ) That is, they weren't the Lead 3 12 Inspectors. They raised the issues and concerns about. J 13 Lead Inspectors. 14 Q All right, sir. And as part of your interviews of the 15' 16 or so inspectors in toto that you talked to, did you 16 ask each of them whether they had any concerns about the 17 qualifications of the Lead Inspectors? 18 A (WITNESS MENDEZ) Yes, I did. 19 Q And of those, three additional inspectors, besides Mr. 20 Snyder, said that they did have concerns and they were 21 able to identify the individuals? 22 MR. GUILD: Objection, Mr. Chairman. 23 I am not trying to make this take any longer than 24 necessary; but this last series of questions was, in my (} 25 opinion, unduly leading. Sonntag Reporting Service, , Ltd. ueneva, Illinois culse (312) 232-0262 I

10519 LO-1 The question really has to be what did you ask- the 2 inspectors. Since counsel's last question, indeed, 3 supplied an answer, I believe it's improper. 4 It really is a disputed matter, what are.the 5 questions and what were the answers; and I-think it's an 6 improper subject for leading the witness. 7 JUDGE GROSSMAN: 'Well, if it is in dispute. 8 then I think you ought to try to make the questions-more 9- neutral. 10 BY MR. MILLER: 11 Q How many Lead Inspectors' qualifications were in fs 12 ' question after, as far as you 'were concerned, or at the d 13 conclusion of these interviews? 14 A (WITNESS MENDEZ) How many Lead Inspectors actually 15- lacked qualifications? 16 Q No. 17 How many were in question? How many did you 18 investigate?

19 A (WITNESS MENDEZ) I think the QC Inspectors named just

, 20- about eve ry lead there ever was. f-L 21 0 There was a -- l { 22 A (WITNESS MENDBZ) They just didn't feel this person was 23 qualified or that person didn't have the proper 24 background. {) 25 Q Did anyone identify Mr. Bossong as one of the l l- Sonntag Reporting Se rvice, Ltd. Geneva, Illinois 60134 (312) 232-0262 L

10520 O l' individuals who lacked qualifications when he was the-2- lead? 3- A (WITNESS MENDEZ) I don't recall. 4 Q Did you know at that time-that Mr. Bossong was a lead-5' Quality Control Inspector .or had been? 6~ A (WITNESS MENDEZ) I think so, yes. 7 Q All-right. Now, what did'you do after you'got this 8 roster of lead QC Inspectors-whose qualifications had-9 been questioned?

                                ~ 10              A (WITNESS MENDEZ) I then asked Comstock. management _to 11-                provide me a list of QC Inspectors who were leads and
            . -                  12                 from that list I determined that at least two didn't
                       ~

13 have -- were not certified in areas that they had lead 14 responsibility in. 15 0 And,how were you able to make that determination,'Mr. 16 Mendez? 17 A (WITNESS MENDEZ) I went through records and found out 18 that two of the individuals, although -they were 19 certified Level II's, they were not certified Level II's 20 in all areas of lead responsibility; and looking through 21 the certification qualification documents, that provided it

22 me with that information. 23 Q All right. Now, Mr. Mendez, turning to Page 6 of Staff

,                                24                 Exhibit 17, which is your inspection report,~I am

{} 25 correct, am I not, that you assessed severity level 5 Sonntag Reporting Service, Ltd. beneva, 1111nois ou13. (312) 232-0262

1 10521 (.

       \J 1                item of noncompliance as a result of your findings with 2                respect to the qualifications of the7 1ead QC Inspectors; 3                correct?

I 4 A (WITNESS MENDEZ) Yes. 5 Q Do you know the status ~of the item.of noncompliance at 6 this point in time? 7 A (WITNESS MENDEZ) Yes, I do. 8 Q What is it? 9 A (WITNESS MENDEZ)-This particular item of noncompliance, 10 notice of violation, has been closed out by another NRC 11 Inspector.

       -s  12        Q       You did not personally close it out?
     .Y  .

13 (WITNESS MENDEZ) No, I didn't. A

14 Q Do you have information on the basis on which it was 15 closed out? 16- A (WITNESS MENDEZ) Yes. 17 0 Describe that for us, please. j 18 A (WITNESS MENDEZ) The two particular Lead Inspectors are 19 no longer leads. 20 Corrective action was to go back and review

21 records, Comstock records, to determine whether anybody.

I 22 else was a lead and not certified in that area; and 23 there were no other examples. 24 MR. GUILD: Again, Mr. Chairman, I take that (} 25 as his understanding and not establishing these as Sonntaq Reporting Se rv ice , Ltd. Geneva, Illinois 60134 (312) 232-0262

                                                                         .10522

. / ~~

 \    .

1 matte rs of fact.

         '2                 JUDGE GROSSMAN:      That is how we will accept' 3      it, because, obviously, the witness isn't competent to 4      determine the substance of what he said or to testify 5      with rega rd to the substance.

6 BY MR. MILLER: 7 Q Now, just returning to your prepared testimony for a 8 second, Mr. Mendez, on Page 11, Answer 24, you 9 personally conducted the document review that is 10 described in that answer, did you not? 11 A. (WITNESS MENDEZ) Yes, I did, f-s 12 Q As I unde rstand it, for one inspector, one of the two b 13 inspectors whose qualifications were not proper, he did 14 not, in fact, sign any quality documents in an area in 15 which he was not certified; is that correct? 16 A (WITNESS MENDEZ) Yes. 17 Q Another inspector or the same inspector and another 18 inspector did, in fact, sign documents in areas where 19 they were not, in fact, certified; correct? 20 A (WITNESS MENDEZ) Yes. 21 Q Do you know what action, if any, was taken with respect

        .22      to those documents which they improperly signed off?

23 A (WITNESS MENDEZ) They were not improperly signed off. 24 At the time Comstock procedures allowed a Level II (~N 25 in one area to sign off the review column on an U Sonntag Reporting Se rvice, Ltd. Geneva, Illinois 60134 (312) 232-0262

10523

%)

1 inspection checklist in another area before September,

         -2     1984.-
       " ;3  Q  All right, sir. Well, the last sentence of Answer 24 4     states the fact that these two individuals had - signed

., SL off quality documents was,-in fact, a violation of the 6 Comstock Procedure 4.1.2.

! 7 Do you know whether or not the sign off of these 8 documents took place before or af ter September of 1984? p 9 A (WITNESS MENDEZ) We may be talking about some things. 10 My answer was just on the signing off, signing off the-11 review column of an inspection -checklist. 12 O Alli right. I may have confused the matter by asking _0 13 about sign offs. 14 I am now asking you about the fact.that these 15 ~ gentlemen were leads in areas where they were not 16 certified. 17 A '.(WITNESS MENDEZ) Yes. 18 Q What, if anything, was the -- were there any quality 19 documents that were compromised as a result of these 20 individuals having been made leads? 21 A (WITNESS MENDEZ) No. There was no evidence they 22 performed inspections in areas where they were not j' 23 qualified. I 24 MR. MILLER: Your Honor, this is an (} 25 appropriate time to break for lunch. Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10524

   /~i V.

1 JUDGE GROSSMAN: Fine. We will recess until 2 1:15. 3 MR. GALLO: I would just like to state for. 4 the record that Mr. Shewski is here and, perhaps, we 5 could do that briefly when we resume after the luncheon 6 recess?

7 JUDGE GROSSMAN: That's fine.

i 8 '(WHEREUPON, the hearing of the ^ 9 above-entitled cause was recessed until

j. 10 the hour of 1:15 o' clock P. M.)

         -11
        '12 O-      13 j          14

15 16 17 18 19 20 21 22 i
23 1 24

  .()     25 i

Sonntag Reporting Service, Ltd. Ueneva, Illinois 60134 (312) 232-0262

                                                                                         '10525
  ,)

(- 1 JUDGE GROSSMAN: We're back in session. 2 Mr. Gallo has requested that he be permitted to 3 recall Mr. Shewski to correct and clarify some testimony 4 given last week with regard to stop work orders, and so 5 we're having Mr. Shewski testify now, and Mr. Gallow, 6 you can begin your examination. 7 MR. GALLO: Thank you, your Honor. 8 JUDG E GROSSMAN: Let me just say that you 9 remain sworn, Mr. Shewski. 10 T!!E WITNESS: Yes, sir. 11 W. J. SH EWSKI 12 recalled as a witness by Applicant herein, having been 13 previously duly sworn, was examined and testified as follows: 14 RECROSS EXAMINATION 15 ( Con tinued. ) 16 BY MR. GALLO: 17 Q Mr. Shewski, do you recall your testimony last week when 18 you had indicated in answer to questions that you had 19 signed a stop work order and that you had seen such an 20 order in the documents that you reviewed in preparation 21 for your testimony? 22 A I do. 23 Q Have you had occasion, since that time, to review those 24 documents to determine if you could locate the stop work () 25 order? Sonntagleg.qr_t ing_Se rvice, Ltd. Geneva, Illinois 60134 (312) 232-0262

10526 y ( l A Yes. 2' Q And what was the result of your. review? 3 A In checking, I found that a document that I. had referred 4- to in the testimony really was not a stop work order, 5 but it was a release of stop work order, which I was to 6 sign. 7 Q Do you have that document before you? 8 A Yes. 9 0 Is it dated November 15, 1983? 10 A Yes. 11 MR. GALLO: I don't intend to introduce this-12 into evidence, I just thought it would facilitate things

     ~
   \

13 if the parties and the Board had copies. 14 (Indicating.) 15 JUDG E CALLIH AN:- Thank you. 16 BY MR. GALLO: 17 0 I call your attention, Mr. Shewski, to a document -- a 18 three-page document -- the first page of which is dated 19 November 15, 1983. It says, "To W.J. Shewski. Subj ect: ! 20 Conditional release of Pullman sheet metal stop works," 21 and it has a Bates Stamp number at the bottom of the 22 first page M 0000269, and then the next page is 270 and 23 I believe the following page is 271, and ask: l 24 Is this the document that you had reference to when 25 you testified last August 7th about seeing a stop work f (]) l l Sonntag Reportin_g Service, Ltd. Geneva, Illinois 60134 l (312) 232-0262

I 10527

 / 'i
 'V 1                order --

2 A Yes. 3 0 -- that had been signed by you? 4 A Yes. 5 0 Is this, in fact, a stop work order? 6 A No. 7 Q Were you then just confused when you were testifying 8 before? 9 A Yes. 10 Q Do you know, to your knowledge now, after that 11 clarification, whether or not you've ever signed a stop

  -~  12                work order in connection with the Braidwood case -- I 13                should say, in connection with the Braidwood Station?

14 A To my knowledge, I have not signed a letter issuing a 15 stop letter -- stop work order. 16 Q Does your testimony today in any way change your 17 testimony that you gave last August 7th with respect to 18 directing that certain stop work orders be issued in 19 connection with the Braidwood Station? 20 A No. 21 MR. GALLO: That's all I have, your Honor. 22 JUDGE GROSSMAN: Mr. Guild. 23 REDIRECT EXAMINATION 24 (Con tin ued. ) (} 25 BY MR. GUILD: 1 Sonttt a g _ Rep o rti n g S e r v i c e ,_kt_da

Geneva, Illinois 60134 (312) 232-0262

10528

 .( \

V 1 Q Mr. Shewski, I'm looking at Page 2 of the document that 2 your counsel circulated, and it appears that your name 3 is third in the list. It has what appears to be a line 4 for a signature below the names and signatures of a Mr. 5 Brown and a Mr. S omme rfield. The document does not 6 appear to bear your signature. 7 A This is the letter that I referred to that I saw which 8 was for me to sign. 9 Q Did you, in fact, sign it? 10 A Yes, I did. 11 Q All right, sir.

  -   12                                I recall you telling the Board and parties when you 13                       last testified that it was your practice to initial and 14                       date, I believe you said, documents that came to your 15                       attention for review, and that was at least a method 16                       that you used to determine whether or not you had seen a 17                       document before.

18 Did you make such testimony? Did I understand 19 that correctly? 20 A That is my practice. 21 Q All right. 22 Does the document that your counsel has circulated 23 bear such initialing and dating? 24 A This is a document which I would sign. Therefore, there 25 would be no need for me to do any initialing and dating, (]} Sonntag Reporting Service, Ltd. Geneva, IT1Tnois 60134 (312) 232-0262

l 10529

 ;p V

1 other than for the signature part. 2 Q Yes. 3 But the one that you have that counsel has made 4 available doesn't bear your signature. 5 A As I believe I testified, I saw this document during my 6 preparation for this hearing, and there was no occasion 7 for me to have reviewed it and initialed off on it. 8 0 In preparation for hearing, did you see a version of 9 this document that, in fact, bore your signature? . 10 A I have recently seen one that has borne my signature. 11 0 When you say "recently," do you mean since you prepared s 12 for your initial testimony? 13 A Yes. i 14 0 All right. 15 And when, exactly, did you see one that had your 16 signature on it? ! 17 A Today. ! 18 0 I see. 19 Did you see that in the course of preparing for i 20 your testimony here today? 21 A Yes. 22 MR. GUILD: That's all I have, Mr. chairman. 23 MS. CH AN : No questions f rom the Staf f. 24 MR. GALLO: I don't have anything further. () 25 JUDGE GROSSMAN: Okay. S o n n t _a g _Re p otr t i ng_S_e_ry_i_q_e a _L t da Geneva, Illinois 60134 (312) 232-0262

10530 ( l Thank you for reappearing, Mr. Shewski. 2 (Witness excused.) 3 JUDGE GROSSMAN: Do we have any other 4 preliminary matters before we have the NRC Inspectors 5 recalled? 6 MR. MILLER: No, sir. 7 JUDGE GROSSMAN: 'Okay, fine. 8 Why don' t we recall them. 9 Mr. Miller. 10 MR. MILLER: Thank you, Judge Grossman. 11 CROSS EXAMINATION

   -) 12                                       (Continued.)

J 13 BY MR. MILLER: , 14 Q Mr. Mendez, I'd like you to turn to Page 13 of the 15 prefiled testimony. It relates to Allegation 16 RIII-85-A-0067. 17 Your answer to Question 28 indicates that you 18 interviewed the alleger. 19 I'd ask you to identify that individual for the 20 record, please. 21 A (WITNESS MENDEZ) That was Herschel Stout. 22 Q All right, sir. 23 A (WITNESS MENDEZ) He wasn't the only person I asked this 24 particular question. I asked them all the same 1 (} 25 question. l Sonntag Reporting Service, Ltd. CEneva, 11Trn31's 6013~4 (312) 232-0262 l

10531 p V 1 Q All right. , 2 'Is it your understanding that Mr. Stout was 3 involved in welding inspections at this point in time? 4 A (WITNESS MENDEZ) Yes, he was. S Q Then on Page 15, the second part of Allegation 0067 that. 6 you investigated, was that also Mr. Stout who made that 7 allegation, sir? 8 A (WITNESS MENDEZ) No, it wasn't. 9 I don't know. I -- I don't think I ever knew who 10 made that allegation. 11 MR. GUILD: I'm sorry. 12 What reference was that? 13 MR. MILLER: I'm sorry. Answer 29 refers to i 14 a second part of Allegation 0067. t 15 BY MR. MILLER: 16 0 And you are unable to identify the individual who made 17 that allegation; is that correct? 18 A (WITNESS MENDEZ) Yes. 19 0 All right. 20 Now, I'd like to turn to Page 16 of the prepared 21 testimony, which is Allegation 0068. 22 This is also an allegation that was received prior 23 to the March 29, 1985, meeting; is that correct? 24 A (WITNESS MENDEZ) Yes, it was. () 25 0 Can you identify the individuals who made the . SonntagJegorting Service,_Ltd. Geneva, Illinois 60134 (312) 232-0262

i I l 10532 l l 1 allega tions? 2 A (WITNESS MENDEZ) I believe there was only one 3 individual. It was Therman Bowman. 4 Q All right. 5 And Mr. Bowman was one of the individuals that you 6 interviewed; is that correct? 7 A (WITNESS MENDEZ) Yes. 8 Q Now, on Page 17, in answer to Question 33, you say that 9 you interviewed the Lead Inspector and the QC supervisor 10 involved in this allegation. 11 First of all, can you identify those two 12 individuals? 13 A (WITNESS MENDEZ) Just the QC supervisor. That was 14 Darryl Landers. 15 Q But you do recall that you, in fact, interviewed the 16 Lead Inspector as well? 17 A (WITNESS MENDEZ) Yes. 18 Q You are unable to recall his name at this time? 19 A (WITNESS MENDEZ) That's correct, I don't recall his 20 name. 21 Q Prior to the time that you interviewed the Lead 22 Inspector and the QC supervisor, had you talked to Mr. 23 Bowman? 24 A (WITNESS MENDEZ) Yes, I did. () 25 0 And you had received details of his recollection of the Sonntag Reportijn Service, Ltd. Geneva, fllinois 6013'4 (312) 232-0262

10533 V 1 conversation with the Lead and the QC supervisor, 2 Landers? 3 A (WITNESS MENDEZ) Yes. 4 Q Now, Answer 33 goes on to state that your review also 5 indicated that Mr. Bowman had not been taken off 6 overtime because he had identified the base metal 7 problem. 8 How did you conduct that review? 9 A (WITNESS MENDEZ) I asked him the question. I asked 10 Bowman the question. I asked Darryl Landers that 11 particular question. . r- 12 0 Did you review any records in connection with that 13 analysis? 14 A (WITNESS MENDEZ) No, I didn't. I was relying on 15 Bowman's answer to this question. 16 Had he mentioned that he was taken off overtime, I 17 would have further reviewed it; but he was never taken 18 off overtime. In fact, he didn't lose a single hour of 19 overtime. 20 (Indicating.) 21 Q Now, Page 17, in Answer 34, you again indicate that this 22 is an allegation that's a part of 0068. 23 Is this an allegation that was made by Mr. Bowman, 24 also? () 25 A (WITNESS MENDEZ) I don't think the allegation files Sonntag_ Reporting _ Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10534 1 identified the alleger. 2 Q Well -- 3 A (WITNESS MENDEZ) That is, I don't know who made that 4 allegation, although it was a concern that a lot of 5 In.pectors had. 6 Q I see. 7 Did you establish that concern as a result of the 8 interviews that you conducted? 9 A (WITNESS MENDEZ) Yes. 10 I think the person who made this allegation was , 11 Wicks. 12 Q Robert Wicks? 13 A (WITNESS MENDEZ) Yes. 14 Q All right. 4 15 Then did he identify by name the individuals who -- 16 the 10 recently hired QC Welding Inspectors who, in his 17 judgment, were not properly certified as Level II 18 Inspectors? 19 A (WITNESS MENDEZ) He may have mentioned one or two 20 names. 21 I compiled this list of 10 from all the allegers I 22 spoke to. 23 (Indicating.) 24 But it's a compilation. I'd say it wasn't just one (} 25 inspector telling me that. 10 recently-hired QC L_ Sonntag Reporting Service, Ltd. Geneva,-~Il1Tnois 6013~4 (312) 232-0262

10535 U 1 Inspectors were not qualified. 2 It was just the list of names that I got through 3 all the ' allegers I spoke to, plus any others that -- 4 that I knew that were recently hired. 5 (Indicating.) 6 Q All right, sir. 7 Then on Page 18, the answer continues that you 8 determined that one of. the newly hired QC Inspectors did 9 not have sufficient experience to warrant certification 10 as a Welding Inspector. 11 Had that conclusion -- is that your conclusion

  , -) 12   based on your review of the records?

U 13 A (WITNESS MENDEZ) It was the conclusion I reached l 14 looking through the qualification certification records. 15 Q All right. 16 Now, you go on to state that you have -- you 17 identified a concern that you had about the inspections 18 conducted by this Inspector as an unresolved item in 19 Inspection Report 8521, which is Staff Exhibit 17; is 20 that correct? 21 A (WITNESS MENDEZ) Yes. 22 Q And do you know what the disposition of that unresolved 23 item is? 24 A (WITNESS MENDEZ) No, I don't. 25 Do you know what corrective action, if any, has been (]) Q SoDntas_Repor tinLSe rvice,_Ltd, Geneva, Illinois 60134 (312) 232-0262

10536 0 v 4 1 proposed by Commonwealth Edison and Comstock to close 2 out the unresolved item? 3 A (WITNESS MENDEZ) No, I don't. 4 Q Now, can we agree, Mr. Mendez, that the allegation 5 numbers that we've identified and talked about so far -- 6 that is 0062, 0067 and 0068 -- correspond to the name 7 allegations that are identified by those numbers ~ in 8 Staff Exhibit 17 -- 9 A (WITNESS MENDEZ) Yes. 10 0 -- the Inspection Report? 11 A (WITNESS MENDEZ) Yes.

12 Q All right. 13 Mr. Neisler, moving along to Answer 37- and 38 and 14 39, this is the first concern that's identified in 15 Allegation No. 0072. 16 And am I correct that's the ones that were 17 catalogued as a result of the March 29, 1985, meeting-18 between Comstock Quality Control Inspectors and the NRC 19 Residents? l 20 A (WITNESS NEISLER) That's my understanding, yes. 21 Q Now, what is the relationship, if any, between your 22 investigation of this first concern and this allegation 23 and your investigation of -- I guess Mr. Mendez' 24 investigation of Allegation 0067, the one where a (} 25 reprimand was based on the alleger's failure to meet Sonntag Reporting Service, Ltd. Geneva, IllinR s 60131 (312) 232-0262

8 10537 1 inspection quotas set by Comstock's QC management? 2 A (WITNESS NEISLER) There's no real difference. They 3 are both involving the issue of production versus 4 quality of his -- of the inspections, although the 5 particular allegation I was not -- I had not at that 6 time seen Mr. Mendez' earlier allegation. 7 Q All right. 8 When you began your investigation, Mr. Neisler, 9 were you aware that Mr. Mendez had conducted some 10 interviews on this subject? 11 A (WITNESS NEISLER) Yes. 12 Q What use, if any, did you make of his work? 13 A (WITNESS NEISLER) At the time we compiled our . report, 14 I did use part of his information to reach my 15 conclusions that -- that I stated in the Inspection 16 Report.

;              17                                     (Indicating.)

18 Q In Answer 39, the answer starts with the words, "We 19 interviewed." 20 Who's the "we" that's referred to? 21 A (WITNESS NEISLER) The "we" is Mendez and I, the two of 22 us. That's how he -- see, I used parts of his j 23 information from interviews. 24 0 I see. () 25 Was there any specific Inspector that you can i Sonntag_Repotting_ Service,_L.ti Geneva, Illinois 60134 (312) 232-0262

         -.   -   -.            . _ _ -        .-      . _ . . = . - - _ . .

10538 1 recall that stated that Comstock is asserting the 2 quantity of inspections rather than the quality of 3 inspections? 4 A (WITNESS NEISLER) From the people that I talked to -- 5 it seemed to .be more a consensus from the Inspectors 6 that I talked to rather than any one individual. They-7 all had about the same story, that Comstock appeared' to 8 be very interested in the amount of production; and they , 9 did not say that they were ever told to ignore the 4 10 quality aspect, nor did any of them say that they had -- i 11 had ever accepted any discrepant work or deficient work. fs 12 And I also asked if they knew of anyone else who i d 13 did, and they did not know of -- of any other Inspector I 14 who had done the same thing. 15 (Indicating.) 16 So it was more, you know, a general feeling 17 expressed by the people that I talked to. 18 0 There's been some testimony received in the record which 19 suggests that individuals are not likely to 20 self-identify their defects or, indeed, to necessarily 1 21 identify defects that have been passed by their 2 22 co-workers. 23 Did you try and take account of that attitude or 24 value on the part of the Inspectors when you talked to (} 25 them? ! Sonntag Reporting Service, Ltd. ! Geneva, IIrlhols 60134 i (312) 232-0262

10539 r) i (_/ ' + 1 A (WITNESS NEISLER) Yes. 2 MR. GUILD: Obj ection. 3 It'e clearly a leading question, aad it supplies 4 the answer that's sought improperly, p 5 JUDGE GROSSMAN: Would you repeat the 6 question, please, i 7 (The question was thereupon read by the 8 Reporter.) 9 JUDG E GROSSMAN: Overruled. j 10 A (WITNESS NEISLER) (Con tinuing. ) Yes, I did take into 1 l 11 account the fact that they said that they had not and 12 that they knew of no one else who had sacrificed !_O 4 13 quality -- the quality of their inspections, and -- ! 14 (Indicating.) f 15 MR. MILLER: I'm sorry. Go ahead. I didn't ' i 16 mean to cut you off. ! 17 A (WITNESS NEISLER) (Continuing.) To finish that, it 18 has not been my experience that a QC Inspector would not 19 tell me or anyone else that another Inspector had made a 20 mistake or done something wrong.

- 21 BY MR. MILLER

22 0 I see. 23 Do I understand from the last part of your answer 24 that you had experience where Inspectors have, in fact, () 25 identified discrepancies of other Inspectors? So n n_t a g_Repo r_t_i_n_g_S e rv i c e,_L td .

'                                                                                                          Geneva, Illinois          60134

] (312) 232-0262 4

10540 O 1 A (WITNESS NEISLER) We said in other testimony here they 2 are talking -- one of them was complaining about 3 Rissman, they are talking about some of the Lead 4 Inspectors who are saying they are not qualified. 5 I find allegations that one Inspector says another 6 one is not qualified. He did not do propsc work or 7 whatever. 8 JUDG E GROSSMAN: Excuse me. 9 I thought the question and your answer related to 10 signing off on discrepant work that the Inspector 11 recognized to be discrepant. 12 Do you have instances of that where someone Ogw 13 suggested that another Inspector had actually done that? 14 A (WITNESS NEISLER) I understood that the question was: 15 Did I consider -- did I -- whether they told me that 16 they -- or they did not know anyone else who had 17 accepted any discrepant work. The way I understood the 18 question was, did I -- did I think they were telling me 19 the truth. 20 JUDGE GROSSMAN: Well, the question was 21 whether there are instances that you know of in which 22 Inspectors had indicated to you -- and we're not talking 23 just about Braidwood -- that they ..aew of an Inspector 24 who had deliberately signed off on discrepant work. (} 25 Have you ever had an instance like that? Sonntag Reporting Service, Ltd. Geneva, IITrn~oIs 601T4 (312) 232-0262

10541 g V 1 A (WITNESS NEISLER) Oh, yes. 2 JUDGE GROSSMAN: Could you tell us the name 3 of an Inspector and the person who allegedly had signed 4 off on the discrepant work? 5 A (WITNESS NEISLER) Let's see. 6 The last one I did was shortly before I started 7 working on this one, which was an individual in the 8 Fermi plant who had some allegations regarding one civil 9 inspector who did not know -- whose work -- the guy did 10 not know what he was doing. He had some sand cone 11 measurements that were no good, his calculations were r3 12 bad, and it -- so there were about three or four at that

 \J 13       particular one, which was the last one before I did this 14       that I had that instance.

15 JUDGE GROSSMAN: Excuse me. 16 This is about an Inspector who didn't know what he 17 was doing or someone who -- 18 A (WITNESS NEISLER) Well, he was signing off bad work 19 because he didn't know what he was doing. 20 JUDG E GROSSMAN: But not deliberately signing l 21 off bad work? 22 A (WITNESS NEISLER) When we get the allegations, they 23 can come -- for instance, the one I was talking about 24 there, it was an anonymous allegation. () 25 When we get them, they are routine, Judge. We get Sonntag_ Reporting _StrXico_Ltd. l Geneva, Illinois 60134 l (312) 232-0262

10542 rm (~) I them all the time. 2 MR. GUILD: I beg your pardon. 3 Now, Judge, that's certainly not responsive to what 4 I understood the question to be. 5 I think the line is objectionable, frankly; but 6 counsel opened the door now. It's only appropriate that 7 the door be closed one way or the another. !- 8 The answer simply didn't respond to the question I 9 understood the Chairman to ask. 10 JUDGE GROSSMAN: Well, that's right; and I 11 still haven't heard an instance in which someone has 12 come to you and indicated that there is someone who has 13 deliberately signed off on discrepant work. 14 Now, you've just indicated some anonymous 15 allegation and also one involving someone who didn't 16 know what he was doing. 17 Now, do you have any instance in which someone came 18 to you and indicated that someone else has deliberately 19 signed off on discrepant work? 20 A (WITNESS NEISLER) Let me think through the various 21 allegations I've worked. 22 As for someone coming to me, no. 23 Normally, these are anonymous from, say, a 24 concerned QC Inspector or some other signature on a note () 25 that is received by the NRC. Sonntag Reporting Service, Ltd. 60I34

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10543

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1 (Indica ting . ) 2 JUDG E GROSSMAN: Okay, fine. 3 BY MR. MILLER: 4 Q Now, Judge Grossman's questions were, to use his words, 5 anyone coming to you and said if an Inspector had 6 deliberately signed off on discrepant work.. 7 My question, I believe, was somewhat more general 8 to start, and that was whether you had the experience of 9 an Inspector identifying discrepant work,~whether 10 deliberately done or not, by another Inspector. 11 Have you had that experience? 12 A (WITNESS NEISLER) Oh, I think the example I just gave 13 on the Fermi is -- was an example there. 14 Q Did you have that -- I'm sorry, Judge. 15 JUDGE GROSSMAN: I'm sorry, but that example 16 had an anonymous allegation. 17 MR. MILLER: Right. 18 BY MR. MILLER: 19 Q Did you have an experience at Braidwood -- 20 A At Braidwood, no. ! 21 Q Excuse me. Let me finish my question, Mr. Neisler. 22 -- where an Inspector identified -- an Inspector 23 known to you by name identified discrepant work of 24 another Inspector and identified that Inspector by name? () 25 A (WITNESS NEISLER) No, not at Braidwood. i Sonnta__g_ Rep _ ort _ing Service; Ltd. Geneva, Illinois 60134 , (312) 232-0262

l i 10544 l im - i k_) 1 Q You referred to a Mr. Rissman in an earlier answer. 2 Who is Mr. Rissman? 3 A (WITNESS NEISLER) Rissman is one of the individuals 4 that -- in our report that was in the ' document control , 5 room signing off inspection records that had not been -- 6 without going to the field, and he was closing out -- he 7 was also doing QC inspections and then he was performing 8 QA audits on his inspection work. 9 Q That was the allegation? 10 A That was the allegation. 11 Q All right. 12 Now, who made that allegation, if you recall? 13 A (WITNESS NEISLER) Dan Holley. 14 Q Okay. 15 Mr. Holley identified Mr. Rissman by name to you as 16 the individual who was doing that? 17 A (WITNESS NEISLER) Yes. 18 (Indica ting . ) i 19 0 Do you regard that as an example of a QC Inspector at 20 Braidwood identifying discrepant work or performance by 21 another QC Inspector by name? 22 A (WITNESS NEISLER) Yes, it would be. 23 (Indicating.) 24 Q Mr. Mendez, in the course of your interviews -- well, () 25 first of all, were there any promises of confidentiality Sonntag Reporting Service, Ltd. Geneva, I1TI~nois 6~0134 (312) 232-0262

10545 s ( . 1 given to the Inspectors that you interviewed? 2 A (WITNESS MENDEZ) Yes, there was. 3 Q Did they request it or was it offered as a matter of 4 course? 5 A (WITNESS MENDEZ) It's always a matter -- it's always 6 offered as a matter of course. 7 Q Did all the Inspectors accept the offer?

          -8 A (WITNESS MENDEZ)       I can only explain to them that nobody 9   would know who they were and that their names wouldn't-10    be given to anyone else, and that I would only judge 11    them on -- I would only judge what they said on the
   -     12    substance and not who they were.

V) f 13 (Indicating.) 14 0 When you told them that you would judge them only on 15 substance -- 16 A (WITNESS MENDBZ) Well, not " judge," but what I'm saying 17 is the only reason I was there is what they were telling 18 me, what information they could provide, and that who 19 they were and what they did was really irrelevant to my 20 inspections. 21 0 When you say "who they were and what they did" -- 22 A (WITNESS MENDEZ) The QC Inspectors -- I 23 Q Yes, sir. 24 A (WITNESS MENDEZ) -- that is, for Edison and Comstock, () 25 as a measure of anonymity, to keep anyone from -- from So nn_ tag _ Re po r_tiDg_S e rv i c_ e _Ltd . Geneva, Illinois 60134 l (312) 232-0262 l l

                                                                   , . , . . . _, ,.m.
                                                                                        ._.._._,_,1

                                                                                                                                                                         '10546 1                                                  knowing who they were and what information they provided

'2 -to me.

3 (Indicating.) 4 Q What, if' anything, did you do or say to encourage them 5 to: identify discrepant work they were aware of?

                                .6-                               A                   (WITNESStn                         MENDEZ) . What did I do?

1 y-7' Q Yes, 3, si r.' , - 8 Did you give them any assurances, did you make any 9 promises or representations to them?

'                     ~h p.10                                      A.                  (WITNESS MENDEZ)                             Well, I did explain to them-that if T
                           <11                                                        they were ordered by any of the supervisors to accept 12                                                    any discrepant work, that the. supervisors would be held i'                              13                                                    accountable and not themselves.                                                               ,
                                                                                                                                              ~

14 Q Did you state that to each 'ofc the Inspectors that you 15 interviewed?.

                             ' 16 '                               A                   (WITNESS MENDEZ)                             I'm sure I explained that to almost l-             ,

17 all of them. i' 18 Q Did;that statement by you' appear, in your judgment,. to 19 change the tone of the interview at all? .- 20 A s .(WITNESS MENDEZ)' What-do you mean by " tone of the lo . l 21 inte rview?" l . 22 0 Well, did they become more forthcoming, less 23 forthecming, more talkative, less talkative? L I think, except for one or two, they 24 A (WITNESS MENDEZ) () 25 were all very cooperative. Tha t is, they provided -- Sonntag Reporting Service, Ltd. Geneva, Illinols 60134 (312) 232-0262 l l

10547 f^) V 1 tried to provide as much information to me as they 2 could -- 3 0 When you say -- 4 A (WITNESS MENDEZ) -- before I said that and after I said 5 th a t. 6 I just wanted to assure them of that fact, of i 7 tha t. 8 (Indicating.) 9 Q All right. 10 I think you said, except for one or' two, they were 11 talkative and helpful --

  ,m  12      A (WITNESS'MENDEZ)                 Yes.

13 0 -- as far as you could tell? 14 Who were the one or two who were not? i. 15 A (WITNESS MENDEZ) I would say Kermit Williams, Gorman. 16 They obj ected to the f act that I even called them or 17 asked them questions. 18 0 What did Mr. Williams say to you? 19 A (WITNESS MENDEZ) It wasn' t -- well, their answers were 20 rather short. They never elaborated, they never 21 explained. i 22 Their answers were short, no, yes, and they seemed 23 to be in a hurry to get out. That is, to end the 24 interview. 25 Mr. Gorman, did he say anything to you to indicate (]) Q Sonntas_ Reporting _ Service, ce Ltd_, Geneva, Illinois 60134 (312) 232-0262

10548 O 1 specifically that he was annoyed at the fact that you 2 were asking these questions? 3 A (WITNESS MENDEZ) Well, ' he didn' t say . anything. It was 4 just his tone of voice.and his mannerisms and he seemed 5 to be in a hurry to leave. 6 Q Mr. Neisler, in the interviews that you conducted, were 7 the interviewees forthcoming in their responses to you? 8 A (WITNESS NEISLER) Yes. 9 (Indica ting . ) 10 Q Did you observe any who were not? 11 A (WITNESS NEISLER) No. , 12 JUDGE GROSSMAN: Excuse me, Mr. Mendez.

   .O   13                                     Mr. Rolan was very cooperative?

14 A (WITNESS MENDEZ) Very, very cooperative. 15 BY MR. MILLER: 16 Q Now, returning to the prepared testimony, Mr. Neisler, 17 you discuss that you reviewed trend analyses of the 18 Commonwealth Edison QA audit and surveillance report 19 findings and Comstock quarterly trend analysis reports. 20 I wanted to ask you what the Comstock quarterly j 21 trend analysis reports analyze; that is, what statistic j :22 were they trending? l 23 A (WITNESS NEISLCR) On those, they were -- the reports I

i 24 was looking at, how many inspections had been done, how 25 many -- how many had been -- items had been rej ected,

({} 1 i Sonntag Regor_TITnFis_ Geneva, I ting Service, Ltd. 60134

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__. . m [ 10549

 ;o i

1 how many- accepted and this sort of thing. ! 2 (Indication.) 3 Q Were these statistics that were specially prepared for 4 you? 5 A (WITNESS NEISLER) No. These were the routine reports 6 submitted by Comstock to Commonwealth Edison. 7 Q Do you know the documents that formed the basis for the 8 Comstock quarterly trend analysis reports? 9 A (WITNESS NEISLER) No. 10 0 All right. Let's move on. 11 Now, just so that we can establish the correlation 12 between the prepared testimony and Staf f Exhibit 17, I 13 take it, Mr. Neisler and Mr. Mendez, that the same ! 14 concerns that you identify. in your prepared testimony -- j 15 that is, Concern 1, Concern 2 and so on -- correspond to 16 the same concerns that are _ identified beginning on Page 17 11 of Staff Exhibit 17; correct? 18 A (WITNESS NEISLER) Yes. i 19 Q All right. 20 Then Concern 2 deals with the qualifications of a l 21 Comstock QC supervisor, Mr. Saklak. 22 Can you identify the individuals who made that 23 allegation? ! 24 A (WITNESS NEISLER) That particular allegation, no, I f 25 can't. (]) S.o n n_t a g_Re po r_t i ng_S e_Irine_,_Lt.d . Geneva, Illinois 60134 l (312) 232-0262

10550 1 Q Can you, Mr. Mendez. 2 A (WITNESS MENDEZ) Who made that particular allegation? 3 Q Yes, sir. 4 A (WITNESS MENDEZ) Oh, it was Rick Snyder; but I think 5 half the QC Inspectors had this particular concern. 6 0 Okay. 7 Is this another concern that you investigated with 8 each of the individuals that you interviewed? 9 A (WITNESS MENDEZ) Yes. 10 0 All right. 11 Concern 3, which begins at the -- the questions and fs 12 answers begin at Page 21. U 13 Again, can you identify the individuals who made 14 this allegation. , 15 I'll take Mr. Neisler first, since both of you are 16 identified as investigating this. 17 A (WITNESS NEISLER) For that one, the people who I 18 Interviewed that this came from would have been -- 19 Peterson, Holley and Bowman, I think, were the three 20 primarily involved here -- 21 (Indicating.) 22 Q Mr. Mendez -- 23 A (WITNESS NEISLER) -- and, of course, I also -- I 24 also -- the allegation itself -- I mean the initial {} 25 investigation of this came from this April 5th letter Sonntag Reporting Service, Ltd. - Geneva, Illinois 6'0134 (312) 232-0262

10551 v 1 from Weil to Norelius. 2 Q Mr. Mendez, can you identify any other individuals who 3 were specifically responsible for this allegation? 4 A (WITNESS MENDEZ) I believe Snyder, Bossong, Wicks _made 5 similar statements like this. 6 0 All right, sir. 7 Your questions and answers regarding Concern No. 4 8 in Allegation 0072 are found at Page .72 of your prepared 9 testimony, beginning with the Question and Answer 48. 10 Mr. Mendez, this is your responsibility. 11 Which of the individual QC Inspectors that you 12 interviewed made this allegation?- < V(~g 13 A (WITNESS MENDEZ) About 75 percent. 14 0 W ell, this was a rather widely-held comment by the 15 Inspectors that you interviewed. 16 A (WITNESS MENDEZ) Yes. 17 Q All right. 18 Now, your answer -- and it's Answer 50 -- states, 19 "However, I did locate, during my review of L. K. C. 20 Inspection Reports, an Inspection Report dated November 21 12, 1980, which documented the acceptance of 129 hangers 22 containing 1,215 welds." l 23 How did you go about locating that document, Mr. I 24 Mendez ? l { 25 A (WITNESS MENDEZ) It was a particular evening where I ({} l l _So n n t a.g _ R ep o tt i n g_S e rti c e ,_L td Geneva, Illinois 60134 l (312) 232-0262 l

10552 l V 1 had free access to the vault. That is, Rick Martin was 2 there, and I had asked him to locate some documents for 3 me, so he kept going in the vault and coming back out 4 and showing me the stack of documents. 5 We found other people that had a great number of 6 welds on them, but this individual was unique only that f 7 there was no reinspection on his work. 8 (Indicating.) 9 Q When you say there was no reinspection on his work, no 10 reinspection by whom, sir? 11 A (WITNESS MENDEZ) Well, I knew there was reinspection 12 by -- that had been identified for Martin, for Yankitis J

-)

> 13- and for a few other Weld Inspectors. 14 That is, if I found sorething with 500 welds, that 15 really was not significant, only because I knew his work 16 was being reinspected by Commonwealth Edison or L. K. 17 Comstock. 18 (Indicating.) 19 0 Let me stop you right there. 20 How were you able to determine that Mr. Yankitis 21 and Mr. Martin and you said a few other Inspectors' work 22 in which they had documented a large number of welds on 23 a single Inspection Report -- 24 A (WITNESS MENDEZ) Well, no, no. () 25 0 Yes, sir. Let me finish my question. Sonntag Reporting Service, Ltd. Geneva, ilTi~n~61s 6~01~34 (312) 232-0262

                                                                                           -10553
 ,A

(_/ 1 How were you able to determine that that work had 2 been reinspected? 6 3 A (WITNESS MENDEZ) During the review of the records, . I 4 collected each person's -- well, during the course of my 5 inspection, I ran across some of the NCR's or ICR's and 6 QA audits performed by Commonwealth Edison QA, so I knew 7 that certain individuals' work was being inspected. 8 (Indicating.) 9 Q Now, for the individual who signed the Inspection Report 10 dated November 12, 1980, however, you were unable to 11 locate any indication of a reinspection; is that 12 correct? s 13 A (WITNESS MENDEZ) Yes, that's correct. 14 0 Were you able to determine whether there had been a 15 Pittsburgh Testing Laboratory overinspection of a 16 portion of this Inspector's work? 17 A (WITNESS MENDEZ) Yes. 18 Q Had there been such an overinspection? i 19 A (WITNESS MENDEZ) Yes. 20 Q Now, in response to a previous question, I think you

21 said that you asked Mr. Martin to get you records and so 22 on. 23 That's Mr. Rick Martin, the Level II QC 24 Inspector -- () 25 A (WITNESS MENDEZ) Yes. Bonntag_Repotting_ Service,_Ltd. Geneva, Illinois 60134 (312) 232-0262

I

                                                                                                                  ~10554 O

1 0 -- employed by Comstock at the time? 2~ He was present at the vault on this evening when 3 you did this review of records? , 4 A (WITNESS MENDEZ) Yes, he was, yes, he was. 5 Q Did Mr. Martin -- did you tell -- what did you tell Mr. 6 Martin? , 7 A (WITNESS MENDEZ) , That I was looking for Irv DeWald's 8 checklist with 1,100 welds. 9 Q Had Mr. Martin -- had you previously interviewed Mr. 10 Martin on this subject? 11 A (WITNESS MENDEZ) Yes, I did. , 12 Q Had he been one of the Inspectors who had mentioned Mr. 13 DeWald's 1,000 weld checklist? 14 A (WITNESS MENDEZ) Yes. 15 Q Were you able to give Mr. Martin any other means of 16 identifying where this checklist might be found in the 17 vault? 18 A (WITNESS MENDEZ) Well, he knew the vault better than I 19 did. That is, I told him the time period between '81, 20 '82, which was the time that Irv DeWald was a QC 21 Inspector. 22 Q Did Mr. Martin have any ideas of his own that he 23 communicated to you as to where the inspection checklist 24 might be found? () 25 - A . * (WITNESS MENDEZ) Martin is knowledgeable in what plant Sonntag Reportijn Service, Ltd.

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I 10555 1 areas -- or what areas in the plant were inspected at 2 what particular time. 3 (Indicating.) 4 Q And how did he use that knowledge, if he did, in records 5 review? 6 A (WITNESS MENDEZ) He knew the series of number drawings 7 and those -- on a particular series of drawings, numbers 8 that S & L gives; knew that that particular drawing 9 would have to be inspected in '81, '82 or '83, so he was 10 generally knowledgeable in that area. 11 (Indica ting . ) 12 Q And did he bring out documents for you to look at?. 13 A (WITNESS MENDEZ) Yes, he did. 14 Q About how much time did you spend with Mr. Martin? 15 A (WITNESS MENDEZ) About five hours. 16 Q And did you find any of the checklists signed by Mr. 17 Dewald in which there was more than a thousand welds 18 inspected on that checklist? 19 A (WITNESS MENDEZ) I think I did find one with just about 20 a hundred welds on it. l 21 Q Just a hundred welds? 22 A 120, something like that, 150. 23 0 All right. 24 Did you ever, in the course of this five-hour 25 review, see one that was signed by Mr. DeWald that had (]) j So nn t ag _.R e po r_ti ng_S erv_ic e , _Ltd . Geneva, Illinois 60134 (312) 232-0262

l 10556 1 approximately 550 welds recorded on a single checklist? 2 A (WITNESS MENDEZ) No, I didn't. 3 Q At the end of this five-hour session, did you call it 4 quits or did you come back another time to continue the 5 review? 6 A (WITNESS MENDEZ) I stopped after about five hours. It 7 was 10:00 o' clock at night, so I stopped. 8 Q All right, sir. 9 Did you ask Mr. Martin to continue the sesrch, if 10 he could? 11 A (WITNESS MENDEZ) No, I didn't. 12 Q Now, Mr. Neisler, I'd like to go on to Concern No. 5, 13 which is the subject of Question and Answer 51, 52 and 14 following on Page 23 of the prepared testimony. 15 This is the instance in which I think you testified 16 earlier that said that QC Inspector Rissman was the 17 individual who was in the record vault for the sole 18 purpose of closing Non-Conformance Reports? 19 A (WITNESS NEISLER) Yes, this was Rissman. 20 0 Pardon? 21 A (WITNESS NEISLER) Yes, this was Rissman. 22 Q And the name of the QC Inspector who supplied this 23 information? 24 A (WITNESS NEISLER) llolley.

    /~   25   0    All right.

(h > . Sonntag Reporting Service, Ltd. Geneva, I1TlnWis 601'f4 (312) 232-0262

10557

 <x k.

1 Well, at the top of Page 24 you say that you 2 discussed the issue with the Comstock QC Manager and the 3 Comstock site QA Manager. 4 Could you identify those individuals for the 5 record? 6 A (WITNESS NEISLER) That would have been DeWald and 7 Seltmann. 8 Q All right. 9 Now, I take it that the paragraph that starts two 10 lines down from the top of Page 24, the alleger referred

11 to there is Mr. Holley? , 12 A (WITNESS NEISLER) That is Holley. 13 Q All right. 14 And in the following paragraph, your interview with 15 the other individual, that's Mr. Rissman; correct? 16 A (WITNESS NEISLER) That was Rissman. 17 Q Was Mr. Rissman still employed by L. K. Comstock at the 18 time that you interviewed him? 4 19 A (WITNESS NEISLER) He was not on site. I interviewed 20 him, but I didn't ask him who he was working for. 21 Q All right, all right. 22 The last paragraph on that page states that you 23 examined the Non-Conformance Report log. 24 Could you describe for us what your examination of () 25 that NCR log consisted of ? Sonntag_ Reporting _Serylce,_Ltd. Geneva, Illinois 60134 (312) 232-0262

l i 10558 i i Q N/ 1 A Just going down a list of NCR's that had been closed out 2 during that time frame and seeing how many had been 3 closed out by Rissman -- 4 (Indication.) 5 Q All right. 6 Were you -- l 7 A (WITNESS NEISLER) -- and I didn't find any that had 8 been closed during the time that he was supposed to be 9 in the vault. l 10 This was back in the fall of -- late '84. i , 11 Q Were you able to establish the precise time period when l (s 12 Mr. Rissman was assigned to the vault project? l 13 A (WITNESS NEISLER) No. That's why I went -- I think he 14 said -- if I recall, he was supposed to have been there 15 in November, I believe, and so I went about two weeks on l l 16 either side to then just give it some overlap. 17 Q All right, sir. 18 Turning to Page 25 of the prepared testimony, Mr. 19 Neisler, there's a reference to your responsibility for 20 investigating Concern No. 6 in Allegation 0072. 21 I'd ask you to identify the QC Inspectors who made 22 the statement regarding Quality First. 1 23 A (WITNESS NEISLER) Those Inspectors I -- that l 24 particular allegation I got from this -- this one March () 25 29th document, where the individuals were not Sonntag Reporting Service, Ltd. G6neva, IrlIn61F~60134 (312) 232-0262 l

10559

    ~N (V

1 identified. Just he was another individual. 2 Q So you never were able to identify that person? 3 A (WITNESS NEISLER) The person I;did not identify. 4 Q In the course of your interviews, did any of the 5 Inspectors indicate to you that Quality First had not 6 given them any satisfaction in responding to theit 7 conce rns ? 8 A (WITNESS NEISLER) They -- well, at the time I was 9 there, of course, they had received a response from 10 Quality First, but they had felt that it took too long 11 for Quality First to get the job -- to get their 12 concerns answered and -- 13 Q So -- I'm sorry. 14 A (WITNESS NEISLER) -- but they had received their 15 answers three months before I got there or so, their 16 response from Quality First; and the only comments they 17 had were - "Well, they finally answered, but it took 18 them a long time to do it," is about the only -- the 19 only thing I got from them. 20 Q Was this a comment that was made by more than one 21 Ins pector ? 22 A (WITNESS NEIBLER) Well, when I asked -- when I asked 23 the people I was talking to, as I interviewed, had they , 24 had any response f rom Quality First themselves or () 25 whether they had -- no, they felt that their response 1'

                                                 .So n n t a g . Ile po r t i n g _S e ry i c.e , _L t d_,

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10560 () G' I was timely, they always -- you know, they said they 2 didn' t think so was about it. 3 0 Mr. Mendez, did you, in the course of your interviews 4 with Inspectors, ask them about their dealings with 5 Quality First? 6 A (WITNESS MENDEZ) It's one of the questions I had on my 7 list. 8 Q And could you identify any Inspectors who stated to you 9 that they had spoken to the Braidwood Quality First team 10 without gaining any satisf actory response to their 11 concern? 12 A (WITNESS MENDEZ) I'm only guessing, but I think Martin, 13 Rick Snyder, Bossong. 14 But they generally had this impression about

15 Quality First.

16 Q Now, Mr. Neisler, still on Page 25, you are the person 17 who investigated concern 7 in Allegation 0072, and, 18 againi this is taken from the documents that have been 19 admitted into evidence as Intervenors' Exhibit 42 and 20 42A. 21 Who was the Inspector who expressed this concern? 22 A (WITNESS NEISLER) That was Perryman. 23 Q All right, sir. 24 Now, Mr. Mendez, you were involved in the 25 investigation of Concern No. 8 and it's the subject of ('))

\_

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10561 m (U ^ ' 1 testimony on Page 26 of the prepared testimony. 2 First of all, can you identify the QC Inspector? 3 A (WITNESS MENDEZ) Rick Martin. 4 Q Now, Answer 61, Mr. Mendez, states the substance of the 5 allegation. 6 Is thin what Mr. Martin told you when you 7 interviewed him on this subject? 8 A (WITNESS MENDEZ) Yes. 9 Q Well, on the very next page, Page 27, you say, "I 10 discussed with the alleger the reason for the transfer 11 to the vault," and the last sentence in that paragraph 12 says, "He denied being singled out by Comstock 13 management for having gone to the NRC Resident 14 Inspectors' office." 15 My question to you is: 16 Did he make the statement that's found in Answer 61 17 in the same conversation with you that he made the 18 statement that's found in the last sentence on the first 19 full paragraph on Page 27 in Answer 627 20 A (W7TNESS MENDEZ) No. The answer to Question 61 comes 21 f rom the Chuck Well memos, Well-Schulz-McGregor memos. 22 Q That is what we have had marked as -- or what's been 23 received in evidence an Intervenors' Exhibit 42 and 42A? 24 A (WITNESS HENDEZ) Yes. () 25 Q All right. So n n t a g_R e po r: t i n g_S e r yl.c.0, _L t d . ,_ Geneva, Illinois 60134 (312) 232-0262

10562 ,1 And what appears on Page 27 is the. result of your 2 interview with Mr. Martin; is that correct? 3 A (WITNESS MENDEZ) . Yes. 4 JUDGE GROSSMAN: Excuse me. 5 In light of some testimony we heard, I'm not 6 exactly sure what this sentence means here on Page 27, 7 he denied being singled out by the L. K. C. managemen t 8 for having gone to the NRC Resident Inspector's Office. 9 Are you saying he denied being singled out or he 10 denied being singled out because he went to the NRC 11 Resident Inspectors' office? Which is it? 12 A (WITNESS MENDEZ) The way he explained it to me, the 13 only reason he was moved is because his certifications 14 had been pulled by Braidwood. That part of his removal 15 from one part of the office was as a result of that and 16 not because -- because Comstock knew that he had gone to 17 talk to the Resident. 18 (Indicsting.) 19 JUDGE GROSSMAN: Wel}, now you've put your 20 finger on another problem here. 21 When you say he was moved from one part of the 22 office to another part, it doesn't seem to me as though 23 you addressed this problem in here. , 24 You seem to be talking about his being moved from 25 the field to the office. i Sonntag Reporting Service, Ltd. ' Gineva, IllTnois 60134^ (312) 232-0262

10563 O v 1 Now, we've heard -- and I believe you may have been 2 present in the hearing room when this entire matter was 3 characterized dif ferently by Mr. Martin. 4 One being that it wasn't a move from the field to 3 the office but from one part of the vault to another; 6 and, secondly, that it was not because he had visited an 7 NRC officer, but because an NRC officer had visited him. 8 Now, you are aware of that from the testimony, 9 aren't you? 10 A (WITNESS MENDEZ) Yes. 11 JUDGE GROSSMAN: Were you aware of that 12 characterization at the time you investigated the O 13 complain t? r 14 A (WITNESS MENDE") I don't believe so. 15 I think I should restate that.

16 The question I did ask Rick Martin was whether he 17 was being transferred from the field inspections to the 18 job in the records vault and not that he was moved from 19 outside the vault into the inside. I think his --

20 JUDGE GROSSMAN: Okay. 21 A (WITNESS MENDEZ) -- particular concern was just moved 22 out of field inspections into the vault. 23 JUDGE GROSSMAN: Okay. So you concentrated 24 on that concern. That takes care of one of the (} 25 problems. So n n t a g ._ R e po r t i ng_S c ry i c.e , _L t d . Geneva, Illinois 60134 (312) 232-0262

10564 C/ 1 Now, the other problen. is that he denied being 2 singled out for any reason or did you only ask him 3 whether he was being singled out for having gone to the 4 NRC Resident Inspectors' office? 5 A (WITNESS MENDEZ) Well, I believe the question was more 6 general. 7 I asked him if he felt Comstock was picking on him 4 8 or singling him out, and at the time he said no, that he 9 didn't think so on that particular day. 10 J00GE GROSSMAN: Okay. 11 MR. MILLER: Thank you. g-) 12 BY MR. MILLER:

13 Q Mr. Neisler, you are identified on Page 27 of the 14 prefiled testimony as having investigated Concern No. 9. 15 Can you identify the Inspector who made the 16 allegation that's the subject of that concern? 17 A (WITNESS NEISLER) Not at this time, I can't. 18 0 Mr. Mendez, can you? 19 A (WITNESS MENDEZ) Most of them. Most of them felt that 20 a person could not be proficient if he had multiple 21 certifications. 22 0 I'm sorry? 23 A (WITNESS MENDEZ) Most of the -- ) 24 0 Most of them felt they could be proficient? 25 A (WITNESS MENDEZ) Could not. (v~') i Sonntag Reporting Service, Ltd. G enWa, IlTI'noiW 6 013'4 -~~~ (312) 232-0262

10565 2% 1 0 Could not be proficient if they had multiple 2 certifications. 3 All right. Now -- 4 A (WITNESS MENDEZ) I'd like to say that was one of the 5 questions I asked -- it was a particular question -- and 6 most of them said yeah -- yes to that question. 7 Q You say they said yes? 8 A (WITNESS MENDEZ) It was a leading question, "Do you 9 think anybody can be made proficient in a particular 10 inspection if he had multiple certifications." 11 Q And the answer to that question? 12 A (HITNESS MENDEZ) Was generally yes. As a general rule, 13 people felt that a person couldn't be proficient if he 14 had multiple certification. 15 MR. GUILD: Could not? 16 A (WITNESS MENDEZ) Could not. 17 BY MR. MILLER: 18 0 I guess I'm a little confused. 19 Why would they answer yes to the question if they 20 felt -- 21 JUDGE GROSSMAN: I was, too, but you must 22 have phrased the question in the negative, and they 23 answered affirmatively to that. 24 Dut go ahead, clarify. () 25 BY MR. MILLER: Sonntag_ Reporting _ Service,_Ltd, ! Geneva, Illinois 60134 (312) 232-0262

10566 3 (v 1 Q All I want to know is: 2 As a result of the interviews that you conducted, 3 did you understand that the Inspectors were concerned 4 that they were not able to remain proficient in all the 5 areas in which they were certified? 6 JUDGE GROUSMAN: Well, let me state it. 7 I understood you to answer three times that most of 8 the Inspectors were of the opinion that they couldn't 9 remain qualified in multiple disciplines. 10 Is that a correct understanding? ! 11 A (WITNESS MENDEZ) I think we're talking about a 12 multiple cert -- multiple certification as it relates to 13 the quality of a person's inspection. 14 JUDGE GROSSMAN: Yes, yes. 15 A (WITNESS MENDEZ) Okay. 16 JUDGE GROSSMAN: Okay. My terminology was 17 faulty. I'm sorry. 18 MR. MILLER: No, no. I think we still need 19 some clarification. 20 BY MR. MILLER: 21 0 Could you recite for the record the question that you 22 posed to the Inspectors on this subject? 23 A (WITNESS MENDEZ) I think the question was whether 24 having multiple certifications would keep an Inspector (} 25 from being proficient. That is, would he still be able Sonntag Rep ~orting Service, Ltd.

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10567 O 1 to identify quality problems in the field if he had too 2 many? 3 Most felt that if he had too many certifications, 4 that his -- the degree of inspections would -- would 5 fall; that he wouldn't be able to identify all the 6 problems. 7 (Indicating.) 8 0 Well, all right. 9 Now, in Answer 65, the second sentence says, "The 10 Inspectors I interviewed told me that they could 11 maintain the quality of their inspections in all the 12 areas in which" -- I think the word should be "they" -- 13 "in which they were certified." 14 Is tha t -- 15 A (WITNESS MENDEZ) Well, they all felt that they had just 16 about the right number of certifications for themselves, 17 but for someoody else it was different. 18 Q Oh, I see. 19 And what was the maximum number of certifications 20 that any Inspector that yon interviewed had, if you 21 recall? 22 A (WITNESS MENDEZ) Pour. 23 JUDGE GROSSMAN: They felt that they are 24 entitled to that 50 cents an hour for each 25 certification, but the others weren't; is that the gist (]) Sonntag_ Reporting Stryice,_Ltd. Geneva, Illinois 60134 (312) 232-0262

10568 [~) x/ 1 of it? 2 A (WITNESS MENDEZ) That's right, that's correct. 3 MR. GUILD: Well, I understand that the 4 Question and Answer 65 are Mr. Neisler's question and 5 answer, not Mr. Mendez' . 6 A (WITNESS MENDEZ) I had the -- I had the initial crack 7 at all these allegations. John finished up on the ones 8 that still needed some work on them. 9 (Indica ting . ) 10 BY MR. MILLER: 11 0 Well, Mr. Neisler, you are the identified individual who 12 is responsible for Answer 65. 13 Could you describe for us what the substance of the

14 responses that you got from the question were?

15 A (WITNESS NEISLER) The responses I got to the question 16 is "Yes, I can, but I'm not so sure about these other 17 people." l 18 0 Did you then go and check the other identified -- well, 19 did they identify the other individuals by name? 20 A (WITNESS NEISLER) They did not identify the other l 21 individuals; just "Some people can't, but I can."

22 0 What review, if any, did you make of the other I 23 Inspectors' certifications?

24 A (WITNESS NEISLER) Well, actually, reviewing the i i (~) 25 certifications, all I did is, I asked each one of the V i Sonntag Reporting Service, Ltd. ! ~GoneVa, ~Illino'la ~60134 ~ ~ j (312) 232-0262

10569 O 1 people I interviewed how many he had -- he or she. 2 Q Did any of them have more than four? 3 A (WITNESS NEISLER) There was one individual -- I don't 4 remember which -- had eight. 5 Q Did you ask that individual the question? 6 A (WITNESS NEISLER) That individual did not think he had 7 too many, but he wasn't sure about some other people. 8 (Laughter.) 9 BY MR. MILLER: 10 Q Now, you say that you verified that Comstock provides 11 refresher training for any Inspector who feels the need

gg 12 for more training. O '13 How did you do that? 14 A (WITNESS NEISLER) I reviewed the training records on 15 the people, my monthly review. 16 As I went to the drawer where they were, I picked 17 out a handful here and a handful there and I looked 18 through, and the people there had refresher training on i 19 their records. 20 The other is: I verified that -- as I say in the 21 testimony, that they did have posted on the bulletin 22 boards all the latest changen to the procedures. 23 (Indicating.) 24 Q All right. () 25 A (WITNESS MENDEZ) I asked each one whether they had Sonntag_Repor. ting Service,_L_td, Geneva, Illinois 60134 (312) 232-0262

10570 0 1 ever been denied any additional training. , 2 Q And what response did you get to that question? , 3 A (WITNESS MENDEZ) Not a single person said he or she was 4 donied any additional training. ! 5 Do you know if any of them asked for additional t Q 6 training, the Inspectors you interviewed?

                  -7   A (WITNESS MENDEZ)     I believe Julie Bullock did. She got     !

8 the training. 9 Q I'd like to return for just a minute -- I'm sorry to 10 jump around -- but there was an earlier allegation' that 11 I asked you about -- it was Concern No. 3 -- that was 12 the joint responsibility of both Mr. Mendez and Mr. ! 13 Neisler, and that was the allegation about Mr. Saklak, 4 14 who was constantly intimidating and harassing QC l 15 Inspectors. < 16 I think you stated that you inquired of all the QC j 17 Inspectors with respect to their dealings with Mr. 18 Saklak; is that correct?

19 A (WITNESS MENDEZ) Yes.

20 Q All right. 21 Did each Inspector that you interviewed state that , ) i 22 Mr. Saklak was constantly intimidating and harassing the 23 Inspectors? I ! 24 A (WITNESS MENDEZ) Some of the QC Inspectors felt Saklak I 25 was intimidating the QC Inspectors. Not all of them i I i i Sonntag Reporting Service, Ltd. l Geneva,~I1Tlniis 6013'4 : l (312) 232-0262

10571 p)

\-

1 did. 2 0 Was there any individual. who initially told you that -- 3 or who you initially believed, on the basis of your 4 document review, had a problem with Saklak but who later 5 indicated to you that they did not? 6 A (WITNESS MENDEZ) I think Mustered was the one, 7 Mustered. > 8 0 What did Mr. Mustered tell you? 9 A (WITNESS MENDEZ) Well, the questions were more of a 10 general type, whether he felt Saklak was intimidating, 11 harassing him, and if he said yes, I would have asked 12 him the next question, which would be, "Has he harassed 13 you? Have you accepted discrepant work based upon his 14 intimidation and harassment? Do you have any problems 15 with him now," and that sort of thing? 16 0 What were Mr. Mustered's responses to those questions? 17 A (WITNESS MENDEZ) As I recall, he said at one time he 18 did have a problem, but he didn't have a problem with 19 him anymore. 20 (Indicating.) 21 JUDGE GROSSMAN: Excuse me. 22 I take it Mr. Mustered was one of the original 23 eight that you had filed the list before -- 24 A (WITNESS MENDEZ) 12. 3

 !(])   25               JUDGE GROSSMAN:              One of the original 12.

i So n n t a g _R e po r.t i ng_Se ry_i ce ,_Lt d . Geneva, Illinois 60134 (312) 232-0262

10572 (~'s ! \) 1 Okay, fine. And.not one of additional four? 2 A (WITN"SS MENDEZ) That's right. 3 JUDGE GROSSMAN: Okay. There's two groups. 4 So he makes the 12th I think we have on the 5 original list, and we were only missing the two of the 6 original four? 7 A (WITNESS MENDEZ) Right. 8 One thing I'd like to mention: It's been pointed 9 out that I didn't limit myself to the 16 QC Inspectors. 10 The 16 are only'significant only because I asked them 11 nearly the came questions. I had a list of 350 7- 12 questions I asked all 16. 13 There were other Inspectors I spoke to during the 14 course of my inspection, and'one was Julie Bullock, and 15 a few others who I never asked their names. 16 JUDGE GROSSMAN: Okay, fine. 17 But Mr. Mustered wac the missing 12th man? 18 A (WITNESS MENDEZ) Yes, he's one of the 12. 19 MR. MILLER: Thank you. 20 BY MR. MILLER: 21 Q Now, I'll try and go back in order. 22 And the next one, Mr. Mendez, is apparently your 23 responsibility . It's Concern No. 10. That's the 24 subject of testimony beginning on Page 28. (} 25 Pirot of all, can you identify the Inspectors who Sonntag Rep ~orting Service, Ltd. dineva, 11Thi61'6 60134

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10573 (') V 1 made the allegation about the selection of Lead QC 2 Inspectors? 3 A (WITNESS MENDEZ) Basically the same people that had 4 concerns : Snyder, Bassong, Wicks. Stout may be another 5 one. 6 Q Now, did they identify the Lead QC Inspectors who had 7 purportedly been selected for their willingness to sign 8 off NCR's or ICR's? 9 A (WITNESS MENDEZ) I believe they gave me names, but I 4 10 can't recall any at this time.

11 Maybe Nemeth and Phillips.

12 Q All right. 13 Did you go and talk to Mr. Nemeth and Mr. Phillips i 14 about this? 15 A (WITNESS MENDEZ) I think I did talk to Nemeth. 16 JUDGE GROSSMAN: Excuse me. 17 Those were the only two names or the only two of 18 the ones that you can now recall? 19 A (WITNESS MENDEZ) Those are the only two that I can

20 recall.

21 JUDGE GROSSMAN: Okay. 22 BY MR. MILLER: l 23 Q At the top of Page 29, you say that you reviewed the NCR i j 24 log book and the ICR log book, and I represent to the (} 25 Board that we've identified a portion of the ICR log as l Sonn tag _ReRorling se rv_i_c e,_L td . l Geneva, Illinois 60134 f (312) 232-0262

5 _ 10574

       /   \
     -U.

1 Applicant's Exhibit 29. i 1 2 What were you looking for when you reade that 3 review, Mr. Mendez ? 4 A (WITNESS MENDEZ) Well, at the time I had a list of Lead 5 Inspectors. 6 Byi looking at the ICR/NCR log, I could determine 7 wheA.her a particular Lead -- a.particular person who had 8 become Lead had previously signed off a great number of 9 NCR's or ICR's. That is, if he signed of f more than, i N+ <

                    ~10.\                        say, for example,10 in .one day, that would be 5      11                           significant, although I never Noand anybody that signed 12                          off more than maybe 3, 4 or 5.

13 (Indicating.) 1.4 Q Okay. 15; of the individuals that you found who had signed 7

                 ' 16              ,
                                                 'of 'f th r e e, four or five in one day, were they 17                          individuals who were subsequently selected as Lead t

18 Inspectors? i 19 . A (WITNESS MENDEZ)- Yes; but that's not uncommon to sign j 20 of f that many NCR's or ICR's. 21 Q I guess I should ask the next question. [ 1 22 L Did you find instances in which individuals signed 23 off three, four or five NCR's a day and were not 24 selected as Lead Inspectors? L 25 , A (WITNESS;MENDEZ) Yes, yes.

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1 10575 h 1 Q All right. 2 Let me go on to Concern No. 11, which is the 3 subject of testimony beginning on Page 29. 4 Mr. Mendez, can you identify the Inspector who made 4 5 the allegations? 6 A (WITNESS MENDEZ) Concern No. 11? 7 Q Excuse me? 8 A (WITNESS MENDEZ) Concern No. 11? 9 Q 11, yes, sir.

10. A (WITNESS MENDEZ) Franco Rolan, Snyder.

11 Q All right. 12 Now, about three lines up from the bottom of the O 13 page, there's a sentence that begins, "Some of the QC 14 Inspectors told me," and so on. 15 Which Inspectors made that. comment to -you? 16 A (WITNESS MENDEZ) I believe all of them did. It's one 17 of the questions I asked. 18 Q Did any of them identify an instance in which they had 19 persuaded or attempted to persuade Comstock Engineering 20 to change its position on the disposition of an NCR? 21 A (WITNESS MENDEZ) There were some, yes. , 22 Q Did any of them represent to you that they had been 23 successful in persuading Comstock Engineering to change 24 its position? 25 A (WITNESS MENDEZ) As I remember, there may have been (} Sonntas_ Reporting Se rvice,_Ltd. Geneva, Illinois 60134 i (312) 232-0262

10576 O 1 some instances where that did occur. 2 Q All right. 3- Now, the answer to Answer 71 continues on over to 4 Page 30 and goes on to say, " A f ew of th e LKC QC 5 Inspectors did not feel comfortable .with a 'use-as-is' 6 disposition." 4 7 Can identify the Inspactors who made that 8 statement? 9 A (WITNESS MENDEZ) No, I can't; no, I can't. 10 Q Your testimony goes on to say, "NCR 1616 and," which was 11 changed this morning to, "ICR 2900 were provided as 12 e xam ples. " O 13 I don't want to mark these as, exhibits, but I'd 14 like to show you Comstock NCR's 1616 and 2900 and ask 15 you whether those are the documents that you reviewed in 16 connection with your investigation of this concern. 17 (Indicating.) 18 A (WITNESS MENDEZ) NCR 1616 was one that I reviewed. 19 Q All right, sir. 20 Would you take a look at .NCR 2900. 21 A (WITNESS MENDEZ) I don't know if I have ever seen NCR' 22 2900. 23 Q All right. 24 So it's your recollection that it's ICR 29007 (} 25 A (WITNESS MENDEZ) Yes. Sonntag Reporting Service, Ltd. Geneva, IITrnois 60134 (312) 232-0262

      . _ _ __ ._ _ ..__ ______. . _ . _ . _ ._ . _ . _ _ . _                                  _ _ . _ _ _    _._ . _ . _ - . ~ _ _ .

10577 /~'i () , 1 Q All right, sir. 2 You said that -- the testimony, Answer 71, ends 3- with the statement that you reviewed the NCR 1616 and 4 ICR 2900 and found the dispositions acceptable. . 5 How did you make the determination the dispositions 6 were acceptable? 7 A (WITNESS MENDEZ) It seemed I had just -- it seemed I 8 had the right -- that is, I had the right -- it went 9 through the chain of command. The identified problem 10 went through their QC/QA, through engineering and came 11 back. It seemed to have gone through the correct design gg 12 and review process. V 13 0 All right, sir. 14 A (WITNESS MENDEZ) The design and review process was 15 adequate and it seemed plausible that it was acceptable. 16 (Indicating.) 17 Q All right. 18 Turning now, Mr. Mendez, to Concern No. 12, which 19 is the subject of your testimony on Page 30: 20 Who was the individual who made the allegation that 21 if inspection quotas were not met, overtime was not 22 given to an individual? 23 A (WITNESS MENDEZ) I believe it was Herschel Stout and 24 Wicks that made a statement like this. 25 And this was based, again, on -- originally on the (]) Q Sonntaa Rep _orting Service,_Ltd. l Geneva, Illinois 60134 (312) 232-0262

10578 O 1 assertions that are found in the three memoranda that 2 were prepared by the Staff, two of them on March 29th 3 and one on April 5th, Intervenors' Exhibit 42 and 42A? 4 A (WITNESS MENDEZ) Yes. 5 0 All right. 6 Mr. Neisler, you are the individual who's 7 identified as investigating Concern No. 13 on Page 30 of 8 the testimony. 9 Who was the individual who made those allegations? 10 A (WITNESS NEISLER) This individual was unidentified in 11 the March 29th memo. 12 Q All right, sir. 13 Turning to Concern No. 14: 14 Again, this refers to the NCR and the ICR, and 15 we've already had testimony on that. 16 Do you recall who the individual was who made this f 17 allegation? 18 A (WITNESS NEISLER) This came from part of -- our l 19 Resident Inspectors, they didn't identify this as being 20 an allegation f rom one of the groups. It was part of 21 the list of things that they had identified in one of 22 their March 29th memos, and so it was treated as an f 23 allega tion. 24 Q Now, Mr. Neisler, continuing on Page 31 of.your 25 testimony, you are the individual who is responsible for (]} i l Sonntag Reporting Service, Ltd. Geneva, IIIInols 60134 (312) 232-0262

10579 (~)'i q 1 investigating Cencern 15. 2 Who was the individual who made that allegation? 3 A (WITNESS NEISLER) I don' t have tha t -- I don't know 4 the identity of that individual. I don' t know that -- 5 who made that allegation. 6 (Indicating.) 7 Q Excuse me? 8 A (WITNESS NEISLER) I do not know who made that 9 allegation. 10 (Indicating.) 4 11 Q The QC supervisor that was the subject of the g-) 12 allegation, was that person identified to you?

i 13 A (WITNESS NEISLER) That was Saklak. 14 Q 'Now, Answer 83 on Page 32 of the prepared testimons says 15 you found no evidence that the supervisor violated 16 procedures. 17 Would you describe for us how you made that 18 determination? 19 A (WITNESS NEISLER) In the training records that I had 20 reviewed, as I mentioned earlier, that I pulled out of 21 the drawer, I found no -- nothing in there that showed 22 me that Saklak had ever certified anyone in anything; 23 and I also found, by reviewing the procedure, that the 24 procedure -- that the procedure for certifying 25 Inspectors -- or qualifying Inspectors did not include (]) S o n n t a g _ R e p o r.t i n g _ S e rtire ,_L_t d_. Geneva, Illinois 60134 (312) 232-0262

10580

,#w

(_) I the supervisor. This was all done by training. 2 Q Well, did you review any on-the-job training records 3 which indicated one QC Inspector can provide training 4 for another QC Inspector? 5 A (WITNESS NEISLER) No. 6 0 What did you understand the words "that the supervisor 7 violated procedures" to mean? 8 A (WITNESS NEISLER) I understood it to mean that he was 9 either showing favoritism and certifying people to 10 higher levels or else he was showing discrimination and 11 not certifying other people. 12 (Indicating.) 13 Q All right, sir. 14 Turning to Concern No. 16, I think Answer 85 says 15 that it's an unidentified alleger that expressed the 16 concern. 17 Were you able to determine the source of the 18 allegation? 19 A (WITNESS NEISLER) No. 20 0 Mr. Mendez, were you? 21 A (WITNESS MENDEZ) No. 22 Q Now, turning to Concern No. 17, Mr. Mendez , can you 23 identify for the record the name of the person who made 24 the allegation? (} 25 A (WITNESS MENDEZ) Rick Martin. Sonntag Reportijn Service, Ltd. Geneva, ITlinRs 60134 (312) 232-0262

10581

  .o V

1 MR. MILLER: Your Honor, if I could have just 2 a second -- 3 JUDGE GROSSMAN: Sure. 4 MR. MILLER: -- I could very well be 5 finished. 6 I have no further questions. 7 BOARD EXAMINATION 8 BY JUDGE GROSSMAN: 9 Q Mr. Neisler, aren' t QC Inspectors required to write 10 ICR's or NCR's when they see discrepant work, even if it 11 isn't work that they are required to inspect? 12 (WITNESS NEISLER) Not normally.

   -)    A 13        If you mean is an electrical contractor QC required 14   to write an NCR on a civil or a mechanical contractor, 15   No.

1 16 Q No, no, no. 17 I'm speaking now of, let's say, a Welding Inspector 18 who sees that there are discrepant welds where he is i 19 working, even though he's not required to inspect those 20 welds. I 21 I'm not talking about some other company's work, 22 but work of his own company. 23 A (WITNESS NEISLER) Now, for his own company, yes, I 24 would say there; but if not for his own company, no. (} 25 (Indicating.) j Sonntaq Reporting Se rvi ce ,_.L td . Geneva, Illinois 60134 (312) 232-0262

10582

 /~T                                                                      4

(-) 1 Q Well, don't you think a QC Inspector would be reluctant 2 to tell you that he had seen discrepant work that he 3 hadn't written an NCR on? 4' A (WITNESS NEISLER) No. 5 0 You don't think he would be reluctant to tell you about 6 it even though he was required to write an NCR and 7 didn't? 8 A (WITNESS NEISLER) No, I don' t think he would. 9 Q Mr. Mendez, did you tell anyone in QC management -- or 10 anyone in Comstock management, other than QC, that Rick 11 Martin had spent 5 hours helping you try to locate Mr. 12 DeWald's 1,000 or more welds? 13 A (WITNESS MENDEZ) I had spoken earlier to Dick Bower, 14 the -- I think he's the vault supervisor. He's either 15 above vault supervisor or he is the vault supervisor; 16 and he had no problem with people in the vault helping 17 me out. 18 (Indicating.) 19 I just couldn't go physically inside the vault. I 20 was inside the -- the bench area, but I wasn't inside 21 the vault. I needed special permission for that; but as 22 long as somebody could get me the records, I had no 23 problem. 24 (Indicating.) () 25 Q But subsquent to Mr. Martin helping you out, did you Sonntag Reporting Service, Ltd. Geneva, IH Tnois 60134 (312) 232-0262

10583 l .

  - (:)-

1 ever have occasion to mention that to people in Comstock 2 management, that he had actually done that? 3 A (WITNESS MENDEZ) I don't think I mentioned it to 4 anyone. It was af terwards. 5 (Indica ting .) 6 Q Mr. Mendez, when you checked to see if any individuals 7 had signed 10 or more NCR's or ICR's -- had signed off 8 on them, dispositioned them, did you also check to see 9 if any individuals had signed 3, 4 or 5 NCR's or ICR's 10 in successive days, something like 3 or 4 days in a 11 reason with that number of ICR's or NCR's? 12 A (WITNESS MENDEZ) Yes, I did check for patterns to see 13 if -- if there was any one individual or individuals who 14 signed off a great many NCR's or ICR's. 15 JUDGE GROSSMAN: Why don't we take a 16 10-minute recess. 17 (WHEREUPON, a recess was had, after which 18 the hearing was resumed as follows:) 19 J UDG E GROSSMAN: Mr. Guild, your Cross 20 E xamina tion. 21 MR. GUILD: Judge, before we begin the Cross 22 Examination, I'd like to ask the Board to take a moment 23 to address some matters with respect to the recent 24 information that Staff has only now disclosed regarding 25 what appears to be Allegation RIII-86-A-0096. (}} S_onn_taa_ReRort_ing Se rvice, Ltd. Geneva, Illinois 60134 (312) 232-0262

i l 10584 l O 1 It's the stack of information with a transmittal 2 letter of August 11, 1986, distributed to counsel over 3 the morning recess. 4 I have not had an opportunity to examine this 5 material in any detail, only the most cursory review, 6 but it appears that it is not only relevant, but highly 7 pertinent to the subject of the Staf f's case and, 8 indeed, these entire proceedings. 9 It appears to be pecific allegations of . production 10 pressure again; morale problems again; harassment again; 11 specific workmanship identified or at least areas of g- 12 work identified. V) 13 I've been handed this document today. I'm being 14 asked to examine the two NRC Inspectors who are offered 15 by the Staff presenting the opinion that there's no 16 evidence of adverse work effects from harassment, 17 intimidation, production pressure. 18 Simply a cursory review of this document suggests 19 to me that they themselves are admissible and relevant 20 to the subject of these witness' testimony or, indeed, 21 at the very least, that they are reasonably calculated 22- to lead to the identification of admissible evidence. 23 Since, of course, the documents are subject to 24 protective order, I'm not going to discuss names, but I () 25 would suggest that the alleger identification sheet, Sonntag Regorting Service, Ltd. Geneva, illTnois 661~34 (312) 232-0262

10585 4 1 which is attached, indicates an individual whose name I 2 had never heard-of before, not only not a witness yet in 3 this proceeding, but not someone whose name has ever i 4 come to my attention personally. 5 I'm somewhat at a loss to know what exactly to say, 6 except that I don' t want to be understood as waiving any 7 rights that that party has by proceeding at this time 8 with the examination of these witnesses, and suggest, 9 frankly, that since these are the only witnesses who are-10 offered by . the Staff on the subject of the Staff's 11 conclusions, at least as to the general questions of 12 harassment and intimidation in this case, I see'the 13 distinct possibility that there may be further 14 examination. required of these witnesses at a time when I 15 have had some opportunity to prepare from the 16 newly-distributed information. 17 I'm disturbed that the Staff has not provided this

18 information earlier.

19 I can't conceive of a justification for not having 20 at least identified the existence of such information, 21 indeed, even if the Staff claimed some privilege for not 22 actually reproducing and disclosing the documents 23 earlier. 24 JUDGE GROSSMAN: Especially, wouldn't you () 25 say, Mr. Guild, referring to the allegation management SonntagJepo_rting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

10586 1 system sheet in here, which one of my fellow Board 2 members points out to me indicates that, as of June 5th, 3 it had already been determined that there ought to be a 4 Board notification, where we're over two months beyond 5 that point and we just get that notification? 6 If that slows the hearing up, well, that's 7 unfortunate, but certainly we're not going to allow an 8 untimely notification to slip through the cracks that 9 way. 10 If it should be heard, it will be heard. I 11 Okay. Mr. Guild, would you now proceed with your 12 Cross Examination. 13 MR. GUILD: Yes. 14 CROSS EXAMINATION 15 BY MR. GUILD: 16 0 Gentlemen, let me ask you first if you would turn to 17 Intervenors' Exhibit 42. That's the March 29, '85, 18 memos that were prepared by the site -- Braidwood site 19 Residents, Mr. McGregor and Mr. Schulz, on the subject 20 of the Comstock Inspector allegations.

        .21                     If you would, please, look at the last page of the 22              March 29th memo that is McGregor and Schulz to Warnick 23               and Weil. It has a paragraph that appears above the 24              names McGregor and Schulz.                The paragraph begins, "The            i 25               Resident Inspector called the Region for a conference

(]) Sonntag Reporting Service, Ltd. Geneva, IllTnois 60134 (312) 232-0262

          .                 _        _                                                  _ - - _               _. ~            _.    ._.. _ . _ _. _ ._-       .. _- _     __.m.

10587 l j (1) 1

                        -1                                                  call"; is that right?

2' Do you have that? 3 A (WITNESS NEISLER) Yes. 4 Q You have to speak up so that the Reporter can get you. 5 Do both you gentlemen have that before you? 6 A (WITNESS NEISLER) Yes. 7 A (WITNESS MENDEZ) It's here.

i. 8 Q All right, sir.

9 Now, I take it this portion of the document was , 10 available to you at the point where you -- first you, I 11 Mr. Mendez, were assigned to investigate the allegations 12 that -- to inspect to the allegations that you've i 13 testified to this morning, this afternoon; correct?

                   '14                                  A                    (WITNESS MENDEZ)                                    Yes.

]

;                  -15                                  Q                   All right, sir.

4 T 16 Mr. Neisler, did this portion of the document.come

17 to your attention when you were asked to take up

( 18 responsibility for this inspection? i 19 A (WITNESS NEISLER) I saw this document. Mr. Mendez had 20 it at Braidwood when I came to Braidwood. 21 Q All right sir. 22 Before you began your inspections? 23 A (WITNESS NEISLER) About the same time. j . 24 Q All right, sir. l i () 25 Now, Mr. Mendez, from your previous answers, I take l

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10588 (~h.

  ,v 1                           it that you conducted this inspection activity solo for

2. some months until Mr. Neisler joined you in August; is' 3 that right?

4 A (WITNESS MENDEZ) Yes, I did. 5 0 All right, sir. 6 And you did have this March 29th memo when you 7 first went to the site on April 30, 1985; correct? 8 A (WITNESS MENDEZ) Yes, I did. 9 Q Now, it then was certainly known to you what the written 10 recommendations had been of the site Residents, Mr. 11 McGregor and Mr. Schulz, who had heard the complaints 12 from the 24 Comstock Inspectors -- 13 A (WITNESS MENDEZ) Yes. . 14 0 -- embodied in the paragraph that I have shown you? 15 A (WITNESS MENDEZ) Yes. 16 Q And you were aware, of course, that McGregor and Schulz i 17 had both been assigned as Residents at Braidwood for 18 some time at the point when they heard these complaints? 19 Did you know that? 20 A (WITNESS MENDEZ) I know McGregor had been there awhile. 21 Schulz was there about a year. 22 Q About a year at the time? 23 A (WITNESS MENDEZ) Uh-huh. 24 Q Both Inspectors had had an opportunity, wouldn't you 25 aurmise, to have dealings with the L. K. Comstock (]) Sonntag Reporting Service, Ltd. ' Geneva, IITFnols 60134 (312) 232-0262

10589 1 Company, the electrical contractor? 2 A (WITNESS MENDEZ) I think so.

          .3                                         They are generally involved with all contractors.

{ 4 Q And they would have had contact over that time with the 5 Comstock quality control program and the Inspectors who l 6 worked on that program? 7 A (WITNESS MENDEZ) Yes. 8 Q And that they would be in a position, because of that 4 9 contact, better than you, to have evaluated the 10 appropriate course of action to take when they heard 11 these 24 Inspectors' complaints in March of '85? 12 A (WITNESS MENDEZ) I think at this.particular' time, yes. { I 13 Q Did you understand that Mr. McGregor and Mr. Schulz. 14 recommended that there be more or less im.aediate action 15 taken by the NRC.with respect to these complaints? 16 A (WITNESS MENDEZ)- On March 29th, I think that was my-17 understanding. l 18 Q All right, sir. 19 Did you understand that they recommended -- they, 20 McGregor and Schulz, recommended that an investigation 4 21 be undertaken of these complaints, and I use the word i 22 " investigation" to distinguish the response from simply 23 an inspection, but someone actually go out who had 24 investigative training and tools available to conduct an () 25 investigation of the complaints? Soont a g_ Rep o rAi ng_S e_ry_i c e ,_L t d . Geneva, Illinois 60134 (312) 232-0262

4 . 10590

     /~S l  V 1                                           Did you understand that was their recommendation?

2 A (WITNESS MENDEZ)' ' I can' t recall -- . 3 Q All-right.

- 4 A (WITNESS MENDEZ) -- that particular part.

5 Q Do you recall them recommending that someone take sworn-1 6 written statements -from the complaining QC Inspectors,- 7 for example? 1 8 A (WITNESS MENDEZ) I think I do recall them talking about 9 tha t, ,l + 10 Q All right,. sir. 11 Taking sworn written statements is consistent with

  - -                        12                                      an investigative approach, is it not?

13 A (WITNESS MENDEZ) Ye s . -- 14 Q And the NRC typically would take sworn written i 15 statements if they were conducting an investigation-as i i 16 opposed to merely an inspection? ! 17 A (WITNESS MENDEZ) Yes. 18 Q All right. 19 By " inspection," do I understand correctly that 20 would mean more or less a technical review conducted by i 21 engineers such as yourselves, Mr. Neisler and Mr. i 22 Mendez, as contrasted with an investigation conducted by 23 someone with law enforcement background? i j 24 A (WITNESS MENDEZ) Yes. (} 25 Q And you, of course, did not take sworn written ? Sonntag Reporting- Service, Ltd. I Geneva, f11Tnois 6~013 4 , (312) 232-0262

10591 1 statements from the QC Inspectors that you interviewed, 2 did you? 3 A (WITNESS MENDEZ) That's correct, we don't perform 4 investigations. 5 Q And, Mr. Neisler, you didn' t either, did you? 6 A (WITNESS NEISLER) No. 7 Q Now, you don't perform investigations? That'c not 8 within the scope of your duties, is it, Mr. Mendez ? 9 A (WITNESS MENDEZ) That's correct. 10 Q And Mr. Neisler? 11 A (WITNESS NEISLER) No. 12 Q All right, sir. 13 You both are trained as technical people; you, Mr. 14 Mendez, in the electrical area? 15 A (WITNESS MENDEZ) Yes. 16 Q And Mr. Neisler, what area is your specialty? 17 A General reactor inspection. 18 0 But of a technical character, Mr. Neisler? 19 A (WITNESS NEISLER) Normally, yes. 20 Q Normally yes? 21 A (WITNESS NEISLER) Yes. 22 Q All right, sir. 23 Both of you have conducted some allegations 24 inspections, though, haven't you? 25 A (WITNESS MENDEZ) Yes. (]). Sonn_ tag _Repotting_Servicoltd. , Geneva, Illinois 60134 (312) 232-0262

I 10592 ' 1 Q By " allegations," can you tell us what an allegation is 2 as you use it -- as the NRC uses it as a term of art? 3 Mr. Mendez, how about you? 4 A (WITNESS MENDEZ) I think it embodies any safety-related 5 concern that a QC Inspector has or anything that could 6 keep them from performing his duties fully. 7 Q I'm sorry. I didn't mean to interrupt. 8 An allegation could come f rom any source, could it 9 not? 10 A (WITNESS MENDEZ) Yes. 11 Q Not necessarily limited to a QC Inspector? fw 12 A (WITNESS MENDEZ) That's right.

13 Q But is it information that comes to the attention of the 14 Agency on which you act that relates to safety? 15 Is that the shorthand definition of what an 16 allegation is? 17 A (WITNESS MENDEZ) Most of the allegations we follow up 18 on. That is, almost any concern, whether it relates to 19 safety or not. 20 It's for us to decide whether it has any safety

21 significance later on.

         -22   Q          Fine.

23 Why don't you just tell me what you understand an 24 allegation to be as the term is used in NRC practice? i (} 25 A (WITNESS MENDEZ) Just any concern that relates to the Sonntag Regortijn Service, Ltd. Geneva, Yllinois 6~013~4 (312) 232-0262

10593 O 1 safety of a plant. 2 Q Mr. Neisler, do you concur with that? 3 A (WITNESS NEISLER) This is -- basically it's a concern 4 that an individual not within the NRC would have that i 5 could impact the safety of the power plant. 6 Q All right, sir. 7 And do I understand correctly that might -- that

;              8        would distinguish it from Inspector ---NRC Inspector-initiated matters that you conduct, either 9

( 10 because you are instructed to look at a particular area , l 11 or because, based on your training and experience, you (s 12 determine to initiate an inspection in a .particular 13 area? , 14 A (WITNESS MENDEZ) Yes. 15 Q All right, sir. 16 And these, indeed, were allegations that you were 17 getting, because they were brought to the Agency from ! 18 another source; in this case, the Comstock Inspectors? J

19 A (WITNESS MENDEZ) Yes.

i l 20 Q Now, both of you state in your testimony that you have j 21 conducted inspections of allegations in the past. > 22 A (WITNESS MENDEZ) Yes. 23 A (MITNESS NEISLER) Correct. 24 Q All right, sir. () 25 Both of you, in fact, have inspected allegations i Somntag_Renottlng_Selyicm _ Lid, i Geneva, Illinois 60134 (312) 232-0262

10594 LJ l against L..K. Comstock Company in the past, haven't you? 2 A (WITNESS NEISLER) I have. 3 Q Mr. Mendez, haven' t you?

,        4 A       (WITNESS MENDEZ)          Yes.

5 0 In fact, both of you conducted an inspection of l 6 allegations against the L. K. Comstock Company at the 7 Perry site -- 8 A (WITNESS MENDEZ) Yes. 9 0 -- is that right? 10 Involving allegations by Comstock Quality Control 11 Inspectors? f- 12 A (WITNESS NEISLER) Yes, I have. 4 13 Q Mr. Mendez ? 14 A (WITNESS MENDEZ) Yes. 15 Q Do you recall any allegations involving any of the same 16 persons who ultimately turned up to be supervisors at 17 the Braidwood site, allegations at Perry? 18 A (WITNESS MENDEZ) Yes. 19 A (WITNESS NEISLER) Yes. 20 0 And can you identify which supervisors you wound up 21 seeing again at Braidwood -- or hearing from again at 22 Braidwood? 23 A (WITNESS MENDEZ) Larry Seese. 24 0 What was the nature of the allegations against Mr. Seese 25 that you inspected to at Perry? (]} Sonntag Reporting Service, Ltd. Geneva, IT1Tn61s 60134 (312) 232-0262

10595

1 A (WITNESS MENDEZ) It was about Larry Seese's wadding up 2 some documents, throwing them away. 3 0 Was it a quality concern on the part of the Inspector? 4 A (WITNESS MENDEZ) The Inspector felt this was a quality 5 document. 6 We later determined it wasn't. It was not a 7 quality control document. 8 Q Did that reflect in the Inspector's concern that Mr. 9_ Seese was evidencing a lack of concern for quality by 10 that action? 11 A (WITNESS MENDEZ) I don't have the report, but I think 12 that was his concern, yes. 13 Q Mr. Neisler, do .you recall the incident? 14 A (WITNESS NEISLER) I recall the incident. I don't 15 recall -- I recall -- and I recall it's -- the 16 allegation was that Seese wadded up a -- wadded up a 17 document and -- in this case, I believe a work request, 18 and threw it on the floor, but I don't recall whether it 19 was a QC Inspector who made the allegation or if he was 20 an electrician. 21 0 All right, sir. 22 Now, I take it in the Perry example, as I see the 23 Inspection Report -- and it's Inspection Report 8421, 24 8419, May 9, 1985 -- you found no evidence of any 25 quality problems there, did you? Is that correct, no (]) i i Sonntag_RepottingJterri_ce,ltch Geneva, Illinois 60134 (312) 232-0262

10596 1 evidence of any quality problems there? 2 A (WITNESS NEISLER) I don' t remember if there were any 3 citations with that report or not. 4 Q Do you recall, Mr. Mendez ? 5 A (WITNESS MENDEZ) No, I don't, either. 6 Q I submit the reports reflect that there were no items of 7 non-compliance identified in that allegations 8 inspection. 9 JUDGE GROSSMAN: Well, you can show them the 10 document and ask them if that's the case. 11 MR. GUILD: That would be fine. 12 BY MR. GUILD: 13 0 I've got a transmittal of May 15, '85, and I'm showing 14 you the cover page. 15 (Indicating.) 16 And does that reflect that there were no items of 17 non-compliance identified? 18 A (WITNESS MENDEZ) Tha t's correct. 19 (Indicating.) 20 Q Now, of course, before you published your Inspection 21 Report in this case, you were aware of -- you already 22 conducted your Perry activities and had published the 23 report in that case, too? 24 A (WITNESS MENDEZ) Yes. (} 25 Q Did you make anybody within Commonwealth Edison Company Sonntag Rep ~orting Service, ~ Ltd. Geneva,~Il1Tnols 60134 (312) 232-0262

I 10597 1 1 U 1 or Comstock management aware of the fact that you had 2 conducted an allegations inspection at Perry of Comstock 3 QC matters, Mr. Mendez, Mr. Neisler? 4 A (WITNESS MENDEZ) No, I didn't. 5 Q Did anybody with Edison or Comstock ever ask you about 6 your Perry inspection? 7 A (WITNESS MENDEZ) No. 8 A (WITNESS NEISLER) No. 9 Q All right, sir. 10 Back to Intervenors' Exhibit 42, the March 29th 11 memo signed by McGregor and Schulz. f-- 12 The language I'm looking at reads, "It appears, at 13 first glance, with the information we have received, a 14 shutdown or some other aggressive action of the 15 electrical work may be necessary to establish the 16 quality of past work and the quality of the ongoing 17 work. The lack of action by CECO QA in this area needs 18 to be addressed along with CECO management's slowness or 19 inability to take corrective action. The Resident 20 Inspectors appraised CECO management last fall of the 21 problems in L. K. Comstock Quality Control Department." 22 All right. Now, again, Mr. Mendez, you were aware 23 of those statements by the site Residents and those 24 recommendations at the time you undertook your (} 25 inspection activities; correct? So n n t a g_R e po rt i ng_Sa rri_qe ,_Lt d . Geneva, Illinois 60134 (312) 232-0262

10598 7's . b 1 A (WITNESS MENDEZ) Yes. 2 Q And, Mr. Neisler, you learned of them later when you 3 undertook your inspection? 4 A (WITNESS NEISLER) That's correct. 5 Q Okay. 6 Now, let'me start with the last point first. "The 7 Residents note that they appraised Commonwealth Edison 8 Company management the previous fall" -- that would have 9 been the f all of '84 - "of problems with Comstock's 10 Quality Control Department. " 11 That fact is stated in this memo, Mr. Mendez. 12 Did you ask Mr. McGregor and Mr. Schulz to provide i ()- 13 you further information on that point? > 14 A (WITNESS MENDEZ) I'd been to the Resident -- I think I 15 ought to explain. 16 I'd been to Braidwood several times -- 17 Q All right. 18 A (WITNESS MENDEZ) -- and we, as Electrical Inspectors, 19 knew of the problems of L. K. Comstock, we knew their j 20 numerous corrective action programs, so I didn't think . 21 it was necessary to ask him about the problems in the 22 previous fall -- 23 Q All right. 24 A (WITNESS MENDEZ) -- of '84. {} 25 0 What problems -- both of you gentlemen have been present Sonntag Reporting Service, Ltd. Gerreva IlTinois-60134 (312) 232-0262

l 10599 3-Nw/ 1 during these ' proceedings almost as much as I have. i 2 You've heard a good bit of the testimony, have you 3 not, Mr. Mendez ? 4 A (WITNESS MENDEZ) Some, yes. 5 A (WITNESS NEISLER) Yes. 6 Q It may be a.little hard to sort out what you know now 7 from what you knew then, but let- me ask you: 8 At the time you undertook this inspection of May -- ) 9 rather, April of 1985, were you aware then that there 10 had been a previous backlog in inspection activities at 11 Comstock? 12 A (WITNESS MENDEZ) Yes. () 13 Q And were you aware of the extent of that backlog and 14 essentially when it had occurred or' peaked? 15 A (WITNESS MENDEZ) Well, the NRC raised our concern-in 16 the fall of '83 to Comstock, to Edison. 17 Q So you were aware of it in '83? 18 A (WITNESS MENDEZ) Yes. 19 Q And, Mr. Neisler, were you previously aware of backlog ( 20 problems when you started your inspection? 21 A (WITNESS NEISLER) No. 22 Q Mr. Mendez, were you aware of changes in management at 23 Comstock that had taken place in the past when you 24 undertook this inspection? {} 25 A (WITNESS MENDEZ) No, I wasn't. 4 Sonntag Reporting Service, Ltd. Geneva, II1Tnois 60TT4 (312) 232-0262

10600 1 Q You weren' t aware that Mr. Corcoran had replaced the 2 preceding QC manager, and Mr. DeWald, in turn, replaced 3 Mr. Corcoran? 4 A (WITNESS MENDEZ) No, I wasn't.

                                                     ,              *'t 5              What I did know is that ,a'f te'r November, 1983, 6         Comstock did increase their staff, QC, Quality Control 7         Inspectors                                                                         ,

, 8 Q You were aware they 'added staff in the QC Department? 9 A (WITNESS MENDF;Z). Yes, I, was aware of that. 10 0 Were you aware of deadlines imposed by Commonwealth', 11 Edison Company on Comstock 'to' complete the backlog of

     -      12         inspections, for one, Mr. Mendez, at the time you
    '~#

13 started your inspection? 14 MR. MILLER: I'm going to obj ect to the 15 question. ,, _ 16 I don't believe that theres any testimony that 17 establishes deadlines, r 18 JUDG E GROSSMAN: Change the question to any 19 deadline imposed by Edison. 20 MR. GUILD: I will be happy to do that, Mr. 21 Chairman. 22 I believe that if the Applicant's attorneys are 23 allowed to pose hypotheticals without restriction as to 24 the facts supposed, I should be able to do likewise. {} 25 My objections have been overruled at every turn Sonntag Reporting Service, Ltd. Ueneva, 1111MUl~s- 60l?4 (312) 232-0262

        - -    ..   --         -_._=- __                . - -       -   --.   - - - _ _ _ - . . _ .         -.

10601-I when challenged, and I don't know why. 2 JUDG E GROSSMAN: - The question is rephrased. 3 Are you aware of any deadline imposed by -- well, 4 were you aware at that time of any deadline imposed by 5 Edison on Comstock's backlog? 6 A (WITNESS MENDEZ) On March 29th, I wasn't. 7 JUDGE GROSSMAN: Then or before? 8 A (WITNESS MENDEZ) Not by Edison, no. 9 BY MR. GUILD: i 10 Q By anyone, Mr. Mendez ? 11 A (WITNESS MENDEZ) I think we had some concerns, the NRC 12 had concerns, but as far as deadlines go, we had-

'   O      13      concerns about Comstock and their ability to keep up 14      with the -- the amount of work at the time; but I don' t 15      know if there was any evidence of any deadlines, 16 0    Well, you were aware, then, of concerns that Comstock QC 17      could not keep up with the pace of current. installation 18      because of the existence of a backlog?

19 A (WITNESS MENDEZ) I knew tha t in ' 83 -- 20 Q Yes. 21 A (WITNESS MENDEZ) -- November, '83. 22 Q All right. 23 And those concerns were the subject of inspection 24 report findings, were they not? {} 25 A (WITNESS MENDEZ) Yes. i Sonntag Reporting Service, Ltd. Geneva, Illinois 601T4 (312) 232-0262

                                                                          . 7
   ,g ,17                             .
                                        "k.          .

L 1 10602 A N \.

nw .

                       "1 <                       Q                  You don't know whethen Edison :was involved in 2                                         establishing any deadlines, .though', to which Comstock QC I

3 was required to wo'rk?

                        ~4                        A                  (WITNEr,S .MENDEZ)       That's correct.

t 5 Q All right, sir. , jy - 6 Now, Schulz and McGregor, in the March 29th memo, 7 say, "The lack of action by QA/QC in this area needs to 8 be addressed, along with CECO management's slowness or 9 inability to take corrective. action." 10 Did you know what McGregor and Schulz' were 11 r$ ferring to there in March of '83 -- or March or . April L12 of '83 when you started your inspection? O v 13 A (WITNESS MENDEZ) We talked -- when I met with the 14 '\ Residents on April 30th, we talked and we -- we s' L "15 discussed -- I suppose we discussed.it. We would have

                ' %.16                                               had to.

17 Q; Well, you' re surmising now that you must have. discussed'

               'f n                     18                                              that; is that what you cret saying?

i 19 A (WITNESS MENDEZ) Only ~ to get the feeling of the -- 20 the -- the inspection -- I mean, the allegations < 21 themselves; only to get some kind of -- kind of feeling 1 32 for the allegations. 23 Q All right, sir. 24 , Well, my question is a l'ittle more specific, and 25 tha t is: Sonntag Reporting Service, Ltd. I Geneva, Illinois 60134 (312) 232-0262

    ,- ,            ~ , - - , - - -                    . , - , - , -
                                                                                        ,~-5,,-,,-n      - - - .     ---
                                                                                                                         -----r.,----,,a-    - , , - -.,,v-w --, ,

10603 p

 ' \v/ -

1 At the time you began your inspection, did you 2 understand what McGregor and Schulz were referring to in 3 that sentence I just read, beginning, "The lack of 4 action by CECO QA," et cetera? 5 A (WITNESS MENDEZ) You know, it was a long time ago. I 6 believe it was just the -- no, I take it back. I don't . 7 think I knew at the time. 8 Q All right, sir. 9 I take it it follows you didn't ask McGregor and 10 Schulz to inform you of what ' they had reference to, 11 then, did you? l - 12 A (WITNESS MENDEZ) I don' t remember one way or the other.

'~'

13 0 Well, as you sit here today, can you now tell us what 14 they were referring to? 15 A (WITNESS MENDEZ) No, I can't. 16 Q Mr. Neisler -- I'm sorry, Mr..Mendez. I didn't mean to 17 cut you off, 18 A (WITNESS MENDEZ) No, I can't. 19 Q Mr. Neisler, when you undertook this inspection 20 activity, did you understand what McGregor and Schulz 21 were referring to there, the lack of action by CECO QA, 22 et cetera? 23 A (WITNESS NEISLER) No, I did not. 24 Q And did you undertake to determine what they were {} 25 referring to by asking McGregor or Schulz? Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

e 10604

 .I     4
  \/

1 A (WITNESS NEISLER) McGregor and Schulz were off site 2 for training at the Morris simulator, or whatever, or 3 .some place at the time I was there. 4 Q And that interferred with your ability to find out from 5 them what they referred to here? 6 A -(WITNESS NEISLER) Yes. 7 Q All right, sir. 8 Well, founded upon those facts I have just referred 9 you to, Schulz and McGregor make the recommendation that 10 shutdown or some other aggressive action for the 11 electrical work may be necessary to establish the 12 quality of past work and the quality of the ongoing 13 work. 14 Did you know what the basis was for Schulz' and 15 McGregor's recommendation to that ef fect, Mr. Mendez, 16 when you began this inspection? 17 A (WITNESS MENDEZ) No, I didn't. 18 Q Did you undertake to find out what McGregor and Schulz 19 had in mind, what their basis was for that 20 recommendation? 21 A (WITNESS MENDEZ) Just a general feeling about issuing a 22 stop work order. I don't think they really elaborated. 23 They felt, because the 26 Inspectors had gone to the 24 Residents' office, that in itself was evidence of -- {} 25 that in itself should have been enough to issue a stop Sonntag Reporting Service, Ltd. l uenHVB, Illi6BTR- 60174 (312) 232-0262

10605 I e i[3). 1 work order. 2 0 :I see. 3 Well, I take it from that that you surmised that 4 Schulz and McGregor perceived the event, th e 24 5 Inspectors coming over as a group, as a significant

6 event? 7 A (WITNESS MENDEZ) Yes. 8 Q All right. 9 And did you, when you undertook your inspection? 10 A (WITNESS MENDEZ) When I started, yes. 11 Q Had you ever heard of as many Quality Control Inspectors

     -      12                     at any site in the country ever going to the NRC as a 13                     group with harassment, intimidation, production pressure 14                     complaints?

15 A (WITNESS MENDEZ) I have heard of many instances where 16 QC Inspectors allege harassment and intimidation. 17 0 You had heard of other instances? 18 A (WITNESS MENDEZ) Yes. 19 Q All right. J 20 Well, in fact, at Perry, there were two Inspectors l 21 that initiated the allegations, were there not? 22 A (WITNESS MENDEZ) I don't recall. 23 Q One or two. 24 There weren' t 24, were there? {} 25 A (WITNESS MENDEZ) No, there were not 24. Sonntag Reporting Service, Ltd. Geneva, IITrnois 60131 (312) 232-0262

                                                                                   -10606
 /

L /. 1 Q Mr. Neisler? 2 A (WITNESS NEISLER) I am not sure how many. The highest 3 one that was identified to me was individual J, so there 4 could have been more or less. 5 (Indicating.) 6 Q Well, it all started because one Inspector complained to 7 the newspaper; right? 8 Do you remember that, the Cleveland Plain Dealer? 9 A (WITNESS NEISLER) There was more than one. 10 Q Pardon me? 11 A (WITNESS NEISLER) There was more than one. 12 0 Well, there was more than one that complained to the 73 V 13 newspaper; is that what you are saying? 14 A (WITNESS NEISLER) Yes. i . 15 0 Were there 24? 16 A (WITNESS NEISLER) I really don't know how many. 17 0 Well, had you ever -- were either of you gentlemen ever 18 aware of 24 Inspectors at any site -- that was my 19 original question - going to the NRC? 20 A (WITNESS NEISLER) No. 21 A (WITNESS MENDEZ) No. 22 Q About anything? 23 JUDGE GROSSMAN: Mr. Guild, please don't 24 badger the witnesses. Just ask the questions that are necessary. p/

\_

25 Sonntag Reporting Service, Ltd. GenevaTTM inois-60134 (312) 232-0262

10607

k. jO 1 BY'MR. GUILD:

2 Q About anything? 3 A (WITNESS NEISLER) No. 4 Q Mr. Mendez ? 5 A (WITNESS MENDEZ) No, I've never heard of 24 Inspectors 6 going to a Resident's office. 7 0 All right.- 8 Did you, Mr. Mendez, yourself take any action with 9 respect to -- with your' management to recommend that 10 they respond a little more promptly than they ultimately 11 did in sending you out there?

         -        12     A                   (WITNESS MENDEZ)     I did happen to ask my section chief 13                        why we weren't acting on those allegations more 14                        promptly.

15 Q Mr. Williams? 16 A (WITNESS MENDEZ) Yes. 17 0 And what response did you get from Mr. Williams? 18 A (WITNESS MENDEZ) He mentioned that the decision had 19 already been made. We get -- he said we of ten don't 20 turn enough allegations over to the licensee, and that 21 in this particular case, it warranted that action. 22 JUDGE COLE: I didn't hear that answer.

,                 23                                Would you read it back, please.

l 24 (The answer was thereupon read by the i (} 25 Repor te r . ) Sonntag Reporting Service, Ltd. Geneva, Illlnois 60134 (312) 232-0262

10600 _ .-iO v 1 BY MR. GUILD: 2 Q Did_Mr. Williams state why, in this particular case, 3 such an action was warranted? 4 A (WITNESS MENDEZ) I think he mentioned that his -- it 5 was, it seemed to be, more of a labor-management

6 dispute; that we would give Edison the benefit of the 7 doubt and let them review those allegations.

8 Q A labor-management dispute between the Inspectors who 9 complained and their management; is that your - 10 understanding? 11 A (WITNESS MENDEZ) Yes. 12 Q That was what Mr. Williams had to say? O 13 A (WITNESS MENDEZ) Yes. 14 Q All right. 15 And for that reason, you would give Edison the 16 benefit of the doubt and let them do a self-inspection 17 first, which you would then follow up? 18 A (WITNESS MENDEZ) Yes. 19 Q Did Mr. Williams or any other management at the NRC 20 state to you that there was any NRC Staff resource 21 consideration involved? By I that mean, none of the 22 Inspectors were available to take up such a large number 23 of concerns? 24 A (WITNESS MENDEZ) No. {} 25 Q Mr. Neisler, did you ever hear of such a concern on the i Sonntag Reporting Service, Ltd. u6h wa, Tll1woi r 60174 (312) 232-0262

10609 O V 1 part of the Agency? 2 A (WITNESS NEISLER) Not in this instance. 3 Q Okay. 4 0 Gentlemen, I've placed before you a November 21, 1985, 5 letter. It's from me to Mr. Felton, and it's a Freedom 6 of Information Act request. i 7 I recall showing -- I recall having shown you this

8 document at your depositions.-

0 It seeks information related to your inspection 10 report and to the activities which are the subject of 11 your testimony. 12 Do you recall me showing you this document at your

     .O    13          deposition?

14 A (WITNESS NEISLER) Yes. 15 0 Mr. Mendez ? 16 A (WITNESS MENDEZ) I don't recall. 17 Q All right. 18 Gentlemen, do you recall ever having seen -- Mr. 19 Mendez, do you recall ever having seen the document 20 before at any time? 21 A (WITNESS MENDEZ) No, I don't think I have. 22 0 Okay. 23 Mr. Neisler, aside from the deposition, do you 24 recall ever having seen the document? {} 25 A (WITNESS NEISLER) I don't think I saw the particular Sonntag Regorting Service, Ltd. Geneva, Illinois 6013f (312) 232-0262

                                                                                        =10610 I            document.

2 Q All right. 3 Let me ask you directly. 4 -Did the Agency, the NRC, transmit a copy of this 5 Fredom of-Information Act request to you? 6 It bears both of-your gentlemen's names in the

!               7            first paragraph; seeking documents, et cetera, in the 8            possession or control of R. Mendez and J. H. Neisler, 9            among others.

10- Did your management or anyone at the Agency 11 transmit a copy of this request- to you, Mr. Mendez ? 12 A -(WITNESS MENDEZ) No, I didn' t see it, although I did -- O 13 my management did make'me aware of this Freedom'of 14 Information request. 15 Q All right. 16 Mr. Neisler, did you ever get a copy of this 17 request transmitted to you? l. 18 A (WITNESS NEISLER) No. I said I hadn't seen it. I 19 MR. GUILD: Mr. Chairman, I'd ask this be 20 identified as Intervenors' Exhibit 89, please. , 21 (The document was thereupon marked 22 Intervenors' Exhibit No. 89 for 23 identification as of August 13, 1986.) 24 BY MR. GUILD: {} 25 Q Mr. Mendez, you just stated a moment ago that you had Sonntag Reporting Service, Ltd. GBneva, 111ini61s 60134 (312) 232-0262

10611 O 1 been -- were made aware of the fact that such a request 2 had been made; correct? 3 A (WITNESS MENDEZ) Yes. 4 0 .All right. 5 And who made you aware of that fact? 6 A (WITNESS MENDEZ) I believe it was my section chief, 7 Cordell Williams. 8 Q All right. 9 What, in substance, did Mr. Williams say to you? 10 A (WITNESS MENDEZ) Try to keep everything _I had relating 11 to the inspection I performed at Braidwood relating to 12 the allegations. O 13 Q All right. 14 And did you do as he requested you to do? 15 A (WITNESS MENDEZ) Well, I did tell him that all I had 16 was a few procedures, Comstock procedures. 17 We always keep the procedures laying around, and 18 that's all I had, and he said no, that's not what he was 19 looking for. 20 I really couldn't help you with anything else. 21 Q All right. 22 At the time you were informed of his request, did 23 you have any notes or memoranda reflecting the ) 24 interviews you had conducted with the Comstock QC 25 Inspectors? Sonntag Rep ~orting Service, Ltd. , Geneva, Il~lTnois (0T34 l (312) 232-0262 l

10612 7 ( l A (WITNESS MENDEZ) No, I didn't. 2 Q How about any notes or memoranda of interviews with 3 anyone with respect to this inspection? 4 A (WITNESS MENDEZ) No. It's -- the only thing I ever 5 keep is procedures or drawings. I don't keep anything 6 else after the report is issued. 7 Q So the report was issued on November the 5th,1985 -- 8 I'm looking at NRC Staff Exhibit 17 -- and my letter is 9 dated the 21st of November, as soon as I got. the 10 inspection reports. 11 I take it by the date this request came to your 12 attention, some time af ter November 21st, you had O 13 already discarded your notes and memoranda; is that 14 correct? 15 A (WITNESS MENDEZ) Yes.

16 Q Mr. Neisler, how about you? Did you ever learn there i

17 was a Freedom of Information Act request? 18 A (WITNESS NEISLER) I learned there was,g 19 Mr. Williams came to me about the 12th of December 20 or thereabouts or the end of November and asked did I 21 have any' documents relating to the Braiddood allegations 22 inspections. 23 Q All right. 24 And what did you tell him? {} 25 A (WITNESS NEISLER) And I told him no. Sonntag Reporting Service, Ltd. GenevaDITIriNIs 60134 (312) 232-0262

8 10613 n. ~ v l Q And had you prepared any notes or memoranda of your 2 interviews at the time you conducted them? 3 A (WITNESS NEISLER) Notes, memoranda and draf t -- 4 principal drafts of inspection reports I throw away when 5 I get the typed draft back. 6 Q And you did that in this case? 7 A (WITNESS NEISLER) Right, when I review my first draf t, 8 I throw them away. 9 Q And you did that in this case? 10 A (WITNESS NEISLER) Yes. 11 MR. GUILD: Mr. Chairman, I'd ask that 12 Intervenor Exhibit 89 be received in evidence. O 13 JUDGE GROSSMAN: Any objection? 4 14 MR. BERRY: I obj ect; relevance. 15 MR. MILLER: I object on relevance grounds. 16 MR, GUILD: Do you want to hear arguments, i 17 Mr. Chairman? 18 JUDG E GROSSMAN: Considering what's happened

                      '19                                    with regard to Staff's production or non-production of

. 20 documents, I think we'll let it in without any argument

                     . 21                                    on that, so we'll receive Intervenors' Exhibit 89.

22 (The document was thereupon received into 23 evidence as Intervenors' Exhibit No. 89.) 24 MR. BERRY: I don' t know what that means.

      /                 25                                              JUDGE GROSSMAN:          Pardon?

1 i Sonntag Reporting Service, Ltd. Geneva, IITinois 60TH (312) 232-0262 i

    -   _,-........__.._,.-.,.,_,.____,.._.._....,.m_,_,                                .,_.m._   . , , . . , , . _ _ , , . . _ . . ~ _ _ _ _ , , - , ~ , . . - . _ _ , , _ _ _ _ _ _ _

10614 ; L-.

1. MR. BERRY: I'm not sure I understand what 2~ that means, considering Staff's production of documents. j 3 The objection stands.

4 I'm not'sure what the Board is referring'to in this

5 particular instance..

6 As a matter of f act, 'it's my understanding that 7 there was a response to this POI request. 8 JUDGE GROSSMAN: Okay. Well,~maybe we ought> ; 9 to have arguments on,that. 10 I'll perhaps ---I'm not retracting the receipt'of , 11 this document yet, but let's~have some arguments on 12 that. ; O' 13 Mr. Guild, . could you indicate the basis for your i 14 belief that it's relevant? :, !- 15 MR. GUILD: Yes, sir. , t- ?. 16 We believe that it may be questioned whether or not - 17 this party has exercised diligence in trying to obtain f. j 18 or protect from loss or destruction evidence that's i - [ 19 relevance to this case, and we timely filed a Freedom of 20- Information Act request which, in our view, legally 4 . 7 i 21 binds the Agency to have secured these materials, and. i 22 if, indeed, they didn't exist at the time, tha t's [ 23 another matter; but the fact of the matter is there have f ! 24 been many other pieces of information we believe are i i I {} 25 responsive to this Freedom of Information Act request i Sonntag Reporting Service, Ltd. Geneva, 11TinoiE-~60134 3 (312) 232-0262 r

10615 ("' V) 1 that I submit have dribbled in far after the request was 2 due and answerable. 3 JUDGE GROSSMAN: Mr. Berry. 4 MR. BERRY: Well, first, to that extent, a 5 number of documents that have been produced by the Staff 6 throughout this proceeding were produced -- were created 7 af ter the Agency responded to the FOI request. 8 There's no requirement under the FOI that the 9 Agency create a document to satisfy an FOI request. 10 In particular, at the time this request was made, 11 the documents relating to which was sought, you know, , 12 did not exist. G, 3 13 It's my view, you know, that it doesn't establish 14 what Mr. Guild represents it establishes. 15 I don't see it has any relevance or issue in the 16 case. 17 MR. MILLER: Your Honor, unless some part of 18 Intervenors' case is based on asking the Board to draw 19 adverse inferences with respect to either the Staff 20 position or some ultimate issues in this proceeding 21 because of either an apparent inadvertent or deliberate 22 withholding of information by the Staff from the 23 parties, I don' t see what the status of Mr. Guild's 24 discovery requests and these witnesses' responses to (~T 25 them has to do with the issues. V Sonntag Reporting Service, Ltd. - GenEV5, IITinois 6013~4 (312) 232-0262

10616-i

         - j-~3 _
           \          )-

l' In terms of how the Staf f has responded to 2 discovery requests, I, as you know, have joined with Mr. 3 Guild in urging the Staff to better performance, and r 4 Staff counsel and Staff have responded. 5 Again, given the size of the organization and the

                                      -6                          different divisions and departments' that have to be gone 7                        through, perhaps it could not have. been done any sooner; 8                       but it seems to me this is just-tangential to the issues 9                        that confront the Board.

10 JUDGE GROSSMAN: Well, from the'first, I've 1 11 taken a position that the character of Staff's 12 investigation really is not critical to-this-case, but j () 13 apparently Staf f would not be happy with that type of 14 ruling, because a lot of Staff's case and a lot of its 15 examination with regard to the other parties' case has 16 been to establish that the character of the Staff's

17 investigation has been high, and we can't allow evidence

! 18 in on one side and not on the other with regard to that 19 issue, and so unfortunately, while the issue may be 20 collateral, it's in the case, whether we like it or nott ! 21 and I don't want to waste any time with this. [I 22 I don't think it's really worth arguing over, ' because the document is there, and whether we admit it 23 . 24 or not, there's still notification in the recor6, notice ! (} 25 that the document was served. Sonntag Reporting Service, Ltd. Gen 4Va, T11ino1~s-~60134 ; (312) 232-0262 4 :

< 10617 f'^3 l %.J 1 I think it would just expedite things to let it in; 2 and there's no way we're going to kill that collateral 3 issue, so we might just as well hear it. 4 Now, I don't understand that Mr. Berry is offering 5 to withdraw any part of his case that is going to show l 6 that the investigations were conducted in a high quality 7 manner, are you, Mr. Berry? 8 MR. BERRY: Certainly not, your Honor. 9 JUDGE GROSSMAN: Okay. So why don't we allow ! 10 it in for whatever it is worth, although I hate to say 11 those words, but we'll just admit that document and 12 let's just go on from there. ( 13 MR. GUILD: Let me just state for the record, 14 Mr. Chairman, that I disagree with the Chairman's view 15 about the limited stature of the Staff's case here. l 16 I think Applicant relies, in large measure, on the 1 17 corroboration and verification of its position by the 18 Staff, and we'll expect to see in findings quite 19 significant references to the Staf f's position from 20 Applicant. 21 I'm simply protecting myself by doing what I think l 22 is necessary, and that is, by taking the Staf f as an 23 adversary on this point, and I don't -- 24 JUDGE GROSSMAN: Okay. We take note of that. 25 That's correct, also, that Applicant has also j (~} s_ Sonntag Reporting Service, Ltd. l CenEV3, IIITnois 60174 (312) 232-0262

i 10618 O \v' 1 relied on the confirmation of Staff as to its own 2 practices, and to that extent, it is an issue in the

    -3      case, so we recognize that and we're letting the 4     document in.

5 Go on from there, Mr. Guild. 6 MR. GUILD: All right. 7 Mr. Chairman, I'm distributing another document 8 which I would ask to be marked as Intervenors' Exhibit 9 90 for identification. 10 (Indicating.) 11 (The document was thereupon marked 12 Intervenors' Exhibit No. 90 for O 13 identification as of August 13, 1986.) 14 BY MR. GUILD: 15 Q Mr. Mendez, Mr. Neisler, first, have you ever seen this 16 document before? 17 It's a July 11, 1985, memo. It appears to be from 18 Mr. Schulz to Mr. McGregor,

Subject:

Restriction of 19 Information. 20 A (WITNESS NEISLER) I have never seen it. 21 A (WITNESS MENDEZ) I haven't, either. 22 0 All right. 23 Let me direct your attention to the bottom 24 paragraph on the first page. This makes reference to a Freedom of Information Act request, one filed by GAP. {} 25 I Sonntag Reporting Service, Ltd.- Genevai Ill-inoin--60134 (312) 232-0262

10619 1 submit that's the Government Accountability Project; and 2 it appears to reflect that materials submitted by:Mr. 3 Schulz in response to that FOI request were not 4 forwarded to the requester. 5 Have either of you gentlemen ever had the 6- experience of forwarding materials responsive to a 7 Freedom ~ of Information Act request that the Agency did 8 not forward, in turn, to the requester? 9 A (WITNESS NEISLER) No. 10 Q Mr. Mendez ? 11 A (WITNESS MENDEZ) I haven' t, no. 12 Q Let me ask you to turn to the second page of the O 13 document, please, the first paragraph. " Additionally 14 NRC management did not properly handle the 25 L. K. C. 15 Inspectors who complained of intimidation and 16 harassment." 17 McGregor, Schulz -- I'm paraphrasing -- recommended 18 to NRC management strong action to be taken by the NRC, 19 including stop work of all electrical installations. 20 Both senior residents insisted that the NRC send 21 personnel to the site immediately. NRC management opted 22 to turn the issue over to the licensee. 23 Did Schulz and McGregor -- Schulz and McGregor did, 24 in fact, bring those opinions to your attention, did 25 they not, Mr. Mendez, opinions reflected in that Sonntag Reporting Service, Ltd. Gi~niVH, 11Tinois 60U4 (312) 232-0262

J L 10620

               ~
                        'l                          paragraph, Page 2?

l

                        -2                 A        (WITNESS MENDEz)             I think at one. time or another, yes.

i- - i

3 Q Finally, the .last paragraph in the letter, the j 4 memorandum, states, "The majority of the Intervenors

, 5 interrogatories required to be answered by the US NRC 6 ' have been assigned to the Division of Reactor Safety ; 7 instead of to the Senior Residents at Braidwood who are , 3 i 8 more familiar with the issues. Also, the answers being_ j i 9 provided to the Region are not complete and again tend ; l 10 to purposely restrict the flow of information." j 11 All right. Were you ever asked to supply' -r I 12 information in' response to Intervenors' interrogatories (^) 13 with regard to the QC Inspector harassment issues, Mr. 14 Mendez? 15 A (WITNESS MENDEz) I don't know how -- how is the . 16 question different from the one you asked me before? l 17 Q Well, first I was talking about a Freedom of Information 4 18 Act request. i 19 A (WITNESS MENDEz) Right. I j 20 Q And I submit to you that in this proceeding, Intervenors ; i j 21 have submitted legal requests for information -- ) 22 documents and information known to the Staff. They are ;

;                                                                                                                                                     i j                       23                           referred to as interrogatories.                      They are written                             l j                       24                           questions.

4 25 And I ask you whether or not the -- whether or not ] [} i t f Sonntag Reporting Service, Ltd. i l Geneva D 111no11 60134 ! (312) 232-0262 i

10621 rs b 1 the existence of any interrogatories served on the NRC 2 Staff by Intervenors regarding your work on the 3 harassment contention was ever brought to your 4 attention, Mr. Mendez. 5 A (WITNESS MENDEZ) I wasn't aware of anything. 6 Q Mr. Neisler, did you learn of the existence of any 7 interrogatories by Intervenors on this subject? 8 A (WITNESS NEISLER) At the time this letter was written, 9 no. 10 Q Well, sir, not at the time that letter was written. 11 But as you sit here today, are you aware of any 12 interrogatories having been served by Intervenors with q( / 13 respect to the harassment -- QC Inspector harassment 14 issue? 15 A (WITNESS NEISLER) I may or may not have had an input 16 to tha t. 17 I was aware there were some, yes. 18 Q And can you recall how you became aware there were some, 19 Mr. Neisler? 20 A (WITNESS NEISLER) I think someone asked me for 21 comments or responses or whatever. 22 0 Did you see a copy of the interrogatories, the 23 questione? 24 A (WITNESS NEISLER) I might have seen a Xerox copy of (} 25 one page, one question or whatever, or if not -- if not Ltd. Sonntag Reporting Gendia, Service,F I111no1T ~6013 - ~ (312) 232-0262

r i 10622 1 the interrogatories, the contentions; one or the other. 2 Q Did you make any response? 3 A (WITNESS NEISLER) I think I did, i 4 Q All right. 5 Can you recall what the substance of that response 6 was? 7 A (WITNESS NEISLER) No, I can' t. I was busy doing 8 something else at the time. , 9 It was just another job. 10 Q You've got to keep your voice up a bit so we can all 11 hear you. 12 Do you recall whether you submitted any documents O 13 in response? 14 A (WITNESS NEISLER) I would not have submitted any 15 documents because I had no documents to submit. 16 Q All right, sir. 17 Did you then prepare a document, a written 18 response ? 19 A (WITNESS NEISLER) If I did, it would have been a 20 document that I had -- that I handed to somebody. 21 I don't recall if I did or not. 22 Q Who would you have handed it to if you did prepare such 23 a document, Mr. Neisler? 24 A (WITNESS NEISLER) It would have either been through my , {} 25 section chief or to a secretary. Sonntag Reporting Service, Ltd.

Genevs, 11~1^1hois- 60134' !

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10623 1 Q Mr. Williams is your section chiefs correct? 2 A (WITNESS NEISLER) At that time, yes. 3 Q And, Mr. Mendez, you still do not recall ever being 4 aware there were such interrogatories; is that true? 5 Not limiting it in time to July of 1985, but as you 6 sit here today, were you aware that there were any 7 written interrogatories served by Intervenors on the 8 Staf f on the subject of the harassment contention? 9 A (WITNESS MENDEZ) I think I learned of it later on, yes. 10 Q All right, sir. 11 And did you make any response to those 12 interrogatories yourself, Mr. Mendez? O 13 A (WITNESS MENDEZ) I'm really not quite sure what you 14 mean by interrogatories. 15 JUDGE GROSSMAN: Excuse me. 16 I'm not sure what you meant by "later on." 17 You mean after the interrogatories were already 18 answered you learned about them or later on from some 19 other day? Later on after July 11, 1985? 20 What did you mean by "later on"? 21 And if you wish to have your answer repeated, I'll 22 ask the Reporter to repeat it. 23 A (WITNESS MENDEZ) No. 24 If I can just get an idea of what Mr. Guild means 25 by interrogatories. Sonntag Rep ~orting Service, Ltd.

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10624 l l' [ 1 MR. GUILD: Again, it'c a written question, l 2 and they were -- a series of them were submitted. f i 3 In fact, Intervenors submitted three sets of 4 , interrogatories to the NRC Staff beginning some time, I 5 think, in July or August of 1985 and extendir.g through , 6 perhaps February of 1986, asking specific, detailed 7 questions about the issues in this case, including the i 8 harassment contention. 9 They were required to be answered by the NRC Staff. 1 I 10 They are written questions that require written answers 11 by the Staff's counsel. 12 A (WITNESS MENDEZ) Oh, yes, I was. I was asked to

  .O                   13                                    address, I think, this harassment, intimidation issue.

14 BY MR. GUILD:

15 Q All right, sir.

i 16 And can you recall who brought to your attention i 17 the existence of those interrogatories ? 18 A (WITNESS MENDEZ) Our management. l l 19 Q All right. 20 Anybody in particular that you can recall? l l 21 A (WITNESS MENDEZ) My section chief. 22 Q Mr. Williams? 23 A (WITNESS MENDEZ) Yes. 24 Q And what was the substance of your response to Mr. {} 25 Williams on the interrogatories? l Sonntag Reporting Service, Ltd. Gen'evaTI11'inois 60134 ! (312) 232-0262 l . - . . _ _ _ _ . . _ _ _ _ . . . _ _ , _ _ _ __ . _ , _ _ _ , . _ _ , _ _ ___ . _ _ _ _ _ _ _ _ _ , . _ _ _ _ _ _ _ . _ _ _

10625 A U 1 A (WITNESS MENDEZ) I think they accigned questions to 2 Inspectors who had knowledge -- 3 Q All right. 4 A -- and I believe harassment and intimidation was one of 5 mine, so I addressed that question. 6 Q All right. 7 And you prepared written responses? 8 A (WITNESS MENDEZ) Yes. 9 Q All right. 10 And do you know whether those written responses 11 were transmitted by the Agency to the Intervenors? 12 A (WITNESS MENDEZ) No, I don't. O 13 Q Do you know whether or not those interrogatories were 14 required to be answered by the Division of Reactor 15 Safety or was that you? 16 A (WITNESS MENDEZ) That's my division, but I didn' t know 17 who had responsibility. 18 Q All right. 19 Do you know whether or not those interrogatories 20 were transmitted to the site Residents, to Mr. McGregor 21 or Mr. Schulz? 22 A (WITNESS MENDEZ) No, I don't. 23 0 Did you ever discuss answering those interrogatories on 24 the harassment issue with either Mr. Schulz or Mr. {} 25 McGregor? Sonntag Reporting Service, Ltd.

                 ~ Geneva, Iffin51s 60T34 (312)   232-0262

10626 t ('/ x_ T 1 A (WITNESS MENDEZ) No. 2 Q All right, sir. 3 A (WITNESS MENDEZ) That is, I didn' t. 4 Q I'm sorry. 5 A (WITNESS MENDEZ) I don't think I did. 6 MR. GUILD: Okay. Mr. Chairman, I ask that 7 Intervenors' Exhibit 90 be received in evidence. 8 JUDGE GROSSMAN: Any objection? 9 MR. MILLER: Yes. 10 I note that the exhibit neither bears a Bates Stamp 11 Number or the typical NRC identification number for 12 documents that it has produced, which is ordinarily a O 13 magic marker or something like that in the lower 14 right-hand corner. 15 Discovery has been exercised in this proceeding in 16 both directions, and there have been outstanding 17 discovery requests to Intervenors from the Applicant for 18 many months. 19 Again, this is a document that's -- at least one 20 paragraph of which is arguably relevant to the issues in 21 this proceeding. 22 I know I have not seen it before; and I'd like -- I 23 don't believe that a document which comes bubbling up in 24 the course of the proceeding should necessarily be admitted when they have not been provided to the other {} 25 l Sonntag Reporting Service, Ltd. Geneva 7 Il1~1nois-~60134 (312) 232-0262

10627 m U 1 parties in the course of discovery. 2 JUDGE GROSSMAN: Well, we've admitted all the 3 documents, even though they haven't been provided, but 4 we have certainly allowed an inquiry as to why the 5 documents weren't submitted earlier. 6 I believe your first inquiry is towards Staff as to 7 why they didn't supply this, and then I will suppose you 8 might ask Intervenor; but we're certainly not going to 9 make a practice of trying to find out what whistle 10 blowers are here. 11 So why don't we have Mr. Berry first tell us why 12 the document wasn't submitted. 13 MR. MILLER: I do have'some other obj ections, 14 but I'd like to get this preliminarily taken care of. 15 , JUDGE GROSSMAN: Okay, fine. 16 Am I going about it -- 17 MR. MILLER: That's perfectly acceptable, 18 your lionor. 19 MR. BERRY: The document was not disclosed by j 20 the Staff. Staf f is not aware of this document. 21 I know it's a document -- it's a memorandum from 22 Mr. Schulz to Mr. McGregor, who at that time were both 23 Senior Resident Inspectors at the site. 24 This document was not available in the Region III files and Mr. Schulz did not make this document {} 25 Sonntag Reporting Service, Ltd.

                 ~deneva, Illinois              60T3'4 (312)   232-0262
                          ..    -- .. _ _ _ - -              ~  - - - - - -    -

10628 O V 1 aval.lable.to Staff Counsel. 2 I have never seen this document before, and there's 3 nothing on it to indicate that it's ever been submitted 4 to the Region III dffices. 5 I have no idea where Intervenors could have 6 received this document, I mean, and Staff didn't 7 disclose this. I've not seen it. 8 JUDGE GROSSMAN: Who is, by the way, Marcia 9 Togliatto ? 10 A (WITNESS MENDEZ) She's the secretary at Braidwood, 11 JUDGE GROSSMAN: Oh, I see. 12 (-] V A (WITNESS MENDEZ) Togliatto. 13 MR. BERRY: She's the site secretary. 14 JUDGE GROSSMAN: Mr. Guild, I believe the' 15 question is why you hadn't submitted this. 16 MR. GUILD: We stand by our responsiveness in 17 discovery, Judge; that the discovery period has long 18 since been over. 19 We've responded completely and fully to both the 20 NRC Staff and Applicant; I'm afraid a practice which, in 21 my opinion, has not been shared by the other side, nor 22 have the other side been subject to cross examination by 23 anybody about why they hadn't submitted documents that 24 obviously were in their possession for years. () 25 In this case, I woul6 stand on the position I just _Sonntag_Repotting_ScIvice, Ltd Genova, Illinois 60134 (312) 232-0262

10629 ( 1 stated, which is that we have been fully responsive 2 during discovery. 3 This document was not in our possession -- 4 JUDGE GROSSMAN: I see. 5 Are you distinguishing now between documents that 6 were not in your possession at the time discovery was 7 over and -- I see. 8 Well, Mr. Miller, if I understand his position, 9 there is -- is that your position, Mr. Guild, tha t 10 there's only a continuing obligation to supply documents 11 that were on hand at the time discovery was open, but 12 not a continuing obligation to supply documents that 13 have become relevant or fit within the category after 14 discovery is closed? 15 MR. GUILD: Indeed. 16 Applicant certainly has followed that practice as 17 well as the Staf f. 18 MR. BERRY: So, then, I take it that Mr. -- 19 JUDGE GROSSMAN: Mr. Berry. 20 MR. BERRY: I take it that Mr. Guild would 21 retreat from his earlier remarks regarding the Staff's 22 lack of diligence in producing documents. 23 Staff has produced documents that have been 24 completed under the scope of discovery. () 25 Under Mr. Guild's rationale, the Staff would not Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

    ..            _.    -     -             . _-     .     . = .

                                           ,\            E                                                 .

t 10630 i O 1 have been obligated to produce this material. 2 MR. GUILD: The Staff, indeed, falls under 3 somewhat of a different-footing when they have material 4 evidence that bears on issues that are in litigation. . I: 5 > I only need to state.this document came our way 6 af ter the close of discovery and came f rom an anonymous 7 source.

8 I can' t tell you what the source of 'the document 9 is. I believe that any further.-information might tend 10 to identify the source of'that d'ocument. 11 I don't know who that source is; but I don't

  .j            12                 ,     believe the source desired identification or I would f4               13                       have known more information about who the source was.

14 JUDG E GROSSMAN: Mr. Guild, my understanding i 15 of your. prior positions is not that you accepted a 16 discoverh cutoff on documents that are subsquently i 17 received or produced, and Eit has been the Board's . ruling 18 in the past, and we continue that ruling, that all , t 19 ' documents that are relevant within those categories 20 requested during discovery ought to be turned over- to

              - :21-                     the other parties when the party who possesses that 22                       document or comes into possession is cognizant of that 23                       fact; and in the past, the other parties have been 24                       derelict in doing that, and in this case, apparently, 25                       you uave been, too.

(]) t' Ronntag_ Reporting _ Service,_Ltd-Geneva, Illinois 60134 (312) 232-0262

10631 1 I don't know when you've had that document -- since 2 when you've had that document in your possession, but I 3 think we don't want any trial by ambush here.

4 MR. GUILD: Let me just say this,-Judge, to-5 cut in short:

6 If, indeed, Applicant will live by the same 7 principle -- 8 JDDG E GROSSMAN: Well, no. 9 Mr. Guild, no party can claim to get out of its 10 obligations because any other party is not perfect in 11 fulfilling its obligations. 12 Our ruling is to admonish whatever party doesn't

13 play by the rules when it turns out that they are not 14 abiding by the rules and --

15 MR. GUILD: I would just like.to be heard, if 16 I might.

17 JUDGE GROSSMAN: Yes, you'can be heard after 18 I'm finished, but we both can't be heard at the same 19 time.

20 MR. GUILD: Indeed, we can't, Mr. Chairman.. 21 JUDGE GROSSMAN: In the past, we have 22 admonished the other party for not producing documents 23 that they intended to use at hearing, and even those 4 24 that they did not use at hearing that were produced or j 25' received after the discovery cutoff, including (} Son nt a g_ Report ing_SArxic e ,_kt;d . Geneva, Illinois 60134 (312) 232-0262

10632 (~. 1 photographs, as we had a few weeks ago, which were not i 2 made at the -- well, I don' t want to stand on' that. I'm 3 perhaps mistaken on that; but that's been our consistent 4 ruling. 5 If you have any other documents that you intend to 6 use that you consider relevant so that you could use 7 them in this hearing, I think you ought to' disclose 8 those documents and give the other sides a chance to 9 prepare for those documents, the same way you are 10 entitled to get advance warning and not an lith hour . 11 production of documents. 12 Now, if you have something to say about that, you 13 can speak up now. 14 MR. GUILD: Yes, sir. 15 First of all, I understand the rules to call very 16 specifically for the supplementation of discovery under 17 narrow circumstances that are far narrower than what the 18 Chairman has just alluded to. 19 I don' t understand Applicant has: consented to 20 supplementation of the scope that the Chairman has 21 alluded to. 22 If they will consent to such supplementation -- i 23 JUDGE GROSSMAN: No. I'm not asking -- 24 MR. GUILD: -- I'll change my position. l () 25 JUDGE GROSSMAN: -- I'm not asking for i Sonntag_Repotting Sarvica, r.t a - Geneva, Illinois 60134 l (312) 232-0262 l 1

10633

~/

1 con sen t. 2 But the ruling in the past has been if you are 3 going to use a document here, that you ought to produce 4 that document to the other parties prior to, giving them 5 as much advance warning as -possible that that document 6 is going to be used, and that's what we've done in the 7 past and that's the ruling we're going to have now. 8 So if you have any surprise documents, you really 9 ought to produce those that fit in the relevant 10 categories. 11 MR. GUILD: May I finish, Mr.. Chairman? .May 12 I be heard? (-)s

\_

13 JUDGE GROSSMAN: Yes. 14 MR. GUILD: Secondly, I understand the 15 Chairman's ruling, and that's the first I've heard of a 16 ruling of that sort, and I'll abide by it. 17 I would ask that Applicant and the Staff abide by 18 it as well so that documents, indeed, that are to be 19 used in evidence are disclosed in advance. 20 That certainly has not been the ruling in the past; 21 and Applicant did move that such a position be taken, 22 and for good reason, I believe, the Board ruled at the 23 outset of this proceeding that it would unduly -- it 24 would unduly burden Intervenors to be bound, given our I () 25 resource disparity and given the needs of cross [ Sonntag_Repar ting _SenLce,_ktd. Geneva, Illinois 60134 (312) 232-0262

 .                                                                                                                          10634 f'N,
          \_/

i 1 examination, to have identified, either by prefiled

2 testimony or prefiled exhibits, all of the documents we 3 intended to use. 4 Now, these documents, indeed,.do' fall in somewhat lJ 5 -of a different footing because they 'have not been

6 circulated among the parties in discovery.

7 They have not been circulated among the . parties for' 8 two important reasons. 9 The first is they came into . possession _ of this - 10 party af ter the close of discovery; and secondly, 11 because they came from a whistle ' blower, someone who 12 obviously desired that their position, under 13 confidentiality, anonymity, be protected out of what 14 appears to .be' a concern that they may_ by subj ect to 15 reprisal if they made what is obviouely some pretty 16 critical information available to us. 17 I think the Agency ought to be ashamed to see a 18 document such as this on the public record; and 19_ unfortunately, it's the Intervenor who is sort of being' 20 tarred because the document exists. 21 Now, I would be more than happy to disclose to this 22 Board in camera a series of documents that have been 23 disclosed to this party by way of such a source, but I 24 strongly, strongly obj ect to disclosing those documents () 25 to either Commonwealth Edison Company or to the Nuclear SonntagJepor H ng_ Service; Lt el; Geneva, Illinois 60134 i (312) 232-0262

10635 g L_) 1 Regulatory Commission Staff; and I believe that .if this

      .2 Board desires to reach the truth in this' case, the 3 quickest way to avoid reaching the truth is to dry up a                   ,

4 source of information that, indeed, reveals the fact 5 that this Board is not receiving all of the information 6 it needs for a decision, and I think that's the 7 character of the document that you have before you. 8 So I don' t think that I have at all been playing 9 fast and loose with the rules. I'm trying to get to the 10 truth, but I'm also trying to protect my source of , 11 information, who will no longer talk to me or no longer j) e 12 provide me any information if I ' dishonor their trust.

v. Mr. Guild, let's not 13 JUDGE GROSSMAN:

14 overlook the fact that you are producing the document 15 and using it -- 16 MR. GUILD: Indeed.

     .17           JUDGE GROSSMAN:      -- so you are disclosing it; 18 and perhaps you have an argument with regard to the 19 documents you are not disclosing, but the ones that you 20 are exposing to the public, the question is why they 21 weren't publicized earlier.

22 MR. GUILD: Because, Mr. Chairman, I suspect 23 that there would be an immediate and -- may well be an 24 immediate headhunting expedition as soon as this () 25 documents f alls into the hands of an adverse party. Sonntag_RepoI_ ting _ Service,_Ltd Geneva, Illinois 60134 (312) 232-0262

10636 1 I make a very careful judgment, not only in the 2 interests of my client but in the interests of the

3 source that I don't know the identity of, what the risk 4 and what the-potential benefit is for this record of a 5 particular piece of evidence.

6 But I trust that this Board, when this document, 7 the one that's in question now, is a matter of public 8 record, will show some interest in seeing that whoever 9 the source of that document is, if th ey are the . subj ect 10 of any reprisal for having disclosed an obviously 11 important piece of information -- this Board would see 12 that they are protected; and ' that's, in part, the reason 13 why this information is disclosed first on the record.

14 _ I have no obj ection, as'I stated, to disclosing 15 documents of this character in -camera to this Board, i

16 trusting that this Board will protect the confidence ~ of 17 my source, but I strongly -- I strongly resist the 18 notion that fingering a whistle blower by turning over 19 these documents to Commonwealth Edison Company or' the 20 NRC Staff is the course that I'm required to follow. 21 When I identified the fact that I had confidential

22 information early in this proceeding, I did so to Edison 23 and to the NRC Staff, and declined to make those 24 documents available.

() 25 If those parties had sought to produce that { Sonntag_ Reporting Service, Ltd_ Geneva, Illinois 60134 (312) 232-0262

10637 p (j' 1 information -- or sought to require the production of 2 that information, then I would have sought from this 3 Board a protective order and in-camera examination of 4 those documents.. 5 I believe I acted properly. 6 Neither the Staff nor Applicant sought to compel 7 production of those documents. 8 We now find ourself in the situation where you have 9 documents that have come to me after the close of , 10 discovery, dur'ing the course of this proceeding, and I 11 think that I've handled the matter properly, Mr. 12 Chairman. (S

,)

13 JUDGE GROSSMAN: Mr. Miller. 14 MR. MILLER: Your Honor, let me deal with the 15 two points that Mr. Guild has made. 16 First of all, the Board's ruling at the beginning 17 of this proceeding was in response to a motion-that Mr. 18 Guild identify the documents that he was planning on 19 introducing, and it was my belief at that time that 20 those documents were going to be culled out of the 21 universe of documents that had been supplied by 22 Applicant and Intervenor during the course of discovery, 23 and it was simply a matter of attempting to expedite the 24 proceeding. 25 The ruling was against me, and we proceeded on (} Sonntagleporting_Selyice,_I,td, Geneva, Illinois 60134 (312) 232-0262

lt 10638 3) (. 1 another basis. 2 This document, obviously, is not within my-3 contemplation because I didn't know anything about it. 4- So we move to the second point, which is that Mr. 5 Guild makes some judgments about whether and under what 6 circumstances to disclose these documents, and all of us 7 simply have to rely on him as to whether or not. the 8 material is relevant and otherwise involved with the 9 issues before the Board, but until he makes that 10 judgment, none of us know. 11 I don't see how we -- that is, Applicant -- can r's 12 intelligently deal with the issues in the case when it O 13 does not know of . the evidence which may be produced in 14 the course of this proceeding. 15 It had been my belief that, to the extent exhibits 16 were going to be introduced -- I don' t care what Mr. 17 Guild has in his anonymous envelopes. That's of no 18 interest to me until-it comes walking in the door in 19 this proceeding; but once Mr. Guild receives his 20 information, it seems to me that the rules work the same 21 for all the parties, and I don't see that we should 22 await Mr. Guild's discretion as to when and under what 23 circumstances he decides he's going to use a particular 24 piece of paper before making discovery on documents that () 25 are clearly relevant, at least in part, to the issues in Ronntag_ Reporting __ Serv ka, r.td: Geneva, Illinois 60134 (312) 232-0262

10639 ('i V 1 the proceeding. 2 JUDG E G ROSSMAN : - Mr.. Berry, did you have 3 something further to add? 4 MR. BERRY: Your Honor, I would just endorse 5 what Mr. Miller stated. 6 I would also just like to point out, this is 7 slightly different from what's happened-in this case, 8 particularly from the Staff's point of view. 9 Staff has never introduced a document in evidence, 10 questioned a witness on any document, that had not been 11 produced .well in advance to the other parties; but what g3 12 we have here is the case that Intervenor now is \_J 13 disclosing a document for the first time, and when he 14 moves it into evidence, he has effectively deprived the 15 other parties of any discovery or any preparation. 16 Exactly what we have is a surprise; and I would 17 object to the admission of this document at this time on 18 that basis. 19 JUDGE GROSSMAN: Well, for one thing, to 20 respond to Mr. Guild, we're not conducting a witch hunt 21 here and it is not relevant who the anonymous whistle 22 blower is, and as far as we're concerned, we'll keep 23 that whistle blower anonymous, but Mr. Miller is correct 24 that our ruling initially with regard to not requiring () 25 that Intervenor determine which of the universe of j Sonnlag Repor_t_inLServic_e., Ltd. Geneva, Illinois 60134 (312) 232-0262

10640 r~. 1 documents that were known to all the parties that it was 2 going to use did not extend to documents outside that 3 universe, and that we assumed, and I thought it was 4 known to the parties, that we intended that all the 5 documents that were going to be offerred or produced 6 would be shown to the other parties in advance so that 7 they could prepare their cases as well as Intervenor is 8 permitted to prepare its case. 9 Now, we think that you ought to go through your 10 documents and decide which ones you are going to 11 produce, because those are going to see the light of 12 day, anyway, and I think it's time that you disclose 13 them to the other parties, because they are entitled not 14 to be conf ronted with trial by ambush as well as you 15 are. 16 MR. GUILD: Mr. Chairman, I will accede to 17 that instruction. 18 What I would ask, though, is that all of these 19 documents, then, that I turn over in discovery or by way 20 of discovery, disclosure, the whistle blower 21 documents -- and that's the only category we're talking 22 about here, documents where the safety of some person 23 really is, in my judgment, going to be at stake, and I 24 make that judgment, indeed, when I know basically what () 25 the status of these witnesses' testimony is going to be, Sonntag_ Reporting _ Service,_1td; Geneva, Illinois 60134 (312) 232-0262

10641' lO 1 which was last night, that this is evidence that I 2 intend to use after weighing the' considerations that 3 I've already identified -- I would ask that these 4 documents be disclosed to the parties under a very c : 1 5 narrow protective order, the same protective order tha t

6 Mr. Berry asks for on his pending investigation, and 7 that is that they be disclosed only to trial counsel,: 4 i

8 and that if trial c6ensel wants to use them any -more , 9 generally, that they seek authority from the Board 3 , 10 because I have as mucts intecest in protecting the source. 11 of this information, both because 'there may be evidence-12 that's relevant to this proceeding which I want to 13 encourage the production of, and secondly, because I 14 have an interest in seeing someone who takes some 15 personal risk and dcaanstrates some personal integrity 16 in bringing these matters to the public's attention be ! 17 free from reprisal. 18 So I would request that such disclosure, which I l ! 19 will make under the Board's direction, be done under a L l .20 protective order. !

21 JUDGE GROSSMAN: Well, I'm not sure that the l

22 other parties are going to object to that, because I'm 23 not sure that Staff, for one, does want public 24 disclosure of Intervenors' Exhibit 90. 25 Did you intend that to be disclosed in camera, too, (]) Sonrttag_Repo tt ins _S e rv.i.c.e ,_L td . Geneva, Illinois 60134 I (312) 232-0262

10642 1 Mr. Guild? 2 MR. GUILD: No, sir. 3 The documents that I offered today, I offered under 4 the belief that they would be made a part of the public 5 record in this proceeding, and that, indeed, that is 6 part of the-protection for the source of the 7 information; but if I'm being told now that -- at risk 8 that I will never be able to use any more of these 9 documents in this proceeding as evidence, I'must . 10 disclose them to the other parties' counsel, I ask that 11 that disclosure be done under protective order. r3 12 I don' t intend -- V 13 JUDGE GROSSMAN: Okay. So, in other words, 14 what you are willing to do is disclose all of the 4 15 documents that you have, some of which you may decide to 16 produce here publicly, but that only trial counsel be 17 permitted to view all the documents you have other than 18 the ones that you eventually will produce publicly; is 19 that correct? 20 MR. GUILD: Well, I'll make available any 21 documents that I might use in this proceeding, and will 22 be bound by that as a restriction. 23 I will disclose any documents that I might use in 24 this proceeding, but only under a protective order. (]) 25 I, indeed, reserve the right to withhold some of l Sonn tag _ R e po r ting- S e r vi ce ,__Ltd . l Geneva, Illinois 60134 (312) 232-0262

10643

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1 those documents after I reach a judgment that disclosing 2 them would endanger the source of that information or 3 might, and that I would never use it in this case 4 because of that reason. 5 JUDGE GROSSMAN: I take it as trial counsel 6 you will include Mr. Treby and Mr. Miller's colleagues 7 here, Ms. Kezelis and Mr. Gallo? 8 MR. GUILD: Certainly, so long as they would 9 be bound by the standard non-disclosure obligation 10 that's been applied in this proceeding under protective . 11 order. 12 JUDGE GROSSMAN: Well, Mr. Berry, I 13 understand that you would have to check out that ! 14 agreement with your superiors to see if you could 15 voluntarily enter into that agreement or perhaps you 16 know that the answer is you can and that perhaps the 17 Board would have to order you to do that; is that i 18 correct? 19 NR. BERRY: That's correct, your Honor. 20 JUDGE GROSSMAN: You do want to check that l 21 out first? 22 MR. BERRY: Yes. 23 JUDG E GROSSMAN: Well, we have to take a l 24 recess, anyway, and so why don't we do that. () 25 I don' t know if we'll have much time lef t for l Sonnt a g_Repo tti ng_S e rv i c e , _ L td. .. Geneva, Illinois 60134 i (312) 232-0262

10644 3 N 1 hearing -- yes. I'm sorry. It's after the hour that 2 you can check it out. 3 MR. BERRY: That's right. 4 But I still would like a short, brief recess, your 5 Honor. 6 JUDGE GROSSMAN: Oh, okay, fine. 7 Why don' t we take a 10-minute recess. 8 (WHEREUPON, a recess was had, after which 9 the hearing was resumed as follows:) 10 JUDG E GROSSMAN: Back on the record. 11 I assume, Mr. Berry, that you haven't been able to 12 contact anyone in Washington, have you -- in Bethesda? 13 MR. BERRY: No, Mr. Chairman. 14 My understanding is they have lef t for the day. 15 MR. MILLER: Your Honor -- 16 MR. BERRY: I will approach them overnight. 17 JUDGE GROSSMAN: Mr. Miller, 18 MR. MILLER: I just had some observations on 19 the protective order that Mr. Guild requested. 20 There's been at least one anonymous document that 21 was disclosed to the Board and the parties at the same 22 time that it was disclosed to an investigative reporter 23 for the Chicago Tribune. 24 I don't know whether you recall Mr. Cassel standing () 25 here with such a document stating that it had been Sonntag Reporting Service,_Ltd. Geneva, Illinois 60134 (312) 232-0262

l l i 10645 ; O 1 received at BPI's offices at the same time the 2 investigative reporter was present. Therefore, the 3 document had, in fact, attained public status. 4 I had no obj ection, at least initially, to abiding 5 by the terms of protective order, assuming that the. 6 documents have, in fact, been maintained confidential by 7 counsel for the Intervenors. 8 However, if they are available to the world through 9 the media, and they are simply not being made available 10 to the parties to this proceeding,-then I, of course, 11 would object to the imposition of any protective order. 12 My caveat with respect to protective order 13 generally is that there may be matters disclosed that 14 I'm simply not qualified to assess and will need P 15 assistance from somebody in the employ of Commonwealth 16 Edison or Comstock, and at that point, as Mr. Guild 17 suggests, I would approach to Board and ask for a 18 modification of any protective order that was entered to 19 enable me to do -- l 20 JUDGE GROSSMAN: You understand, Mr. Guild, i 21 that that would be part of the protective order, that I 22 the Board could determine that disclosure is warranted? 23 MR. GUILD: Yes, sir; and I would hope 24 that -- I mean, I would expect that Intervenors would be () 25 heard before the Board made any such determination, Sonntag_ Reporting _ Service,_Ltd, Geneva, Illinois 60134 (312) 232-0262

10646 a 1 would have a right to at least seek review of a decision 2 if that situation came up. 3 I don't envision it coming up, but if it did, we 4 certainly would like to be able to protect our interest 5 and the interests, whatever they may be, of the source 6 of this information, by bringing our position to the 7 Board before a disclosure was made and by -- 8 JUDGE GROSSMAN: Okay, fine. 9 Are all the documents that we're referring to now 10 in your possession that have not been disclosed, that 11 you are willing to turn over under protective order, 12 internal NRC documents or are there any documents -- 13 MR. GUILD: I can't identify the source with 14 any certainty. 15 Obviously, the document that's prompted this 16 discussion bears identifying information that makes it 17 appear that its source was at least at some point an NRC 18 file. 19 JUDG E GROSSMAN: No. What I mean is: 20 Are they all internal NRC memoranda? 21 MR. GUILD: No, they are not, they are not. 22 JUDGE GROSSMAN: You know, we're going to 23 have the Staff take a position that those that are 24 not -- at least those that are not internal NRC () 25 memoranda, should be turned over to not just trial Sonntag_ Reporting _ Service,_Ltd. Geneva, Illinois 60134 (312) 232-0262

1 10647 73 V 1 counsel, but other NRC personnel in order that they may I l 2 fully investigate. .I l 3 I don't see how they could make that argument with 4 regard to internal NRC documents, because we're not 5 going to participate in an investigation of who turned 6 over the documents to you, whatever may be anyone else's 7 desire; but with regard to those other docmnents, there 8 certainly is going to be some position put forth on 9 that. 10 MR. G UILD: Well, let me just state this: 11 I can't say with confidence -- and I'll make a 12 further review -- but I recall seeing a document that 13 appeared to be a Commonwealth Edison Company document, 14 and one that may, in fact, have be.en available in 15 discovery. 16 It didn't appear to be one of controversy, but 17 that's what came to mind when you asked me that 18 question, so it wouldn't surprise me if it hadn't 19 already come into the Staf f's hands. 20 But I understand the Chairman's point, and I will 21 try to ascertain if there is a class of documents that 22 would arguably fall within the class that I have 23 identified and would be, th er ef or e, of interest to the 24 Staff and not already available to them. () 25 If I may just respond to one point that Mr. Miller Son n t ag_Repo tt ing _S e ry_i c e ,_ Ltd . Geneva, Illinois 60134 (312) 232-0262

10648 O sg 1 made, and that is this observation about the reporter, I 2 don't have enough personal knowledge to be able to 3 intelligently speak with confidence to that observation. 4 My information was that what Mr. Cassel was 5 speaking to was a limited disclosure to an investigative 6 reporter who made a commitment to maintain in confidence 7 any documents that he reviewed, and it was 141th -- 8 indeed, with the consent of this cousel -- or counsel 9 for Intervenors that the document Mr. Miller has 10 reference to was disclosed to the reporter and was 11 permitted to be used publicly. 12 That's a position that I have taken from the 13 outset, that documents should be public. 14 JUDG E GROSSMAN: I'm sorry. You had us both 15 confused. 16 You are now talking about a commitment to the 17 investigative reporter with regard to that previous 18 document, but not the ones that we're talking about now; 19 is that so? 20 MR. GUILD: Well, that's what I can't say is 21 for sure and that's why I'm hesitant to make any 22 representations beyond what I have just said. 23 JUDGH GROSSMAN: You have to check that, 24 also. () 25 MR. GUILD: I hope I am not being too obtuse; Sonn_t Ag_Re99tting_Sary_ ige,_1t;d, Geneva, Illinois 60134 (312) 232-0262 Y

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                                                                                  ~10649.

1 but' my understanding is that any documents that have : 2 been made available to that reporter were made available 3 in confidence and with _ the commitment from - that reporter 4 to maintain their confidentiality, with the exception of 5 documents that were published with our consent, 'and that' 6 it covers the document in question that Mr. . Miller's 7 referred to that became the subject- of a newspaper 8 article. 9 I'll agree with him in principle that documents 10 that have been disclosed publicly certainly -are beyond 11 the scope of. any protection that the Board .can make or 12 any obligation of counsel to maintain confidence. 13 I agree with Mr.= Miller in principle on that point; 14 and as to the specifics, I just have 'to make' further 15 inquiry . I 16 MR. MILLER: Well, your Honor, this i 17 proceeding with respect to Braidwood, as I think I've j l 18 mentioned before, is simply part of a larger controversy 19 that involves the same parties;' but within the confines i ! 20 of the procedures that are established by the -NRC's l 21 rules of practice and it seems to me elemental fairness . , 12 in the way contested proceedings are litigated, that it '. i ! 23 is simply not proper for a party to pick and choose the i i 24 individuals, regardless of promises of confidentiality l (} 25 or not, to whom it discloses documents and to keep from , i } j Sonntag Reporting Service, Ltd. . i ' Geneva, iffInols 6013T (312) 232-0262 [

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10650 1 the parties to the proceeding those same documents. 2 Mr. Guild says he doesn't have the information. I 3 certainly accept that representation; but on behalf of 4 Applicant, I will not accept a protective order if, in 5 fact, these documents have been turned over to a member 6 of the public, which is what a reporter constitutes. 7 JUDGE GROSSMAN: Well, I'm not sure that 8 that's the case. 9 I don't know. I don't profess to be an expert on 10 the rules with regard to disclosure of confidential -- 11 or what constitutes a waiver of -- I will have to look rS 12 further into that; but I might suggest that you V 13 yourself, as representing your party, might decide that 14 perhaps it is also in your interest not to have any 15 further disclosure of those documents. I just don' t 16 want you to ignore that possibility. 17 Maybe each of the parties here ought to be 18 examining their entire position with regard to this 19 overnight, at least, and see whether we can come up with 20 any agreement as to at least now to proceed initially 21 with regard to that. 22 I think we've all indicated some basic principles. 23 I think now Mr. Berry probably can't agree to 24 everything or anything that we've said now and, of () 25 course, he's probably going to be forced to only accept Sonntag_ Reporting _Serrice,_Ltd. Geneva, Illinois 60134 (312) 232-0262

10651' J l an order imposed by the Board with regard. to that, but I 2 can' t even speak to that, because Mr. Berry hasn't 3 checked that out. 4 MR. BERRY: Mr. Chairman, I would like to 5 point out that Staff is not interested in learning from 6 or having Intervenor disclose the identity of their 7 sources. That's not our objective at all. 8 Our objective is twofold. 9 One, if Intervenor has in its possession documents 10 that bear on the health and safety of the plant, we 11 certainly would be interested in obtaining that f- 12 information so the Staff -- the appropriate personnel in V)' 13 Staff, you know, can look into that and investigate it 14 and find out if there's any basis to, I guess, _any of-15 the concerns, whatever is expressed in the documents. 16 Secondly, your Honor, the Staff -- well, Staff 17 Counsel has an obligation to protect the interests of 18 his client in this proceeding, which is Staff. 19 It's exceedingly difficult to prepare witnesses, 20 prepare for examination, when documents or evidence is 21 going to be introduced that has not been disclosed in 22 discovery to the parties. 23 I believe that there is an obligation on the part 24 of the Intervenor to notify and disclose this particular (~' 25 document, you know, to the other parties, or at least ! ( Sonntag Reporting Service, Ltd. Geneva, IITInois 6013~4 (312) 232-0262 L

l l 10652 m 1 l 1 identify the existence' of this document, pa r ticula rly 2 since they were going to introduce it into evidence. I 3 So now what I will do overnight is I will be in 4 touch with senior people in the Staff, consult with them 5 and report back to the Board on our position with 6 respect to any protective order and the terms and 7 conditions which the Staff could live with. 8 But I did want to point out for the record that the 9 Staff is not interested in having Mr. Guild divulge the 10 identity of his sources, nor are we interested in taking 11 retaliatory action against any NRC individual, if any 7x 12 NRC individuals are involved. U 13 Our interest there is having access to any 14 information that may bear on the health and safety and 15 the quality of construction of the Braidwood power 16 plant. 17 JUDG E GROSSMAN: What Mr. Berry has pointed 18 out, of course, is the fact that the documents that you 19 are going to produce ought to be shown to the 20 individuals that you are going to produce those 21 documents for, the witnesses. 22 Again, we're back to the trial by ambush, and it 23 certainly would not further the Board's direction that 24 we not try the case this way -- that is, a trial by 25 ambush -- if the witnesses aren't going to be shown the ({} i' Sonntas_Repotting_SeIvice,_Lti Geneva, Illinois 60134 (312) 232-0262

10653 N) 1 document, if it's going to be produced when they are 2 testifying. 3 So I think, you know, there's going to have to be 4 prior disclosure to the witnesses of those documente, so 5 that's a matter you ought to consider, Mr. Guild. 6 MR. BERRY: One other point, if I may, your 7 Honor. 8 You know, the Staff has tried to be accommodating 9 to the wishes and ' desires and the interests of the other 10 parties in this proceeding. To that end, we've 11 commenced putting on our case and producing our 12 witnesses prior to tne completion of the Intervenors' 13 direct case. 14 In light of -- I think it's the turn in the case 15 now, it appears at least from reference to Intervenor 16 Exhibit 90, that indicates that the Intervenors may -- I 17 guess it gives the Staf f the first indication as to. , 18 where Intervenors may go with respect to the examination 19 of certain Staf f witnesses tnat we've identitied. 20 At tnis point, because of that, I would retreat 21 from any suggestion that I could produce Mr. Little as a 22 witneskbeforewehearfromIntervenorsremaining 23 witnesses, Mr. Schulz and Mr. McGregor. 24 At this point, I can no longer agree to produce Mr. (}. 25 Little until before the testimony is heard of Mr. Schulz Sonntag Reporting Service, Ltd. , Geneva, IITInois 61 FIT 4 (312) 232-0262

10654 1- and Mr. McGregor. 2 JUDGE GROSSMAN: Well, I don't think we're 3 going to reach Mr. Little this week, anyway, so that may 4 be academic. 5 But when are we going to have Mr. Schulz here and 6 Mr. McGregor? 7 MR. GUILD: Mr. Chairman, I expect that we 8 would start up with those gentlemen the 25th, if that's 9 the Board's pleasure, if we're done -- if we hre -- 10 well, whatever the Board's pleasure is. 11 If the Board is prepared to take Mr. -- if we' re 7s 12 not done with these gentlemen or Mr. Schapker, who

<-)

13 follows them, or Mr. Littl e, if the Staff chooses to 14 offer him next, and you want to take them down and begin ! 15 with Schulz and McGregor, that's fine. Whatever the 16 Board's pleasure is or the parties' pleasure. 17 JUDGE GROSSMAN: Well, the question is: 18 Is Mr. Schulz going to be available? 19 MR. GUILD: That I can't say, Mr. Chairman. 20 JUDGE GROSSMAN: Have you contacted him? 21 MR. GUILD: Mr. Schulz is not a witness that 22 is in the employ of BPI or the Intervenors. 23 MR. BERRY: Nor is Mr. Schulz subj ect to the . 24 control of the NRC. (} 25 MR. GUILD: And I have madeepic:r -thct ny - So n nt a g_R e p.o r. tin g_Se.rvice,_L td, Geneva, Illinois 60134 (312) 232-0262

10655

1 expectation as of Friday afternoon was that Mr. Schulz 2 would be the witness this week, and I was as surprised 3 as anyone to find that Mr. Schulz was unavailable or not 4 available. 5 So I will do my best to make arrangements for his 6 attendance, but I don't have the US Marshal Service at 7 my disposal, so I can' t guarantee that he will be here. 8 JUDGE GROSSMAN: I would hope you would be 9 able to serve a subpoena on him. 10 MR. MILLER: Has he not been served with a 11 subpoena? f- 12 MR. BERRY: I understand he has been served U 13 with a subpoena. 14 JUDGE GROSSMAN: Oh, it has been served on 15 him? 16 MR. BERRY: That's my understanding, yes. 17 JUDGE GROSSMAN: Oh, well -- 18 MR. MILLER: Ic seems to me he disobeys at 19 his peril. 20 JUDG E GROSSMAN: Pardon?

21 MR. MILLER: It seems to me he disobeys at 22 his peril. It seems to me we've tried to accommodate 23 his schedule, but --

24 MR. GUILD: Well, I think maybe it's time to (} 25 cay f or the record that Mr. Schulz informed me on the

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l I 10656 l 1 (~h L.) 1 telephone that he was very scared about the prospects of 2 appearing in this case; that he works for the utility 3 industry and has to deal with the Nuclear Regulatory 4 Commission on a day-to-day basis; and that I think he, 5 indeed, fears reprisal for his potential testimony in 6 this case. That's my opinion; and obviously, it's not 4 7 of evidentiary value, but that is, 'in fact, what I will 8 represent that Mr. Schulz told me .on the phone. 9 In addition, he offered personal reasons, as I 10 stated, but I don' t control the ~ gentleman; and I have to 11 say I'm sympathetic with his position. He's not a 12 volunteer; that's for certain. 13 JUDGE GROSSMAN: W ell, right now, we've been 14 asked to admit Intervenors' Exhibit 90. We don't have 15 any authentication of this exhibit, so we can't do it at 16 the moment, anyway, and jso we might just as well go on. 17 Do you have any further surprise documents in the 18 next few minutes? 19 MR. GUILD: Only the documents I was 20 surprised with this morning when the Staff gave me their i 21 last batch of allegations, Judge. 22 JUDGE GROSSMAN: Fine. We have 12 minutes. 23 Do you want to use that to examine? 24 MR. GUILD: Yes, sir, I'm prepared to go 25 forward. S o n n t a g_R e po r_t i ng_S_e_r v_i c e ,_L t d . Geneva, Illinois 60134 (312) 232-0262

10657 o Q-1 Oh, let me just add one point in this discussion, 2 and that is this: 3 I am mindful of the fact that when a document comes 4 out, that it, indeed, may take a party by surprise, and 5 I would be the last to obj ect to, in this case, Staff 6 having an opportunity to take that surprise into account 7 or Applicant having that opportunity, and that's 8 certainly something that I'm aware of when a document 9 comes out as it has here. 10 I would expect the similar accommodation when a 11 document is newly produced by the Staff as it was -- as

 ,f 3 12     a whole stack were this morning, on the eve of their U

13 witnesses taking the stand on this issue; but certainly 14 one remedy that's available to try to balance, but it's 15 a very difficult, complex set of considerations here, I 16 think, is recognizing that a party who is~ disadvantaged 17 by learning of a document late or in surprise should be 18 accommodated. 19 I just vontc i to add that point for the record. 20 J ' uJ # tOSSMAN: W ell, though, it is a little i 21 different when you confront an adverse or hostile 22 witness with a document than when you don't have a 23 document available that you might be able to use at the 24 time, which you then can remedy by having a witness {} 25 recalled and using the document later on. Sonntag Reporting Service, Ltd. Geneva, I111nois (6131 (312) 232-0262

10658

    ~~T (U
         -1               It's a little dif ferent natter than the adverse or 2  s       hostile witness being confronted with a surprise 3          document at that time, where their responses are colored 4          by their lack of foreknowledge of the document, so it's 5         not exactly the same same.

6 But, in any event, let's just continue with 7 whatever time we have left. 8 MR. GUILD: Yes, sir. 9 BY MR. GUILD: 10 0 Mr. Mendez, when you initiated your inspection 11 , activities in April of 1985, as you stated, you had a 7 si 12 general awareness that,there had been problems with L. G 13 R. Comstock before, their QC department? 14 A (WITNESS MENDEZ) Yes,' sir.. 15 Q All right, sir. 16 And yet you did not make any sp'ecific inquiry of 17- McGregor or Schulz as to what they referred to directly 18 in their March 29th memo alluding to past difficulties 19 with Commonwealth Edison and Comstock; correct? 20 A (WITNESS MENDEZ) I don't think I asked them about that. 21 Q All right, sir. 22 If I could ask you to examine a document. This is 23 a document that bears a date of September 25, 1984. 24 It's a memo from Schulz to Forney with attachments, and (} 25 it was made available by Staff Counsel today, August 13, Sonntag_ Reporting _ Service,_Ltd. Geneva, Illinois 60134

            ,                        (312)   232-0262

10659 O V 1 1986, by way of, I guess, supplemental discovery. 2 (Indica ting. ) 3 MR. BERRY: Just to clarify the record, 4 technically that's not true. It was made available, as 5 I recall, last week, on August the 4th. 6 MR. GUILD: I stand corrected and apologize. 7 I mistook it tor tne one that was handed over today, Mr. 8 Berry. 9 Mr. Chairman, I apologize. Last week, tnen. 10 Again, indeed, August'ot 19 -- July of 19 86 -- was it 11 July or August? 12 August, 19u6. I'm losing track of time.

   )
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13 I'd ask this document be marked for identitication 14 as Intervenors' Exhibit 91. 15 (The document was thereupon marked 16 Intervenors' Exhibit No. 91 for 17 identitication as of August 13, 1986.) 18 BY MR. GUILD: 19 Q Mr. Menaez, do you have a copy ot tnis Derore you? 20 A (WITNESS MENDEZ) Yes, sir. 21 Q All right, sir. 22 Now, it does

Dear a date or SeptemDer 26,

1984, and 23 it appears to relate to Comstock Inspector concerns or 24 tnat time period. 25 Have you seen this document Derore? l [} Sonntag Reporting Service, Ltd. Geneva, Illinois 60134 (312) 232-0262

I 10660 ; I l (:)2 l- A (WITNESS MENDEZ) No, . I . n aven ' t. 9.. c 2 Q I take it you didn' t see it at the pointt where you 3 commenced -your inspection. activities -- 4 A (WITNESS-MENDEZ) . That's correct. 4

5. Q -- at Braidwood?

1

6 All right, sir, i 7 Now, who was Mr. Forney, tne' recipient or addressee' 4

8 or tne document? 9 A. (WITNESS MENDEZ) I believe Bob Schulz works tor Forney.

-         10                Tnat is, Schulz' supe rvisor.

11- Q Okay. 12 He's'snown nere, as or September or '84,;as tne 13 Chiet, Projects Section lA. 14 Does ne nold tnat position today? i i 15 A (WITNESS MENDEZ) Okay. I know that he's a section 16 chiet ano I also know that he works for Projects. . 17 I don't know it ne works for -- it he's section i 18- cnler in lA. 19 Q Do you know wnetner tue Resloents at Braidwood, Schulz 20 and McGregor, reported to Mr. Forney in tne spring or 21 '85 wnen you initiated your inspection activities? 22 A (WITNESS MENDEZ) Repeat tne question, please. 23 Q Did they work for Forney back in March of '85, April of i 24 '85? l 25 A (WITNESS MENDEZ) I don't know if one or both worked for i

    .(])

I ! Sonntag_ Reporting _Serylca,_Ltd. Geneva, Illinois 60134 I (312) 232-0262

10661'

                                                                                                                                                                              't f  .\

l .Forney. 2 Q Okay. 3 The document, in the second numbered paragraph'on 4 the first page, after reciting 'that five Comstock 5' Inspectors came to-see the Resident -- states there, 6 Paragraph 2, " Morale was extremely low or non-existent

                -7                                                        due to poor management," and it states, "One of the five-8                                                        individuals believed the quality of work was being 9                                                        affected," one believed ~ the quality of work was not 10                                                        being affected.           The bottom line is the other three 11                                                        Inspectors felt it could be affected in the future due e

g- 12 to morale problems.

13 Do you see those observations there?

! 14 A (WITNESS MENDEZ) .Yes. 15 0 All right, sir. 16 Now, were you aware that in September of .1984 -- 17 were you aware, when you began your inspection in 18 September of 1984, there had been extremely low or l 19 non-existent morale among the QC Inspectors at Comstock l 20 due to poor management? I- 21 A (WITNESS MENDEZ) I was not aware. ^ 22 Q Were you aware that there was a belief among some f 23 Inspectors that due to that problem, there was a 24 potential that the quality of their quality control i (} 25 inspection work might be af fected in the future? Sonntag Reporting Service, Ltd. Geneva, IITinois 60T31

(312) 232-0262 a

       .,,,_y.,     ,_,_._.,_.,-,,_,,-,._-~.-~,.m.,--..-,,,,.,,.,,.,,,,_                            _,,, _ ._ , _ ,_ __._ -., .__,_, , ,,_,- ,,,.,_.        .__,,,_,.ymm_.m,,

10662 1 A (WITNESS MENDEZ) No, I wasn't. 2 Q You did, in fact, speak with a number of the Inspectora 3 who are listed on Page 2 of this document, did you not, 4 in the course of your inspection activities? 5 A (WITNESS MENDEZ) No, I didn't. 6 I think the only one I spoke to was Danny Holley. 7 Q So you spoke to one of them? 8 A (WITNESS MENDEZ) Yes. 9 0 All right. 10 When you initiated your inspection activities in 11 the spring of '85, were you aware that Mr. John Seeders

,f S . 12 had raised complaints of harassment, intimidation, V

13 production pressure and retaliatory transfer back in 14 September of '84? 15 A (WITNESS MENDEZ) No. 16 Q Did you ever speak to Mr. Seeders in the course of your 17 inspection ? 18 A (WITNESS MENDEZ) No. 19 MR. GUILD: Mr. Chairman, I'd ask that 20 Intervenors' Exhibit 91 be received in evidence. 21 MR. MILLER: No objection. 22 MR. BERRY: No obj ection, Mr Chairman. 23 JUDGE GROSSMAN: We'll receive 91. 24 (The document was thereupon received into (} 25 evidence as Intervenors' Exhibit No. 91.) So n n t a_g_R e po r_t i ng_S e r v i c_e;_Ltd . Geneva, Illinois 60134 (312) 232-0262

10663 (') v 1 JUDGE GROSSMAN: By the way, is there 2 obj ection to 90, other than on grounds of surprise? 3 MR. MILLER: Yes, sir, there was, but since 4 it wasn' t being received now, I thought I would save my 4 5 objections until such time as it was reoffered. 6 JUDG E GROSSMAN: Okay, that's fine. 7 MR. BERRY: Me, also. 8 MR. GUILD: Mr. Chairman, it's being offered, 9 and I understand the Board's position about the 10 authentication issue, but I would ask that counsel be 11 required to state what their objections are, if they 12 have any, other than the surprise issue. 13 MR. MILLER: I'll be happy to do so. 14 Your Honor, of this five-paragraph memorandum, 15 there is only one paragraph that deals with the issues 16 before the Board; that is, the question of how the 17 Comstock QC Inspector investigation was handled by the 18 NRC Staff, and even that is, as the Board has previously ! 19 observed, somewhat a tangential matter. ( 20 The remaining paragraphs of this document relate to 21 other subject matters and call into' question matters i 22 that were the subject of contention items that were 23 dismissed by the Commission. ( 24 If the document is admitted, it seems to me that l {} 25 these statements are both prejudicial and they raise I l Sonntag Reporting Service, Ltd. I Geneva, IlTiiiois 601~34 l (312) 232-0262 i

10664 O 1 extraneous issues that may well have to be addressed 2 through the course of examination of Mr. Schulz and 3 perhaps others as to what his grievances were with 4 respect to the way in which these material. traceability 5 verification program print-outs or the GAP FOIA request 6 were handled, and the point, with respect to the 7 management by the NRC of the inspection of the 8 grievances of the Comstock Quality Control Inspectors is 9 perhaps a legitimate issue to be explored with these 10 witnesses and certainly with Mr. Schulz and Mr. McGregor 11 when they appear, but it seems to me that the 12 prejudicial and irrelevant nature of the bulk of this 3 G document outweighs whatever probative value it will 13 14 have, since the subj ect can be fully explored by oral 15 examination of the witnesses who are knowledgeable on 16 the matter. 17 JUDG E GROSSMAN: Well, first of all, what we 18 did say was that while we have reservations about trying 19 the issue of the character of the NRC investigations or 20 confirmations of the NRC of company practices, that it 21 has become an issue, and we've recognized that both 22 Staf f and Applicant have put that in issue, the fact 23 that the NRC has confirmed the practices of the company, 24 both CECO and Comstock, to a certain extent, and Staff (} 25 generally defends the character of its investigations, So n n t a g _R ep_o_r t_i n g_S e rv i c e ,_L t d . Geneva, Illinois 60134 (312) 232-0262

10665 l 1

\_/

1 so that is in issue. 2 Now, I believe this entire document reflects on 3- that issue. 4 As to items that are collateral to the exact issues 5 that we're hearing here, we're not going to be taking 6 evidence on collateral matters. We have made that plain 7 from the beginning. 8 Parties have objected, and one ruling that we made 9 was not entirely consistent with that, but we certainly 10 have no intention of going outside the contentions that 11 are in issue here to try collateral matters. fg 12 But it seems to me as though-the entire document N./I 13 does reflect on the character of the NRC review of this 14 entire issue here. 15 Now, as far as Staff is concerned, of course, the 16 documents are admissions, and to the extent -- assuming 17 they are authenticated, and to the extent that Applicant 18 relies upon Staf f's approval of its positions, the fact 19 that they are admissions against Staff, to a certain 20 e xten t, would be admissions against Applicant, so I 21 don't see too much of a problem. 22 But, Mr. Berry, let's hear further from you. 23 MR. BERRY: Maybe you can just help me out, 24 your Honor. 1 25 The Staff's position in this case is reflected in ( }) Sonntag Reporting Service, Ltd. Geneva, Ill'inois 6013'4 (312) 232-0262

                                                                                                                                          ,10666 f)-

v 1 the testimony of the witnesses we produced; for example, 2 Mr. Mendez and Mr. Neisler, when they were assigned to 3 investigate the allegations of the' 24 QC Inspectors.. 4 We have witness who investigated Mr. Puckett's 5 allega tion s. Another witness will speak to the Staf f's - 6 investigation of Mr. Seeders' complaints. ~ 7 You know, that is what- the Staf f _ is of fering. j 8 I don't understand that the Staff's conduct is on 9 trial in this case. 10 To the extent that -- to the extent that'Intervenor e 11 or another party wants to challenge the thoroughness of 12 the Inspectors' investigation, I can understand that, 13 but internal disagreements, you know, or an internal 14 decision is made within the NRC, I do not agree that l i 15 that is part of this case and that it is a proper 16 subj ect of testimony in this case. l 17 JUDGE GROSSMAN: W ell, it's not just the 18 thoroughness, but it's also the credibility of' its f 19 investigations and the general character, and this l 20 certainly reflects on that. ]' 21 I don't think any party has a right to determine 22 which people can be appointed as spokesmen for the 4 23 company by either their actions or statements. 24 To the extent that these documents reflect internal 25 NRC positions that may af fect the credibility of its {} i S Rnnt a g_R e por ti n gle_tV_Lc_e ,_Lt d_. Geneva, Illinois 60134

j. (312) 232-0262

2 110667-9 7

                                   .1                                                  investigations or confirmations of the -company
                                   '2                                                  performance, I think itListrelevant to the-hearing.
 .                                 '3                                                       Mr. Miller.-

4 'MR., MILLER:. Your Honor,lI respectfully 5 disagree with respect to-Staff's_ prerogatives. 6 Unlike any other party, they are entitled to 7 designate the spokes persons for the Staff position, and - 8 those people rise-or fall on the testimony that they 9 present and the cross examination. 10 But this document goes quite well beyond.that to 11 not only -- it really doesn' t impune directly . the - l 12 investigative efforts or the testimony of the witnesses 13 that are on the stand. 14 It is, rather, a more generalized attack 1by, Mr. 15 Schulz over the way in which he was being dealt with by 16 his superiors on some specific items that do'not,:in

                               . 17                                                    fact, relate to the subject matters' of this hearing.

18 And to that extent it really does fall into the 19- category of a -- if it's admitted, of a generalized 20 attack on the way in which the Staff conducts its 21 af fairs, and I don't believe that that is an appropriate

         ,                       22                                                    subj ect for this hearing.

23 MR. GUILD: Mr. Chairman, I agree 24 wholeheartedly that while we believe there are serious 25 issues involving the adequacy of material traceability (]} Sonntag Reporting deneva, IlTIn 61sService, 6bl~31 Ltd. i { (312) 232-0262

e 10668 VlD

          - .1      at Braidwood, that matter is pending before the Court of 2       Appeals for the District Court of Columbia.                  We may orl 3       may not get to trial' on those.

4 I don't purport to -try those issues here; and I 5 understand the Chair's ruling to the contrary, but the 6 Staff can't be cloaked or shielded f rom having questions 7 raised about the reliability of its work product to the 8 extent it's an adversary in this case or to its - 9 credibility, to the extent it's an adversary in this 10 case, by simply raising this specter that it's an 11 internal disagreement among the Staff. 12 Lord knows there's been considerable examination of O 13 QC Inspectors about their motives and reasons why their 14 testimony should be credited or not credited in this 15 case, and I think that the Staff is not on any 16 fundamentally different footing having taken an 17 adversary position. 18 MR. BERRY: Mr. Chairman, this document is 19 offered -- Intervenors offered this document through Mr. 20 Mendez and Mr. Neisler. 21 Neither one of them authored this document. 22 Neither one of them can authenticate this document. 2 23 JUDGE GROSSMAN: You are referring now to

24 which document?

25 MR. BERRY: Intervenor Exhibit 90, which is

Son _n_t.ag_Renotting Se rvice,_Lt;d. Geneva, Illinois 60134 (312) 232-0262

10669 m h 1 what we're still arguing. 2 JUDGE GROSSMAN: Which we're arguing on. 3 Fine. 4 MR. BERRY: Yes. 5 I mean, I would just object to attempts by 6 Intervenor to introduce a document through a witness who 7 cannot speak to it. 8 The witness has never seen the document before, the 9 witness cannot authenticate it; and the bulk of the -- I 10 mean, the document only tangentially relates to anything 11 that -- any action that they took or failed to take for s 12 whatever -- for the reasons stated in this exhibit. 13 I mean, I think it's just simply inappropriate, 14 highly inappropriate, to try to attempt to introduce 15 this document through anyone other than Mr. Schulz or 16 Mr. McG regor. 17 JUDGE GROSSMAN: Okay. Well, so we have the 18 problem of authentication of the document; but, again, 19 we expect both Mr. Schulz and Mr. McGregor to appear, 20 and hopefully that will obviate the problem and we won't 21 have to resort to directing Staff to authenticate the 22 document on its own. 23 Nowy as far as having a foundation witness, the 24 document would be an admission, and I know we won't need 25 a foundation witness for that type of document, so you (]} Sonntag Repor_tijn Service, Ltd. Geneva, Illinils 6~0134 (312) 232-0262

i 10670 t' (

      'l                 ought to bear that in mind; but I assume we've heard all 2                 the arguments you have, and we're not ruling on it right                _
      -3                 now, anyway.                                                                                             -

4 So with that, I think we might as well conclude , 5 until 9:00 o' clock tomorrow morning. l t 6 (WHEREUPON, at the hour of 5:06 P. M., the , 7 hearing of the above-entitled matter was ! 8 continued to the 14th day of August, at ;

9 the hour of 9: 00 o' clock A. M.)

10 11 12 > iC 13 14 15 16 17 18 19 4 20 4 21 i i 22 23 24 i l(~) 2s Sonntag_Repotting_Servica,_Ltd. . i Geneva, Illinois 60134 (312) 232-0262

CERTIFICATE OF OFFICIAL REPORTER This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of: NAME OF PROCEEDING: BRAIDWOOD STATION UNITS 1 4 2 COMMONWEALTH EDISON COMPANY DOCKET NO.: 50-456/457-OL PLACE: JOLIET, ILLINOIS

O DATE: WEDNESDAY,' AUGUST 13, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.

(sigt) 3 6.ua f.8 1 (TYPED)

                                                     "         U Gary L. Sonntag Official Reporter Reporter's Affiliation O}}

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 =Text=
-{{#Wiki_filter:}}
+{{#Wiki_filter:<;
+ORENA!_
+O                                      UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:                                                      DOCKET NO:
+BRAIDWOOD STATION                                                      50-456/457-OL UNITS 1 & 2 COMMONWEALTH EDISON O                                                                                                                    .
+LOCATION:           J0LIET,.ILLINDIS            -
+PAGES:  10422 - 10670 DATE: WEDNESDAY, AUGUST 13, 1986 o
+7R.ofs}aEV.h~F
+         &trauj
+                           //f-/ 'Y ACE-FEDERAL REPORTERS, INC.
+O                                               OfficialReporters 444 North CapitolStreet 860819o1 14 e50u14                     Washington, D.C. 20001 PDR   /,pCCa O 5 g o g j c, g-r                     Ptm                   (202)347-3700 NATIONWIDE COVERAGE L --                                                           - _ _ _ _ _ _ . . _          __   _           . . . _ . _   _ . _ . .
+(- ,, -
+bJ -
+-                      UNITED STATES OF AMERICA 2'                  NUCLEAR. REGULATORY COMMISSION 3           BEFORE THE ATOMIC SAFETY AND LICENSING BOARD                         ;
+X
+                               ~
+                                             :
+In the Matter.of:                    :
+                                             : Doc ke t No. 5 0-4 56 ~ OL
+                     . COMMONWEALTH EDISON COMPANY-         :                 50-457 OL 7                                             :
+(Braidwood Station, Units 1          :
+         and 2)                              :
+_ _ _ _ _._ _ _ _ _ _ _ _ _ _ _ _ _X 9
+                                   Page:     10,422 - 10,670 11                                   College of-St. Francis 500 North Wilcox q  12                                   Joliet,- Illinois
+        -)   13                                   Wednesday, August. 13,'1986.
+The hearing in the above-entitled matter reconvened 15 at 9:00 A. M.
+17  BEFORE:
+             JUDGE HERBERT GROSSMAN, Ch$irman Atomic Safety and Licensing Board 19              U. S. Nuclear Regulatory Commission Washington, D. C.
+JUDGE RICHARD F. COLE, Member, 21             Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission.
+L22             Washington, D. C.
+             JUDGE A. DIXON CALLIHAN, Membe r ,
+Atomic Safety and Licensing Board 24              U. S. Nuclear Regulatory Commission Washington, D. C.
+APPEARANCES:
+Sonntag Reporting Service, Ltd.
+ueneva, 1111nois       oulae (312)    232-0262 2
+               ~
+On behalf of the Applicant:
+                                                                      >
+MICHAEL I. MILLER, ESQ.
+          ' JOSEPH GALLO, ESQ.
+ELENA Z. KEZELIS, ESQ.
+           Isham, Lincoln & Beale Three First National Plaza 5           Chicago, . Illinois 60602-6     On behalf of the Nuclear Regulatory Commission Staff:
+ELAINE I. CHAN, ESQ.
+           GREGORY ALAN BERRY, ESQ.
+U.'S. Nuclear l Regulatory Commission 9           7335 Old 'Georgetown Road Bethesda, Maryland 20014 10 On behalf of the Intervenors:
+ROBERT GUILD, ESQ.
+([)        13 14 15 16 17 18 19 20 21 22 23 24 25
+(])
+i                             Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 l                                       (312) 232-0262
+L   -
+e 10424 g
+     $)
+           TESTIMONY OP- JOHN H. NEISLER and ROGELIO MENDEZ 2    DIRECT EXAMINATION BY MR. BERRY                          10430
+               ~3 VOIR DIRE EXAMINATION 4    BY MR. GUILD                          10439 5    VOIR DIRE EXAMINATION BY MR. GUILD                          10443
+:6 VOIR DIRE EXhMINATION 7    BY MR. GUILD                          10456 8    VOIR DIRE' EXAMINATION BY MS. CHAN                           10459
+               .9 VOIR DIRE EXAMINATION 10     BY MR. MILLER                         10463 11 '   VOIR DIRE EXAMINATION BY MR. MILLER                         10471
+      ,eg     12
+()       13 VOIR DIRE EXAMINATION BY.MR. GUILD                          10483 14     PREPILED DIRECT TESTIMONY             10490 15     CROSS EXAMINATION BY MR. MILLER                         10493 16 17-                       TESTIMONY OF W. J. SHEWSKI 18     RECROSS EXAMINATION (Continued.)
+     BY MR. GALLO:                         10525 20     RSDIRECT EXAMINATION BY MR. GUILD                          10527 21 TESTIMONY OF JOHN H. NEISLER AND ROGELIO MENDEZ
+             '22' CROSS EXAMINATION 23     (Centinued.)
+BY MR. MILLER:                        10530 24.
+BOARD EXAMINATION l (~'i -  25'    BY JUDGE GROSSMAN:                    10581
+      %)
+Sonntaq Reporting Service, Ltd.
+i Geneva, Illinois 60134
+;                                        (312)  232-0262 L
+w:
+                                                                                                                                                                  ~
+                                                                                                                                                                                    }
+    -c,                                                                                                                                                                              '
+W
+(f IL            CROSS EXAMINATION BY MR. GUILD:                                                                                       10586 2
+EXHIBIT INDEX 3
+Marked                                       Received 4
+Staff's Exhibit No. 17                                                           10437 5
+Intervenors' Exhibit No.-89                                                    -10610                                           10613 6
+Intervenors' Exhibit No. 90-                                                     10618
+               -7 Intervenors' Exhibit No. 91                                                      10659                                          10663 8
+10 11
+<            12 O       13 14-15 t
+17 18 19 20 21 22 23
+            -24.
+. O       25 Sonntag Reporting Service, Ltd.
+ueneva, 1111nois                    0 u 1.5 e (312)     232-0262
+   \m/
+               JUDGE GROSSMAN:          Are we ready to go?
+               MR. BERRY:         I have-a preliminary matter 3 before we start.
+                                                             ~
+                JUDGE GROSSMAN:          We don't need the witness 5   yet because we have some motions to strike.
+          Well,'I guess we do need the witness.to offer the 7   testimony.
+                MR. BERRY:         Before we do that, we have one 9   prelimina ry matte r, Mr. Chairman.
+                 JUDGE GROSSMAN:          Okay. The hearing is 11   reconvened.       This is the 52nd day of hearing.
+           Mr. Berry has a preliminary matter.
+               ' MR. BERRY :        Mr. Chairman, I do recall we had
+       '14 a discussion last week over production of Staff 15   documents; and the Board suggested that the Staf f 16   re-assess its position on relevancy and scope of 17   production relating to documents in its possession.
+           Staff has done that.         We have identified another 19   allegation that has been received by the Staff recently.
+   It relates to allegations raised by a QC Inspector 21   employed by Comstock.
+           We propose -- well, those allegations are subject 23   to an ongoing inspection.
+           What we propose is to produce the documents to the
+!^
+(~)
+   %s/
+   parties under the same terms and conditions that we
+!                    Sonntaa Renortino Service. Ltd.
+(                        Gen eva', Illinois 60134 l                              (312)   232-0262
+(o) 1        ' produced allegation file 0079, because' that was --
+lL                    JUDGE GROSSMAN:     Limited only to trial 3        counsel.
+                     MR. BERRY:    Yes..
+                I have represented that to the counsel for.the 6        other parties already and they have agreed to that.
+                So the Staff at the next recess will have the 8        documents in our possession and will produce them.
+O 9                     JUDGE GROSSMAN:     That's fine.
+                If counsel want to go further, then we will make
+        -11        whatever ruling is appropriate, but that's fine.       The fs   12        Board accepts that. stipulation as to a protective order
+()
+        at this point.
+                     MR. GUILD:    Mr. Chairman, excuse me.
+                I guess that would also include my associate, Mr.
+        Margulies, who is'the --
+                     JUDGE GROSSMAN:     Yes, that is correct.
+I 18                     MR. BERRY:    That is fine.
+                The other matter I bring to the Board's attention 20        is the question of the Board's notification.
+l
+,        21                The Board did express some concern that they 22        weren't being notified in a timely fashion by Staff on 23        matters bearing on the hearing.
+                I would just bring to the Board's attention that it
+(~)
+V 25        is the new Board notification procedure, the policy l.
+!                          Sonntag Reporting Service, Ltd.
+Geneva, Illinois    60134 (312) 232-0262
+                            .. .. .            .-         .-               .              . _-      ,     .  - . ~ .                ...
+c                                                                                                                             10428-s_1
+                        'l            statement,-which requires that the Staff conduct an
+!                        2            initial-inquiry.into an allegation to see that it's not l~                       3            frivolous before-it makes a. notification.
+                  It is my understanding that with respect 1to the 5-           documents that we produced last week and the documents 6            we propose to produce th'is afternoon,.that the initial
+                                    ~
+                                                                                                                  ~
+f--                      7            investigation to determine whether there:was any merit 8            to the allegations in terms of not frivolous hasLnot yet 9            been completed.                               I would just- like the Board to be ' aware 10             of that.
+I 11                  With respect to the Staff, at'least, that before 12             they make Board notifications, they are obligated to 13             conduct an initial inquiry into it to see if it's 14             something that requires notification.
+                          JUDGE GROSSMAN:                                   With regard to that,-Mr.
+}                     -16             Ber ry, the fact that it might be frivolous makes it 17             relevant, since the alleger was a witness here; and the t-                     18             fact of its being potentially frivolous would have some j                      19             impact on his testimony, at least for someone who wishes 20             to discredit the witness.
+I
+;                      21                          MR. BERRY:                                   I was speaking more generally,
+                      .22             Mr. Chairman, just as to what the statement of policy n
+i 23             requires with respect to the Staff before Board i                      24             notification, j()           25                          JUDGE GROSSMAN:                                   Okay. But just as this is 1
+{^
+Sonntag Reporting Service. Ltd.
+Geneva, Illinois 60134 L                                                                (312)                      232-0262
+_.g V
+an example, it suggests that, perhaps, you, that is 2 Staff, you in the plural, are. construing the 3 notification a little too narrowly and you ought to be a 4 little more expansive on it.
+            MR. GUILD:    Mr. Chairman, I would just ask:
+Is-there a recently published policy on Board 7 notifications?
+            MR. BERRY:    I believe-we have that, also.
+      We will make that available at the next recess..
+            MR. GUILD:    Thank you.
+            MR. BERRY:    At this time, Mr. Chairman, Staff
+(-)
+U 12 would call Mr. John Neisler and Mr. Roger Mendez.
+MR. MILLER:                            I am 13                           Your Honor, excuse me.
+sorry. I do have one preliminary matter.
+      I believe we have found the missing original of the 16 July 9th transcript.
+      Shall I tender it to the Court Reporter at the
+    -18 break?  Is that the procedure?
+            JUDGE GROSSMAN:     Yes, that's fine.
+      Gentlemen, would you please stand, raise your right 21 hands?
+                 (The witnesses were thereupon duly sworn.)
+            JUDGE GROSSMAN:     Please be seated.
+      Fine. Proceed, Mr. Berry.
+()   25                    JOHN H. NEISLER Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+_(-
+      'uJ 1                                    ROGELIO MENDEZ 2        called as witnesses :by Staff, having been first duly sworn, 3       was examined and testified as follows:
+                                 DIRECT EXAMINATION 5-                                    BY MR. BERRY 6       Q     Please state your name and spell your last name . for the 7             record.
+       A     (WITNESS NEISLER) John H. Neisler, N-E-S-L-E-R.
+       A     (WITNESS MENDEZ) Rogelio Mendez, R-O-G-E-L-I-0,
+          -- 10             M-E-N-D-E-Z.
+                           MR. GUILD:        Mr. Chairman, I think maybe we 12              need some mikes.
+           -13                           MR. BERRY:        Mr. Mendez, you might want to put 14              on the microphone.
+                           JUDGE GROSSMAN:        Well, as we have ruled 16              earlier, they are only going to be on shortly jointly 17              and then we are going to excuse one of the witnesses and 18              you will be entitled to examine the other alone and then 19              you will take the other witness afterwards.                      .
+                   So we only need one mike for this.
+                           MR. GUILD:        I don't want to jump too far 22              ahead too quickly, Judge; but, first, it's our position
+:           23              that Commonwealth Edison Company, the Applicant, should 24              go first, should precede us in examining the witnesses,
+()     25              on the grounds that their testimony reflects an identity Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+  \l 1   or compatibility of interest between the Staf f- on these 2   issues and the Applicant and that in order to protect 3   Intervenors' rights to confront and cross examine 4   adverse evidence, we should be privileged to follow 5   Applicant.- That's one point.
+        Secondly, though, I have discussed with both 7   counsel that I am willing to examine them as a panel, 8   having reconsidered the matter, when my turn arrives, so 9   long as I am able to direct questions and elicit. answers 10   individually to questions where it's appropriate.
+: 11.            MR. MILLER:    Your Honor, Mr. Guild told me 12   just before the hearing started this morning that he 13'  anticipated that I would go first on behalf of the 14  -Applicant in cross examining these witnesses.
+        This is somewhat of a departure from practice that 16   we have had previously, where, when Applicant witnesses 17   were tendered, Mr. Guild examined and then the Staff 18   conducted such further Cross Examination as seemed 19   appropriate; and I think that accurately reflected the 20   general alignment of the positions expressed by the 21   parties in this proceeding.
+        I am certainly prepared to conduct an examination; 23   but, frankly, it is really, on the basis of prepared 24   testimony, quite brief. It is more in the nature of
+()   25   clarification of some points.
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+V. n 1        My anticipation is that it is only after the 2  conclusion of Mr. Guild's examination, whenever it 3  comes, that I will be able to assess what substantive 4  examination will be necessary on behalf of the 5  Applicant.
+: 6.       I had not . unde rstood, f rankly, before ten minutes 7  ago that there was going to be this change in the 8  approach.
+               JUDGE GROSSMAN:          Well, the order that Mr.
+  Guild suggests seems to be appropriate.
+        I am a little disturbed that he didn't notify you 12  ea rlie r, or the Boa rd.
+               MR. GUILD:         Mr. Chairman, it just seemed to 14  me that it was implicit; and I apologize if it comes as 15- a surprise to anybody.
+        But, on reflection, we are beginning a new party's 17  case and we are on-a substantially different footing 18  than we had when I was examining Applicant's witnesses.
+               JUDGE GROSSMAN:          Yes, that is understood.
+        I agree that what we did before really doesn't' bear 21' on this question.           They were a different party's 22  witnesses and the only order that we had that was any 23  different than the usual with regard to presenting 24  witnesses is that Staff went last on all of these
+()  25  witnesses and the party offering the witness went first.
+Sonntag Reporting Se rvice. Ltd.
+Geneva, Illinois 60134
+                      ,    (312)        232-0262
+10433 l
+  ,,n.
+   \,
+            It seems to me that what Mr. Guild is suggesting is 2       logical.
+-           Now, if you are prepared, I understand that the 4       bulk of your examination will be on rebuttal or for 5       recross, actually. So that's fine.
+            If you are prepared to go forward on your regular 7       cross, which is going to be somewhat in the nature of 8       direct examination, we will do it that way.
+                  MR. MILLER:    .Yes, I am prepared to go 10       forward, although I will represent that it is likely to 11       be relatively brief.
+-                 JUDGE GROSSMAN:     Well, we wouldn't mind that, 13       even if your Recross were relatively brief.
+                  MR. MILLER:    I am sure that's correct.
+                 -JUDGE GROSSMAN:     But we understand that that 16       will be more extensive than your original cross.
+            So, fine. Why don't we proceed that way?
+                  MR. GUILD:    Then, I guess, Mr. Chairman, the 19       next point on the agends would be:
+            There is a motion to strike that is pending after 21       the witnesses are tendered.
+                  JUDGE GROSSMAN:     Yes, that is fine.                    We are 23       prepared to deal with that.
+                  MR. MILLER:    That may solve the whole issue.
+()  25  BY MR. BERRY:
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+(f
+Q    By whom are you employed?
+          .2     A    (WITNESS NEISLER) Region 3 in the Nuclear Regulatory 3      Commission, Chicago office, field office, in Glen Ellyn.
+A     (WITNESS MENDEZ) Region 3, Nuclear Regulatory 5      Commission, Glen Ellyn.
+0    Will you move your microphone up, Mr. Mendez?
+                   JUDGE GROSSMAN:     Yes, we are having trouble 8      hearingLyou even with the microphone, Mr. Mendez.       The 9      loop tightens.
+        A   -(WITNESS MENDEZ) Okay, okay.
+        BY MR. BERRY:
+r'mg    12       Q    Gentlemen, do you have before you a document entitled,.
+V 13            "NRC Staff testimony of Rogelio Mendez and John H.
+: 14.           Neisler regarding Bridget Little Rorem, et al.,
+             Subcontention 2"?
+       A    (WITNESS NEISLER) Yes.
+       A    (WITNESS MENDEZ) Yes.
+       Q    Was that document prepared by you or under your 19            direction?
+        A    (WITNESS NEISLER) Yes.
+        A    (WITNESS MENDEZ)      Yes.
+        Q    Are there any changes that you would like to make at 23             this time to that document?
+       A    (WITNESS MENDEZ) I have a change for Question 2, the
+()     25             answer to Question 2, and the change would read, "As Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+q
+      %l 1       Reactor Inspector, from about April, 1985, to March, 2       1986, I was responsible for performing inspections in
+             '3-      the electrical and instrumentation areas to assure that 4       Braidwood Station is constructed in accordance with 5       regulatory requirements."
+             I would like to add to that --
+-                 MR. GUILD:    Excuse me. Can he slow down and 8       let me copy that again, please?
+                  MR. MILLER:    Would you repeat it, please?-
+   BY MR. BERRY:
+   Q    Would you repeat it?
+      -(3   12                   JUDGE GROSSMAN:     You are going to speak V
+        louder. The Boa rd membe rs are having a problem with it 14        and so am I.
+   A    (WITNESS'MENDEZ) "As Reactor Inspector, from about 16'       April, 1985, to March, 1986, I was responsible for 17        performing inspections in the electrical and
+           -18        instrumentation areas to assure that the Braidwood 19        Station is constructed in accordance with regulatory 20        requirements."
+              And to that I was going to add, "My present duties 22        consist of performing inspections of safety-related l
+c.
+        plant systems and components to ensure compliance with 24        regulatory requirements."
+r
+()'   25                   MR. GUILD:    Could I ask the second of those i
+Sonntag Reporting Se rvice, Ltd.
+!                               Geneva, Illinois    60134 (312)  232-0262 l-
+l' 10436 L/
+      additions be repeated again, please?
+A    (WITNESS MENDEZ) "My present. duties consist of 3      performing inspec6. ions o c safety-related plant-systems 4      and components, to ensure compliance with. regulatory
+           .5      requirements."
+BY MR. BERRY:
+O    Are there any other changes?
+A    (WITNESS NEISLER) And Page 2, Answer A 3, delete the 9      word "also."
+                        On Page 31e Answers 79 and S0 refer to.,                             *NCR 2900."
+       Th6 t should be, "ICR 2900.'"
+                              JUDGE CA%LIHAK:            TCe came in Answer'80?
+(~}
+s/
+  A    (WITNESC NEISLER) The came in Answe r 80.
+  BY MR. BERRY:
+  0    How about 717 16  A    (NITNESS MENDEZ)               '/1, ye s , 71.
+  A    (UITNESS NEISLER) Ansyer 71, also.                                      It should be ICR.
+  A    (WITNESS MENDEZ) Page 9 --
+                              MR. GUILD:            BFCuSc foe.             .Page 29, fir. Neislet?
+(         20  A    (WITNESS NEISLBR) On Page -- No. 71 on Page 30, where - it 21       says, *NCR 2900.'                  That should be, "ICR 2900,"
+         22                              MR. GO,ILD:           Thank you.
+                                                                                                                                'I 23  A    (WITNESS MENDEZ) Page 9, Question 18, the last number 24       should read "0062."
+                              JUDGE COLE:           54?                                                                  ',
+(J I
+Sonntag Reporting _Saryice, Ltd.                                   _ _ . _ _ , ___         }
+Geneva, Illinois 60134 (312)       232-0262
+;
+   ~-) (q
+             .1   A     (WITNESS MENDEZ) 62.
+              Page 22, Answe r 5 0, that should read, "The Oc 3        Inspectors interviewed by me identified Irv DeWald."
+   BY MR. BERRY:
+   0    With those corrections is your testimony now accurate            i 6        and complete, to the best of your knowledge?
+   A    (WITNESS NEISLER) Yes.
+   A    (WITNESS MENDEZ) Yes.
+   Q    Mr. Mendez, Mr. Neisler, in your Answer 7 you refer to 10         an inspection report.
+               I want'to show you a document. I would ask the ej v
+         Reporter to ma rk it as Staf f Exhibit 17.
+                         (The document was thereupon marked Staff's 14                          Exhibit No. 17 for identification on 15                          August-13, 1986.)
+    BY MR. BERRY:
+    0    I would ask you:     Is the document identified as Staf f 18         Exhibit 17 the document to which you refer- in your 19         Answer 7?
+-20    A    (WITNESS NEISLER) That is correct.
+   A     (WITNESS MENDEZ) Yes.
+                    MR. BERRY:     Your Honor, at this time I would 23         ask that the testimony of Mr. Neisler and Mr. Mendez be 24         admitted into the record and bound in at this point and 4
+()      25         received as if re.ad.
+Sonntag Relierting_ Service, Ltd.
+Coneva, ITfinais CB TTo- -~ ~
+                ~-'
+(312)   232-0262 b                                                                                      i
+l
+    ~
+IT U
+       I understand there is an outstanding motion-to 2 strike.
+            JUDGE GROSSMAN:     Okay. We will discuss the-4 motion to strike and make the appropriate rulings.
+      So why don't we begin now?        We will start with 6 Answe rs 10 and 11.
+       It seems to me that these are technical objections 8 that really don't amount to any real objection.          I would.
+expect Mr. Guild would withdraw that, those objections.
+            MR. GUILD:     No, si'r, we do not.
+       10 and 11 essentially go to the competence of f'     12 Messrs. Neisler and Mendez to speak to issues that are,
+(,)/ -
+indeed, beyond their personal knowledge.        They are 14 material facts and they are in dispute.
+            JUDGE GROSSMAN:     Oh,.are they in dispute?
+            MR. GUILD:     Yes, sir.
+      The Answers 10 and 11 essentially focus on a time 18 frame to which these witnesses either have no personal 19 knowledge or very limited personal knowledge.              ,
+      Of course, it was Messrs. Schulz and McGregor, who 21 were the NRC inspectors, at least as I understand the 22 record as it has unfolded so far in this case, who 23 informed, if anyone did, at Answer 10 and would have
+;        24 knowledge of informing the allege rs that .it would notify
+()     25 Commonwealth Edison Company of the complaints, et Rnnntag Report i ng Se rvice . Ltd.
+Geneva, Illinois    60134 (312)   232-0262
+rs;
+  \_/
+        cetera.
+                  "This course of action was acceptable to the QC 3        Inspectors."                 I take it that if'that is, indeed, a fact 4        or reflects some perception on the part of an NRC-5        Inspector --
+                                 JUDGE GROSSMAN:           Okay.       I had no idea that 7        these were matte rs that are still in dispute.
+                 Why don't you voir dire the witnesses with regard 9       to Answer 10 and we will make our ruling.
+-                                MR. GUILD:          All right, sir.
+                                     VOIR DIRE          ' AMINATION 12                                          BY MR. GUILD U''
+  Q    Mr. Neisler, I take it that you had no personal-14        involvement in any of these matters until later in the 15       year in 1985 when you were assigned to assist Mr.
+~
+       Mendez, I believe in August; is that right?
+  A       (WITNESS NEISLER) That-is correct.
+  0    Mr. Mendez, you had, in fact, recently been assigned as 19       an electrical inspector to Braidwood at about the time 20        these allegations were made?
+  A       (WITNESS MENDEZ) Yes, I was.
+  Q     I understand that you were present in the Regional 23       Office later in the day when the matters were discussed 24        and after the 24 inspectors made their complaints to the
+()     25        residents?
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+                                             , g.
+                                                                   .r) ' 10440
+( ')
+.v 1  A .(WITNESS MENDEZ) That is correct.
+  Q All right, sir. You were not present, though, atLthe 3    Braidwood site in dealing directly with the _24 Comstock 4    'inspectots that day?                            m
+(
+  A  (WITNESS MENDEZ) No, I wasn't.
+                                                                 ~
+-              MR. GUILD:     All right, sir.       I believe that 7    is sufficient, Mr. Chairman.
+               JUDGE GROSSMAN:      I take it.neither of you has 9    pe rsonal knowledge of what is stated in this answer?          It 10    was only something that might have been told to you by 11    people on the Staf f?
+               MS.-CHAN:     Your Honor, I.believe there are 13    two matte rs in question here.        One is.in 10 a'nd one is 14    in 11.
+          Are we covering them together?
+-              JUDGE GROSSMAN:      No. We.are covering 10 17    right now.
+                MS. CHAN:    The second matter in 10, your 19    Honor, is relevant without regard to its truth.
+          It's what the Applicant told the NRC and the 21     inspectors relied on that as part of the basis for their 22    conclusion.
+                MR. GUILD:    There are, of course, different 24    objections there; but the first point is what the
+()   25    inspectors told the NRC; and I believe it's clear that Sonntag Repor ting Se rvice , Ltd.
+Geneva, Illinois     60134 (312)  232-0262
+s;
+   neither of' these gentlemen have personal knowledge of 2   that.
+                    JUDGE GROSSMAN:     Well, that is wha't we are 4   trying to establish definitely.
+         I take -it, then, you really have no personal 6   knowledge "of this?
+A (WITNESS.NEISLER) Not me.          I don't.
+                    MS. CHAN:   - Your Honor, if I might point out, 9   Mr..Mendez was present at-the second telephone 10   conversation when the Applicant stated what their 11   inquiry into the matter would be.
+  /~T  12                    JUDGE GROSSMAN:     Is that correct, Mr. Mendez, V
+   that you have personal knowledge of the third sentence 14   -- well, the fourth sentence, " Applicant stated," in 15   Answer 10?
+A (WITNESS MENDEZ) Yes, I was present at the Applicant's 17   telephone conversation.
+                    MR. GUILD:    I recede from the motion with 19   respect to that answer.
+                    JUDGE GROSSMAN:     Okay, fine. We will accept H21   only that last sentence in Answer 10 and we will strike 22   the first three sentences.
+         Now let's go on to Answer ll.
+                    MR. GUILD:    May I voir dire, Mr. Chairman?
+i
+()   25                    JUDGE GROSSMAN:     Hold on just for a second, i                 Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60114 (312)  232-0262
+l
+                                                                               +
+                                   -n rm.
+s_                                        -
+    because I first want to ask you whether these matters 2    are actually in dispute.
+               MR. GUILD:             Certainly, the sum and substance 4    of the communication is a matter in! dispute.
+          I guess if the witness's answer is consistentuon v,
+    this question with the last one,'it would be apparent 7    that he was present but I would like.to establish that 3
+    for the record.
+          If, in fact, Mr. Mendez was present and heard that 10    conve rsa tion , then I will recede from'my motion with-11    respect to Question 11, at least as it relates to Mr.
+p     12    Mendez.
+    \)
+-              JUDGE GROSSMAN:             Fine.      Why don't you voir 14    dire then, though I really see nothing that there has 15    been any indication of being in dispute here; but 16    continue, Mr. Guild.
+               MR. GUILD:             I believe there may have been 18    other matters that were stated in the conversation and I 19    don't mean to accept that this represented the sum and 20    substance of what was communicated.
+               JUDGE GROSSMAN:             Well, yes; but that's a     ,
+    matter for cross examination, not for --
+               MR. GUILD:             That's why I say it is in 24    dispute, Judge, and that's why I am unwilling to accept
+()    25    without hearing --
+l                     Ronntag Reporting Service. Ltd.
+Geneva, Illinois 60134 (312)        232-0262
+.o 10443 n  !.
+v "jy[       -l'                JUDGE GROSSMAN:         Hearing what further was
+             .2      stated.
+                 MR. GUILD:       Exactly.
+                 JUDGE GROSSMAN:-        Proceed to voir dire,'then.
+                        VOIR DIRE EXAMINATION.
+>             6                             BY MR. GUILD 7    Q Mr. Mendez, in the answer to Question 11 you indicate a 8      4:30 telephone conference call.
+           Were you a participant it; that conversation?
+     A (WITNESS MENDEZ) Yes, I was.
+-    Q You were present at the Region and heard Edison's t'T     12       state.nonta stated in this answer?
+(-)
+3    A (WITNESS MENDEZ) Yes.
+     0 That's based on your pe rsonal knowledge of that?
+     A (WITNESS MENDEZ) Yes.
+            .16    Q I take it, Mr. Neisler, you were not' there?
+l'7    A (WITNESS NEISLER) I was not there.
+                  MR. GUILD:       I recede with respect to Mr.
+       Mendez on Answer 11.
+                  JUDGE GROSSMAN:         Then we will accept your 21       receding from that and we will deny the motion to strike 22       with regard to ll.
+            Let's go on to 21.
+                  MR. GUILD:       Mr. Chairman, with respect to 21
+()      25       and following questions and answers that are the subject Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+i
+r~                                                                                       i N.y!i 1             of Intervenors' motion to strike, in short, these go to 2~            the heart of what is offered by way of Messrs. Neisler 3             and Mendez prefiled testimony and also the inspection 4             report that I understand is to be offered in evidence.
+                  In short, they 'are interviews that took place by, 6             in part, Mr. Mendez, in part, Mr. Neisler, of certain-7             Comstock quality control pe rsonnel, inspectors and 8             management people.
+                  The identity of the persons who were identified and 10             the substance of the questions asked them and the 11             answers elicited were the subject of extended probing in fS     12              discovery depositions, both by Incervenors and by
+  '%.)
+         -13             Applicant, to little avail.
+                  We object generally to the admissibility of the 15              testimoni on these matters on grounds that the testimony 16              of fered is classic hearsay and that it, essentially, 17             ' recites through these witnesses what was purportedly 18             told them by othe rs, indeed,-as to central facts in this 19              case, as to material facts that are in dispute,.
+        '20                   We recognize, of course, that this Board has 21             latitude with respect to hearsay.           The overriding 22              consideration should be the trustworthiness of the 23              testimony, the probative value of the testimony and the 24              opportunity of an adversary to ef fectively conf ront and
+()      25             cross examine testimony that is not being offered from Sonntag Report ing Se rv ice. Ltd.
+Geneva, Illinois     60134 (312)   232-0262
+    .N.(}s
+: 1. the source but is being offered by way of secondhand 2      recital.
+  ,        Here we believe there are substantial reasons why 4      this testimony should not be received.
+           First,-the testimony was -- the interviews were not 6-     conducted in what we believe can be called a 7      scientifically reliable fashion.
+           Both Applicant 1and Intervenor counsel sought to 9      identify first the questions that were asked.
+            We understand from the witnesses in deposition that 11       there were a series of written questions used in each of 12       the inte rviews. -Those questions were not available at
+(~)
+     \_/
+       the time of the witnesses' deposition.
+            I understood whatever questions had been formulated 15       had been -- the writings had been destroyed and there 16       were -- the witnesses did not recall the substance or 17       the specifics of questions that were asked of these 11 8      witnesses.
+            Second, the answers to these questions were 20       memorialized in writings by the prospective witnesses, 21       notes were taken.
+            Those notes presumably identified the speaker, the 23       subject of the interview, the declarant, if you will, as 24       under the hearsay rule; and also identified the 25       substance of the declaration, memorialized the substance
+    .( )
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+i
+l i
+!
+    ~ J 1-             of the declaration.
+                    We were informed at deposition that those notes as 3              well were destroyed and don't exist.
+                    At the conclusion of the initial. session of the 5              deposition of Messrs. Neisler and Mendez January 13, 6              1986, both counsel for Intervenors and counsel for 7              Applicant insisted that the deposition simply be 8              recessed in order that the witnesses could search 9              whatever docunentation, memories,- sources of refreshment 10              that they might find, so that a meaningful preparation 11              in discovery could be had on investigation that these 12              gentlemen performed, the basis for the inspection report 13              that is being offered in evidence and, indeed, the basis 14              for-their testimony.
+-                   A resumed deposition was conducted March 13th and 16              March 14th; and althougn the witnesses had- resort to 17              documents that are now matters of record in this case, 18              in particular the Schulz and McGregor memos, the March 19              29th and April 5th memo, the April 5 memo, in 20              pa r tic ula r , that lists names in the in-camera version, 21              Intervenors' Exhibit 42-A, aside from simply referring 22              to the names that were contained in that memo and 23              matching those names up with subject matter that was 24              contained in their inspection report, neither Mr.
+              Neisler nor Mr. Mendez was able to -- were able to
+(]}}
+Rnnnt ag Repor t i ng Se rv ice . Ltd.
+Geneva, Illinois        60134 (312)   232-0262
+Y
+                                                                                 ~10447 l~      refresh their recollection in any detail .as-'to the 2       identities of specific persons -they interviewed or the 3-     . specific content 1NE questions asked ~or answers given.
+        that are the basis for. the inspection report.
+            There are, of course, general answers given; and 6       both witnesses now sat through lengthy parts of this:
+       hearing and may have -independent knowledge, now having 8       listened to testimony from a numbe r of the - allegers - that-
+                                                                            ~
+       they didn't have at the time the' deposition was taken.
+             We look at the rules'against hearsay and the 11        exceptions and I think that underlying all of the-1:2       exceptions is the notion that there should _ be guarantees 13        of trustworthiness,'either guarantees that are. implicit-14_       in the establishment of an exception to the hearsay rule 15        or where no particular exception is applicable 16        guarantees a trustworthiness or the basis for 17~       consideration of whatever otherwise hearsay should be 10       - admissible.
+             We think there are simply circumstances-here, 20        where, because of the central character of the facts I
+        that are documented in the inspection report and j
+[             22        testimony and because of the lack of safeguards, 23        safeguards maintained by these witnesses and by the NRC i
+        Staff to assure trustworthiness, that it is simply 25        improper to admit this testimony, just largely hearsay,
+(])
+L l                            Sonntag Reporting Service, Ltd.
+!                                 Geneva, Illinois 60134 l'                                     (312)  232-0262
+E' ,
+            -                               _                                                                                                      10448
+      ,A?
+  . ;G -
+               and unfair "to Intervenor to expect us to meet adverse 2               evidence?where.we simply can neither identify the 3               declarant nor with confidence establish the
+                                                                                                                                                ~
+J4                trustworthiness of the' unrecorded' statements that were-2     5-             .made ostensibly;by those declarants to these witnesses.
+                             So unde r Rules -- one moment. . I am referring to 17               - Rule 803, Federal Rules of Evidence, - the hea rsay 8              . exception 24 --- one moment, ' Judge '-- and the other 9              - exceptions provision, if you will; and, there' again,                                                           I' 10-               point out the language that refe rs to circumstances -
+                - 11               'where there is the guarantee of trustworthiness.
+                                                JUDGE GROSSMAN:                                       Okay.. Mr.. Guild, I don't r%)
+v 13                 think we ought to 'take 'any -longer on that.
+                             For one thing, what we have-here is not really 15-                hea rsay, so those specific - rules don'.t apply.
+                            What we'are dealing with is, basically, an 17                 allegation that the witnesses are incompetent to testify; 18                 to these matters because they have no specific i
+9                recollection of these matters and nothing to refresh 20                 their recollection; but as to their having heard these 21                 concerns expressed by the QC Inspectors, that just-22                 doesn't fit under the category of hearsay.                                                                            i 1
+                              They have direct knowledge of these expressions and                                                      i
+.                                                                                                                                                         1 24                 that's all they are testifying to in the first part of                                                                l
+.                                                                                                                                                         1 25                 Answer 21.
+i                                                                                                                                                         i Sonntag Reporting Service. Ltd.
+Geneva, Illinois 60134                                                                    ;
+;                                                                                (312)                      232-0262
+_2,          . _ _ _ . _ _ . -    . _ , . _ _ _ . _ _ _ . _ . _ . _ . - _ _ _ - , _ _ _ _ . _ , . . . _ . . , . . _ _
+:m
+  ~V 1                        The . second part is, of course, a dif ferent matter.
+                                      MR. GUILD:    Well, I am referring really in 3              general.
+                         I appreciate, Judge, there are some distinctions in 5              each of these questions; but my argument really goes to 6              the balance of my motion to strike and not specifically.
+              one part. of Answer 21, because what will follow now --
+4
+              and I don't mean to repeat this argument every time, 9              needless to say -- is, essentially, "So.and so, an 10              unidentified declarant, told me this and told me this."
+              This is the substance of the response to an inquiry that
+_(~)  12              -is material to this case.
+V 13                        On Allegation X I interviewed an unknown declarant, 14              an unknown declarant told me in substance this; and the 4
+              substantial then is related first in the testimony and, 16              second, in the inspection report, where there is also a 17              failure to identify the declarants.
+                                      JUDGE GROSSMAN:     Well, all I can suggest is 19              that you voir dire their specific recollection of these 20              matters and we will have to rule on that basis.
+f       21                        Now, also, part of your objection is based on what
+       ~22              appears to be an allegation of, perhaps, some wrongdoing 23              in the failure to produce the notes that would support l
+              the testimony.
+                        Mr. Berry, what is the --
+x Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+    .( S LJ l                                                                    MR. GUILD:     It is not, Judge, let me be clear 2                                                         about that.
+-                                                              I have no basis for assuming that there is any 4                                                       .w rongdoing on the part of either of these gentlemen.
+                                                         That should not be understood.
+                                                               It is what I think is, frankly, a negligent 7                                                         approach to the conduct of a very serious business; and 8                                                         that is failure to maintain supporting notes and 9                                                         memoranda that were, indeed, performed in the course of l              10                                                         performing the official duties that are documented in l
+                                                         the inspection . report.
+                                                               I don't mean to suggest and I am not suggesting e-)
+s_-
+                                                         that there was a conscious decision to withhold 14                                                         information from a party. I have no reason to believe    -)
+I 15                                                         so.
+                                                                    JUDGE GROSSMAN:     Mr. Berry, do you want to be 17                                                         heard on this?
+                                                               I would suggest, Mr. Guild, that you just voir dire 19                                                         or reserve your questions, if you prefer, for cross 20                                                         examination to undermine the foundation for the answers 21                                                         given; but, basically, all you can do is undermine the 22                                                         quality of the answers rather than pose a specific 23                                                         objection to these matters, because they don't fall 24                                                         under the category of hearsay.
+MR. GUILD:
+    .( )       25                                                                                   Maybe I am just not Sonntag Reporting Service _, Ltd.
+Geneva, Illinois    60134 (312)   232-0262
+     .O d
+  communicating, Judge.
+           I certainly would respect your ruling to the 3- contrary' of me taking my position; but Y understand that 1
+  these witnesses, indeed, do intend to show the or to 5  demonstrate the underlying facts, that is through their 6  testimony, that are contained in these' declarations-that 7  are recited in their testimony.
+           That, indeed, this is hearsay.
+9           That, indeed, the Staff of the Nuclear Regulatory 10  Commission is --
+                MR. BERRY:      May I be heard from?
+                MR. GUILD:      -- isitaking statements from 13  individuals and on the basis of those statements is 14  taking a position in this case, establishing that 15  certain facts did or did not exist at L. K. Comstock.
+           That is classic hearsay it seems'to me.
+                JUDGE GROSSMAN:       Okay. Mr. Berry.
+                MR. BERRY:      The Staff agrees.
+           The Staff's position on this general position is 20  it's not hearsay and it's not hearsay because this 21  evidence is relevant just simply for the fact that it 22  was heard by these inspectors.            The purpose of this 23  testimony is to report what the result             3f the 24  witnesses' inspections were.
+()     25           They were told certain things by the inspectors and Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+:10452
+/~N
+$~)
+, they relied on what they learned in the course of their 2  inspections to reach-certain conclusions.
+       N ow , they are free to be examined on what they 4  remember, what they learned in the course of that
+       -5  inspection and, you know, I think. that is appropriate 6  for cross examination.
+       The other point I would bring 'out is it's simply 8  not true'that these witnesses have no recollection as to 9  who the declarants were, what information they received 10  from particular inspectors.
+       Mr. Guild is correct that the first deposition was:
+r 12  recessed to enable the -- for two reasons, your Honor:
+  One, to produce the documents to the Intervenor and the 14  Applicant that are relevant to this whole subject matter 15  and also to enable the witnesses to refresh their 16  recollection as to the individuals who are identified in 17  their inspection report.
+       Subsequently, that was done and those individuals 19  were identified by these witnesses at their deposition.
+  So just to that answer, these witnesses do have 21  independent and present recollection as to the sources 22  of the information that they used to reach certain 23  conclusions.
+       The other point that I would just make for the 25  record is that it's true that the inspection report f')T Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+P 10453
+[O 1                     itself'does not identify the inspe~ctors they spoke.with;
+)          -        2                     but that's customary'and the Staff doesn't -- the 3                     Staf f's practice is not to identify allegers who come to-4-                    the NRC in confidence.
+                                    MR. GUILD:              Mr. Chairman, I would like to.say 6                     that --
+7                                    JUDGE GROSSMAN:                No.. Mr. Guild, we are 8                     dealing right now with 21.                     I hate to shoot at a-moving
+;                   9                     target.
+                                    MR. GUILD:              All right,. sir.          We.will deal 11                   with'21 then.
+                                    JUDGE GROSSMAN:                You may have like objections
+ ,                 13                     for later answers, but we are going to rule on 21 right
+;                  14                    now.
+                             The ruling is that there is no hearsay and that you.
+                   are entitled to cross examine on the quality-of'the 17                   answers and the foundation for giving those answers in
+;                  18                     light of what may be an absence of present recollection.
+                                    MR. GUILD:              All right, sir.
+                                    JUDGE GROSSMAN:                So we are denying your i
+                    objection to 21.
+                                    MR. GUILD:              Mr. Chairman --
+                                    JUDGE GROSSMAN:                Now, are we going further?
+                                    MR. GUILD:              I hope so, Mr. Chairman.
+                                    JUDGE GROSSMAN:                Okay.       Fine.
+           )
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)      232-0262
+       .     ...      . . . . - - . .-.     --.      ..a __ - - - _ - - .- _ .,.-....-..- - - _.. -
+             .s.-
+x)
+: f5 -
+                   ?1                                   MR.. GUILD:    At your pleasure.
+:                                 JUDGE GROSSMAN:      Fine.- Wh;; don' t _ we . go on to 3             22?
+                                  MR'. GUILD:-   Judge, if I may, there isla
+                    '5             reference under 21 to Rule .703; and -if I may just' be 6            -heard so I ' don't'- have to repeat myself over ~and over 7             aga in .-                                                 4 8                     I understand your ruling on 21.               I' understand _you-9             have overruled the argument based on Rule _703 which you
+                                                                  ~
+              haven't heard yet; but Rule 703 addresses the~ question 11              of whether this testimony and the-underlying inspection
+                                       ~
+              report'ought to be admitted on the basis _~of opinion L13             - basis, fact or expert testimony, either -as to opinion or 14              as to fact.
+                  '15                     While it is true that the Federal Rules now provide 16              that expert testimony can be given without demonstrating 17              the admissibility of the factsaor data on which'that 18              testimony, that expert testimony, is founded.
+l                  19                     That requirement is only applicable -- that l
+              privilege is only applicable -- where such facts or data
+                   ?.1             are of a type reasonably relied upon by experts in the 22              particular field in forming opinions or inferences upon
+[                  23              the subject.
+i                  24                     Now, I would direct the Board's attention to the
+()            25              notes to the rules, where it makes very specific that --
+t Rnnntna RennrFina Rervice. Ltd.
+Gedeva", Illi5ois     60134 (312)   232-0262
+I 10455 g
+ ~-
+a specific point that -- I am reading the language, the 2 fine print, if I may.
+       The last paragraph -- on my copy of the notes of 4 the Advisory Committee to the Rule, the last paragraph 5 -- under the Rule essentially states that the language 6 of the new rule should not be understood to warrant 7 admitting evidence in opinion form of a so-called, 8 quote, accidentologist, unquote, as to the points of 9 impact in an automobile collision based on statements of 10 bystanders, since the requirement would not be 11 satisfied.
+       My point here, Judge -- and you can consider this
+(~}
+L, 13 as to 21 and the others -- is we have the identical 14 circumstances here.
+       The Staf f is of fering the testimony of or may be 16 purported to of fer the testimony of supposed experts, 17 who are harassmentologists, who essentially go out and 18 take statements from these people, the statements 19 themselves not in evidence, the declarants not 20 identified, and then form an opinion and offer opinion 21 testimony much the same as decried by the notes to the 22 rule.
+       We would just simply add to the argument that you 24 have already hea rd that calling Mr. Neisler and Mr.
+Mendez experts for this purpose, while I don't mean to
+( })
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 6Df34 (312)  232-0262
+p
+  ^/_
+           decry their expertise, doesn't solve the problem of 2           getting in what is, indeed, not admissible evidence with 3           respect to what they were told.
+                 I just wanted-to add-that to the record.
+                      JUDGE GROSSMAN:                Okay. That is' fine.
+                 We are still denying the objection, and you can 7           certainly examine them with regard to the basis for 8           their conclusions.
+                      MR. GUILD:                All right, sir.
+                 22?
+                      JUDGE GROSSMAN:                Now let's go onto 22.
+  ,   12                 I think you ought to voir dire on this.
+                           VOIR DIRE EXAMINATION 14                                BY MR. GUILD 15 Q         Mr. Neisler and Mr. Mendez, which one of you gentlemen 16           responsed to Question and Answer 22?
+A         (WITNESS MENDEZ) I did.
+Q         Mr. Mendez, I take it, then, your answer is based on 19           what someone told you at Comstock --
+A         (WITNESS MENDEZ) That's correct.
+0         -- and not on the basis of your personal knowledge of 22           what Comstock did except as related indirectly from some 23           source at Comstock?
+A         (WITNESS MENDEZ) I am not really sure I understand the
+()  25           question.
+l Monntag Reporting _ Service, Ltd.
+Geneva, Illinois               60134 232-0262 (312)
+. ,m b
+Q All right, si'r. You were told what Comstock did; you
+     -2   didn't observe with your eyes, hear with your ears?
+         You were told what Comstock did and that's the 4   basis for this answer; is it not?
+A (WITNESS MENDEZ) Not exactly.
+         I interviewed QC Inspectors. I had asked them who 7   was certified, who wasn't certified.
+         I was given a list of names. I looked to see 9   whether they had certification in those areas; and 10   looking through records, I ran across the QA Audit 11   Report by Commonwealth Edison that identified ~that 12   deficiency.
+0 Well, you are looking at 21 now and I am down to 22.
+         The first sentence reads, of the answer, "The LKC 15   QC supervisors were required to obtain Level II.
+   certification in the areas they supervised."
+         I take it that answer is based on what someone told 18   you at Comstock?
+A  (WITNESS MENDEZ) No, that's not correct.
+0 All right, sir. Would you tell me what the basis'is?
+A  (WITNESS MENDEZ) Comstock subsequently changed the 22   procedure.
+Q Yes, sir. That's not exactly responsive.
+         The statement says, "The LKC QC supervisors were
+()   25   required to obtain Level II certification in the areas Sonntag Reporting Service, Ltd.
+Geneva, Illinois   60T14 (312)  232-0262
+Gi 1                  - they supe rvised. "
+l 2                         How do you know that to be a fact,' sir?
+            "3               A'    (WITNESS MENDEZ) Procedure 4.1.2 requires that QC 4                   supervisors be certified Level II's.
+              Q    All right, sir.-             So you relied on a. procedure?
+              A   -(WITNESS MENDEZ) Yes.
+              Q    Your interpretation of a procedure?
+              A    (WITNESS MENDEZ) Yes.
+                               JUDGE GROSSMAN:                             When was that procedure 10                     adopted that required that certification?
+                A    (WITNESS MENDEZ) I believe from about 1981, '82, up r3    12                     until 1985.      It existed in that time frame.
+     .g 13                BY MR. GUILD:
+                Q    All right, sir.              This does not refer then to a
+          -15                     corrective action?
+                           This refers to a procedural requirement.that was 17                     outstanding during the entire time that you conducted
+?
+                     your investigation?
+                A    (WITNESS MENDEZ) That's correct.
+                                 MR. GUILD:                          All right, sir. I just 21-                    misunde rstood the answer.
+                           I will recede from that one, Judge.
+          ~23                                 JUDGE GROSSMAN:                             I am not sure I am 24                     satisfied.     .
+                                 MS. CHAN:                        Your Honor.
+('_l s /
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)                 232-0262
+r^s
+  . N.]
+                          JUDGE GROSSMAN:        Yes.
+                          MS. CHAN:        May I voir dire the witness?
+         '3                          JUDGE GROSSMAN:-       You certainly may.
+                                 VOIR DIRE EXAMINATION 5                                      BY MS. CHAN 6       Q  Mr. Mendez, when you in your testimony discussed the 7          requirements of- the LKC inspectors, can you . please tell 8          us if you are reporting what was recommended or required 9          by the procedures or are you reporting what was actually 10           carried out?
+        A  (WITNESS MENDEZ) If you are referring to this first 12           sentence to Answer 22, it's=what the. procedure requires.
+                           JUDGE GROSSMAN:        Okay. We will allow that 14          - an swe r , the first sentence there, though I am not sure 15           that there shouldn't be further cross examination on 16           that.
+                  But since Mr. Guild recedes from that, I am sure he 18          will handle that in cross examination; but I am also 19          concerned about the third sentence and Mr. Mendez' basis 20           for stating what he states there.
+;       21                  Could you read that third sentence and indicate
+,       22          what your basis is for that statement?
+        A  (WITNESS MENDEZ) You are referring to, "This is because 24          LKC QC supervisors did not perform Level II reviews"?
+()    25                           JUDGE GROSSMAN:        Yes.
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 6Cl34 (312)    232-0262
+.
+n 10460
+                           +
+s 1                    How. do you know that? -
+            A' '(WITNESS MENDEZ)'Itreviewed documents. 'The~re:were quite-3'              a number of documents I reviewed;' and'since there'are-4'               only.four or five-QC supervisors,.I was aware.who they        -
+: 5.               were'and I cross-checked.them againstJthose QC-
+         -6~              Linspection checklists.
+         -7                           JUDGE GROSSMAN:     And you matched their 8                certifications with their sign-offs?
+            A=  (WITNESS MENDEZ) Okay. I --                                  '
+-                          JUDGE GROSSMAN:     In other words, you checked 11                to see what area they signed the documents off in Jandf 12                also checked their-certifications.to see whether.they.
+:O     13                were certified in those areas?
+           A   (WITNESS MENDEZ) I have got'to explain.                         '
+-                    Before September,1984, in order- to perform .a Level' 16                II review, all you had to be is a Level II -in one area.
+: 17.                    That is, if.you were a Level II in welding, you 18                could sign off a QC checklist in calibration, if all you 19-               were doing was reviewing that checklist, before 20                September, '84.
+                           JUDGE GROSSMAN:     Well, your third sentence 22                indicates that the LKC QC supervisors did not perform 23-               Level II reviews in any areas for which they were not 24'               certified.
+()   25            A   (WITNESS MENDEZ) That's correct.
+Ronntag Reporting Se rv ice,_Ltd.
+Geneva, Illinois     60134 (312)  232-0262
+X
+     \,
+l                           JUDGE GROSSMAN:                                   Now you are telling me that-2                they could have performed reviews in areas that they 3                were not certified in but that's not what your statement 4                says here.
+      A         (WITNESS MENDEZ) Okay.                                  May I explain that?
+                     I subsequently did 'see Saklak sign off the review 7                column in welding -- I believe it's welding -- and he-8                was certified in welding.
+                     That it didn't matter at-the time frame, because if 10                you were certified in that area, you can sign off the 11                review column.
+                           JUDGE GROSSMAN:                                   So you saw'that he had f~%-
+w) 13                signed something in which he was certified?
+      A         (WITNESS MENDEZ) Yes.
+-                          JUDGE GROSSMAN:                                   But now your statement goes 16                beyond that one instance with that one supervisor.                                    You 17                seem to cover the waterfront here; and if.that's not 18                what your answer intends, maybe you ought to modify your 19                answer.
+.            20                     You are indicating that you reviewed the area 21                sufficiently to determine that the QC supervisors only 22                performed Level II reviews in areas in which they were 23                certified.
+                     I take it from what you are saying now you are not 1
+()       25                prepared to go that far?
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)                       232-0262
+   .~.  .. .
+                 .._   . _ . -   -_        _ . _ _ . _ . _ . . _ . _ ~ _ _ _ _ _ .                                         _
+m
+k.)
+    A (WITNESS MENDEZ) As a rule, QC supervisors don't do 2      Level II reviews; but if they were, that's an acceptable 3      practice.
+: 4.                JUDGE GROSSMAN:    Well, I believe you are 5      withdrawing.that answer now. You are obviously not 6      supporting it.
+            So I think we are just going to strike that answer;-
+      and if you wish to -- that sentence in the answer.
+-          -You will be permitted to examine your witness 10      further and elicit what you can with regard to that 11      area, Mr. Berry; but right now he is telling me that-he
+     .;  12      is not prepared to support that.
+('')   13            So we will strike that third sentence in answer to 14      22.
+                 MR. MILLER:    Your Honor, could I just --
+                 JUDGE GROSSMAN:     Ce rta inly.
+                 MR. MILLER:    I don't know if the Staff wants 18      to conduct any additional voir dire on this subject but 19      if they don't, may I?
+                 JUDGE GROSSMAN:     You certainly may.
+                 MR. GUILD:    Mr. Chairman --
+                 JUDGE GROSSMAN:     I appreciated the fact that 23      you didn't speak when it wasn't necessary, but, 24      certainly, you are a participant in this.
+{}     25                 MR. GUILD:    Mr. Chairman, before the Sonntag Reporting Se rvice, Ltd.
+Geneva, 111TrIUlr6tr174 (312)  232-0262
+                    =
+{
+v(3 1          . Applicant goes forwa rd, may I ask the Board to remind 2             the witnesses that they should not. confer while they;are-
+             -3               standing Cross Examination, please.
+            -4' That is the purpose that -- I would have them
+            .5                individually on the stand but for;that' instruction.
+                                               JUDGE GROSSMAN:                         That's fine.
+                               We do instruct.the witnesses not to confer with 8            each other; and, as I might point out,''e                                             w had already 9             ruled that Mr. Guild had the right to. examine them 10                 individually and this is a modification on his~part to 11                accommodate Staff's reference for a panel interview.
+                                    So'that is correct.                           They shoul'd not.
+'                                   Mr. Miller, you may proceed in voir dire.
+: 14.                                                  MR. MILLER:           Thank you.
+I 15                                                       VOIR DIRE EXAMINATION 16                                                            BY MR. MILLER 17            Q   Mr. Mendez, in order to attempt to establish whether or 18                not Comstock QC supervisors performed Level II reviews 19                 in' areas for which they were not certified, what 20                documents, if any, did you review?                                                                                ,
+            A    (WITNESS MENDEZ) I reviewed quite a few QC inspection 22                checklists.
+            0   That is the inspection checklists on which a Level II 24                 review would be indicated?
+() 25            A    (WITNESS MENDEZ) Yes.
+$                                                Sonntag Reporting Service, Ltd.
+Geneva, Illinois 66F34 (312)    232-0262
+y                                  ,
+q
+                                                                                                    '    'u
+                                                                                     -~_      ..__-
+10464
+    ~ (^;                                                                                        H
+())                                                                                   -         '    '!
+       Q   At the time yeO performed review, did you 'lator who the 2' .,
+LQC: supervisors were over time at Comstock?
+          "3       A1  -(WITNESS MENDEZ) Yes,. I did; yes, I did.
+       Q  -All right, sir. And, in a.4dition to Mr. .Saklak, do you 5          .have any other' names that:you can provide for the 6           record?
+       A    (WITNESS MENDEZ) I had never seen any other QC 8           supervisor sign the Level II review.
+       0   Well, that's helpful; but I_ don't think it's quite 10           responsive to my question.-
+                 Can you identify now any other QC supervisors whose 12           names you were looking for?
+f-)
+      ~
+       A    (WITNESS MENDEZ) It was a long time ago, but I believe 14           Worthington, Tuite were supervisors.
+       0   All right, sir. And your review of the inspection 16           checklists did not disclose any instance in which either 5
+           Mr. Tuite or Mr. Worthington had signed a Level-II 1B           review?
+       A    (WITNESS MENDEZ) That is correct.
+       0   You did find some where Mr. Saklak had signed them; 21'          correct?
+       A'   (WITNESS MENDEZ) Yes, I did.
+       0   And were you able to ascertain in what areas or for what 24     '
+types of inspection Mr. Saklak had performed Level II D     25           rev iew?
+l - Q, r
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134
+:                                     (312)  232-0262
+.-                   - ,
+    +
+,     ;gp
+.. ?O Y'b,J~             3;                                                                                    ,
+                    .11         A'   (WITl4ESS MENDEZ) I am not quite sure but I believe it 1
+             was. welding, I think. I believe Saklak was certified tn 3             velding.
+        Q    All right, sir.. And it is en that basis that you i
+              prepared the third sentence of the Answer 13 -- Antwer 6             227- I-sm sorry.
+7        'A'   (WITNSSS MENDEZ) Yes.
+                          MR. MILLER:    Your Honor, I believe that the 9              sentence oughtL to remain in the testimony.
+                           g7UDGE COLE:   So do I.
+                           JUDGE GROSSMAN:     Were those tl.e only kinds of l r~g            12               inspections that were being perforraed in welding?
+C' 13          A    (WITNESS MENDEZ) Saklak does not perf0rm inspections.
+                  '14                           -JUDGE GROSSMAN:     Well, no. I am caying I
+               didn't you check any other --
+li 16          A    (WITNESS MENDEZ) Yes.
+                           JUDGE GROSSMAN:     -- inspection reports in 18-              which there were Level II reviews --
+          A    (WITNESS MENDEZ) Yes.                                                <
+                           JUDGE GROSSMAN:     -- other than in welding?
+i 21'         A    (WITNESS MENDEZ)' Yes. I remember calibration, 22               configuration, junction box equipment.
+23                           JUDGE GROSSMAN:     Did you check these other      i l
+               areas to determine whether Oc supervisors who were not         !
+()              25               certified performed Level II reviews?
+Sonntag Reporting Service, Ltd.                     ~~
+Geneva, Illinois 60134~~~
+(312)  232-0262 o
+w -e li                  *
+{ gj '. 'i,    y 10466 i .          ,
+   ;7                 :1          A  (WITNESS MENDEZ) Yes, I did.            I checked the review t:
+                         ?. ~        cdlumn.
+-                      JUDGE GROSSMAN:          AndLdid!you find any QC 4      a    supervisors who signed these documents who were not?
+E           certified?
+~       A  (:4ITNESS 'MENDEZ) No, I didn't.
+                         JUDGE GROSSMAN:          Now, you say Mr. Saklak was 8           certified in welding?
+        A  (WITNESS MENDEZ) Yes.:
+                          JUDGE COLE:         In that instance where you 11              observed Mr. Saklak to sign as a Level-II review, sign-:a' q              l '-            form, did you then check to make sure that that was an 13             . area in which he was, in fact, certified, whether it was-14              welding or some other area?
+           A  (WITNESS MENDEZ) Yes, at the time I would have had to.
+                    Whatever he was certified in --
+                          JUDGE COLE:         So it might have been'some other 18              area, other than welding?
+           A  (',TITNESS MENDEZ) That is possible.
+                          JUDGE COLE:        Do you recall specifically 21              checking to see whether that was in fact an area that he 22              was certifled at the Level II?
+           A  { WITNESS MENDEZ) Yes, yes.
+                          JUDGE COLE:        All right.        Thank you.
+                          JUDGE GPOSSMAN:          Did you have some further
+(])
+                                           *Manntan R en cr. ting _.Sc.I.V_ ices Ltd.
+conevi, Illinois 60134 (312)     232-0262
+e                                -
+tc 10467 X.
+   )d.
+:       :que.itions onLvoir dire?'
+                       MS..CHAN:    No further questions.
+                                                                                 ~
+             '3                       ' JUDGE GROSSMAN:     Okay. . We will allow the ll.          answer, though:I am.not sure whether everything we haveL i
+_5            heard.was inte rnally consistent.-
+                       MR. BERRY:    :I believe it'was consistent, Mr.
+             -7            Chairman.
+,                      JUDGE GROSSMAN:     Fine. Let's go on-to 28.
+                With regard to the second. paragraph, you have a i
+            sentence.In here that says, "However, none of'the
+!            11            inspectors actually had been told by LKC management that 12            production was more important than quality and all.
+   -(.-      13            indicated that they had not and would not accept 14            discrepant work for sake of. increasing the number of
+;            15            inspections."
+                  I don't see anything objectionable about the last l
+            half of that sentence; but as to what inspectors had i
+l            18            actually been told by LKC management, that appears to be
+: 19.           hearsay to me and I don't see any reason for. allowing l            20            that.
+l
+[            21                         MS. CHAN:    Your Honor.
+                         JUDGE GROSSMAN:     Yes.
+                         MS. CHAN:    Your Honor, it might be just 24            inartfully stated and what Mr. Mendez means to say is
+(}       25            that none of the inspectors told me that they had been
+              '                  Sonntag Reporting Se rvice, Ltd.
+Geneva, Illinois 60r3'4 (312)  232-0262 u
+cm                                                      '   '
+x /-
+    told.
+               JUDGE GROSSMAN:     Okay. As restated, is that
+     .3 what you intended to say, Mr. Mendez?          m 4  A (WITNESS MENDEZ) Yes, none of the inspectors told.me.
+               JUDGE GROSSMAN:     Okay. As restated, we will t
+    accept it; and, of course, that just.goes to what the-7    inspectors actually said and doesn't actually prove the 8    -- that they had actually beenJtold that by LKC 9    management.
+               MR. GUILD:    Mr. Chairman,,,perhaps we would 11    save a bit of time if we reached,an understanding that 12    Staff is not attempting to use this testimony.to prove i
+    the truthfulness of the content of"what are related as 14    only statements made to Messrs. Mendez and Neisler by 15    other persons, by these declarants.
+          If it 's understood that they are reciting to the 17    best of their knowledge what was told them by others, 18    not to prove the substance of what was told them, only 19    that it was told them, I have less difficulty; but, I 20'   frankly, expect to see both Applicant and-the Staff 21    relying on this testimony to prove these matte rs.
+               JUDGE GROSSMAN:     Then maybe we ought to go 23    ahead and see where we have to limit it.         I don't know 24    that there are that many examples as in Answer 28.
+()   25          So why don't we just go forward and go on to 30.
+nnnnean nnpnreing snevico. r.t a _
+Geneva, Illinois   60134 (312)   232-0262
+f)
+Q,1 1              MR. GUILD:    I take it that the Board is-2 ' denying'the motion to strike with respect to the balance 3  of :28 then?
+              JUDGE GROSSMAN:     Yes. I don't see anything' 5  objectionable in the rest of.it.
+             .MR. GUILD:    Again, I understand that it's not 7  offered to prove the substance of the matters?
+              JUDGE GROSSMAN:     Right. It is only offered-9  to-prove that those expressions were made.
+              MR. GUILD:    I see.
+              JUDGE GROSSMAN:     And that was the basis for 12  the investigation.
+{v~}-
+        30.
+              MS. CHAN:    I believe on 30 it's the same 15  situa tion , that Mr. Mendez asked them if they knew of 16  any instance where a junction box had not been grounded; 17  and no one told him.
+              JUDGE GROSSMAN:     Yes. Well, okay. That's 19  fine. I don't see any hearsay there or any problems.
+        Let's go on to 33.
+              MR. GUILD:    Aga in , it says, "none did"; and I 22  guess if that is to be read, "no one told me they did,"
+  that is acceptable; but, "none did," seems to suggest a 24  more definitive fact.
+()    25             JUDGE GROSSMAN:      I see. Okay.
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60T34 (312)  232-0262
+[
+a 10470
+                                                                                                                                                                                    +
+l c                        ~1                                 .MR. ' GUILD:                              Page 16?at the top.
+                                 JUDGE GROSSMAN:                                  That's.right.            We willL 3                   change that to, "None of; them 'in'dicatEd thati they knew 4                  'of such an instance."
+                               5         ,
+                                                         ~33,fthe objection is. denied on that.                                             That is P
+                   obviously.not hearsay.
+.                               7                        Let 's go on . to' 35.                               It' appea rs:- to me as though the                                    ;
+                   third, fourth'and fifth sentences.are objectionable.                                                                           :(
+I' 9                                 MS.- CHAN:                               He did not object'to 3,-your                                             i
+                                                                                                                                                                                    ~
+i 10                     Honor.                                                                                                                          f i
+~                                   JUDGE GROSSMAE:                                  Pardon?                                                          ,
+                                   -MS. CHAN:.                               The Intervenors did not object'to i:          ,                13                     3, the third sentence.                                                                                                          .
+:                         ~14                            Are you looking at Answer 357-5
+[                           15                                    JUDGE CROSSMAN:                                  I am'looking at-35, the.                                         i 16                      second -pa ragraph.
+i                                                      ~
+!.                          17                                    MS. CHAN:                                They objected to starting with the                                       ;
+!                           18                      fourth. sentence.                                                                                                               6 t
+O l                           19                                    MR. GUILD:                                This lack of qualification.
+i                           20                                    JUDGE GROSSMAN:                                  I counted wrong.                 I am
+,                                                                                                                                                                                   i 21                      sorry.   " Initially," is the beginning of the fourth 22                      sentence.
+* 1 23                                    MS. CHAN:                                This lack of --
+!                           24                                    JUDGE GROSSMAN:                                  Yes, I am sorry.                Let's                            ,
+25                      change that.
+      -:{ )
+i Sonntaa Reoortina Service. Ltd.
+                                                                                   ~
+f                                                               Geneva, Illinois 60134                                                                                              :
+(312)                  232-0262
+    ^ ()
+                 The fourth, fifth and sixth sentences and 2           . seventh sentence, unless there is some founda-                                                  t 3            can be offered for the seventh sentence; but 4            stands now, it appears that the objection is valid.
+                        MR. MILLER:                 Your Honor, in view of your 6            earlier rulings with respect to the testimony, again, I 7            don't know if the Staf f is going to do it; but if I 8            could just conduct a brief voir dire of Mr. Mendez and, 9            perhaps, at the conclusion of that offer some argument 10            as to whether or not it ought to be admitted.
+                       JUDGE.GROSSMAN:                   Fine.             Why don't you 12            proceed, Mr. Miller?
+(~]s 13                                         VOIR. DIRE EXAMINATION 14                                             BY MR. MILLER 15         0  Mr. Mendez, did you pe rsonally look at Commonwealth 16            Edison Braidwood QA Surveillance Report No. 3372?
+         A  (WITNESS MENDEZ) Yes, I did.
+         0 Who provided it to you?
+         A  (WITNESS MENDEZ) Ed Netzel.
+         Q What is Mr. Netzel's position?
+         A  (WITNESS MENDEZ) He is the electrical QC supervisor for 22            Commonwealth Edison.
+         0 The QC supervisor or is he in the Quality Assurance 24            Department?
+()      25         A  (WITNESS MENDEZ) Quality Assurance, that is correct, Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134
+: i.                                                 (312)      232-0262 I
+         ,.    , , - ,               c    . , . - , , , ,   n  .-  ,       , - - - - , . . . - , - < - ,.-------,...y  . , -
+h.
+U 1        that's right.
+:2   Q    Did Mr. Netzel provide that document in response to a 3        request from you?
+   A      (WITNESS-MENDEZ) Yes, he did.
+   0   The sentence in your testimony, Page 18, that begins.
+       with the word, " Initially," how did you determine that 7        -- what is the basis for the statement that Braidwood 8        quality assurance found problems and so forth?
+!      9   A      (WITNESS MENDEZ) They rejected his certification.
+. 10   Q    How did you know that?
+   A     (WITNESS.MENDEZ) The QA audit explains-that, states it.
+       The QA audit states that.
+   0   Which QA audit, sir?
+                    JUDGE GROSSMAN:           You are talking about an 15       Audit Report or an audit section of the company?
+   A     (WITNESS MENDEZ) I believe there is a QA Audit Report on 17        this. It's just not documented in the -- in this 18        testimony, in the prefiled testimony.
+                    MR. MILLER:          One second, if I might have just 20        a second.
+                    JUDGE GROSSMAN:           Sure.
+   A      (WITNESS MENDEZ) Here it is.              Okay.         I am sorry.
+               It is part of the QA Surveillance Report 3372.
+   BY MR. MILLER:
+  '() 25   0   All right. So it was on the basis of your review of Annntag Roporting Aprvicp_ Ltd.       _
+.                          Geneva, Illinois 60134 (312)         232-0262
+e d 10473' i ...
+                    that document that you made E the statement thatL the                                                                              4 2                    Braidwood QA Department found problems with the:
+                    certification of the individual; correct?"
+!                              '4         A          (WITNESS MENDEZ)-Yes.
+                               5         Q.         You didn't go . behind that document: to determine what 6                    other action,.if any, had been taken?
+l-                              7         A          (WITNESS MENDEZ) Yes, I did. - He.was recertified at a
+;                               8-                   later time.
+It                              9         0        . How could ' you . tell -that?
+l(WITNESS MENDEZ) Part..of the corrective action to-
+             ~
+          A i                             11'                    Surveillance Report 3372.                                                                                                         o
+]                                                                                  .                                      .
+                           I don't recall what that -- what form that took.
+         . ,)s .
+                                JUDGE'GROSSMAN:                                                 So these four' sentences then'                          :
+f
+;                             14                     are alllbased on what you read in that Surveillance j                            '15 L                  . Report No. 3372?
+;                           ;16           A~        -(WITNESS MENDEZ) Yes; and,L also, a . review of his actual:                                                        .
+I 17                     background as --far as his experience.- I actually-saw his                                                                         j 18                     experience and his background, records of his background-
+[
+i                                             ~
+f                             19-                    and experience.                                                                                                                    ,
+l                             l20                               MR. MILLER:                                     Well,~;your Honor, again, without t
+:                             21-                    vouching for the accuracy of the surveillance report I                   .
+                     itself, nonetheless, it.is clearly the basis on which c23-                     Mr. Mendez conducted his investigation and stands, it j,                            24                   -seems to me, on the same footing as his interviews of 25                     the QCLInspectors in that sense.
+({J i
+l                                                          Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 i                                                                      (312)                     232-0262
+_u.           . - _                                       . . _ _ _ _ _ _ . _ ~ - - _ _ _ _ _ _ _ . _ . . _ _ _ . _ _ . , . . _ . - . _ . . . _ - -
+N 10474 1            JUDGE GROSSMAN:          Is that surveillance report 2 admitted into evidence?
+            MR. MILLER:         I am confident that-it is not; 4 but should that be appropriate, we can certainly arrange 5 to have a witness -- Mr. Netzel, perhaps -- come in and 6 sponsor it.
+            JUDGE GROSSMAN:          Mr, Guild, do you wish to --
+have you seen that surveillance report?
+            MR. GUILD:         It doesn't leap to mind, Judge, 10 if I have.       I can't represent that I haven't.
+       The fact of the matter remains that it is classic 12
+()
+r~s 13 hearsay and it's clear that the witness is not testifying based on personal knowledge.
+       He is testifying based on what he read in a report 15 prepared by Applicant; and it certainly cannot stand for 16 anything more than a recital of what he recalls that 17 report telling him, not facts that he claims co r        18 establish by the direct statements that are given in his 19 answer.
+            JUDGE GROSSMAN:          Well, whether we have a 21 hearsay problem or a best evidence problem --
+            MR. GUILD:         We have both.
+            JUDGE GROSSMAN:          -- we really don't have 24 competent evidence to prove the truth of the assertions
+       )
+J 25 here.
+Ronntag unpnreing Rnrvice, T.E d .
+Geneva, Illinois        60134 (312) 232-0262
+b,.
+        .1                                  MS. CHAN:     Your Honor?
+                                  JUDGE GROSSMAN:       Yes.
+                                  MS. CHAN:     Even if this document is hearsay, 4                        it is relevant; and it does fall under hearsay 5                        exceptions. A business record exception makes it 6                        independently admissible. The surveillance report is a 7                        business record of the Applicant.
+                             And, secondly, that Mr. Mendez is just citing what 9~                      he read in the business record, and it's independently 10                         relevant because it's part of a public document.           It's 11                      -part of his inspection report.
+r3   12                                   JUDGE GROSSMAN:       The problem is we don't have
+  -V   13                         that business record here and that's why>we have this 14                         concern.
+                              So I think we will strike it now and allow-you to
+      -16'                        supply a foundation for --
+                                   MS. CHAN:     Your Honor, it's a collateral 18                        matter; and, as I understand, the best evidence rule 19                        does not apply to collateral matters.
+                              Additionally, I don't believe that we have the.
+!      21                         surveillance report. The Applicant does.
+l      22-                                  MR. MILLER:     Your Honor, I~would just point 23-                       out that, in essence, this testimony and the inspection l
+!      24                         report are after-the-fact investigations.
+l      25-                             Obviously, the inspectors weren't there when these
+{}
+Sonntaq Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+v
+                events took place.                     They didn't witness them. They must 2                rely on documents and interviews.
+                     In that sense Mr. Guild's objections earlier that 4                referred to Federal Rules of Evidence 703 seems -to me to 5                be pertinent here.
+                     It seems to me it is certainly reasonable for an 7                NRC investigator, who is truly offering opinions _with 8                respect to each of the allegations made by the Comstock 9                QC Inspectors, to rely on documentary sources that are-10                maintained by Commonwealth Edison Company or by Comstock 11                itself.
+                     Whatever flaws there may be in the investigative 13                technique, it seems to me, go to the weight that the 14                Board may attach to the evidence; but I think to strike-15                the testimony, given the circumstances of the 16                investigation and the reason for which this testimony is 17                offered, is erroneous._
+                                     MR. GUILD:           Mr. Chairman, I --
+                                    JUDGE GROSSMAN:             Well, the problem is the 20                witness is vouching for the company having found this 21                problem initially and having taken the action it did on 22-               a certain basis and he really has no knowledge of that 23-               and he is not the proper person to say that.
+                     The company people who took the action are the
+;         ()   25                people who are competent to do that.                       He can't --
+i                                     AnnnFan ponnreinn Roruico. TFd_
+Ge5eva', Illinois            60134 (312) 232-0262
+          -s r
+l'                              JUR. MILLER:-               Your Honor --
+                               JUDGE GROSSMAN:                 He'can't' vouch ~for the 3            company's actions when th~ey just told him they did-a 4            certain thing, so it really isn't competent evidence.
+                      N ow , I don't' recall.                 I seem to; recall - .it's 6            somewhat hazy in my mind now -- that there was. some-                                  -
+            testimony on this; but perhaps not.
+                      If there wasn't --
+                               MR. MILLER:                 You are testing' my recollection 2-                    10               as well; but, your Honor, if he, Mr. Mendez, 11                inappropriately relied on 'a document that is not 12               authentic, it seems to'me' that, again, that_goes to the-
+            )
+                weight to be ascribed to his testimony.
+'                         It is a basis for the conclusions that he reached;-                                      ,
+                and it. seems to me that- it is up to the parties to 16                challenge this, who have been on notice of the fact that-17                he relied-on Surveillance Report No. 3372 since this-18                prefiled testimony was submitted, to challenge him on i
+                that basis.
+I                    20'                                  JUDGE GROSSMAN:                 Well, let's-just solve this 21                problem.
+                          We will accept these sentences only with the -- we 4
+'               will accept them with the limitation that these are --
+i                    24                these matters are -- what was represented to him by the
+()          25                company either through its reports or through their Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)          232-0262
+           )
+          /
+          . statements and it was the company's expression; but.that 2           the contents of these: statements are not being proved 3           and we are not accepting these sentences as proving the 4          ' contents.
+                                               ~
+                  Let's go on to the next one, which is 39; and these 6           sentences just represent the QC Inspectors' expressions 7           and we accept it in that limited area, and, as such,.
+           they are not hea rsay.         That is -- yes.
+                          JUDGE COLE:      Just a minute.
+                          JUDGE GROSSMAN:      Okay. Let's go on to 45; 11           and we assume that alloof the sentences represent r~s       12           expressions by the QC Inspectors, including the last O
+           sentence there, which is phrased otherwise.
+: 14.                 But I assume that what is meant is that none of the 15           inspectors expressed any awareness of an instance in 16          which an inspector had actually been dismissed, and we 17          will accept that entire answer within that limited area.
+                  47, Mr. Neisler, Mr. Mendez, who is responsible for
+               -19          .that?
+               .20    A      (WITNESS NEISLER) I did that one.
+                          JUDGE GROSSMAN:      How'do you know whether 22          Applicant initiated a training program?
+    A      (WITNESS NEISLER) I reviewed the syllabus of their 24          program'and looked at the results of their first -- the
+               -25          earlier classes.
+snnntag popnreing servico, tha_
+Geneva, Illinois 60134 (312)  232-0262
+10479 1             JUDGE GROSSMAN:   .Okay. So the objection is 2  overruled. You can certainly cross examine further on 3  that, Mr. Guild.
+       Let's go on to 50. I see nothing objectionable, 5  certainly_'in the first paragraph.'
+       Let's go on to the second. With regard to the f7  second sentence of the second paragraph, we will allow 8  it only as an expression by LKC management but not, 9  certainly, to prove the contents of what is stated 10   there.
+        Now, as far as the third sentence goes, that would T  12   be an impermissible conclusion, given our-limitation on (Q
+   the second sentence.
+              MR. BERRY:    Mr. Chairman, it seems to'me that 15   the third sentence in.the second paragraph represents
+        '16   the conclusion we reached based on what the inspectors 17  'were told and the information they received from this 18  LKC management.
+              JUDGE GROSSMAN:    Well, let me change the 20   ruling.
+        The third sentence here represents -- we will allow 22   it only as representing the witness's conclusion, which,
+        '23   obviously, was based on his believing the contents of 24  what management told him as expressed in the second 25   sentence. That's all it stands for.
+([ )
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+                                                                                                                 ~
+             Now, as far . as the last sentence here, I don't 2-       think that is in dispute and so I don't know that Mr.
+        Guild would persist.
+                   MR. GUILD:                     It is not, Judge.
+                  -JUDGE GROSSMAN:                     So we will allow the last 6        sentence in.
+             Let's go on to 53.                     I, again, don't see any problem 8        if we accept that third paragraph as being the 9        individual's expression to the NRC Inspector,' whoever 10         that was.
+           -11      A   (WITNESS NEISLER) That was me.
+       ~
+                    JUDGE GROSSMAN:                     Mr. Guild can certainly 13         examine on that.
+                    MR. GUILD:                    Particularly that sentence on 15         Page 24 that reads, "He was detailed to the vault," et 16         cetera.
+              Again,-it's framed as if it'is a fact; and, 18         obviously, it's relying on what the individual told him.-
+                     JUDGE GROSSMAN:                     Right.             I indicated that we
+           ~ 20         are accepting all this as an expression by the 21          individual and, as such, is not hearsay.
+           . :22:            Let's go on to 62; and, that's, again, not hearsay 23         and Mr. Guild can certainly examine further on that.
+               Let's go on to 65.                     I assume that there is no l
+()      25         actual dispute with regard 'to the last sentence, is i
+Ronntag Report ing Se rvice, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+J+                                              .
+,                                                                                                                                                                                                                                  -10481
+:4. -
+,y1-A.s -                          _
+                                 'l                                                    there?
+-                                                                    Is that correct,JMr.' Guild?
+:3                                                                                         MR. GUILD:                      Are you looking at 65, Judge?                                       -
+;   ,                               4                                                                                        JUDGE GROSSMAN:-                     Yes.
+                                                                                        MR. GUILD:                      Yes. The motion goes to the 6                                                .second sentence in the answer, "The-inspectors'I 7'                                                 inte rviewed told me."
+                                                                                        JUDGE GROSSMAN:                      Okay.             That is not hearsay, _
+                                                 so we deny-the objection on.that.
+-                                                                      Let's go on to 68. -That is not hearsay there and-                                                                               ;
+                                                    Mr. Guild can further examine that statement.
+                                                                                           MS. CHAN:                      Your Honor, I believe~the
+;                               13                                                     Intervenor meant to say, instead of.the fourth'and fifth-14                                                    sentences, fifth and sixth?
+5                                                                                          JUDGE GROSSMAN:                       I am'sorry.                                         Did.I miss'one?-
+                             -16                                                                                             MS. CHAN:                      71.
+17                                                                                        -JUDGE GROSSMAN:                        I am sorry., You are going i-18                                                    on to Answer 71.
+                                                                                           MS. CHAN:                      I am sorry.              I was-trying to clear 20                                                    up 71.
+                               -21                                                                                           JUDGE GROSSMAN:                      71, we are just reaching 22                                                    that right now and I am just rereading it, first, fourth 23                                                    and fifth sentences, okay.
+                                                                        I don't see any problem with the first sentence.
+(}                      25                                                                                           MR. GUILD:                      I would include the second Sonntag Reporting Servica, Ltd.
+Geneva, Illinois bu134 (312) 232-0262 e          >
+      . ~ . - - . . _ , . . - . . . . . . . _ , - _ . _ , . _ - , _ . . , _ - . - - . . _ - . . . - _ . - . . . - , _ _ , - . _ _ , _ - _ - - . - , - . - -             . - _ - _ - . . . - _ _ _ _ - , . _ - _ . _ . _ _ _ .
+' e
+      - j-       ;
+L) 1      sentence,' Judge.
+               It's~not mentioned in our motion; but as long-as
+                        .3     -it's unde rstood that it was simply something that was
+: 4. told the inspectors, I have no objection to it; but if 5     ~it's --
+,                                JUDGE GROSSMAN:     Okay, fine. That is how we 7     are accepting that.
+                                 MR. GUILD:    The next sentence I read -- I am 9     not sure we counted correctly in the motion.
+                                  JUDGE GROSSMAN:     That seems to-be what you 11      were focusing on.
+        -.             12               I should note, however, that -- is there an. issue-13      with regard to that, Mr. Guild, with' regard to either
+                     '14        that sentence or the next?
+-                                 MP. GUILD:    Well, I guess it really depends 16       on the. language used by the witness.here.
+               It certainly is in' dispute if it is understood that-
+                      .18      an NCR can be closed out without verifying the condition 19      to the extent that it involves a field condition.
+               There has been abundant testimony about inspectors 21       closing an NCR by going to the field and looking at the 22       installation.
+: 23.              I am not sure really that the testimony that is 24       being --
+       '( )            25                                  JUDGE GROSSMAN:     Do you wish to respond to RnnnF ag Ropor t i ng Se rv i ce . Ltd.
+ .                                                     Geneva, Illinois      60134 (312)   232-0262
+                                                                                         '10483=
+           Mr. Guild on that?           Why don't you?
+                          MS. CHAN:       We are talking about the fifth and-3-          sixth sentences, not the fourth?
+                          MR. BERRY:       Are we. talking about the sentence
+               '5           that-reads --
+                          JUDGE GROSSMAN:        We are talking;about 7           Sentence No. 3 and Sentence No. 4.
+               -8                               VOIRE DIRE EXAMINATION 9                                       BY MR. GUILD 10          Q Gentlemen, which of you is responsible for that. answer?'
+         A  (WITNESS NEISLER) 71?
+J 12          O Yes.
+       ' (d~  13                  Is that you, Mr. Mendez?
+             -14          A (WITNESS MENDEZ) I was.
+          Q If an NCR, Mr. Mendez, relates to a field-observed 16            condition, say the deficiency of the workmanship 17            involved in a hanger, let's say, wouldn't the procedure 18            for closure-of an NCR, disposition of the NCR, call for 19            a verification of the adequacy of the field' condition 4
+            after the deficiency was corrected?-
+          A (WITNESS MENDEZ) I don't remembe r exactly what the 22            procedure said; but if it's something that is identified 23            and this is used as is, the deficiency is always 24            identified.       It wouldn't be necessary for somebody to go
+('}  25            back and look at it again one more time.
+Sonntag Reporting Se rvice, Ltd.
+Geneva, Illinole 60134 i                                              (312)     232-0262
+.
+     )
+Q l           For example, if it was a weld that was off an 2    . eighth of an inch and engineering found that acceptable, 3     that it should have been an eighth of an inch or a 4    quarter inch longer-but it.wasn't, it wouldn't be 5    necessa ry to go back again if that .was the. only problem.
+  0 If, as I1 stated, there was a field-observed. deficiency 7     that required correction of that deficiency, then the 8    procedure as applied to that circumstance.would call for
+         -9    a QC verification of the field condition as corrected, 10    would it not?
+  A  (WITNESS MENDEZ) Yes.
+                MR. GUILD:    I guess I have no problem, Judge, bgs .
+-   as long as we understand we are talking about two 14    dif fe rent things. It sounds like we are.
+                JUDGE GROSSMAN:     Okay. With-that 16    clarification then, you have withd'rawn your objection?
+                MR. GUILD:    Yes.
+                JUDGE GROSSMAN:     So we will go on to the 19    next, which is 90.
+                MR. GUILD:    No, sir. There is a little bit 21    more on 71 there.
+                JUDGE GROSSMAN:     I am sorry. The first 23    sentence, second paragraph.
+                MR. GUILD:    Well, no. I am getting down to
+(}    25     the sentence that reads, "None did," or the phrase, Sonntag Reporting Service, Ltd.
+Ueneva, Illinois 60134 (312)  232-0262
+--                                                                             i
+  -f j    i. -
+v 1    "None did," on Page 29.                            -
+,                JUDGE GROSSMAN:    None indicated they did is 3    what you meant, I take.it?
+  A (WITNESS MENDEZ) Yes.
+                 JUDGE GROSSMAN:    All right. :We will accept 6    it as that and we will- go on to the _ first sentence of -
+    the second paragraph.
+          I assume you mean that they indicated that they did 9    not feel comfortable with the use' as the disposition; is  _
+'   that-correct?
+  A (WITNESS MENDEZ) That is correct.
+s      12               . JUDGE GROSSMAN:    And we will accept it as 13    that.
+          Let's go on to 90 now. We will accept ~it as your 15    conclusion; but, certainly, Mr. Guild can cross examine 16-   you on that, so we-have completed this.
+          Aga in , let me say to counsel that you. understand 18    you can't rely on what we have ruled out either through' 19    limiting the answer or through striking the answer, 20    except by pointing out that you object to our ruling.
+                 MR. MILLER:   Your Honor, I -- excuse me.
+                 JUDGE GROSSMAN:    But we are not going to be 23    policemen, of course, and have to make sure that you 24    don't rely on something that is excluded without having 25    you point out that you have objected to our ruling and
+{}
+Sonntaq Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+I l
+i i
+  .r~T U
+l 1 that you are relying on something contrary to our                                                   i 2 ruling.
+                     MR. MILLER:                Your Honor, to the extent that 4 there is independent record evidence establishing the 5 facts that are relied on by Mr. Mendez and Mr. Neisler, 6 it seems to me that the parties should be free to rely 7 on the facts as set forth there.
+           That is, one example that leaps to mind is their 9 recitation of what the inspection practices were like 10 when people reported inspections .in informal documents.
+           Mr. Martin has been here and has testified that 12 that was, in fact, the case.                            He supplied the notes he 7-)
+V 13 kept and.so on.
+           Therefore, it seems to me a limitation on the 15 evidence that is in the testimony of Messrs. Neisler and 16 Mendez is, in a sense, somewhat artificial; and I am not 17 sure, really, that it is going to add or detract-from 18 the record.
+                     JUDGE GROSSMAN:                  Well, if you have 20 independent evidence, rely on the independent evidence.
+           If you wish to say that the NRC accepted that, I 22 suppose you are free to say that; but if it's 23 undisputed, you don't need the NRC testimony; and if it 24 is in dispute, the fact that the NRC, through
+(}    25 incompetent testimony wished to support that, really
+,                     Sonntag Reporting Service, Ltd.
+l                              Geneva, 1111nois                 60134 l
+(312)         232-0262
+              - - , ,   ,,--n.      ._ . . , . - ~ -  .-,r   --
+73
+:: Lj-
+                                    ~
+        doesn't of fer you any weight.                 So I don't see that we 2        have any; area of concern here.
+                Okay.              I assume there is no further matter before 4       ~we proceed.
+                Mr. Guild?
+~                       MR. GUILD:            There is the question of the 7        status of the inspection report, .Mr. Chairman..
+                I know Intervenors -- excuse me -- NRC Staff 9        counsel.has not formally offered it in evidence but I 10        would anticipate that they would do so.
+                        MR. BERRY:.           I would do that at this time.              I 7- . 12        would ask that Staff Exhibit 17 be received into
+       ~
+        evidence.
+                       JUDGE GROSSMAN:              Well, we are not going to 15        receive it until after the testimony, at which time,-
+        subsequent'to that, the rules provide that we can 17        receive it; but we are not going to give it an 18        independent basis without having.the witnesses subjected 19        to' cross examination.
+j              20                So we will reserve our ruling on accepting or 21        receiving that document until after examination is 22        complete.
+;              23                       MR. MILLER:             Your Honor, I guess I can assume 24        Mr. Guild's comments to indicate that he objects.
+(}        25                       MR. GUILD:             I do, indeed.
+l Sonntaq Reporting Se rvice, Ltd.                                             '
+Geneva, Illinois 60134 (31 2) 232-0262
+W 10488 i n s./
+(%                                                                                                                                                              _
+                                                    MR. MILLER:                        Perhaps, if we knew the basis 2                           for that objection, at least my examination might 3                          . proceed in a manner calculated-to obviate some of'the 4                           objections.
+                                                    MR. GUILD:                    Yes.       I would object on many of.
+                           the~ grounds that I objected to the testimony of the 7                           witnesses.
+                                         We now have the same' infirmity stated in-a
+                   '9                          1 documentary form as opposed to what would otherwice be -
+t 10                            prefiled testimony, oral testimony from the witness
+: 11.                           under oath, without reciting all of the previous bases.
+            <-(   12                                          The point, essentially,.is that-it_ recites hearsay 13                            f rom a number of sources, is indeed ' of fered . by the Staff
+                 '14                            without a reservation or, I assume, proof of the matters 15                            that 'are asserted in - the inspection. report that are not
+                 .16            .               within the firsthand knowledge of the witnesses who are 17-                           tendered to support that report, but, indeed                                                    , relies on 18                            the same infirm basis as the testimony and that is the 19                            statements of persons who were not present or not even 20                            identified nor whose declarations are available,. simply-21                            the recitation of --
+n                22                                                    JUDGE GROSSMAN:                          Well, let me tell you right 23                            now that we will only accept the report to the extent I
+                            that the' witnesses are shown to have been competent to 25'                           produce that report; and for the other matters, they j }
+i I
+-                                                             Sonntag Reporting Service, Ltd.
+!                                                                  Geneva, Illinois                            bu134 (312)         232-0262 4
+n-    -      . . , , -     . , . , --   ---,-,n,      ,  ,,.---..,-n.,,-         ..w..   ,,,.--,,r    -
+                                                                                                                  ,,w n e,   .,,,,,.,..,,.-,e       ---a- e,a_,,.,-, e m. s
+.
+s' l'
+                         -can't use the report as-a-back-door.means of getting in; i:
+   what they ares not competent. to _: testify to.
+                    '3          I would assunie that cross examination will'
+{
+"                     4   establish:and further direct. examination williestablish
+      .              .5   exactlyf what the areas of. their competence are. :
+    ~
+: 6. Anything less will;just not be~part of what.we are l
+   accepting as evidence in the case.
+         So why don't we proceed on that basis?
+               MR.1 BERRY:    Your Honor,1under or pursuant to 10     the sequestration rule, Mr. Mendez can be excused; and
+                 ~11      it is Mr. Miller 's prefe rence, - if - need - be.
+           If not, I would.suggest that we takeLa short I
+'    recess.
+;                  14                 JUDGE GROSSMAN:       Oh', okay. 'Why don't'we do
+;-                '15     that. I assume that you are not going to'-- are you,.
+     Mr. Miller,' going to --
+!                 ' l'7               MR. MILLER:      I have no desire to sequester 1
+1
+     oneJor the other of the witnesses.
+                  .19          :I will direct specific questions to each of~them,.
+-                  20    'and I agree with Mr. Guild that they not consult prior -
+     to the time the one to whom we give the question has
+,                  22     directed answers; but I believe it perfectly' appropriate 23     to have both of them present.
+                 JUDGE GROSSMAN:       Okay, that's fine.
+(}       25           We will take a ten-minute recess and we will Sonntaa Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+A 10490 o       O 1                    -institute that procedure when welget back._                                                                                        -
+                                                                          (WHEREUPON, a recess was had,.after which 3                                                                           the hearing was resumed as follows:)
+                                                              JUDGE GROSSMAN:              We are back on the record..
+f-                   5                                        Mr. Berry, I take it you have concluded with j                    6                     presenting your. direct prefiled testimony?
+                    7                                                              MR. BERRY:              The witnesses are available for
+.                    8                     Cross Examination.
+10 t
+!                  'll 4.
+, ' 0:
+14 15 16 17 18 19 20 21 22 23 24 4
+:- C).
+Sonntag Reporting Service, Ltd.                                                                                l
+ ;                                                                              Geneva, Illinois 60134 (312)   232-0262
+O                            UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of                         )
+                                                )
+COMMONWEALTH EDISON COMPANY              )     Docket Nos. 50-456                     -
+                                                )                   50-457 (Braidwood Station, Units 1 and 2)       )
+NRC STAFF TESTIMONY OF ROGEL!O MEND 2Z AND JOHN H. NEISLER REGARDING BRIDGET LITTLE ROREM, ET AL. SUBCONTENTION 2 Q1. Please state your name, position and business address.
+A1. My name is Rogelio Mendez.        I am employed by the U. S. Nuclear Regulatory Commission as a Reactor inspector in Region lit, Division of Rear. tor Safety. My business address is United States Nuclear Regulatory Commission, Region lit , 799 Roosevelt Road, Glen Ellyn, Illinois, 60137.
+My name is John H. Neisler.       I am employed by the U. S. Nuclear l
+Regulatory Commission as a Reactor inspector in Region Ill, Division of Reactor Safety.      My business address is United States Nuclear Regulatory Commission, Region ill, 799 Roosevelt Road, Glen Ellyn, Illinois, 60137.
+Q2. Mr. Mendez please describe .your           responsibilities as a Reactor inspector.
+Erem      Asafblhol espons MM 9ng inspections,ink or perform A2. As Reactor Inspector, y :=
+the electrice' and instrumentation areas to assure that the Braidwood Station is constructed in accordance with regulator        requiremen s.
+                                                           '                      '     N!
+C              19ti[
+  -_j hV
+                                                                        *48t>         "Wb 'Y
+                       &(t$dddh45NW'--_                                     _ _ _ _ _
+l p
+I       Q3. Mr. Nelsler, please describe your responsibilities.
+A3. As a Reactor inspector,            I am          sponsible for performing l
+Inspections of safety-relsted plant systems and components to ensure compliance with regulatory requirements.
+Q4. Gentlemen, have you prepared a statement of your professional qualifications?
+A4. (Mr. Mendez) A statement cf my professional qualifications                       is attached to this testimony as Exhibit 1.
+is (Mr. Neisler) A statement of my pCofessional qualifications attached to this testimony as Exhibit 2.
+O QS. What is the purpose of your testimony?
+AS. (Messrs. Mendez and Neisler) The purpose of our testimony is to address that pset of Subcontention 2 which states;
+: 2. Contrary to C.riterion I, " organizations of 10 C . F . R . Pa rt 50, Appendix G, Commonwealth Edison Company and its contractors have failed to provide sufficient authority and organizational freedom as well as independence from cost and schedule as opposed to safety considerations to permit the effective identifica-tion of and correction of quality an safety significant deficiencies. Systematic and widespread harassment, intimidation,   retaliation and other discrimination hn been directed against Comstock QC inspectors and other employees who express safety and quality concerns by Comstock management.        Such misconduct discourages the identification and correction of deficiencies in safety-related components and systems at the Braidwood
+(                      Station.
+Instances of harassment and intimidation include at least the following:
+s
+: 1. At various times since at least August 1984, including in March 1985, more than twenty-five (25)
+i j                                                            l 0'                 Comstock QC ' inspectors have complained to' the NRC l
+i about harassment and intimidation by Comstock super-                       l Such harassment and intimidation has been l                              visors.
+l                              carried out or participated in by QC Manager Irv DeWald, Assistant QC Manager Larry Seese, QA Manager Bob Seltman, and QC Supervisor R. M. Sakalac.
+Such harassment included widespread pressure to approve      deficient work, to s.acrifice quality for                    .
+I production and cost considerations and to knowingly violate established quality procedu:*es. Harassment and retaliatory     treatment    included   threats   of violence,            i verbal abuse, termination of employment, transfer to undesirable      jobs   or   work in    areas v.here quality deficiencies could not be noted, assignments to perform                   i burdensome or menial "special projects" and other                       l adverse treatment.         Such discriminatory action was taken because of the victim's expression of quality or safety concerns.
+QS. Did      you    inspect   the    matters   referred   to   in  this    part of O             subcontention 2?
+A6. Yes we did.
+Q7. Did you document your inspection findings in a report?
+A7. Yes.       The results of our inspection is documented in inspection Reports Nos. 50-456/85021; 50-457/85022 (IR 85/21-22) which was issued November 4,198'5.          During our inspection, we found nothing to     indicate    that    10 C.F.R.     $ 50.7   had    been    violated  by L. K. Comstock (LKC) management or that any LKC QC inspector I;ad been penalized by LKC management for expressing a safety or
+(                          quality concern.
+i Q8. What part of Inspection Report No. 85/21-22 did you author?
+i
+AB. (Mr. Neisler) I was responsible for Concerns (1), (2), (3), (5),
+(6),      (7') ,      l9),     (13),        (14),       (15)   and     (16)    of     Allegation R i t t A-0072.
+(Mr. Mer> dst)          I   was     responsible of Allegations              R i l l A-0062, Ritt-65-A-GOG7, Will-65-A-0068, and Concerns (4), (8), (10), (11),
+(12) and (17) of Allegation RI)l-85-A-0072.
+Q9. Mr. Mendez, how did yoiJ become involved in the matter described in the quoted portion of Subcontention 2?
+A9. On March 29, 1985, at approximately 1;00 p.m., my Section Chief,                                   ,
+Cordell Williams, informed me that the Staff had received allegations of harassment and intimidation frcm LKC QC inspectors at the Braidwood site.             i had been previously assigned as Plant Lead Electrical Inspector at B raidwccd.                       Since LKC war the electrical contractor at            Braidwood,         Mr. Williams       invited    me to attend a telephone conference,                  scheduled       for   1:15 p.m. that afternoon, involving         the     Staff    and         Applicant.      During     that     conference,   ,
+Applicant was advised by the Staff that it had received allegations from twenty-four LKC QC inspectors concerning alleged production pressure from LKC QC supervisory personnel and harassment and intimidation by Richard Saklak, a LKC QC supervisor.                                            .
+Q10. Had the QC inspectors been informed that the Staff would inform                                  ]
+Applicant that it received complaints from them regarding LKC                                  ]
+J                                                                                                                                              )
+management?
+I 1
+I 1
+I l
+                                              .s.
+O   A10. Yes.      The Staff had earlier inftermed the allegers that it would notify Commonwealth Edison that complaints had been lodged against LKC and that Applicant might conduct its owr, inquiry into the matter.
+This course of action was acceptable to the QC inspectors.            Appli-cant stated it would conduct a preliminary inquiry into the matter and advise Region ill of the actions it would take to address the QC inspectors' concerns.
+Q11. Did Applicant later notify the Staff of the actions it planned to take?
+All . Yes.       At .ebout 4:30 p.m. that same day, a second telephone
+'            conference was held in which Applicant informed the Staff of its short term plan to address the LKC QC inspectors' concerns. That plan consisted of four actions, including the suspension, effective immediately, of Mr. Saklak, the LKC QC supervisor against whom allegations of harassment and intimi.dation had been made.       Applicant also indicated that a meeting would be held the following Monday morning with LKC QC inspectors to reemphasire Commonwealth Edison's commitment to quality and to infor.m the QC inspectors that it would invastigate their concerns.
+Q12. Who made the decision to assign the LKC OC inspector.s' allegations to you Mr. Mendez?
+Braidwood   Allegation Review Roard.       During a A12. The       Region lil April 12, 1985 Soard meeting, the allegations of the 24 LKC QC inspectors were assigned to me.        These allegations were assigned In addition, the Region til Track'.ng item No. Ri ll A-0072.
+also    assigned  rne   responsibility for   allegation    Nos. )
+Board
+_-        f
+O     Rill-85-A-0062,          0067      and '0068.            These                 allegations                      expressed concerns similar to those documented in Allegation Rlli-85-A-0072.
+Q13. Mr. Neisler, how did you become involved in this matter?
+A13. On August 27, 1985, I received a telephone call from my Section Chief instructing me to go to Braidwood the next day and assist Mr. Mendez in his inspection of these allegations.
+Q14. Gentlemen, please describe your prior experience in investigating allegations.                                                                                                              l A14. (Mr. Neisler) I have investigated allegations relating to hardware deficiencies, personnel qualifications, harassment, intimidation, and quality assurance program deficiencies at the LaSalle, Callaway, Byron, D.C. Cook, Fermi and Perry facilities.
+(Mr. Mendez) I have investigated allegations at Marble Hill and Perry Nuclear Stations.              The results of the Marble Hill allegations are documented in Report No. 50-546/83001; 50-547/83001.                                                       The alleger's concerns involved material traceability and traveler control problems by the electrical contractor, Commonwealth-Lord Joint Venture.                                                       The results of the Perry allegations are documented in Report No.
+-440/84021;     50-441/84019.         The allegations concerned procedure controls, inadequate procedures and rework controls involving the electrical contractor, L. K. Comstock Company.
+l O                                                                                                                                :
+Q15. Mr. Mendez, please describe the method you employed to investigate the LKC QC inspector allegations.
+                                                                                                                                                                                        \
+                                                                                                                 ~7-O A15. Prior to interviewing the allegers at the Braidwood site, I developed a series of about 50 questions to ask QC inspectors,                                                                                                 in formulating these questions, I used a memorandum prepared on March 29, 1985,                                                                                                               1 by Leonard McGregor and Robert Schulz, the Senior Resident inspectors at Braidwood, and an April 5,1985 memorandum prepared Charles                             Well,                     the                 Region ill                            Allegation  Specialist. These by                                                                                                                                                                           ,
+memoranda described the events of March 29, 1985, and summarized the LKC QC inspectors' allegations. I also reviewed the allegation files for Allegation Nos. R ill A-0062, 0067 and 0068.                                                                                                     The
+'           materials relating to Allegation Nos. Rill-85-A-0062, 0067 and 0068 given me by Mr. Weil were redacted so as not to disclose the However,              the  April 5,    1985   Weil identity                        of              the                  allegers.
+memorandum contained the names of 12 f.KC QC inspectors.                                                                                                    I chose to interview eight of those 12 LKC QC inspectors in connection with Soon after i began my inspection of Allegation No. Rlli-85-A-0072.
+my inspection, I decided to interview eight other inspectors. These QC inspectors had been identified as having knowledge of quality control deficiencies or were claimed to have accepted discrepant work.                     The QC inspectors were not chosen at " random" but rather l                                                                                                                                                                                      '
+on the basis of whether they were thought to possess information material to my inspection.
+Q16. Mr. Mendez, what did you ' do after you formulated your inspection plan?
+A16.I arrived at Braidwood on April 30, 1985 and met with the NRC I later arranged to resident inspectors to discuss the allegations.
+Shroeder,                                   the   Braidwood   Project   Licensing meet                   with Charles l
+                                                        .g.
+O          Superintendent,' and explained to him the nature of my inspection.                       I asked Mr. Shroeder to provide me records relating to the actions taken by Applicant to address the LKC QC inspector's concerns.
+(Applicant had completed its investigation of these concerns on April 25, 1985).                A summary of the LKC QC inspectors concerns addressed by Applicant are summarized in Ceco documents which I believe are called "Braidwood Record of Concerns."                           I reviewed Braidwood Record of Concerns Nos. QF-85-1188,1229 and 2026 since they related to some of the concerns I had been assigned to address.
+g     After completing my review cf these records, I called Mr. Shroeder and asked him to make available eight named LKC QC inspectors.
+Two days later,                I asked Mr. Shroeder to make available eight additional LKC QC inspectors for interviews.
+Q17. Mr. Neisler, please describe the method you employed to investigate tne LKC QC inspector allegations.
+[
+A17. Mr. Mendez had alresdy developed the inspection plan for the inspection. Therefore, there was no need for me to develop a second plan.          When I arrived at Braidwood, Mr. Mendez and I discussed the allegations and how I could assist him in completing                      ,
+the inspection.              We' decided that I would inspect the allegations identified as Concerns (1), (2), (3), (5), (6), (7), (9), (13), (14),
+(15) and (16) of Allegation Rlli-85-A-0072.
+O     The method I employed differed from Mr. Mendez' in that I did not            l use a p        red checklist or questionnaire to interview personnel relative to the allegations.      Instead I interviewed about six of the QC inspectors by questioning them relative to their knowledge concerning the allegations I was investigating.         Also, I revit wed appropriate quality assurance documentation, personnel qualification records,    manning     tables   and    interviewed  Applicant's  Quality Assurance and engineering personnel, and L.K. Comstock managers.
+                                                                                 ?
+Q18. Mr. Mendez, were you responsible for Allegation Rill-85-A-A18. Yes.
+O  Q19. What was the substance of that allegation?
+A19. There were two parts to this allegation, both of which concerned LKC QC supervisors and lead inspectors who had supervisory responsiblity in areas in which they were not qualified.
+Q20. Could you be more specific?
+A20. Yes. One of the alleger's concerns involved a LKC' QC supervisor who was not certified as a Level 11 inspector in the areas of cable concrete expansion anchors, and receipt inspection.         The tray, alleger also named two other QC supervisors who were not certified in the areas' they supervised.           According to the alleger, LKC Procedure 4.1.2,     Section 1.21,   required that a " Quality Control 6 triao        adkaaida bi iat"         ==ia"d r >
+O           uarviar of responsibility and certified to Level 11 capability in those areas."
+O         .
+Q21. What did your investigation of this allegation reveal?
+A21. Many of the QC inspectors interviewed by me expressed the opinion I
+that most of the LKC QC supervisors were not certified as Level ils           l In the areas they supervised and also not very knowledgcable with respect to the areas under their supervision and thus unable to answer questions in these areas.
+My      review indicated that deficiencies in LKC QC supervisors' certifications already had been identified by Applicant in Braidwood QA Audit Report No. QA-20-84-556, dated December 19, 1984. This audit report identified certain LKC QC supervisors who did not have sufficient prior work experience to qualify as a QC supervisor.       The O       report also noted that some supervisors lacked certification as Level it inspectors in all the areas they supervised.
+Q22. What action, if any, was taken by LKC to correct these deficiencies?
+A22. The LKC QC supervisors were required to obtain Level 11 certifica-tion in the areas they supervised. Although LKC Procedure 4.1.2 required a QC supervisor to be certified as a Level 11, this This procedural violation is not significant from a safety standpoint.
+is because LKC QC supervisors did not perforrr Lcvel 11 reviews in any areas for which they were not certified.
+Q23. What was the second part of Allegation Rill-85-A-0062?
+l A23. The alleger was concerned that two QC inspectors who had been selected as lead inspectors did not have sufficient experience and training for their positions. The alleger stated that one of the lead
+O    inspectors did not have any qualifications and that the second lead According inspector. had qualifications only in receipt inspections.
+to the alleger, LKC Procedure 4.1.2, Section 1.22, raquired that QC inspectors be certified as Level li's in the area for which the inspector has lead responsibility.
+Q24. What did your inspection of this part of the allegation reveal?
+A24. During the course of my interviews, this same concern was raised with respect to six additional lead QC inspectors.      Consequently, I reviewed the qualification records of these eight LKC lead QC Level it inspectors. My review indicated that all but two of the lead inspectors had the required background, training, and certifications.
+As noted on pages 4-6 of my report, of these two lead inspectors, one was certified as a Level 11 by LKC and was made a lead concrete   expansion    anchors  (CEAs)            before                     his inspector    in This inspector certification had been approved by the Applicant.
+had passed his written and practical examination on March 5,1985 His certification,
+'          and was assigned as lead on March 10, 1985.
+however,   was not approved by the Applicant until March 21, 1985.
+My    review indicates that during this 11 day period , this QC inspector did not sign any quality documents in the area of CEA's.
+Therefore, the above was only a technical violation of LKC procedure
+           '4.1.2   and did   not compromise the quality of any inspection.
+However, this same QC inspector was made a lead in calibration and
+'            one  other QC inspector was made a lead in CEA's, although they were not certified in those areas. This was a violation of LKC
+l l
+!  O                                                             procedure 4.1.2, which requires that QC inspectors be certified as Level li's in the area the inspector has lead responsibility.
+Q25. What is the significance of the violations you have described?
+A25. There is no significance to the first two instances because neither QC inspector performed inspections in areas where they lacked certification.        Consequently, the quality of QC inspections would not be affected by these violations.             LKC issued NCR 4527 to address the violations.        No additional violations were identified.                           l l
+The other violation noted in my report involved two instances where a QC inspector, uncertified in calibrations, signed the review column of two         LKC    calibration   inspection checklists. The Staff has withdrawn this violation because it now appears that there was no violation of LKC Procedure 4.1.2.             At the time of this particular inspection, the procedure was interpreted by LKC to require only than an inspection report be reviewed by a 1.evel ll inspector; there was no explicit requirement that the reviewer be a certified Level ll in the discipline that was the subject of the inspection unless the inspector who performed the inspector was a Level 1.                    Since the
+(                                                                     inspector who performed the calibration inspection was a Level 11, it was not impermissible under the existing procedur e for the reviewer (who is a Level ll         In ccnfigurations) to review and sign the calibration checklists.      Effective September 1984, LKC has changed its interpretation of Procedure 4.1.2 to require the Level 11 reviewer to be certified in the area he is reviewing.           Thus, under the
+O                                                              present    interpretation  of   LKC   Procedure             4.1.2,            the situation described above would be a violation of LKC procedures.
+Q26. Mr. Mendez were you                        responsible for Allegation Rlil-85-A-0067?
+A26. Yes.
+Q27. What was the substance of that allegation?
+A2-l. This allegation consisted of three parts, two of which were reviewed by me during the inspection.      The third issue involved welding and was assigned to another NRC inspector.        One part of the Allegation No. Rill-85-A-0067 that I looked into related to a reprimand given to a LKC QC inspector for absenteeism and poor work performance.
+According to the alleger, this reprimand was based on the alleger's failure to meet inspections quotas set by LKC QC management.
+Q28. What did your inspection of this part of the allegation reveal?
+A28.In addressing this allegation, I interviewed the alleger and asked him whether he had been told to perform a certain number of inspections per day. The alleger stated that although he had never actually been told to perform a certain number of inspections he felt LKC was " pushing numbers" and he thought it was not right for LKC to push production. I also reviewed the alleger's personnel file. That file indicated that the alleger had been given verbal warnings regarding excessive absences on September 21, 1984, and i
+January 27, 1985, and a written warning on February 20, 1985. On March 19, 1985, the alleger received a second written warning for poor werk performance.                         The March 19, 1985 absenteeism and
+O   reprimand      indicated        that      the   elleger   had   taken    a  total  of 16 sick / personal days between June 1, 1984 and March 18, 1985.
+The     reprimand         also observed that during the period between January 28, 1985 and March 19, 1985, the alleger had performed 34 inspections (an average of 1.6 inspections per day) while the average of his particular speciality (welding inspections) was 9.3 inspections per day.           (The 9.3 average was computed by LKC at my request since it was not information that was readily available.                    I had asked Mr. Seese, the Assistant QC Manager to obtain the I
+average     for     welding         during    January    and    February of 1985.
+Mr. Seese took about a day to obtain the average number of welding inspections for me).
+i O
+With    respect        to   the      allegation    regarding    pressure    by  LKC management to meet quotas, I interviewed the alleger and other QC inspectors.      All of the QC inspectors stated that LKC management,
+                                                                                                             )
+especially Mr. Saklak, appeared to be more interested in production rather than the quality of the inspections.                Some of the inspectors indicated that LKC management was probably concerned about losing                      j the electrical        contract with Applicant.            However,    none of the inspectors      actually     had       been   told   by    LKC    management that production was more important than quality and all indicated that they had not and would not accept discrepant work for sake of increasing the          number of inspections.            All of the     inspectors impressed me as being professional and quality conscious.
+It should be noted again that the alleger was reprimanded primarily for excessive absenteelsm and for failing to notify LKC when he took sick or personal days, not for failure to meet any production quota.
+Q29. What was the second part of Allegation Rill-85-A-0067?
+A29. The second part of the allegation was that QC inspectors were not being properly trained in conduit specifications.                       The alleger cited Procedure 4.3.13,      " Installation of Junction Box and Equipment,"
+which referenced the conduit specifications for grounding of junction boxes.
+Q30. What did your inspection of this part of the allegation reveal?
+A30. Section 3.5.6.1 of LKC Procedure 4.3.13, states that " Junction boxes
+          ...      will be grounded in accordance with the conduit specifica-                                                     l l
+tions. "    LKC Procedure 4.3.13 also references S&L Standards and approved dr awings.       Currently, QC inspector , who are certified Level 11 QC inspectors in the area of " Equipment / Junction Box installation" are required to have knowledge of LKC Procedure 4.3.13. My review of training records of 5 of the 12 QC Level ll conduit inspectors indicated that each had attended !cctures and demonstrations     regarding    LKC                    Procedure 4.3.13.            Additionally, records indicated that the QC inspectors had been trained to Specification L-2790 and S&L drawings 20E-0-3391 A and 20E-0-3000D, which identify grounding spe.cifications.                                                                             ,
+i l
+O         Finally,    I  should  add   that during                    my interviews with                      LKC inspectors, I asked if they knew of any instance where a junction
+O      box had not been grounded per the applicable conduit drawing or specification. None did.
+Q31. Mr. Mendez were you           responsible for Allegation Rill-85-A-0068?
+A31. Yes.
+Q32. What was the substance of that allegation?
+A32. This allegation had three parts.
+The     first  part   of   this        allegation                      was            similar                 to Allegation R lli A-0067   in   that    here              again                the            allegers claimed                                          LKC                  ;
+l management was more concerned with production than quality. As I stated earlier, none of the inspectors interviewed by me provided any example or instance in which inspection quality had been compromised by this alleged emphasis on production.
+In the second part of Allegation Rlli-85-A-0068, the alleger stated that he found a structural steel base metal reduction problem in the auxiliary building. When he brought this problem to the attention of his lead, allegedly he was told that he was to concentrate on his                                                                                                   ;
+assigned electrical inspections. The alleger said he then told his QC                                                                                               l supervisor of his concern and that the supervisor responded, " Keep I
+up production or l'Il take you off of overtime." The individual did not think this problem was being handled in accordance with applicable procedures and he believed he was being pressured into overlooking problems by having his overtime taken away.
+O Q33. What,    if anything,                            did                your inspection reveal regarding this allegation?
+I A33. I interviewed the lead inspector and QC supervisor involved in this allegation. Both of these individuals denied that the alleger had been threatened with loss of overtime if he continued to identify deficiencies. My review also indicated that the alleger had not been taken off overtime because he had identified the base metal problem.
+In fact, the alleger documented the base metal reduction problem on December 8,1984, in a memo to the QC manager.                                                                            On December 18, 1984, the QC manager sent the memo through the proper channels to the G. K. Newberg, the civil / structural contractor, for resolution.
+The alleger also referred the base metal reduction proolem to a LKC Field Engineer.                    On July 30, 1985,                                                        inspection Correction Report (ICR) No. 10991 was issued to correct the base metal reduction problem identified by the alleger.
+Q34. What was the third allegation in Allegation No. Rill-85-A-0068?
+A34. The third part of the allegation alleged that newly hired LKC QC inspectors were belig qualified and certified in the areas of welding and configuration in one week.                                                                 According to the allegers, it was not possible to become knowledgeable in one week regerding all of the detailed reference tables and drawings necessary to perform welding and configuration inspections.
+Q35. What did your inspection reveal concerning this allegation?
+A35.I reviewed the certifications and qualifications of 10 recently hired LKC QC welding inspectors (this group does not include the eight
+                                                                                       ^
+l O   lead inspectors involved in Allegation Rlli-85-A-0062) to determine whether they possessed sufficient prior experience as a QC inspector and/or craftsman under a quality program and had passed written and practical exams necessary for certification as a LKC QC Level 11 inspector.      My review indicated that all but one of the inspectors had the proper background and training to be certified as a Level ll inspector pursuant to ANSI N45.2.6 and LKC Procedure 4.1.3,
+          " Qualification and Training of QC Personnel."
+hone of the newly hired QC inspectors did not have sufficient experience to warrant certification as a welding inspector. CThis Individual was hired by LKC on November 21, 1983, and was certified as a Levei ii weidino iasPector on aanuarv 4, ,984. This O
+person's background was in the electrical area and he had no prior weld inspection experience.         This lack of qualification had been identified by Applicant on February 5, 1984 in Braidwood QA r/) t/
+Surveillance    Report    No. 3372.'     initially,  Braidwood  QA found problems with the certification of thisi individual since the person's certification  package    only   contained     documentation of previous electrical experience. hhere was no        documentation of welding or welding inspection experience.         Braidwood site QA accepted the individual's certification based on the person's background as a QC         ,
+i supervisor in the use of vernier calipers,              scales and torque   )
+I wrenches. Later this person was again certified as a Level it weld inspector based on his weld inspection experience at Braidwood.
+Although I was satisfied that this individual now possesses sufficient experience to warrant certification as a Level ll weld inspector,1
+O                                                was not as certain that the welds accep'ed by this inspector during the period when his certification / qualification was questionable met applicable acceptance criteria.                                            This concern is identified in my report as an unresolved item (456/85021-02; 457/85022-02).
+Q36. What action, if any, has been taken to address this concern?
+A36. To date, Applicant ha not indicated to the Staff that this item is ready for further Staff evaluation. Consequently, this matter is still being carried as an unresolved item.
+Q37. Mr. Neisler were you involved in the investigation of the allegation identified as Concern 1, in Allegation Rill-85-A-0072?
+A37. Yes.
+Q38. What was the allegation?
+A38. The QC inspectors alleged that LKC is asserting the quantity of inspections rather than the quality of inspections t.n d that the quality of the LKC inspections was suffering.
+Q39. What were the results of your investigations?
+A39. We interviewed most of the QC inspectors who had concerns in this area. The QC inspectors stated during their individual interviews that none of them had ever personally performed an inspection in which they compromised quality because of production pressure.
+The QC inspectors also stated to me that they were not aware of any other QC inspector who had piaced the quantity of inspections before quality; nor, had they any knowledge of inspection quotas.
+--- - -    - - . ~ _ - , - - - - - - , - - - , , - . - .             ,_,_,___~_---__-v,--,. _ - , - . - _ - . _ - - - , , - - , - - - - , , - --,-n-- - - , , ~ , - , - - , - _ , - , - - - - - - , _ , - -, - , , - , , - - , - -_ , - - ,
+l 20 -
+O     I also reviewed trend analyses of Applicant's Quality ' Assurance (QA) audit and surveillance report findings for the previous year and LKC quarterly trend analysis reports for the last three quarters of 1984.
+These records did not reveal a significant decline in the number or type of identified deficiencies.                I also reviewed LKC personnel                                                                       ,
+records. These records indicated that the number of inspectors onsite had been increased in proportion to the increase in workload.
+Thus, my inspection did not substantiate that the quality of the inspections by LKC QC inspectors suffered because of alleged production pressures.
+Q40. Mr. Nelsler did you investigate Concern 2?
+A40. Yes.
+Q41. What was the substance of the allegation?
+A41. This allegation was related to Allegation Rlli-85-A-0062 in that some of the inspectors alleged that a LKC QC supervisor, Mr. Saklak, was not certified in all of the inspection areas which he supervised.
+Q42. What were the results of your inspection?
+A42. I confirmed that Mr. Saklak was not certified as a Level 11 in all of the areas he supervised.       This was a violation of LKC procedures but not of NRC regulations or ANSI standards since neither requires quality control supervisors to be certified in all inspe<: tion areas l
+they supervise.
+P f
+                                                  -----,---,a   ne,,---..r----,-,,---v--_--,--w
+                                                                                                         -----.-,,w-,.,---,,-.--,-
+Q43. Mr. Nelsler were you responsible for investigating Allegaticn 3?
+A43. Both Mr. .Mendez and I investigated Concern 3.
+Q44. What was the substance of the allegation?
+A44. QC       inspectors   alleged   that one QC supervisor was constantly intimidating / harassing the LKC inspectors to sign-off NCRs and ICRs.
+Q45. What did your investigation reveal?
+A45. We interviewed QC inspectors, including the allegers.            The QC inspectors each stated that . the supervisor, Mr. Saklak, had an abrasive and aggressive personality and was very quick to lose his
+;                     temper when inspectors' findings or interpretations were counter to his interpretations of procedures or requirements, in which case it was alleged that he would become abusive and berate and threaten the inspector with dismissal. However, none of the inspectors were aware    of any    instance   where an inspector had actually been l
+dismissed or had " signed-off" an inspection as a result of pressure from Mr. Saklak or any other supervisor.
+Q46. Is Mr. Saklak still employed as an LKC QC supervisor at Braidwood?
+A46. No.       He was terminated by LKC after it had learned that Mr. Saklak had made a threatening remark to a LKC QC inspector.
+Q47. What other actions, if any, have been taken to prevent a recurrence of this type of conduct on the part of QC supervisors?
+i                                                                                                                                  !
+-
+O A47. Applicant initiated a training program for LKC QC supervisors to improve their management and supervisory skills.
+Q48. Mr. Mendez, did you investigate Concern 4?
+A48. Yes.
+Q49. What was the substance of Concern 4?
+A49. It was alleged that 93 hangers containing more than 1100 welds had been inspected and accepted in a single day by an identified inspector. The allegers considered this to be too many inspections for a single inspector to make in one day without the quality of the inspections suffering.
+: O Q50. What were the results of your nvestigation?
+A50. The QC inspectors interviewed               WW .~ f rv{ DeWald,           ..:.Lkt  now LKC QC Manager, as the inspector alleged to have performed this inspection.
+I interviewed Mr. DeWald regarding this issue and he responded that to his knowledge this did not occur.                              The LKC inspectors could not identify the inspection report or the date of the alleged occurrence.
+Consequently, I was not able to find an inspection report signed by Mr. DeWald documenting the acceptance of more than 1,000 welds inspected in a single day.
+However, I did locate during my review of LKC inspection reports an i
+ '             inspection report dated November 12, 1980, which documented the O          acceptance of 129 hangers containing 1,215 welds. I discussed this matter with LKC management, and was informed that the practice in
+_                 -__.--.-.,---.----.--.-,-___-,,.m.--                         . , , , - , - _ . - _ , - .
+O                                                    1980 was for QC welding inspectors to keep daily logs of their hanger inspections and after he had completed all his hanger inspections in a given area, to sign-off for all of the inspections on a single inspection report.      Thus, the date of the inspection report did not necessarily indicate the date of the inspection, but rather the date on which the results of the inspection was documented.           I understand that the current practice at LKC is for an inspector to document his inspections on a daily basis.
+Q51. Mr. Neisler, did you investigate Concern 5?
+A51. Yes.
+Q52. What was the substance of the allegation in Concern 5?
+A52. A QC inspector alleged that an LKC QA Engineer was assigned to the records vault for the sole purpose of closing nonconformance
+ '                                                                      reports. The alleger stated that this individual never went into the field to verify the condition (work to be accomplished per the NRC)
+I                                                                       before    closing the    nonconformance       reports. Additionally, this individual was alleged to be both a QC Inspector and a QA auditor who audited his own inspections. Some LKC inspectors also indicated that QC inspection reports were being signed without the inspector going into the field to verify completed work.
+!                                                                 Q53. What did your investigation reveal?
+A53. I interviewed the alleger and the individual who allegedly closed the reports and performed the audits.        I also reviewed the closed out
+O      reports and audits, and discussed the issue with the LKC QC manager and the LKC site QA Manager.
+The alleger stated that although he had no personal knowledge that the other individual had closed nonconformance reports in the vault or performed     audits of   inspection activities in which he was involved, he had heard that this had happened.      He stated that this had occurred over a period of about two weeks or maybe two days, but was not sure.
+My interview with the other individual was conducted by telephone since the individual was no longer at Braldwood. He stated that he O      had been assioned by txC Q4 mana ement to assist in the prepara-tion of a report to be submitted by LKC to Applicant.             He was detailed to the vault to research nonconformance and inspection reports for material to be included in the report. He further stated that he had not closed any reports during that period.      He also told )
+me that he had never participated in an audit involving LKC at Braidwood. The QA and QC managers confirmed that the individual did not close reports or perform audits during this period.
+i My examination of the nonconformance report log did not reveal any       ;
+reports that had been closed by the individual during the two weeks he was working in the records vault.       I concluded that the QC inspector was not assigned to the vault to close nonconformance reports and that he did not close reports while he was in the vault.
+1
+l l
+J O
+Q54. Mr. Nelsler were 'you also responsible for investigating Concern 6?
+AS4. Yes.
+Q55. What was the substance of Concern 6?
+A55. Several of the QC inspectors stated that they had spoken to the i                                               Braidwood Quality                                             First Team without gaining any satisfactory response to their concerns.
+Q56. What were the results of your investigation?
+A56. This allegation is addressed as Concern (6) on Page 17 of our report.       Our inspection revealed that the QC Inspectors did not go to Quality First with concerns.                                                                        Rather, they were interviewed by O                                  Quality First in February 1985 as part of Quality First's baseline survey of concerns of QC inspectors and of other persons regarding the con::truction of the plant.                                                                     The concerns expressed by the LKC inspectors were investigated, the results of which vicre published in a report by Quality First on April 25, 1985. Quality First had not i
+completed its investigations by the time the QC inspectors complained to the NRC that they had received no response from Quality First.
+Q57. Mr. Neister did you investigate Concern 7?
+A57. Yes.
+i              .
+Q58. What was the substance of the concern?
+A58. An LKC QC inspector alleged that hangers were not being inspected pursuant to LKC procedure. According to the alleger, no inspection report or nonconformance reports were written for the hangers, but l
+t 26 -
+O                   rather walkdowns were being done and drawings made to reflect the as-built configuration.
+Q59. What did your investigation reveal?
+t.59. This allegation is addressed as Concern (7) on Page 18 of our report.                    This      matter      involved         walkdown          inspections      by             the architect / engineer (S&L) in response to Nonconformance Reports (NCR) 708                   and      709.       S&L engineers              performed         the walkdown accompanied by LKC QC inspectors.                                   The alleger was one of the QC inspectors.                     His   complaint was that S&L did not follow LKC procedures to document the walkdown.                                      Our review of the circum-stances surrounding this matter indicated that LKC procedures O                       were not an iicabie.                      Tnis inspection was properiv performed by s&L pursuant to NCR 708 and NCR 709.
+Q60.1/r. Mendez, did you investigate Concern 8?
+A60. Yes.
+Q61. What was the substance of the concern?
+A61. A LKC QC inspector alleged that he was constantly watched by his i                                     supervisor.                 According to the alleger, after he had visited the NRC resident inspectors' office he was transferred without reason from field inspections' to a job in the records vault.
+Q62. What did your investigation reveal?
+A62.I                       examined     an    Applicant         surveillance          report       that   identified deficiencies in the alleger's weld inspections.                              The alleger had been
+     . __ _         ._ _     _ .._-- .._ _ _ _ _ ___ _ _.                 _ _ ._ ___ _ .___ _ _ _ _.. _ _____ _ ._ _ .....-._..: ~ __
+observed with copies of the same inspection checklist on which the acceptance box had already been marked.       Applicant ordered LKC to
+  -      remove him from field inspections in October 1983.       Items inspected by the alleger using the copied checklists were reinspected by other inspectors. I determined that the alleger has not been permitted to perform weld inspections since October 1983 when he was transferred to the records vault.
+I discussed with the alleger the reason for his transfer to the vault.
+The alleger stated that since his welding certifications had been invalidated by the Applicant's site QA department, he could no longer perform w'elding inspections. Consequently, he was assigned to perform document reviews in the record's vault.         When I spoke with   the alleger,    he   denied being   singled   out by     the LKC management for having gone to NRC resident inspectors' office.
+Based on my review of documentation relating to the alleger's transfer from the field to the records vault, I could not substantiate that he had been transfe; red because he had visited the NRC resident inspectors' office.
+Q63. Mr. Nelsler, did you investigate Concern 9?
+l     A63. Yes.
+i I
+Q64. What was the substance of Concern 97 A64. It was alleged that an inspector cannot remain proficient in multiple disciplines without a decrease in the quality of his inspections but
+that LKC management promised more money to inspectors who were certified in multiple areas.
+l Q65. What did your investigation reveal?                         ,
+A65. This allegation is addressed as Concern 9 on Page 19 of our report.
+The inspectors I interviewed told me that they could maintain the c(uality of their inspections in all the creas in which the were
+                         ' certified . Additionally,   Mr. Mendez   and  I  verified   that LKC provides refresher training for any inspector who feels the need for more training and also maintains a current listing of revisions in LKC's procedures on the QC bulletin board.
+Q66. Mr. Mendez,       were you responsible for investigating Concern 10?
+A66. Yes.
+Q67. What was the substance of the allegation?
+A67. It was alleged that lead QC inspectors were selected on the basis of their willingness to sign-off quality documents,     (i.e. NCRs and ICRs).
+Q68. What were the results of your investigation?
+t A68. Some of the inspectors told me that the selection of lead QC in'spectors may have been based on who signed off the most quality documents; however, none could give an example where this actually    ;
+occurred. No examples were provided regarding improper signing of O                        inspection reports or violations of procedures. My examination of personnel records did not disclose any irregularity in this regard.
+-
+O                              I also reviewed the NCR logbook and ICR logbook for the period January 1984 to April 1985.                                    This review did not disclose any irregularities.                            No examples. were provided of any one signing off                           .
+NCR's and ICR's without verifying the work activity.
+Q69. Mr. Mendez, were you responsible for investigating Concern 117 Q69. Yes.
+Q70. What was the substance of the allegations?
+A70. It was alleged that some NCRs had been dispositioned by LKC Engineering as " retrain inspectors", and that some NCRs had been initiated                          and   dispositioned    by   field  engineering       without                 the involvement of QC inspectors.
+Q71. What were the results of your investigation?
+Q71. Some of the LKC inspectors I interviewed were concerned that NCRs were being initiated and dispositioned by field engineering without any involvement of QC inspectors.                              However, none could provide an example.                          I should note, however, that there is no requirement that
+                                                                                                                                              .-T a QC inspector concur in the disposition of an NCR.                                                       An NCR generally documents a deficiency or identifies a concern requiring evaluation by the engineering department, which has more expertise
+                                                                                               ')
+than the QC inspector.                           I also asked the inspectors whether they knew of any instance where a NCR was improperly dispositioned.
+None did.                         Some of the QC inspectors told me that if they did disagree with the disposition of an NCR, they were free to try to persuade LKC Engineering to change its position. My review of l
+l i
+O          LKC's NCRs did not disclose any significant deficiencies in this regard.
+A few of the LKC QC inspectors dio                                           t fee! comfortable with a "use-as-is" disposition.                                     NCR 1616 and'    R 2MO were provided as
+          / examples.               I reviewed NCR 1616 anc
+* R 2900 and found the dispositions acceptable.
+Q72. Mr. Mendez, Svere you responsible for investigating Concern 12?
+A72. Yes.
+Q73. What was the substance of the allegation?
+A73. It was alleged that if inspection quotes were not met, overtime was not given to individuals.
+Q74. What were the results of your investigation?
+A74. As I indicated in my testimony regarding Allegaticns Rill-85-A-0007 and 0068, I found nothing to indicate that inspection quotas were employed by LKC.
+Q75. Mr. Nelsler, were you responsible for investigating the affegation identified as Concern 137 A75. Yes.                                                                                                 ,
+Q76. What was the substance of the allegation?
+(q)
+A76. It was alleged that three LKC QC inspectors (not identified) were to to be terminated for improper reason.
+O                                Q77. What was revealed by your investigation?
+A77. My revi6w of LKC's records of personnel departing the Braidwood site during April, May, and June 1985 revealed that no QC inspector had been fired or involuntarily terminated during that period.
+Q78. Mr. Neisler, did you investigate the allegation identified as Concern 14?
+A78. Yes.
+Q79. What is the substance of the allegation?
+: 79. It was alleged that NCR 1616.and                  CR 2900 had been inappropriately dispositioned O
+Q80. What were the results of your investigation?
+A80. This allegation is addressed as Concern 14 on Page 22 in our report.
+My review of NCR 1616 and          CR 2900 indicated that they had been properly reviewed and dispositioned by the appropriate engineering staff.      The corrective action had been completed and the NCRs closed on August 8,1985.
+. Mr. Neisler, did you also investigate Concern 157 A81. Yes.
+I f                                                 Q82. What was the substance of the allegation?
+A82. It was alleged that one QC supervisor continually violated applicable I
+procedures in connection with the certification of inspectors.
+l l
+l
+O  Q83. What were the results of your investigation?                              l I
+A83. This allegation is addressed as Concern 15 on page 23 of our report.
+I found no evidence that the supervisor violated procedures.          The QC supervisor did not certify inspectors.         Rather, certifications were handled through LKC's training department.
+Q84. Mr. Neisler, did you investigate the allegation identified Concern 16?
+A84. Yes.
+Q85. What was the substance of the allegation?
+A85. An unidentified alleger stated that there were no certified calibration inspectors.
+O Q86. What were the results of your investigaticn?
+A86. I found from personnel records and manning tables showing the number of inspectors certified in each area that Comstock had certified calibration inspectors since they began work at Braidwood.
+Q87. Mr. Mendez, were you responsible for investigating Concern 17?
+f      A87. Yes.
+Q88 What was the substance of the allegation?
+A88. It was alleged that a QC supervisor lied to get a QC inspector fired.
+i Q89. What were the results of your investigation?
+A89. During discussions with the alleger, he stated that the circurristances surrounding the incident in which he was threatened with dismissal
+j involved a lost company owned tape measure.                                       According to the alleger, he was asked by Mr. Saklak, the QA supervisor if he had a tape measure that had been in the QC inspector's possession.                                      The alleger stated that he did not, at which point Mr. Saklak is alleged to have made a " profane" statement.                                    According to the alleger, Mr. Saklak accused him of being negligent with his equipment and continued to use profanity and told him to get out of his office.                                   On January 13,                      1983,             Mr. Saklak initiated   action to fire the QC inspector for being " remiss and insubordinate actions in performing those duties assigned by his supervisor along with not being responsible for company tools he was issued." However, the alleger was      not fired then and is currently employed at Braidwood.
+O          ar s ki x, no                                    r, i= ao ioma r -aiov a av 'xc-                 rir o by LKC after it learned that he had made a threatening remark to a QC inspector.
+Q90. Gentlemen, does this complete your testimony?
+A90. (Messrs. Mendez and Neisler) We would add only that, as reflected i
+in our report, it appeared to us that the problems between the QC inspectors and LKC QC management could have been avoided had LKC     management                              communicated    more  effectively   with   its     QC inspectors                   and              taken   stronger    or  earlier   action   regarding Mr. Saklak.
+O
+b w'
+f                                                                                                                                       10491-
+;                         .l'                                                    ' JUDGE GROSSMAN:             M r. Miller,1please.-
+                                                       MR.fMILLER:      ~ Thank you, your Honor..
+                          3                                                I would --
+                                                       MR . : GUILD:   LBefore Mr. Miller starts.out, let-5                                  me ask the. record to reflectIthat over the recess, p                          6                                  counsel distributed a series oof. documents; and I fhope he-
+                                                                                                                        ~
+                                                                                         ~
+_                                 gave copies to the Board, because-I think there are
+:                          8                                  matters - here that the Board ought'to be ' informed about.
+:                          9                                                      JUDGE GROSSMAN:             -Is:this the policy?
+l 10                                                       MR. GUILD:       No, sir,:not the' policy ~ statement
+;-                        11                                  but the more recent allegations about production                                            -
+: 12.                                 pressure at Comstock that we are now being told ab'out      .
+f                         13                                  for the first time today.
+14                                                       JUDGE GROSSMAN:             We haven't received a copy.
+                        ' 15                                  but I assume that Ms. Chan will make' copies available to' 16                                 -the Board membe rs at the earliest opportunity.
+                                                Fine. Why-don't we continue then with the.witnoca?'
+                                                       MR. GUILD:       I 'just would note, Mr. Chairman,-
+* f7 h                         19.                                 before I leave 'the matter,' that I' have been handed for
+                        - 20                                  the first time what I believe are 25 pages of material 21                                   that date back to June of~1986, that appear to relate to
+: 22.                                 wide-ranging expressions of concern about poor quality 23                                  control practices from new people; and I am being asked 24                                  to examine the NRC inspectors who supposedly concluded a
+c
+       '(}                25-                                  there was no such production pressure, having been given
+                                                                                                                                                          ~
+i.
+-                                                                          Sonntag Reporting Service, Ltd.                                               l
+;                                                                               Geneva, Illinois 60134 i                                                                                     (312)     232-0262
+(s.                                                                  >
+Y l' these documents only today.
+       I have' only reviewed them for about two minutes; 3  but IJws  ' ask the Board to examine the documents and I 4  hope we-could discuss them at some time later this day 5  before we go any further with Staff's case.
+            MR. BERRY:    I would only note, Mr. Chairman, 7  that the documents that have been made available to -the 8  parties during the recess, the allegations contained in
+       -9  those documents were not investigated by the witnesses.
+  They are being investigated by other inspectors in the 11  Regional Office.
+       These documents, .as I stated earlier, relate to an
+('y/
+ .f-13  allegation recently received by the NRC. It wasn't 14  produced earlier for the reasons that I have stated on
+      .15' prior occasions.
+       It's being produced now to the extent -- well, it's 17  being produced now for the benefit of the parties.
+            JUDGE GROSSMAN:    Well, we will review the 19  documents and we will t ry to discover which category, 20  from your prior statements, these documents fall into.
+       We will continue now with Mr. Miller's Cross 22  Examination.
+            MR. MILLER:    Thank you, Judge Grossman.
+       Good morning, gentlemen. We have met before at 25  deposition taken on March 13, 1986; but, for the record,
+{~}
+Sonntag Reporting Service, Ltd.
+ueneva, 1111nois 60134 (312)  232-0262
+r
+                                                                      ~10493
+  ,/"T cv-l_   my name is_ Mike Miller and I am one of the attorneys for 2    Commonwealth Edison Company.
+            '3-                    CROSS EXAMINATION 4                        BY MR. MILLER 5  Q Mr. Mendez, you made an addition to Answer 2 in the
+           '6     prepared testimony --
+  A (WITNESS MENDEZ) Yes, sir.                                 l 8  0 -- in which you described what your present duties
+: 9. consist of.
+          .10          Are you currently assigned to the Braidwood site or 11     do those duties comprise other stations as well?
+gg      12   A (WITNESS MENDEZ) At one time I was assigned just to
+   \
+    ''i 13     Braidwood.
+          I am no longer assigned to Braidwood and I am no 15     longer in the same section but have responsibility for 16     electrical construction work at Braidwood.
+   Q Since Ma rch of 1986, have you routinely conducted 18     inspections at Braidwood on any occasion?
+   A (WITNESS MENDEZ) Since March, '86?
+   0 Yes.
+   A (WITNESS MENDEZ) No, I haven't.
+   Q At which stations are you assigned?
+   A (WITNESS MENDEZ) My new assignment is with the test 24     program section, so that I have all plants in our region 25     now.
+Sonntag Reporting Service,_Ltd.
+Geneva, Illinois 60134 (312)   232-0262
+       ~
+v 1 Q These are plants that are operating?
+A  (WITNESS MENDEZ) Operating, some construction.
+O All right, sir.       I would like to turn to Answer 9 on 4   -Page 4, Mr. Mendez.
+          That answer generally describes a telephone 6    conference call that took place at approximately.1:15 in 7    the af te rnoon on March 29th.
+          What, if.anything, were you told about the 9    situation at Comstock and the complaints made by QC 10    Inspectors prior to the time that you attended the 11    telephone conference call that went at 1:15?
+g-  12 A  (WITNESS MENDEZ) I believe my Section Chief, Cordell 13   Williams, mentioned something about QC -Inspectors 14   walking out of the plant.       If something wasn't taken 15    care of, they were threatening to walk out.
+Q Did Mr. Williams tell you how he had learned that 17    inf orma tion?
+A  (WITNESS MENDEZ) No, he didn't.
+;         19 Q All right.      Who were the participants in the 1:15 P. M.
+    conference call, if you recall?
+A   (WITNESS MENDEZ) I think in our office Bob Warnick was 22    there, Paul Pelke, Cordell Williams and me; and I think 23    in the residents' office it was McGregor and Schulz and 24    for the Commonwealth Edison it was Lou Klein and
+(}  25    Fitzpatrick.
+Sonntag Reporting Service, Ltd.
+ueneva, Illinois 60134 (312) 232-0262
+m-H fn                                                                    10495
+ ,=u.
+l~h
+    -Q l' O. All right. I_am going to ask you to identify by 2     position Mr. Warnick at that time.
+  A  (WITNESS MENDEZ) He is the Branch. Chief for the: division 4     of reactor projects.
+  Q  What responsibility, if any, did he have for Braidwood?-
+  A  (WITNESS MENDEZ) He is the Branch Chief.for Braidwood, I.
+     believe.
+  Q  All right. Mr. Pelke?
+  A  (WITNESS MENDEZ) He was sitting in for Bob Learch.
+           Dob Learch is the Braidwood -- I believe at the 11     time -- let's see.
+g-  12           Bob Learch was sitting in for Pelke. Pelke wasn't U
+     there.
+  Q  I am sorry. All right.
+           And Mr. Williams?
+  A   (WITNESS MENDEZ) He is the Plant Systems Section Chief.
+  Q  You identified Mr. Klein and Mr. Fitzpatrick as being 18     the individuals from Commonwealth Edison Company who 19     were identified to you.
+           What did you understand Mr. Fitzpatrick's title was 21     at that point in time?
+  A   (WITNESS MENDEZ) I believe at the time he was the 23     Assistant QA Manage r.
+  0  Mr. Klein?
+('T 25  A   (WITNESS MENDEZ) He is a licensing -- he is in
+      ~r w
+Sonntaq Reporting Se rvice,_ Ltd.
+Geneva, Illinois    60134 (312)  232-0262 1
+    .eD (j
+     licensing.
+  Q  I_take it the last sentence of. Answer 9 talks about what 3    ' occurred during that conference.
+           Who did the talking for the Staff _during that-5     conference call?
+  A  (WITNESS MENDEZ) It was mostly Cordell Williams and Bob.
+     Wa rnic k .
+  Q  Did you understand that !!r. William   and !!r. Warnick had 9     received information regarding the alleged production 10     pressure from Mr. McGregor and Mr. Schulz earlier that 11     day?
+  A  (WITNESS MENDEZ) I remember them having knowledge of it, O   13     yes.
+  Q  Now, at that point in time, that is on March 29th, you 15     pe rsonally had not received any assignment to inspect or -
+     investigate these allegations; is that correct?
+  A  (WITNESS MENDEZ) That's correct.
+: 18. Q  Do you know whether or not there had been any decision 19     by the NRC Staff management to conduct such an 20     inspection or investigation at that point in time?
+' A  (WITNESS MENDEZ) At what point?
+  0  on March 29th when the allegations were received.
+i (WITNESS MENDEZ) I believe the management decision at
+~
+  A l        24     that time was to try and let commonwealth Edison, at 25     least Braidwood, review those allegations for us,
+       }
+i Sonntag Reporting Service, Ltd.
+Geneva, Illitwir liO114
+;                               (312)  232-0262 2
+I_
+o 10497 j-L /-
+Q All right, sir. Did Mr. Schulz or Mr. McGregor make any 2   recommendations in either.of the telephone conference 3   calls in which you participated on March 29, 1985?
+A (WITNESS MENDEZ) I think they suggested that region send 5   an inspector to review those allegations.
+Q All right. When you say "they," was it both 7   individuals, that is Mr. McGregor and Mr. Schulz, who 8   made such a recommendation?                                 '
+;          9 A (WITNESS MENDEZ) I am not'sure, one or the other or 10   both.                                                       I l
+Q Do you recall what the response of anyone from the NRC 12   to such a suggestion was?
+     '~
+A (WITNESS MENDEZ) I think our office had already -- our
+(         14   management, at least, had already decided to let l
+l         15   Commonwealth Edison handle the allegations.
+l 16 Q Did Mr. Schulz and/or Mr. McGregor express any reason as 17   to why the NRC should send inspectors out immediately?
+{         18 A (WITNESS MENDEZ) I can't say. I -- I don't recall.
+0 All right. Did anyone, either Mr. Fitzpatrick.or Mr.
+l         20   Klein, of Commonwealth Edison Company express any l         21   opinion as to whether or not the NRC should send i
+   inspectors out?
+A (WITNESS MENDEZ) No, they didn't, they didn't.
+Q Now, from the response to Question 12, which is found at
+(}     25   the bottom of Page 5, it appears that it wasn't until l
+Sonntaq Reporting Se rvice, Ltd.
+Geneva, Illinois 60134 I                             (312)  232-0262 L
+g
+U
+   -1    April 12th that these allegations were assigned to you 2    for inspection; is that correct?
+- A  (WITNESS MENDEZ) That's correct.                            )
+  0 When the allegations were assigned to you what -- well, 5    first of all, who made the assignments?
+  A  (WITNESS MENDEZ) I believe it was the Allegation Review 7    Boa rd.
+  Q Did you attend the meeting of the Allegation Review 9    Boa rd at which that assignment was made?.
+  A  (WITNESS MENDEZ) No, I didn't.
+  0 Who informed you of the decision of the Allegation
+ - 12    Review Board?
+ ~
+  A  (WITNESS MENDEZ) It was a memo through my Section Chief, 14    and he assigned me those allegations.
+          They were assigned to me already. It was just a 16    matter of him presenting the memo to me.
+  Q And your Section Chief was Mr. Williams?
+  A (WITNESS MENDEZ) Yes.
+  0 When Mr. Williams made the assignment, did he make any 20    further comment to you about what you were to do or 21    anything else relating to the scope of your inspection?
+  A (WITNESS MENDEZ) Just very generally, to get all the 23    flies on those allegations.
+          I believe the allegations that were assigned to me n
+v 25    were 62, 67, 68 and 72, right. lie had asked me to Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+('N Q
+l     collect all the files on those allegations.
+   Q You referred to four numbers in your preceding answer.
+           Are those -- well, would you describe what those 4     numbers are and their significant?
+   A (WITNESS MENDEZ) Right.      Each time our office receives 6     an allegation, they are given a number by our allegation 7     specialist and they usually start off with Region 3 and 8     it's the year '85, dash A for allegation and there is a 9     four-digit numbe r af te rwa rds.
+l             10    Q So you were. assigned four separate allegatioc.s or sets I
+of allegations; is that correct?
+l             12    A (WITNESS MENDEZ) Yes.
+p),
+b 13    0 Were all of them allegations that had arisen at the 14      March 29, 1985, meeting?
+    A (WITNESS MENDEZ) No; just 72.
+    0 That is 0072 was the number that was designated for the 17      March 29, 1985, series of allegations; correct?
+    A (WITNESS MENDEZ) That's correct.
+    Q The other allegations that you were assigned, do you 20      know how it came to be that you were assigned those 21      allegations at the same time that you were assigned 22      0072?
+    A (WITNESS MENDEZ) They pertained to the electrical 24      contractor, L. K. Comstock; and since I was reviewing i
+()        25      72, I was also given the responsibility for the other i
+Sonntaq Reporting Se rvicef Ltd.
+l Geneva, Illinois 60134 (312)   232-0262 i
+1    three allegations.
+_ Q When Mr. Williams let you know that the Allegation
+          ~3    Review Board had assigned these allegations to you for 4    inspection, what, if anything, did he say about the 5    Commonwealth Edison investigation that had been agreed 6    to by the NRC Staff on March 29th?
+  A (WITNESS MENDEZ) I think I asked hita the question when I.
+    can go'to the site and review those allegations; and he l
+    said something about letting the -- letting Commonwealth 10     Edison complete their review of the allegations before I l
+     went to the site..
+   Q Do you know whether or not Mr. Williams had received any t   .i l        13     progress report, for example, on the status of the j        14     Commonwealth Edison investigation?
+   A (WITNESS MENDEZ) No, I don't.
+   Q Your prefiled testimony indicates that you arrived at 17     Braidwood on April 30, 1985, and that prior to that time
+[.-
+!        18     you had reviewed certain documents.
+           During the time period between March 29th and . April 20     30th, do you know whether the resident inspectors, that l
+l        21     is Mr. Schulz and Mr. McGregor, had conducted any l        22     investigation into the allegations?
+   A  (WITNESS MENDEZ) I don't think they looked into the 24     allegations, that is, except to look at some documents, 25     like NCR 1616 and ICR 2900.
+i                     Sonntag Reporting Service, Ltd.
+Gen ~evaTTitincir60134 (312)   232-0262
+1 Q     Those are the two nonconformance documents that are 2       referred to in your testimony later ont correct?
+A     (WITNESS MENDEZ) Yes.
+Q     How did you happen to pick April 30th as the. day to go                                                                 l 5       there?
+            Was that just a convenient date for you or is that 7       the date on which Mr. Williams indicated that the 8       company's investigation was completed?
+            What were the circumstances?
+A     (WITNESS MENDEZ) By that time Edison had completed its 11       review of the allegations.
+0     All right.
+A     (WITNESS MENDEZ) Before April 30th.
+0     Now, I have asked your counsel to put before you a copy 15       of Intervenors' Exhibit 42-A, which is a collection of 16       three memoranda --
+A     (WITNESS NEISLER) It's all there.
+0     -- two of which are dated March 29, 1985, and the third 19       of which in dated April 5, 1985.
+            Do you have that before you?
+A     (WITNESS MENDEZ) Yes, I do.
+                  MR. BERRY:             (Indicating.)
+A     (WITNESS MENDEZ) Okay.
+BY MR. MILLER:                                                                                                              !
+()   25 Q     Looking at Answer 15 on Page 7 of your profiled i
+Sonntag Reporting Service, Ltd.                                                                                 '
+ceneva, ITITnols                 do1T4 (312)      232-0262
+j/"'"
+     testimony, Mr. Mendez, am I correct that at the time 2      that you arrived at Braidwood on April 30th, that the 3     only documents that were available to you with respect 4      to allegation 0072 were the three memoranda that have 5      been received in evidence as Intervenors' Exhibit 42-A?
+                 JUDGE GROSSMAN:     Excuse me.
+           Are there three memoranda in 42-A?
+                 MR. MILLER:    There may not be.
+           It should be 42 and 42-A together, because there 10     are only one or two of them that have the allegers' 11     names identified; and those are the ones that are 42-A.
+g         12 A    (WITNESS MENDEZ) That's correct.
+                 MR. GUILD:    Could I ask, for the record to be 14     clear, that the witness is referring to the two March 15     29th memos and the April 5th memo; that collectively 16      they are 42 and 42-A.
+BY MR. MILLER:
+0    In your Answer 15 you state that you chose to interview 19      eight of the 12 Comstock QC Inspectors that were 20      identified in the April 5, 1985, memorandum.
+           I would ask you to state for the record the names 22     of the inspectors that you chose.
+A    (WITNESS MENDEZ) That's a little difficult, only because 24     oventually there turned out to be 12 QC Inspectors that
+(}        25     had gone to the residents' office that I interviewed.
+Sonntag Reporting Service, Ltd.
+GEnWs7 titin 61rf- 60134~~~-
+                                                                    - ~ ~ ~
+(312)   232-0262
+\
+            I don't recall the first eight.           I don't recall the 2      first eight, then the next four, I just recall them 3      collectively.
+            That is, I can tell you who I talked with from this 5      list.
+                 JUDGE GROSSMAN:       You chose eight and they led 7     you to four more; is that it?
+A    (WITNESS MENDEZ) Four more QC Inspectors had gone to the 9      residents' office.
+            I also interviewed other QC Inspectors, 11 BY MR. MILLER:
+O   All right. Let's start with the first group that you 7-)
+!     )
+  '~'
+      identified, that you are able to identify for us that 14     you selected.
+            Could you do that based on your recollection?
+A    (WITNESS MENDEZ) I can only tell you the first 12, the 17      first 12.
+Q   All right. Who are the 127 19 A    (WITNESS MENDEZ) I can't say this inspector the first 20      time and this is the inspector that was the second time.
+            It was Rick Snyder, Francisco Rolan, Therman 22     Bowman, llerschel Stout, Terry Gorman, Rick Martin, Larry 23      Perryman, Mark Klatchko and I believe I also interviewed 24     Dan llolly.
+/~'';   25                 MR. GUILD:       The record should reflect that G
+Sonnt ag _ Repor t irig_Se rv ice , Ltd._
+Geneva, Illinois      60134 (312)   232-0262
+f
+(_)
+I      the witness is referring to the document that lists 2      names in his answer to the' question.
+BY MR. MILLER:
+0    Yes. Which document are you' referring to?
+A    (WITNESS MENDEZ) It's the April 5th memorandum from 6      Chuck Weil to Charles Norelius.
+Q   Those are. by my count nine individuals.
+           Are there three additional?
+A    (WITNESS MENDEZ) Larry Bossong, it was Wicks and I can't
+,          10       remember the other one.                    ,
+  Q   All right, sir. Well, your testimony states, Mr.
+       Mendez, that soon af ter you began your inspection I O     13       decided to interview eight other inspectors, which would 14       appear to make a total of 16.
+ ,         15  A    (WITNESS MENDEZ) That's correct.
+  0   Can you expand the list of 11 that you have given us by 17       any additional names that you recall interviewing?
+  A    (WITNESS MENDEZ) I also talked to four individuals who a
+      hadn't made allegations, consisting -- those consisted 20       of Sam Rissman, Kermit Williams.
+                                                                                  ~
+             I can't remember the other two.
+22  0   All right,- sir.
+                  MR. GUILD:    Excuse me. I am just unclear.
+;          24            Are those four of the eight others you decided to i
+{}    25       interview?
+,                        Sonntag Reporting Service, Ltd.                          I
+;                             G51GVa, IITinWi r 601'34 (312)  232-0262
+  ,     '4 s
+BY MR. MILLER:
+0    In other words, Mr. Rissman, Mr. Williams and the two 3     othe rs whose names you can't recall right now were 4      individuals who, together with the 12 that you said you 5      selected, constitute the total of 16 that are identified 6      in Answer 15 on Page 7 of your prepared testimony?
+A    (WITNESS MENDEZ) That la correct.       I believe the other 8      individual's name is also another one that hadn't gone 9      to the residents' office to make allegations.
+                 JUDGE COLE:      I didn't get that name. I am 11     sorry.
+g3       12           What was the name?
+A    (WITNESS MENDEZ) Ne ma th .
+                 MR. MILLER:      Nemath, that is N-E-M-A-T-II.
+BY MR. MILLER:
+Q    Ilow did you determine in the last sentence in your -- am 17      I too far away f rom this mike?
+                 JUDGE GROSSMAN:      No.
+BY MR. MILLER:
+0   The last sentence in Answer 15 states they were not 21      chosen at random but whether on the basis they were 22      thought to possess information material to my 23      inspection.
+            Initially, I take it you determined that basis on 25      your review of the three documents; is that correct?
+{ ')
+Sonntag Reporting Service, Ltd.
+Geneva, IITinoIs 60lW (312)  232-0262
+                                                                      ]
+    '~
+O
+V 1 A  (WITNESS MENDEZ) That's correct.
+0 Now, Answer 16 states that you arrived at the Braidwood 3   site on April 30th and met with the residents to discuss 4   the allegations.
+         That is Mr. Schulz and Mr. McGregor; correct?
+A  (WITNESS MENDEZ) Yes.
+Q How long was your conversation with Mr. Schulz and-Mr.
+   McGregor on the subject initially?
+A (WITNESS MENDEZ) I believe about a half hour.
+    0 All right. What, if anything, did they say to you about 11      the Commonwealth Edison' investigation that had been 12      taking place in the preceding 30 days or so?
+    A (WITNESS MENDEZ) I don't think it came up.
+    0 What, if anything, did they say about the fact that it 15      had now been 30 days and you were just arriving to 16      conduct your inspection?
+    A (WITNESS MENDEZ) They expressed displeasure over having 18      to -- over having to wait so long, having our office 19      wait so long before reviewing those allegations.
+    0 Did they tell you why they were displeased at the fact 21      that it had taken approximately 30 days for you to begin 22      your investigation on behalf of the NRC?
+    A (WITNESS MENDEZ) They just felt it was better -- felt it 24      would be better to -- for the region to send somebody
+{}
+r  25      there as soon as possible.
+Sonntag Reporting Se rvice, Ltd.
+Genova7 71tino1s   60134' (312)  232-0262
+  . e m.-
+v 1            I don't think they elaborated on or gave any 2      particular reasons why.
+Q   _ Did you understand that the reason that they believed 4      there should have been somebody from the region their 5      earlier was because evidence, if you will, might have 6      been destroyed or overlooked or somehow interfered with 7      as a result of the Commonwealth Edison investigation?
+A    (WITNESS MENDEZ) I suspect there is a -- I think they 9      know that it's ve ry difficult to destroy documents or to 10      falsify documents, so that wouldn't have been a reason.
+Q    Well --
+A    (WITNESS MENDEZ) And I don't believe they actually 13      brought that up.
+            They thought it was just better for show, the NRC 15      evaluating those allegations as quickly as -- as quickly 16      as possible.
+                 MR. GUILD:      Could the Reporter read the last 18      answer?
+                 MR. MILLER:       Yes, please.
+                      (The answer was thereupon read by the l
+i         21                       Repor te r. )
+IW MR. MILLER:
+l         23 0    When you say, "better for show," Mr. Mendez, what do you 24      mean?
+l  (~)    25 A     (WITNESS MENDEZ) I -- it's difficult to recall what l  %-
+Sonntaq Reporting Se rv ice;_Ltd.
+Geneva, Illinois      60134 (312)  232-0262 l
+L
+}].
+     exactly he said at the time; but it was my impression 2     that that is what they meant:   to send somebody as 3    quickly as possible to the site and review those 4    allegations.
+  0 To indicate thattthe NRC was, in fact, attentive to 6     these concerns?
+  A -(WITNESS MENDEZ) Was being responsive, . yes.
+  0 When you talked with Mr. Schulz and Mr. McGregor on 9    April 30th, did.they indicate that the Comstock Q:
+     Inspectors had made any observations to them about the 11     response or lack of response by the.NRC Staff to the
+  -  12    compla ints?
+  ~
+  A  (WITNESS MENDEZ) Repeat the question, please.
+~ Q Well, you met with Mr. Schulz and Mr. McGregor on April 15     30th.
+          _Did you receive any indication from them that the 17    Comstock QC Inspectors were concerned or had indicated 18    one way or the other as to the fact that it had taken 30 19     days for a Staff investigator, inspector, to come and 20     look into the allegationa?
+           Did that come up as far as you know?
+  A  (WITHESS MENDEZ) I don't think any QC Inspector 23    subsequently went to the NRC office af ter March 29th.        I j
+    don't -- they hadn't received any complaints from                    l l
+(~T 25    anyone,                                                              j U
+Sonntag Reporting Service, Ltd.
+Geneva, 1111MEi r 60134 (312)  232-0262
+                                                                        '10509 I~')
+    \_/
+         .                                                                     1 1  Q You talked to, I think you'said, approximately 16 QC 2    Inspect ors .
+                                                     ~
+          During the course of these discussions, did anyone 4    make an    comments about the speed or lack thereof with -
+    which'the NRC was investigating the concerns?
+           .6  A (WITNESS MENDEZ) I don't recall any.
+  Q Your Answer 15 on Page 7 says-that prior-to interviewing
+                                                                  ~
+    the allegers -- I take it by that you mean not only the 9    allegers but the three or four inspectors in . addition to
+: 10. the allegers that you interviewed; is that right?
+          Did you use the 50-question approach with each of 12    the individuals that you interviewed?
+O 13  A (WITNESS MENDEZ) Yes, that's correct.
+  Q Now, did you prepare the 50 questions or so just from 15    the three memoranda, Intervenors' Exhibits 42 and 42-A, 16    or did you have any other sources?
+  A (WITNESS MENDEZ) There was a few questions that I wanted 18    to ask myself.
+          Additionally, I obtained or got'several other 20    questions from the quality concern documents that Edison 21    provided to me when they reviewed those allegations.
+  0 Did you stick strictly to your script in these 23    interviews, Mr. Mendez?
+  A (WITNESS MENDEZ) Yes.
+(}     25  Q Did you re-intetview any inspectors as a result of Sonntaa Reporting _ Se rvice,__Ltd.
+Geneva, Illinois    60134 (312)  232-0262                                   ;
+~
+      /~T-Q,)
+                   information that you obtained from second or third 2                   individuals?
+              '3       A           (WITNESS MENDEZ) Yes, I did.
+       0           Do you have an estimate as to the amount of time that 5                   you spent conducting these interviews?
+       A           (WITNESS MENDEZ) I would say about five, six days.
+       Q           At some point, Mr. Neisler, you were asked to assist Mr.             <
+                   Mendez in his investigation; correct?
+       A           (WITNESS NEISLER) That 's correct, in August of last
+ .           10                    year.
+        Q           Approximately how much -- well, how did you determine 12                    which inspectors you would interview?
+        A           (WITNESS NEISLER) I asked Mendez'which inspectors or 14                    which allegations that needed -- he needed assistance 15                    with; and I picked then the people who were responsible 16                    for that, for those allegations, and a few, a couple of 17                    more names and I did it.
+                          So I selected the people that way.
+        0           So initially Mr. Mendez, by identifying the allegations 20                    to you, identified the individuals that were most likely 21                    to have information; correct?                                        <
+        A           (WITNESS NEISLER) That's correct.
+        0           After that you expanded the interviews somewhat based on 24                    the information that you developed?
+        A           (WITNESS NEISLER) I didn't, not with the information I
+         }
+r Sonntag Reporting Se rvice, Ltd.
+Geneva, iltinci r 60134 (312)          232-0262
+l 10511  ,
+t
+{     (3 s/-
+   developed as -far as. interviewing the Oc Inspectors, no.
+         I stayed with the ones that I selected initially.
+0 I see. So you did not add any additional individuals?
+A (WITLESS NEISLER) I did not add any additional l
+   individuals, no.
+Q All right, sir. So the number 16 or so constitutes the 7   universe of inspectors that both of you interviewed; is 8   that right?
+A (WITNESS NEISLER) No, it didn't constitute all of them.
+           -10   I interviewed possibly some of the people he had 11   interviewed. I interviewed Walters,. Holly, Bullock,
+,           12   Bowman.
+L   .,
+              MR. GUILD:     Can I get you to slow down there, 14   Mr. Neisler?
+A (WITNESS NEISLER) And -- ready?
+l           16              MR. GUILD:     Could the Reporter read back so 17   fa r, please?
+L           18                  (The record was thereupon read by the l           19                   Reporte r . )
+A (WITNESS NEISLER) And Peterson and I think either 21   Perryman or Hunter. I am not sure which one of those 22   two.
+l 23         Then there was another Oc that didn't have any 24   allega tions. Ile was just a filler. I needed another.
+(}     25   I liked to talk to somebody else, so he really wasn't i
+Sonntag Reporting Servicef Ltd.
+Geneva, Illinois 6Dff4 (312)   232-0262
+v
+      involved and I forget what his name was.
+BY MR. MILLER:
+Q    When you say he was just a filler --
+A     (WITNESS NEISLER) It was fill in time.
+             I had a time between one or two of the individuals 6      that I wanted to interview who was not available.
+             I said, " Send me somebody else."
+Q    Did you ask that individual the same types of questions 9      that you had asked the other QC Inspectors?
+A     (WITNESS NEISLER) Yes. Most of my questions were not a 11      formal list of questions.
+               - 12             I don't find that to be -- to work too well for me, 7
+      so I generally ask them questions regarding all of the 14      allegations that were on the list of allegations, listed 15      in this memo and the complaints that the people had had 16      to us.
+            Then I used their responses to more or less reach 18      my conclusions as far as what I put in my inspection 19      report.
+0    Approximately how much time did you spend in the 21      inte rview phase of your inspections, Mr. Neisler?
+A    (WITNESS NEISLER) I scheduled a half hour per 23      indiv id ual .
+0    Did some of them go longer, some shorter?
+(}  25 A    (WITNESS NEISLER) Mont of them were shorter.        Usually it Sonntag Reporting Service, Ltd.                                                            -
+GEnEV5, irrinUIU~~601~34-(312)  232-0262
+(
+L 10513
+  . i I   was 15 to 30 minutes.
+O All right, sir. Did you spend any additional time in 3   document review besides the interviews?
+A (WITNESS NEISLER) Well, I spent time in document review.
+         I spent time in interviewing both Commonwealth 6   Edison and Comstock management or technical personnel 7   and the quality assurance pe rsonnel, quite a bit of time 8   with those.
+Q Mr. Mendez, did you also interview individuals that were 10   not QC Inspectors but who, in your judgment, might have 11   knowledge of some of the facts relating to the 7ss      12   allega tions?
+('~   !
+A (WITNESS MENDEZ) Yes, I did.
+0 Is that interview time included in your six days on 15   site?
+A (WITNESS MENDEZ) No.
+0 In total, Mr. Mendez first, approximately how much time 18   did you spend at the site investigating these 19   allegations?
+A (WITNESS MENDEZ) I would say approximately 15 days.
+0 Mr. Neisler, how much time were you at the site?
+A (WITNESS NEISLER) August 28th, 29th and until about 2:00 23   o' clock in the af ternoon on the 30th.
+Q Mr. Mendez, I would like to first go to the allegations
+(^')     25   that you investigated and ask you if you can identify L_/
+Sonntaq Repo r t i n.g_Se rv ice , Ltd.
+Geneva, Illinois       60134 (312)     232-0262
+r 10514 i /~ .
+: s 1      for me the individual who made the allegation and the 2      individuals that you contacted in an effort to resolve 3      the allegation.
+L 4            I believe the first one is an allegation that is 5      identified as R3-85-A-0067,.found at Page 9 of your.
+     prepared testimony.
+                  JUDGE GROSSMAN:    Do we have any problem now 8     with confidential matter?
+                  MR. MILLER:    I am not certain.
+                  JUDGE GROSSMAN:    Well, okay. We will take 11      care or '' chose matters as they arise then.
+l 12 A    (WITNESS MENDEZ) I think I mentioned before, that's l  g3 l
+(_/  13      incorract. The numbe r should be 0062.
+                  MR. MILLER:    I beg your pardon.
+l
+!       15 BY MR. MILLER:
+Q   Now, if we turn to Staff Exhibit 17, which is your 17      inspection report, I think we will find that that same 18     allegation is described at Page 3 of the report; is that 19     correct?
+A    (WITNESS MENDEZ) Yes.
+0    I would also like to put before you a document that has 22      been received in evidence as Intervenors' Exhibit 41, 23     which is a memorandum from Mr. McGregor to Mr. Forney, 24      dated Ma rch 13, 1985, and I would like you to just 25     briefly scan Intervenors' Exhibit 41, if you would.
+l
+(-)/
+Sonntag Reporting Se rvice, Ltd.
+ueneva, Illin61s 60134 (312)  232-0262
+                                     ~*
+10515
+('T
+'V 1         I wanted to ask-whether we can agree that 2   Intervenors' Exhibit 41, the allegation that is found at 3   Page 3 of Staff Exhibit 17, and the allegation that you 4   have identified as 0062 on Page 9 of your prepared 5   testimony, all relate to the same set of circumstances?
+A (WITNESS MENDEZ) It's the same allegation, set of
+                                                                        ~
+   allega tion s .
+Q Now, I asked a question and I am afraid I then went off-9   and didn't let you answer, as to whether or not you can 10   identify the individual who made the allegation on the-11   basis of your knowledge.
+A (WITNESS MENDEZ) This particular individual?
+J 13                    (Indica ting. )
+0 Yes, sir.                                                      t 15 A (WITNESS MENDEZ) Who made that allegation?
+0 Yes, sir.
+A (WITNESS MENDEZ) During the course of my inspection, I 18   determined that it was Rick Snyder.
+0 Ilow did you determine that was Mr. Snyder during the 20   course of your investigation?
+A (WITNESS MENDEZ) There is another McGregor document that 22   -- this particula r McGregor document, Ma rch 29, 1985, 23   from McGregor to Warnick, which identifies an Inspector 24   X, that Inspector X is the same one in that particular
+(}    25   memo.
+Sonntag Reporting Service, Ltd.
+    '                  Geneva, Illinois 60134 (312)   232-0262                     .          j j
+  .p L) 1 Q You are referring to the March 29, 1985, memorandum from 2   Mr. McGregor and Mr. Schulz to Mr. Warnick and Mr. Weil; 3   is that correct?
+A (WITNESS MENDEZ) That's correct.
+Q Mr. Snyder was one of the individuals that you l                                              6   interviewed; correct?
+I                                              7 A (WITNESS MENDEZ) Yes.
+Q Did you have the document that I have shown you that has-9   been received in evidence as Intervenors' Exhibit 41 i
+   before you when you interviewed Mr. Snyder?
+A (WITNESS MENDEZ) Yes, g-                                          12 0 Approximately how long was your interview with Mr.
+   Snyder on this subject?
+A (WITNESS MENDEZ) On this particular subject?
+0 Yes, sir.
+A (WITNESS MENDEZ) A few minutes.
+0 Why?  Why did it take so little time?
+A (WITNESS MENDEZ) It was something I could easily verify 19   through comstock procedures, Comstock records.
+0 Did you then review the documents and records?
+A (WITNESS MENDEZ) Yes, I did.
+Q Now, your testimony at Page 10 indicates that you 23   determined that the same deficiencies existed that had 24   been identified in the Commonwealth Edison Company
+(}                                          25   Quality Assurance Audit Report that was dated some Sonntag Reporting Service, Ltd.
+ueneva, ilTitrots 60134 (312)  232-0262 1 _ _ _ _ _ _ _ - _ _ - - _ - _ - _ _ _ _ _ -                  _.         . _ _ _ _ .
+r 10517 O
+    months prior to the allegation by Mr. Snyder.
+'        Of what significance, if any, was that in you'r 3-   investigation?
+  A (WITNESS.MENDEZ) Of what significance?    What the --
+  Q That Commonwealth Edison had .already; identified this          ,
+    matter.
+  A (WITNESS MENDEZ)-It's of significance, since-8    Commonwealth Edison had identified, thatLis had taken --
+    they were taking corrective action at the tine.         It 10-   wasn't something they didn't know about.
+  Q All right. Now, then, that dealt with theffirst part of S
+    this allegation 0062.
+             ~
+There was a second part about the lead QC-14    Inspectors; correct?
+  A (WITNESS MENDEZ) Yes.
+  Q At Page 11 of your prefiled testimony, in Answer 24,.you.
+    say that this same concern was raised.with respect to 18    six additional lead QC Inspectors.
+'                                                                   ~
+         I take it that Mr. Snyder raised it initially and 20    then there were other inspectors who added to.the 21    concern in this regard; is that right?
+                MR. GUILD:  Where is counsel referring to, 23    please, for the record?
+                MR. MILLER:  It's the first sentence of
+,                  25    Answe r 24.
+i i                             Sonntaq Reporting Service, Ltd.
+!'                                 Geneva, Illinois 60134
+!                                       (312) 232-0262 L                                                                          _ _ _     _ ~ - ..
+7-(_)
+  A    (WITNESS MENDEZ) Rick Snyder was only one of the QC 2       Inspectors that raised this concern.       There were other 3       QC Inspectors that raised other concerns about other 4       leads.
+  BY MR. MILLER:
+  0   All right, sir.       My question to you is this:
+            Do you recall which other inspectors raised these 8       concerns about the Lead Inspectors?
+  A    (WITNESS MENDEZ) It was Bowman, Bossong, Rick Martin.
+  Q   And --
+  A    (WITNESS MENDEZ) That is, they weren't the Lead 3 12       Inspectors. They raised the issues and concerns about.
+J   13      Lead Inspectors.
+  Q   All right, sir.       And as part of your interviews of the 15' 16 or so inspectors in toto that you talked to, did you 16       ask each of them whether they had any concerns about the 17      qualifications of the Lead Inspectors?
+  A    (WITNESS MENDEZ) Yes, I did.
+  Q   And of those, three additional inspectors, besides Mr.
+      Snyder, said that they did have concerns and they were 21      able to identify the individuals?
+                  MR. GUILD:       Objection, Mr. Chairman.
+            I am not trying to make this take any longer than 24      necessary; but this last series of questions was, in my
+(}  25      opinion, unduly leading.
+Sonntag Reporting Service, , Ltd.
+ueneva, Illinois      culse (312)    232-0262 I
+LO-1            The question really has to be what did you ask- the 2       inspectors. Since counsel's last question, indeed, 3       supplied an answer, I believe it's improper.
+            It really is a disputed matter, what are.the 5      questions and what were the answers; and I-think it's an 6       improper subject for leading the witness.
+                  JUDGE GROSSMAN:   'Well, if it is in dispute.
+       then I think you ought to try to make the questions-more 9-     neutral.
+  BY MR. MILLER:
+  Q   How many Lead Inspectors' qualifications were in fs  12      ' question after, as far as you 'were concerned, or at the d   13      conclusion of these interviews?
+  A    (WITNESS MENDEZ) How many Lead Inspectors actually 15-     lacked qualifications?
+  Q   No.
+            How many were in question?    How many did you 18       investigate?
+;      19  A    (WITNESS MENDEZ) I think the QC Inspectors named just
+,      20-     about eve ry lead there ever was.
+f-L      21  0   There was a --
+l
+{      22  A    (WITNESS MENDBZ) They just didn't feel this person was 23      qualified or that person didn't have the proper 24      background.
+{)  25  Q   Did anyone identify Mr. Bossong as one of the l
+l-                   Sonntag Reporting Se rvice, Ltd.
+Geneva, Illinois 60134 (312)  232-0262 L
+O
+l'               individuals who lacked qualifications when he was the-2-               lead?
+-             A (WITNESS MENDEZ) I don't recall.
+              Q Did you know at that time-that Mr. Bossong was a lead-5'               Quality Control Inspector .or had been?
+~             A (WITNESS MENDEZ) I think so, yes.
+              Q All-right. Now, what did'you do after you'got this 8                roster of lead QC Inspectors-whose qualifications had-9                been questioned?
+                                 ~ 10              A (WITNESS MENDEZ) I then asked Comstock. management _to 11-                provide me a list of QC Inspectors who were leads and
+             . -                  12                 from that list I determined that at least two didn't
+                        ~
+                 have -- were not certified in areas that they had lead 14                 responsibility in.
+               0 And,how were you able to make that determination,'Mr.
+                 Mendez?
+               A (WITNESS MENDEZ) I went through records and found out 18                 that two of the individuals, although -they were 19                 certified Level II's, they were not certified Level II's 20                 in all areas of lead responsibility; and looking through 21                 the certification qualification documents, that provided it
+                      ~
+                 me with that information.
+               Q All right. Now, Mr. Mendez, turning to Page 6 of Staff
+ ,                                24                 Exhibit 17, which is your inspection report,~I am
+{}                 25                 correct, am I not, that you assessed severity level 5 Sonntag Reporting Service, Ltd.
+beneva,   1111nois    ou13.
+(312)    232-0262
+10521
+(.
+        \J 1                item of noncompliance as a result of your findings with 2                respect to the qualifications of the7 1ead QC Inspectors; 3                correct?
+I 4        A       (WITNESS MENDEZ) Yes.
+        Q       Do you know the status ~of the item.of noncompliance at 6                this point in time?
+        A       (WITNESS MENDEZ) Yes, I do.
+        Q       What is it?
+        A       (WITNESS MENDEZ)-This particular item of noncompliance, 10                notice of violation, has been closed out by another NRC 11                Inspector.
+        -s  12        Q       You did not personally close it out?
+      .Y  .
+                (WITNESS MENDEZ) No, I didn't.
+A
+                                                                       ~
+        Q       Do you have information on the basis on which it was 15                closed out?
+-       A       (WITNESS MENDEZ) Yes.
+        0       Describe that for us, please.
+j           18        A       (WITNESS MENDEZ) The two particular Lead Inspectors are 19                no longer leads.
+                     Corrective action was to go back and review
+;           21                records, Comstock records, to determine whether anybody.
+I 22                else was a lead and not certified in that area; and 23                there were no other examples.
+                           MR. GUILD:     Again, Mr. Chairman, I take that
+(}  25                as his understanding and not establishing these as Sonntaq Reporting Se rv ice , Ltd.
+Geneva, Illinois     60134 (312)    232-0262
+                                                                          .10522
+. / ~~
+  \    .
+      matte rs of fact.
+          '2                 JUDGE GROSSMAN:      That is how we will accept' 3      it, because, obviously, the witness isn't competent to 4      determine the substance of what he said or to testify 5      with rega rd to the substance.
+BY MR. MILLER:
+Q    Now, just returning to your prepared testimony for a 8      second, Mr. Mendez, on Page 11, Answer 24, you 9      personally conducted the document review that is 10      described in that answer, did you not?
+A.   (WITNESS MENDEZ) Yes, I did, f-s      12 Q    As I unde rstand it, for one inspector, one of the two b        13      inspectors whose qualifications were not proper, he did 14      not, in fact, sign any quality documents in an area in 15      which he was not certified; is that correct?
+A    (WITNESS MENDEZ) Yes.
+Q    Another inspector or the same inspector and another 18      inspector did, in fact, sign documents in areas where 19      they were not, in fact, certified; correct?
+A    (WITNESS MENDEZ) Yes.
+Q    Do you know what action, if any, was taken with respect
+         .22      to those documents which they improperly signed off?
+A    (WITNESS MENDEZ) They were not improperly signed off.
+           At the time Comstock procedures allowed a Level II
+(~N      25      in one area to sign off the review column on an U
+Sonntag Reporting Se rvice, Ltd.
+Geneva, Illinois    60134 (312)   232-0262
+       %)
+     inspection checklist in another area before September,
+          -2     1984.-
+        " ;3  Q  All right, sir. Well, the last sentence of Answer 24 4     states the fact that these two individuals had - signed
+;.,        SL    off quality documents was,-in fact, a violation of the 6     Comstock Procedure 4.1.2.
+!          7           Do you know whether or not the sign off of these 8     documents took place before or af ter September of 1984?
+p 9  A   (WITNESS MENDEZ) We may be talking about some things.
+     My answer was just on the signing off, signing off the-11     review column of an inspection -checklist.
+  O  Alli right. I may have confused the matter by asking
+_0 13     about sign offs.
+           I am now asking you about the fact.that these 15    ~ gentlemen were leads in areas where they were not 16     certified.
+  A '.(WITNESS MENDEZ) Yes.
+  Q  What, if anything, was the -- were there any quality 19     documents that were compromised as a result of these 20     individuals having been made leads?
+  A   (WITNESS MENDEZ) No.       There was no evidence they 22     performed inspections in areas where they were not j'  23     qualified.
+I   24                 MR. MILLER:       Your Honor, this is an
+(} 25     appropriate time to break for lunch.
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+    /~i V.
+                  JUDGE GROSSMAN:                          Fine. We will recess until 2 1:15.
+                  MR. GALLO:                      I would just like to state for.
+the record that Mr. Shewski is here and, perhaps, we 5 could do that briefly when we resume after the luncheon 6 recess?
+:           7                  JUDGE GROSSMAN:                          That's fine.
+i           8                                  '(WHEREUPON, the hearing of the
+^
+                                        above-entitled cause was recessed until
+: j.         10                                        the hour of 1:15 o' clock P. M.)
+          -11
+         '12 O-      13 j          14
+:          15 16 17 18 19 20 21 22 i
+;          23 1          24
+   .()     25 i
+Sonntag Reporting Service, Ltd.
+Ueneva, Illinois 60134 (312) 232-0262
+                                                                                          '10525
+   ,)
+(-
+                        JUDGE GROSSMAN:                 We're back in session.
+                  Mr. Gallo has requested that he be permitted to 3            recall Mr. Shewski to correct and clarify some testimony 4            given last week with regard to stop work orders, and so 5            we're having Mr. Shewski testify now, and Mr. Gallow, 6            you can begin your examination.
+                        MR. GALLO:                Thank you, your Honor.
+                        JUDG E GROSSMAN:                Let me just say that you 9            remain sworn, Mr. Shewski.
+                        T!!E WITNESS:               Yes, sir.
+                                         W. J. SH EWSKI 12      recalled as a witness by Applicant herein, having been 13      previously duly sworn, was examined and testified as follows:
+                                     RECROSS EXAMINATION 15                                          ( Con tinued. )
+                                         BY MR. GALLO:
+      Q     Mr. Shewski, do you recall your testimony last week when 18            you had indicated in answer to questions that you had 19            signed a stop work order and that you had seen such an 20            order in the documents that you reviewed in preparation 21            for your testimony?
+      A     I do.
+      Q     Have you had occasion, since that time, to review those 24            documents to determine if you could locate the stop work
+()
+            order?
+Sonntagleg.qr_t ing_Se rvice, Ltd.
+Geneva, Illinois                60134 (312)    232-0262
+y
+(
+l  A    Yes.
+' Q    And what was the result of your. review?
+  A    In checking, I found that a document that I. had referred 4-      to in the testimony really was not a stop work order, 5       but it was a release of stop work order, which I was to 6       sign.
+  Q    Do you have that document before you?
+  A    Yes.
+  0    Is it dated November 15, 1983?
+  A    Yes.
+                         MR. GALLO:    I don't intend to introduce this-12       into evidence, I just thought it would facilitate things
+      ~
+    \
+       if the parties and the Board had copies.
+                               (Indicating.)
+                         JUDG E CALLIH AN:-  Thank you.
+  BY MR. GALLO:
+  0    I call your attention, Mr. Shewski, to a document -- a 18       three-page document -- the first page of which is dated 19       November 15, 1983.           It says, "To W.J. Shewski. Subj ect:
+!         20       Conditional release of Pullman sheet metal stop works,"
+       and it has a Bates Stamp number at the bottom of the 22       first page M 0000269, and then the next page is 270 and 23       I believe the following page is 271, and ask:
+l 24             Is this the document that you had reference to when 25       you testified last August 7th about seeing a stop work f   (])
+l l                        Sonntag Reportin_g Service, Ltd.
+Geneva, Illinois 60134 l                                       (312) 232-0262
+I 10527
+  / 'i
+  'V 1                order --
+    A           Yes.
+    0           -- that had been signed by you?
+    A           Yes.
+    0           Is this, in fact, a stop work order?
+    A           No.
+    Q           Were you then just confused when you were testifying 8                before?
+    A           Yes.
+    Q           Do you know, to your knowledge now, after that 11                clarification, whether or not you've ever signed a stop
+   -~  12                work order in connection with the Braidwood case -- I 13                should say, in connection with the Braidwood Station?
+    A           To my knowledge, I have not signed a letter issuing a 15                stop letter -- stop work order.
+    Q           Does your testimony today in any way change your 17                testimony that you gave last August 7th with respect to 18                directing that certain stop work orders be issued in 19                connection with the Braidwood Station?
+    A           No.
+                                  MR. GALLO:             That's all I have, your Honor.
+                                 JUDGE GROSSMAN:                  Mr. Guild.
+                                                 REDIRECT EXAMINATION 24                                                     (Con tin ued. )
+(}   25                                                    BY MR. GUILD:
+Sonttt a g _ Rep o rti n g S e r v i c e ,_kt_da
+;                                       Geneva, Illinois                60134 (312)       232-0262
+  .( \
+V 1                     Q Mr. Shewski, I'm looking at Page 2 of the document that 2                       your counsel circulated, and it appears that your name 3                       is third in the list.        It has what appears to be a line 4                       for a signature below the names and signatures of a Mr.
+                       Brown and a Mr. S omme rfield.          The document does not 6                       appear to bear your signature.
+                     A This is the letter that I referred to that I saw which 8                       was for me to sign.
+                     Q Did you, in fact, sign it?
+                     A Yes, I did.
+                     Q All right, sir.
+   -   12                                I recall you telling the Board and parties when you 13                       last testified that it was your practice to initial and 14                       date, I believe you said, documents that came to your 15                       attention for review, and that was at least a method 16                       that you used to determine whether or not you had seen a 17                       document before.
+                                Did you make such testimony?             Did I understand 19                       that correctly?
+                     A That is my practice.
+                     Q All right.
+                                Does the document that your counsel has circulated 23                       bear such initialing and dating?
+                     A This is a document which I would sign.                 Therefore, there 25                       would be no need for me to do any initialing and dating,
+(]}
+Sonntag Reporting Service, Ltd.
+Geneva, IT1Tnois        60134 (312) 232-0262
+l 10529
+  ;p V
+                    other than for the signature part.
+  Q                 Yes.
+                         But the one that you have that counsel has made 4                    available doesn't bear your signature.
+  A                 As I believe I testified, I saw this document during my 6                    preparation for this hearing, and there was no occasion 7                    for me to have reviewed it and initialed off on it.
+  0                 In preparation for hearing, did you see a version of 9                    this document that, in fact, bore your signature?
+. 10  A                 I have recently seen one that has borne my signature.
+  0                 When you say "recently," do you mean since you prepared s 12                    for your initial testimony?
+  A                 Yes.
+i 14  0                 All right.
+                         And when, exactly, did you see one that had your 16                    signature on it?
+!     17  A                 Today.
+!     18  0                 I see.
+                         Did you see that in the course of preparing for i
+                    your testimony here today?
+  A                 Yes.
+                                   MR. GUILD:                   That's all I have, Mr. chairman.
+                                   MS. CH AN :           No questions f rom the Staf f.
+                                   MR. GALLO:                    I don't have anything further.
+()  25                                   JUDGE GROSSMAN:                           Okay.
+S o n n t _a g _Re p otr t i ng_S_e_ry_i_q_e         a _L t da Geneva, Illinois                            60134 (312)       232-0262
+(
+l                Thank you for reappearing, Mr. Shewski.
+                               (Witness excused.)
+                      JUDGE GROSSMAN:                Do we have any other 4           preliminary matters before we have the NRC Inspectors 5           recalled?
+                      MR. MILLER:                 No, sir.
+                      JUDGE GROSSMAN:                 'Okay, fine.
+                Why don' t we recall them.
+                Mr. Miller.
+                      MR. MILLER:                 Thank you, Judge Grossman.
+                                CROSS EXAMINATION
+    -) 12                                       (Continued.)
+J 13                                  BY MR. MILLER:
+,      14   Q       Mr. Mendez, I'd like you to turn to Page 13 of the 15           prefiled testimony.                 It relates to Allegation 16           RIII-85-A-0067.
+                Your answer to Question 28 indicates that you 18           interviewed the alleger.
+                I'd ask you to identify that individual for the 20           record, please.
+   A       (WITNESS MENDEZ)        That was Herschel Stout.
+   Q       All right, sir.
+   A       (WITNESS MENDEZ)        He wasn't the only person I asked this 24           particular question.                 I asked them all the same 1
+(}   25           question.
+l Sonntag Reporting Service, Ltd.
+CEneva, 11Trn31's 6013~4 (312) 232-0262                                                  l
+p
+V 1         Q    All right.                                                                                             ,
+                       'Is it your understanding that Mr. Stout was 3               involved in welding inspections at this point in time?
+         A       (WITNESS MENDEZ)              Yes, he was.
+S         Q     Then on Page 15, the second part of Allegation 0067 that.
+             you investigated, was that also Mr. Stout who made that 7               allegation, sir?
+         A       (WITNESS MENDEZ)               No, it wasn't.
+                       I don't know.                    I -- I don't think I ever knew who 10             made that allegation.
+                                   MR. GUILD:              I'm sorry.
+                       What reference was that?
+                                   MR. MILLER:              I'm sorry.                      Answer 29 refers to i    14              a second part of Allegation 0067.
+t 15         BY MR. MILLER:
+         0   And you are unable to identify the individual who made 17               that allegation; is that correct?
+         A       (WITNESS MENDEZ)              Yes.
+         0   All right.
+                       Now, I'd like to turn to Page 16 of the prepared 21              testimony, which is Allegation 0068.
+                       This is also an allegation that was received prior 23              to the March 29, 1985, meeting; is that correct?
+         A       (WITNESS MENDEZ)              Yes, it was.
+() 25         0   Can you identify the individuals who made the
+.                             SonntagJegorting Service,_Ltd.
+Geneva, Illinois 60134 (312)             232-0262
+i I
+l 10532 l
+l 1                         allega tions?
+         A                (WITNESS MENDEZ)    I believe there was only one 3                         individual. It was Therman Bowman.
+        Q                All right.
+                                And Mr. Bowman was one of the individuals that you 6                          interviewed; is that correct?
+         A                (WITNESS MENDEZ)    Yes.
+        Q                Now, on Page 17, in answer to Question 33, you say that 9                         you interviewed the Lead Inspector and the QC supervisor 10                         involved in this allegation.
+                                First of all, can you identify those two 12                         individuals?
+         A                (WITNESS MENDEZ)    Just the QC supervisor. That was 14                         Darryl Landers.
+        Q                But you do recall that you, in fact, interviewed the 16                         Lead Inspector as well?
+        A                 (WITNESS MENDEZ)    Yes.
+        Q                You are unable to recall his name at this time?
+         A                (WITNESS MENDEZ)    That's correct, I don't recall his 20                         name.
+        Q                Prior to the time that you interviewed the Lead 22                         Inspector and the QC supervisor, had you talked to Mr.
+                         Bowman?
+         A                (WITNESS MENDEZ)    Yes, I did.
+() 25        0                And you had received details of his recollection of the Sonntag Reportijn Service, Ltd.
+Geneva, fllinois      6013'4 (312)   232-0262
+V
+     conversation with the Lead and the QC supervisor, 2     Landers?
+   A (WITNESS MENDEZ)         Yes.
+   Q Now, Answer 33 goes on to state that your review also 5     indicated that Mr. Bowman had not been taken off 6     overtime because he had identified the base metal 7     problem.
+           How did you conduct that review?
+   A (WITNESS MENDEZ)         I asked him the question.             I asked 10     Bowman the question.               I asked Darryl Landers that 11     particular question.
+. r-       12   0 Did you review any records in connection with that 13     analysis?
+   A (WITNESS MENDEZ)         No, I didn't.        I was relying on 15     Bowman's answer to this question.
+           Had he mentioned that he was taken off overtime, I 17     would have further reviewed it; but he was never taken 18     off overtime.         In fact, he didn't lose a single hour of 19     overtime.
+                           (Indicating.)
+   Q Now, Page 17, in Answer 34, you again indicate that this 22     is an allegation that's a part of 0068.
+           Is this an allegation that was made by Mr. Bowman, 24     also?
+()       25   A (WITNESS MENDEZ)         I don't think the allegation files Sonntag_ Reporting _ Service, Ltd.
+Geneva, Illinois              60134 (312)           232-0262
+1               identified the alleger.
+   Q           Well --
+   A           (WITNESS MENDEZ)        That is, I don't know who made that 4               allegation, although it was a concern that a lot of 5               In.pectors had.
+  Q            I see.
+                    Did you establish that concern as a result of the 8               interviews that you conducted?
+   A           (WITNESS MENDEZ)        Yes.
+                    I think the person who made this allegation was                 ,
+               Wicks.
+  Q            Robert Wicks?
+   A           (WITNESS MENDEZ)        Yes.
+  Q            All right.
+15                    Then did he identify by name the individuals who --
+               the 10 recently hired QC Welding Inspectors who, in his 17               judgment, were not properly certified as Level II 18               Inspectors?
+   A           (WITNESS MENDEZ)         He may have mentioned one or two 20               names.
+                    I compiled this list of 10 from all the allegers I 22               spoke to.
+                                 (Indicating.)
+                    But it's a compilation.          I'd say it wasn't just one
+(} 25               inspector telling me that.          10 recently-hired QC L_                 Sonntag Reporting Service, Ltd.
+Geneva,-~Il1Tnois       6013~4 (312)      232-0262
+U
+   Inspectors were not qualified.
+         It was just the list of names that I got through 3   all the ' allegers I spoke to, plus any others that --
+   that I knew that were recently hired.
+                   (Indicating.)
+Q All right, sir.
+         Then on Page 18, the answer continues that you 8   determined that one of. the newly hired QC Inspectors did 9   not have sufficient experience to warrant certification 10   as a Welding Inspector.
+         Had that conclusion -- is that your conclusion
+   , -) 12   based on your review of the records?
+U 13 A (WITNESS MENDEZ)    It was the conclusion I reached l      14   looking through the qualification certification records.
+Q All right.
+         Now, you go on to state that you have -- you 17   identified a concern that you had about the inspections 18   conducted by this Inspector as an unresolved item in 19   Inspection Report 8521, which is Staff Exhibit 17; is 20   that correct?
+A (WITNESS MENDEZ)    Yes.
+Q And do you know what the disposition of that unresolved 23   item is?
+A (WITNESS MENDEZ)    No, I don't.
+   Do you know what corrective action, if any, has been
+(])     Q SoDntas_Repor tinLSe rvice,_Ltd, Geneva, Illinois   60134 (312)   232-0262
+0
+v 4     1            proposed by Commonwealth Edison and Comstock to close 2            out the unresolved item?
+       A    (WITNESS MENDEZ)     No, I don't.
+       Q    Now, can we agree, Mr. Mendez, that the allegation 5            numbers that we've identified and talked about so far --
+            that is 0062, 0067 and 0068 -- correspond to the name 7            allegations that are identified by those numbers ~ in 8            Staff Exhibit 17 --
+       A    (WITNESS MENDEZ)     Yes.
+       0    -- the Inspection Report?
+       A    (WITNESS MENDEZ)     Yes.
+   ~
+       Q    All right.
+                 Mr. Neisler, moving along to Answer 37- and 38 and 14            39, this is the first concern that's identified in 15            Allegation No. 0072.
+                 And am I correct that's the ones that were 17            catalogued as a result of the March 29, 1985, meeting-18            between Comstock Quality Control Inspectors and the NRC 19            Residents?
+l 20       A    (WITNESS NEISLER)      That's my understanding, yes.
+       Q    Now, what is the relationship, if any, between your 22            investigation of this first concern and this allegation 23            and your investigation of -- I guess Mr. Mendez' 24            investigation of Allegation 0067, the one where a
+(} 25            reprimand was based on the alleger's failure to meet Sonntag Reporting Service, Ltd.
+Geneva, IllinR s                 60131 (312)   232-0262
+10537 1            inspection quotas set by Comstock's QC management?
+     A      (WITNESS NEISLER)             There's no real difference. They 3            are both involving the issue of production versus 4            quality of his -- of the inspections, although the 5            particular allegation I was not -- I had not at that 6            time seen Mr. Mendez' earlier allegation.
+     Q      All right.
+                 When you began your investigation, Mr. Neisler, 9            were you aware that Mr. Mendez had conducted some 10            interviews on this subject?
+     A      (WITNESS NEISLER)             Yes.
+     Q      What use, if any, did you make of his work?
+     A      (WITNESS NEISLER)             At the time we compiled our . report, 14            I did use part of his information to reach my 15            conclusions that -- that I stated in the Inspection 16            Report.
+ ;              17                                     (Indicating.)
+     Q      In Answer 39, the answer starts with the words, "We 19            interviewed."
+                 Who's the "we" that's referred to?
+     A      (WITNESS NEISLER)             The "we" is Mendez and I, the two of 22            us. That's how he -- see, I used parts of his j               23            information from interviews.
+     0      I see.
+()       25                 Was there any specific Inspector that you can i
+Sonntag_Repotting_ Service,_L.ti Geneva, Illinois 60134 (312)     232-0262
+          -.   -   -.            . _ _ -        .-      . _ . . = . - - _ . .
+1      recall that stated that Comstock is asserting the 2      quantity of inspections rather than the quality of 3      inspections?
+    A (WITNESS NEISLER)         From the people that I talked to --
+      it seemed to .be more a consensus from the Inspectors 6      that I talked to rather than any one individual.                            They-7      all had about the same story, that Comstock appeared' to 8      be very interested in the amount of production; and they                                  ,
+      did not say that they were ever told to ignore the 4
+      quality aspect, nor did any of them say that they had --
+i      11      had ever accepted any discrepant work or deficient work.
+fs 12             And I also asked if they knew of anyone else who i
+d  13      did, and they did not know of -- of any other Inspector I
+      who had done the same thing.
+                       (Indicating.)
+             So it was more, you know, a general feeling 17      expressed by the people that I talked to.
+    0 There's been some testimony received in the record which 19      suggests that individuals are not likely to 20      self-identify their defects or, indeed, to necessarily 1
+      identify defects that have been passed by their 2
+      co-workers.
+             Did you try and take account of that attitude or 24      value on the part of the Inspectors when you talked to
+(} 25      them?
+!                     Sonntag Reporting Service, Ltd.
+!                         Geneva, IIrlhols         60134 i                             (312)      232-0262
+r) i
+(_/                                                                                                                                                                               '
++
+                                A                 (WITNESS NEISLER)            Yes.
+                                                                 MR. GUILD:          Obj ection.
+                                                          It'e clearly a leading question, aad it supplies 4                                                  the answer that's sought improperly, p                                          5                                                                 JUDGE GROSSMAN:           Would you repeat the 6                                                 question, please, i                                          7                                                                       (The question was thereupon read by the 8                                                                         Reporter.)
+                                                                JUDG E GROSSMAN:           Overruled.
+j                                      10                                    A                 (WITNESS NEISLER)              (Con tinuing. )                Yes, I did take into 1
+l                                     11                                                      account the fact that they said that they had not and 12                                                      that they knew of no one else who had sacrificed
+!_O 4
+                                                     quality -- the quality of their inspections, and --
+!                                      14                                                                             (Indicating.)
+f                                      15                                                                    MR. MILLER:         I'm sorry.                  Go ahead.      I didn't
+'                                                                                                                                                                                             i 16                                                      mean to cut you off.
+!                                      17                                    A                 (WITNESS NEISLER)              (Continuing.)                  To finish that, it 18                                                     has not been my experience that a QC Inspector would not 19                                                      tell me or anyone else that another Inspector had made a 20                                                      mistake or done something wrong.
+;-                                     21                                    BY MR. MILLER:
+                                     0                    I see.
+                                                             Do I understand from the last part of your answer 24                                                      that you had experience where Inspectors have, in fact,
+()                          25                                                      identified discrepancies of other Inspectors?
+So n n_t a g_Repo r_t_i_n_g_S e rv i c e,_L td .
+ '                                                                                                          Geneva, Illinois          60134
+]                                                                                                                 (312)     232-0262 4
+O
+   A   (WITNESS NEISLER)       We said in other testimony here they 2       are talking -- one of them was complaining about 3       Rissman, they are talking about some of the Lead 4       Inspectors who are saying they are not qualified.
+            I find allegations that one Inspector says another 6       one is not qualified.      He did not do propsc work or 7       whatever.
+                  JUDG E GROSSMAN:      Excuse me.
+            I thought the question and your answer related to 10       signing off on discrepant work that the Inspector 11       recognized to be discrepant.
+            Do you have instances of that where someone Ogw 13       suggested that another Inspector had actually done that?
+   A   (WITNESS NEISLER)       I understood that the question was:
+       Did I consider -- did I -- whether they told me that 16       they -- or they did not know anyone else who had 17       accepted any discrepant work.       The way I understood the 18       question was, did I -- did I think they were telling me 19       the truth.
+                  JUDGE GROSSMAN:       Well, the question was 21       whether there are instances that you know of in which 22       Inspectors had indicated to you -- and we're not talking 23       just about Braidwood -- that they ..aew of an Inspector 24       who had deliberately signed off on discrepant work.
+(}  25            Have you ever had an instance like that?
+Sonntag Reporting Service, Ltd.
+Geneva, IITrn~oIs 601T4 (312)     232-0262
+g
+V 1  A (WITNESS NEISLER)       Oh, yes.
+              JUDGE GROSSMAN:         Could you tell us the name 3    of an Inspector and the person who allegedly had signed 4    off on the discrepant work?
+  A (WITNESS NEISLER)       Let's see.
+         The last one I did was shortly before I started 7    working on this one, which was an individual in the 8   Fermi plant who had some allegations regarding one civil 9    inspector who did not know -- whose work -- the guy did 10       not know what he was doing.        He had some sand cone 11       measurements that were no good, his calculations were r3 12       bad, and it -- so there were about three or four at that
+  \J 13       particular one, which was the last one before I did this 14       that I had that instance.
+                 JUDGE GROSSMAN:         Excuse me.
+            This is about an Inspector who didn't know what he 17       was doing or someone who --
+     A (WITNESS NEISLER)       Well, he was signing off bad work 19       because he didn't know what he was doing.
+                 JUDG E GROSSMAN:        But not deliberately signing l
+       off bad work?
+     A (WITNESS NEISLER)       When we get the allegations, they 23       can come -- for instance, the one I was talking about 24       there, it was an anonymous allegation.
+() 25            When we get them, they are routine, Judge.        We get Sonntag_ Reporting _StrXico_Ltd.
+l                      Geneva, Illinois        60134 l
+(312)     232-0262
+rm
+(~)
+I          them all the time.
+                      MR. GUILD:    I beg your pardon.
+               Now, Judge, that's certainly not responsive to what 4          I understood the question to be.
+               I think the line is objectionable, frankly; but 6          counsel opened the door now.       It's only appropriate that 7          the door be closed one way or the another.
+!-      8               The answer simply didn't respond to the question I 9          understood the Chairman to ask.
+                      JUDGE GROSSMAN:      Well, that's right; and I 11          still haven't heard an instance in which someone has 12          come to you and indicated that there is someone who has 13          deliberately signed off on discrepant work.
+               Now, you've just indicated some anonymous 15          allegation and also one involving someone who didn't 16          know what he was doing.
+               Now, do you have any instance in which someone came 18          to you and indicated that someone else has deliberately 19          signed off on discrepant work?
+        A (WITNESS NEISLER)       Let me think through the various 21          allegations I've worked.
+               As for someone coming to me, no.
+               Normally, these are anonymous from, say, a 24          concerned QC Inspector or some other signature on a note
+()  25          that is received by the NRC.
+Sonntag Reporting Service, Ltd.
+I34
+                             ~
+Giin eva, Illinois (312)   232-0262
+  . f- s N
+                                            (Indica ting . )
+                                      JUDG E GROSSMAN:       Okay, fine.
+             BY MR. MILLER:
+            Q     Now, Judge Grossman's questions were, to use his words, 5                  anyone coming to you and said if an Inspector had 6                  deliberately signed off on discrepant work..
+                        My question, I believe, was somewhat more general 8                  to start, and that was whether you had the experience of 9                  an Inspector identifying discrepant work,~whether 10                  deliberately done or not, by another Inspector.
+                        Have you had that experience?
+             A     (WITNESS NEISLER)              Oh, I think the example I just gave 13                 on the Fermi is -- was an example there.
+            Q     Did you have that -- I'm sorry, Judge.
+                                      JUDGE GROSSMAN:        I'm sorry, but that example 16                  had an anonymous allegation.
+                                      MR. MILLER:      Right.
+             BY MR. MILLER:
+            Q     Did you have an experience at Braidwood --
+            A    At Braidwood, no.
+!        21            Q     Excuse me.            Let me finish my question, Mr. Neisler.
+                        -- where an Inspector identified -- an Inspector 23                  known to you by name identified discrepant work of 24                  another Inspector and identified that Inspector by name?
+()    25            A      (WITNESS NEISLER)              No, not at Braidwood.
+i Sonnta__g_ Rep _ ort _ing Service; Ltd.
+Geneva, Illinois 60134
+,                                                   (312) 232-0262
+l i
+l
+im -
+i k_)
+   Q You referred to a Mr. Rissman in an earlier answer.
+             Who is Mr. Rissman?
+   A (WITNESS NEISLER)               Rissman is one of the individuals 4     that -- in our report that was in the ' document control
+,        5     room signing off inspection records that had not been --
+     without going to the field, and he was closing out -- he 7     was also doing QC inspections and then he was performing 8     QA audits on his inspection work.
+   Q That was the allegation?
+   A That was the allegation.
+   Q All right.
+             Now, who made that allegation, if you recall?
+   A (WITNESS NEISLER)               Dan Holley.
+   Q Okay.
+             Mr. Holley identified Mr. Rissman by name to you as 16     the individual who was doing that?
+   A (WITNESS NEISLER)               Yes.
+                               (Indica ting . )
+i 19   0 Do you regard that as an example of a QC Inspector at 20     Braidwood identifying discrepant work or performance by 21     another QC Inspector by name?
+   A (WITNESS NEISLER)               Yes, it would be.
+                               (Indicating.)
+   Q Mr. Mendez, in the course of your interviews -- well,
+()   25     first of all, were there any promises of confidentiality Sonntag Reporting Service, Ltd.
+Geneva, I1TI~nois 6~0134 (312) 232-0262
+s
+( .
+   given to the Inspectors that you interviewed?
+A (WITNESS MENDEZ)       Yes, there was.
+Q Did they request it or was it offered as a matter of 4   course?
+A (WITNESS MENDEZ)       It's always a matter -- it's always 6   offered as a matter of course.
+Q Did all the Inspectors accept the offer?
+           -8 A (WITNESS MENDEZ)       I can only explain to them that nobody 9   would know who they were and that their names wouldn't-10    be given to anyone else, and that I would only judge 11    them on -- I would only judge what they said on the
+    -     12    substance and not who they were.
+V) f 13                       (Indicating.)
+  0 When you told them that you would judge them only on 15    substance --
+  A (WITNESS MENDBZ)       Well, not " judge," but what I'm saying 17    is the only reason I was there is what they were telling 18    me, what information they could provide, and that who 19    they were and what they did was really irrelevant to my 20    inspections.
+  0 When you say "who they were and what they did" --
+  A (WITNESS MENDEZ)       The QC Inspectors --
+I 23  Q Yes, sir.
+  A (WITNESS MENDEZ)       -- that is, for Edison and Comstock,
+()     25    as a measure of anonymity, to keep anyone from -- from So nn_ tag _ Re po r_tiDg_S e rv i c_ e _Ltd .
+Geneva, Illinois            60134                                         l (312)     232-0262                                                 l l
+                                                                    , . , . . . _, ,.m.
+                                                                                         ._.._._,_,1
+                                                                                                                                                                          '10546 1                                                  knowing who they were and what information they provided
+:                                '2                                                 -to me.
+                                                                                            (Indicating.)
+                              Q                  What, if' anything, did you do or say to encourage them 5                                                  to: identify discrepant work they were aware of?
+                                 .6-                               A                   (WITNESStn                         MENDEZ) . What did I do?
+                      y-7'                             Q                  Yes,       3, si r.' ,       -
+                                                                     Did you give them any assurances, did you make any 9                                                 promises or representations to them?
+ '                     ~h p.10                                      A.                  (WITNESS MENDEZ)                             Well, I did explain to them-that if T
+                            <11                                                        they were ordered by any of the supervisors to accept 12                                                    any discrepant work, that the. supervisors would be held i'                              13                                                    accountable and not themselves.                                                               ,
+                                                                                                                                               ~
+                                Q                   Did you state that to each 'ofc the Inspectors that you 15                                                     interviewed?.
+                              ' 16 '                               A                   (WITNESS MENDEZ)                             I'm sure I explained that to almost l-             ,
+                                                    all of them.
+i' 18                                Q                   Did;that statement by you' appear, in your judgment,. to 19                                                    change the tone of the interview at all?
+.-                              20                                 A s .(WITNESS MENDEZ)'                                           What-do you mean by " tone of the lo                                                                                             .
+l                              21                                                     inte rview?"
+l                                                                                                                                             .
+                                0                   Well, did they become more forthcoming, less 23                                                    forthecming, more talkative, less talkative?
+L                                                                                                                                   I think, except for one or two, they 24                                 A                   (WITNESS MENDEZ)
+()                      25                                                    were all very cooperative.                                 Tha t is, they provided --
+Sonntag Reporting Service, Ltd.
+Geneva, Illinols 60134 (312)     232-0262                                     l l
+f^)
+V 1        tried to provide as much information to me as they 2        could --
+      0 When you say --
+      A (WITNESS MENDEZ)                 -- before I said that and after I said 5        th a t.
+                          I just wanted to assure them of that fact, of i
+        tha t.
+                                    (Indicating.)
+      Q All right.
+                          I think you said, except for one or' two, they were 11        talkative and helpful --
+   ,m  12      A (WITNESS'MENDEZ)                 Yes.
+      0 -- as far as you could tell?
+                          Who were the one or two who were not?
+i.
+      A (WITNESS MENDEZ)                 I would say Kermit Williams, Gorman.
+        They obj ected to the f act that I even called them or 17        asked them questions.
+      0 What did Mr. Williams say to you?
+      A (WITNESS MENDEZ)                 It wasn' t -- well, their answers were 20        rather short.               They never elaborated, they never 21        explained.
+i 22                          Their answers were short, no, yes, and they seemed 23        to be in a hurry to get out.                      That is, to end the 24        interview.
+        Mr. Gorman, did he say anything to you to indicate
+(])         Q Sonntas_ Reporting _ Service, ce Ltd_,
+Geneva, Illinois         60134 (312)    232-0262
+O
+                   specifically that he was annoyed at the fact that you 2                    were asking these questions?
+       A             (WITNESS MENDEZ)                          Well, ' he didn' t say . anything.                            It was 4
+just his tone of voice.and his mannerisms and he seemed 5                    to be in a hurry to leave.
+       Q            Mr. Neisler, in the interviews that you conducted, were 7                    the interviewees forthcoming in their responses to you?
+     A             (WITNESS NEISLER)                                   Yes.
+                                                  (Indica ting . )
+          Q            Did you observe any who were not?
+          A            (WITNESS NEISLER)                                    No.                                                          ,
+                                          JUDGE GROSSMAN:                                                  Excuse me, Mr. Mendez.
+    .O   13                                     Mr. Rolan was very cooperative?
+          A             (WITNESS MENDEZ)                              Very, very cooperative.
+          BY MR. MILLER:
+          Q            Now, returning to the prepared testimony, Mr. Neisler, 17                      you discuss that you reviewed trend analyses of the 18                       Commonwealth Edison QA audit and surveillance report 19                       findings and Comstock quarterly trend analysis reports.
+                                     I wanted to ask you what the Comstock quarterly j        21                       trend analysis reports analyze; that is, what statistic j        :22                     were they trending?
+l        23          A            (WITNESS NEISLCR)                                    On those, they were -- the reports I
+;i       24                      was looking at, how many inspections had been done, how 25                      many -- how many had been -- items had been rej ected,
+({}
+i
+Sonntag Regor_TITnFis_
+Geneva,            I                                           ting Service, Ltd.
+;                                                        (312) 232-0262
+__.                      .         m
+[
+  ;o i
+   how many- accepted and this sort of thing.
+!        2                       (Indication.)
+Q Were these statistics that were specially prepared for 4   you?
+A (WITNESS NEISLER)          No. These were the routine reports 6   submitted by Comstock to Commonwealth Edison.
+Q Do you know the documents that formed the basis for the 8   Comstock quarterly trend analysis reports?
+A (WITNESS NEISLER)          No.
+0 All right.      Let's move on.
+        Now, just so that we can establish the correlation 12   between the prepared testimony and Staf f Exhibit 17, I 13   take it, Mr. Neisler and Mr. Mendez, that the same
+!       14   concerns that you identify. in your prepared testimony --
+j       15   that is, Concern 1, Concern 2 and so on -- correspond to 16   the same concerns that are _ identified beginning on Page 17   11 of Staff Exhibit 17; correct?
+A (WITNESS NEISLER)          Yes.
+i 19 Q All right.
+        Then Concern 2 deals with the qualifications of a l
+   Comstock QC supervisor, Mr. Saklak.
+        Can you identify the individuals who made that 23   allegation?
+!       24 A (WITNESS NEISLER)          That particular allegation, no, I f
+   can't.
+(])
+S.o n n_t a g_Re po r_t i ng_S e_Irine_,_Lt.d .
+Geneva, Illinois           60134 l                              (312)    232-0262
+1      Q     Can you, Mr. Mendez.
+      A     (WITNESS MENDEZ)                 Who made that particular allegation?
+      Q     Yes, sir.
+      A     (WITNESS MENDEZ)                 Oh, it was Rick Snyder; but I think 5            half the QC Inspectors had this particular concern.
+      0     Okay.
+                           Is this another concern that you investigated with 8            each of the individuals that you interviewed?
+      A     (WITNESS MENDEZ)                 Yes.
+      0     All right.
+                           Concern 3, which begins at the -- the questions and fs 12            answers begin at Page 21.
+U  13                           Again, can you identify the individuals who made 14            this allegation.
+,    15                           I'll take Mr. Neisler first, since both of you are 16            identified as investigating this.
+      A     (WITNESS NEISLER)                  For that one, the people who I 18            Interviewed that this came from would have been --
+            Peterson, Holley and Bowman, I think, were the three 20            primarily involved here --
+                                          (Indicating.)
+      Q     Mr. Mendez --
+      A     (WITNESS NEISLER)                  -- and, of course, I also -- I 24            also -- the allegation itself -- I mean the initial
+{} 25            investigation of this came from this April 5th letter Sonntag Reporting Service, Ltd.    -
+Geneva, Illinois        6'0134 (312)       232-0262
+v
+   from Weil to Norelius.
+Q Mr. Mendez, can you identify any other individuals who 3   were specifically responsible for this allegation?
+A (WITNESS MENDEZ)           I believe Snyder, Bossong, Wicks _made 5   similar statements like this.
+0 All right, sir.
+          Your questions and answers regarding Concern No. 4 8   in Allegation 0072 are found at Page .72 of your prepared 9   testimony, beginning with the Question and Answer 48.
+          Mr. Mendez, this is your responsibility.
+         Which of the individual QC Inspectors that you 12   interviewed made this allegation?-
+< V(~g 13 A (WITNESS MENDEZ)           About 75 percent.
+0 W ell, this was a rather widely-held comment by the 15   Inspectors that you interviewed.
+A (WITNESS MENDEZ)           Yes.
+Q All right.
+          Now, your answer -- and it's Answer 50 -- states, 19   "However, I did locate, during my review of L. K. C.
+   Inspection Reports, an Inspection Report dated November 21   12, 1980, which documented the acceptance of 129 hangers 22   containing 1,215 welds."                                                 l 23         How did you go about locating that document, Mr.
+I 24   Mendez ?                                                                 l
+{
+A (WITNESS MENDEZ)           It was a particular evening where I
+({}
+l l
+_So n n t a.g _ R ep o tt i n g_S e rti c e ,_L td Geneva, Illinois           60134                           l (312)      232-0262                                    l
+l
+V 1              had free access to the vault.                    That is, Rick Martin was 2              there, and I had asked him to locate some documents for 3              me, so he kept going in the vault and coming back out 4              and showing me the stack of documents.
+                       We found other people that had a great number of 6              welds on them, but this individual was unique only that f
+              there was no reinspection on his work.
+                                              (Indicating.)
+  Q           When you say there was no reinspection on his work, no 10              reinspection by whom, sir?
+  A           (WITNESS MENDEZ)                   Well, I knew there was reinspection 12              by -- that had been identified for Martin, for Yankitis J
+     -)
+>       13-             and for a few other Weld Inspectors.
+                       That is, if I found sorething with 500 welds, that 15              really was not significant, only because I knew his work 16              was being reinspected by Commonwealth Edison or L. K.
+              Comstock.
+                                              (Indicating.)
+  0           Let me stop you right there.
+                       How were you able to determine that Mr. Yankitis 21              and Mr. Martin and you said a few other Inspectors' work 22              in which they had documented a large number of welds on 23              a single Inspection Report --
+  A           (WITNESS MENDEZ)                   Well, no, no.
+()   25  0           Yes, sir.                Let me finish my question.
+Sonntag Reporting Service, Ltd.
+Geneva, ilTi~n~61s 6~01~34 (312) 232-0262
+                                                                                            -10553
+  ,A
+(_/
+                  How were you able to determine that that work had 2             been reinspected?                                                          6 3   A         (WITNESS MENDEZ)           During the review of the records, . I 4             collected each person's -- well, during the course of my 5             inspection, I ran across some of the NCR's or ICR's and 6             QA audits performed by Commonwealth Edison QA, so I knew 7             that certain individuals' work was being inspected.
+                               (Indicating.)
+   Q         Now, for the individual who signed the Inspection Report 10             dated November 12, 1980, however, you were unable to 11             locate any indication of a reinspection; is that 12             correct?
+s 13   A         (WITNESS MENDEZ)           Yes, that's correct.
+   0         Were you able to determine whether there had been a 15             Pittsburgh Testing Laboratory overinspection of a 16             portion of this Inspector's work?
+   A         (WITNESS MENDEZ)           Yes.
+   Q         Had there been such an overinspection?
+i 19   A         (WITNESS MENDEZ)           Yes.
+   Q         Now, in response to a previous question, I think you
+                                                              ~
+             said that you asked Mr. Martin to get you records and so 22             on.
+                  That's Mr. Rick Martin, the Level II QC 24             Inspector --
+()    25   A         (WITNESS MENDEZ)           Yes.
+Bonntag_Repotting_ Service,_Ltd.
+Geneva, Illinois 60134 (312)        232-0262
+I
+                                                                                                                   ~10554 O
+                 0               -- employed by Comstock at the time?
+~                                                 He was present at the vault on this evening when 3                                 you did this review of records?                                                   ,
+                 A                (WITNESS MENDEZ)                 Yes, he was, yes, he was.
+                Q                Did Mr. Martin -- did you tell -- what did you tell Mr.
+                                 Martin?                                                                           ,
+                 A                (WITNESS MENDEZ)     ,
+That I was looking for Irv DeWald's 8                                 checklist with 1,100 welds.
+                 Q               Had Mr. Martin -- had you previously interviewed Mr.
+                                 Martin on this subject?
+                 A                (WITNESS MENDEZ)                 Yes, I did.                                    ,
+                Q                Had he been one of the Inspectors who had mentioned Mr.
+                                 DeWald's 1,000 weld checklist?
+                 A                (WITNESS MENDEZ)                 Yes.
+                Q                Were you able to give Mr. Martin any other means of 16                                 identifying where this checklist might be found in the 17                                 vault?
+                 A                (WITNESS MENDEZ)                 Well, he knew the vault better than I 19                                 did.                That is, I told him the time period between '81, 20                                  '82, which was the time that Irv DeWald was a QC 21                                 Inspector.
+                Q                Did Mr. Martin have any ideas of his own that he 23                                 communicated to you as to where the inspection checklist 24                                 might be found?
+()     25    -
+A . * (WITNESS MENDEZ)                            Martin is knowledgeable in what plant Sonntag Reportijn Service, Ltd.
+                                                                                        ~
+Geneva, Illinols   60134 (312)   232-0262
+I 10555 1        areas -- or what areas in the plant were inspected at 2        what particular time.
+                            (Indicating.)
+      Q And how did he use that knowledge, if he did, in records 5         review?
+      A (WITNESS MENDEZ)         He knew the series of number drawings 7         and those -- on a particular series of drawings, numbers 8        that S & L gives; knew that that particular drawing 9        would have to be inspected in '81, '82 or '83, so he was 10            generally knowledgeable in that area.
+                                (Indica ting . )
+          Q And did he bring out documents for you to look at?.
+          A (WITNESS MENDEZ)         Yes, he did.
+          Q About how much time did you spend with Mr. Martin?
+          A (WITNESS MENDEZ)         About five hours.
+          Q And did you find any of the checklists signed by Mr.
+            Dewald in which there was more than a thousand welds 18            inspected on that checklist?
+          A (WITNESS MENDEZ)         I think I did find one with just about 20            a hundred welds on it.
+l       21          Q Just a hundred welds?
+          A 120, something like that, 150.
+          0 All right.
+                 Did you ever, in the course of this five-hour 25            review, see one that was signed by Mr. DeWald that had
+(])
+j So nn t ag _.R e po r_ti ng_S erv_ic e , _Ltd .
+Geneva, Illinois              60134 (312)     232-0262
+l 10556 1        approximately 550 welds recorded on a single checklist?
+   A    (WITNESS MENDEZ)                 No, I didn't.
+   Q    At the end of this five-hour session, did you call it 4        quits or did you come back another time to continue the 5        review?
+   A    (WITNESS MENDEZ)                 I stopped after about five hours.                 It 7        was 10:00 o' clock at night, so I stopped.
+   Q    All right, sir.
+               Did you ask Mr. Martin to continue the sesrch, if 10        he could?
+   A    (WITNESS MENDEZ)                 No, I didn't.
+   Q    Now, Mr. Neisler, I'd like to go on to Concern No. 5, 13        which is the subject of Question and Answer 51, 52 and 14        following on Page 23 of the prepared testimony.
+               This is the instance in which I think you testified 16        earlier that said that QC Inspector Rissman was the 17        individual who was in the record vault for the sole 18        purpose of closing Non-Conformance Reports?
+   A    (WITNESS NEISLER)                  Yes, this was Rissman.
+   0    Pardon?
+   A    (WITNESS NEISLER)                  Yes, this was Rissman.
+   Q    And the name of the QC Inspector who supplied this 23        information?
+   A    (WITNESS NEISLER)                 llolley.
+     /~   25   0    All right.
+(h >
+.                          Sonntag Reporting Service, Ltd.
+Geneva, I1TlnWis                       601'f4 (312)   232-0262
+  <x k.
+          Well, at the top of Page 24 you say that you 2     discussed the issue with the Comstock QC Manager and the 3     Comstock site QA Manager.
+          Could you identify those individuals for the 5     record?
+A   (WITNESS NEISLER)          That would have been DeWald and 7     Seltmann.
+Q   All right.
+          Now, I take it that the paragraph that starts two 10     lines down from the top of Page 24, the alleger referred
+          ~
+     to there is Mr. Holley?
+,    12 A   (WITNESS NEISLER)          That is Holley.
+Q   All right.
+          And in the following paragraph, your interview with 15     the other individual, that's Mr. Rissman; correct?
+A   (WITNESS NEISLER)          That was Rissman.
+Q   Was Mr. Rissman still employed by L. K.           Comstock at the 18     time that you interviewed him?
+    19 A   (WITNESS NEISLER)          He was not on site. I interviewed 20     him, but I didn't ask him who he was working for.
+Q   All right, all right.
+          The last paragraph on that page states that you 23     examined the Non-Conformance Report log.
+          Could you describe for us what your examination of
+() 25     that NCR log consisted of ?
+Sonntag_ Reporting _Serylce,_Ltd.
+Geneva, Illinois        60134 (312)      232-0262
+l i
+i
+i Q
+N/
+       A Just going down a list of NCR's that had been closed out 2         during that time frame and seeing how many had been 3         closed out by Rissman --
+                                       (Indication.)
+       Q All right.
+              Were you --
+l        7       A (WITNESS NEISLER)                  -- and I didn't find any that had 8         been closed during the time that he was supposed to be 9         in the vault.
+l      10               This was back in the fall of -- late '84.
+i                                                                                                            ,
+         Q Were you able to establish the precise time period when l
+(s   12          Mr. Rissman was assigned to the vault project?
+l      13        A (WITNESS NEISLER)                  No.          That's why I went -- I think he 14          said -- if I recall, he was supposed to have been there 15          in November, I believe, and so I went about two weeks on l
+l       16         either side to then just give it some overlap.
+        Q All right, sir.
+              Turning to Page 25 of the prepared testimony, Mr.
+         Neisler, there's a reference to your responsibility for 20          investigating Concern No. 6 in Allegation 0072.
+                I'd ask you to identify the QC Inspectors who made 22          the statement regarding Quality First.
+23         A (WITNESS NEISLER)                  Those Inspectors I -- that l      24          particular allegation I got from this -- this one March
+()   25          29th document, where the individuals were not Sonntag Reporting Service, Ltd.
+G6neva, IrlIn61F~60134 (312)  232-0262 l
+     ~N (V
+                   identified.         Just he was another individual.
+                 Q So you never were able to identify that person?
+                 A (WITNESS NEISLER)                    The person I;did not identify.
+                 Q In the course of your interviews, did any of the 5                   Inspectors indicate to you that Quality First had not 6                   given them any satisfaction in responding to theit 7                   conce rns ?
+                 A (WITNESS NEISLER)                    They -- well, at the time I was 9                   there, of course, they had received a response from 10                     Quality First, but they had felt that it took too long 11                      for Quality First to get the job -- to get their 12                     concerns answered and --
+                   Q So -- I'm sorry.
+                   A (WITNESS NEISLER)                    -- but they had received their 15                     answers three months before I got there or so, their 16                     response from Quality First; and the only comments they 17                     had were -         "Well, they finally answered, but it took 18                     them a long time to do it," is about the only -- the 19                     only thing I got from them.
+                    Q Was this a comment that was made by more than one 21                      Ins pector ?
+                   A (WITNESS NEIBLER)                    Well, when I asked -- when I asked 23                      the people I was talking to, as I interviewed, had they                                   ,
+                     had any response f rom Quality First themselves or
+()              25                      whether they had -- no, they felt that their response 1'
+                                                  .So n n t a g . Ile po r t i n g _S e ry i c.e , _L t d_,
+Geneva, Illinois                  60134 (312)           232-0262
+()
+G' I                                                 was timely, they always -- you know, they said they 2                                                 didn' t think so was about it.
+                           0                     Mr. Mendez, did you, in the course of your interviews 4                                                 with Inspectors, ask them about their dealings with 5                                                 Quality First?
+                            A                    (WITNESS MENDEZ)     It's one of the questions I had on my 7                                                 list.
+                           Q                     And could you identify any Inspectors who stated to you 9                                                 that they had spoken to the Braidwood Quality First team 10                                                 without gaining any satisf actory response to their 11                                                 concern?
+                            A                    (WITNESS MENDEZ)     I'm only guessing, but I think Martin, 13                                                 Rick Snyder, Bossong.
+                                                       But they generally had this impression about
+;      15                                                 Quality First.
+                           Q                     Now, Mr. Neisler, still on Page 25, you are the person 17                                                 who investigated concern 7 in Allegation 0072, and, 18                                                 againi this is taken from the documents that have been 19                                                 admitted into evidence as Intervenors' Exhibit 42 and 20                                                 42A.
+                                                       Who was the Inspector who expressed this concern?
+                           A                     (WITNESS NEISLER)      That was Perryman.
+                           Q                     All right, sir.
+                                                       Now, Mr. Mendez, you were involved in the 25                                                 investigation of Concern No. 8 and it's the subject of
+('))
+  \_
+Sonntag Reporting Service, Ltd.
+Genevi, II'linois      60134 (312)   232-0262
+m
+(U
+^                                                                                    '
+   testimony on Page 26 of the prepared testimony.
+          First of all, can you identify the QC Inspector?
+A (WITNESS MENDEZ)           Rick Martin.
+Q Now, Answer 61, Mr. Mendez, states the substance of the 5   allegation.
+          Is thin what Mr. Martin told you when you 7   interviewed him on this subject?
+A (WITNESS MENDEZ)           Yes.
+Q Well, on the very next page, Page 27, you say,                "I 10   discussed with the alleger the reason for the transfer 11   to the vault," and the last sentence in that paragraph 12   says, "He denied being singled out by Comstock 13   management for having gone to the NRC Resident 14   Inspectors' office."
+         My question to you is:
+         Did he make the statement that's found in Answer 61 17   in the same conversation with you that he made the 18   statement that's found in the last sentence on the first 19   full paragraph on Page 27 in Answer 627 20 A (W7TNESS MENDEZ)           No.       The answer to Question 61 comes 21   f rom the Chuck Well memos, Well-Schulz-McGregor memos.
+Q That is what we have had marked as -- or what's been 23   received in evidence an Intervenors' Exhibit 42 and 42A?
+A (WITNESS HENDEZ)           Yes.
+() 25 Q All right.
+So n n t a g_R e po r: t i n g_S e r yl.c.0, _L t d .      ,_
+Geneva, Illinois               60134 (312)       232-0262
+,1          And what appears on Page 27 is the. result of your 2   interview with Mr. Martin; is that correct?
+A (WITNESS MENDEZ) . Yes.
+              JUDGE GROSSMAN:    Excuse me.
+         In light of some testimony we heard, I'm not 6   exactly sure what this sentence means here on Page 27, 7   he denied being singled out by the L. K. C. managemen t 8   for having gone to the NRC Resident Inspector's Office.
+         Are you saying he denied being singled out or he 10   denied being singled out because he went to the NRC 11   Resident Inspectors' office?     Which is it?
+A (WITNESS MENDEZ)    The way he explained it to me, the 13   only reason he was moved is because his certifications 14   had been pulled by Braidwood. That part of his removal 15   from one part of the office was as a result of that and 16   not because -- because Comstock knew that he had gone to 17   talk to the Resident.
+                   (Indicsting.)
+              JUDGE GROSSMAN:    Wel}, now you've put your 20   finger on another problem here.
+         When you say he was moved from one part of the 22   office to another part, it doesn't seem to me as though 23   you addressed this problem in here.                         ,
+         You seem to be talking about his being moved from 25   the field to the office.
+i Sonntag Reporting Service, Ltd.                       '
+Gineva, IllTnois  60134^
+(312)  232-0262
+                                                                  }
+O
+v 1                                      Now, we've heard -- and I believe you may have been 2                               present in the hearing room when this entire matter was 3                                characterized dif ferently by Mr. Martin.
+                                      One being that it wasn't a move from the field to 3                                the office but from one part of the vault to another; 6                                and, secondly, that it was not because he had visited an 7                               NRC officer, but because an NRC officer had visited him.
+                                      Now, you are aware of that from the testimony, 9                               aren't you?
+          A                       (WITNESS MENDEZ)                 Yes.
+                                               JUDGE GROSSMAN:                 Were you aware of that 12                                characterization at the time you investigated the O   13                                complain t?
+r 14          A                       (WITNESS MENDE")                 I don't believe so.
+                                       I think I should restate that.
+* 16                                       The question I did ask Rick Martin was whether he 17                                was being transferred from the field inspections to the 18                                 job in the records vault and not that he was moved from 19                                outside the vault into the inside.                             I think his --
+                                                JUDGE GROSSMAN:                 Okay.
+           A                      (WITNESS MENDEZ)                  -- particular concern was just moved 22                                 out of field inspections into the vault.
+                                                JUDGE GROSSMAN:                 Okay.        So you concentrated 24                                on that concern.                  That takes care of one of the
+(} 25                                 problems.
+So n n t a g ._ R e po r t i ng_S c ry i c.e , _L t d .
+Geneva, Illinois                 60134 (312)          232-0262
+C/
+           Now, the other problen. is that he denied being 2      singled out for any reason or did you only ask him 3     whether he was being singled out for having gone to the 4      NRC Resident Inspectors' office?
+A    (WITNESS MENDEZ)              Well, I believe the question was more 6     general.
+           I asked him if he felt Comstock was picking on him 4
+      or singling him out, and at the time he said no, that he 9      didn't think so on that particular day.
+                 J00GE GROSSMAN:              Okay.
+                 MR. MILLER:             Thank you.
+g-)   12 BY MR. MILLER:
+      ~
+Q    Mr. Neisler, you are identified on Page 27 of the 14      prefiled testimony as having investigated Concern No. 9.
+           Can you identify the Inspector who made the 16      allegation that's the subject of that concern?
+A    (WITNESS NEISLER)              Not at this time, I can't.
+0    Mr. Mendez, can you?
+A    (WITNESS MENDEZ)              Most of them. Most of them felt that 20     a person could not be proficient if he had multiple 21      certifications.
+0    I'm sorry?
+A    (WITNESS MENDEZ)              Most of the --
+)
+0    Most of them felt they could be proficient?
+A    (WITNESS MENDEZ)             Could not.
+(v~')
+i Sonntag Reporting Service, Ltd.
+G enWa, IlTI'noiW 6 013'4 -~~~
+(312)          232-0262
+2%
+   0    Could not be proficient if they had multiple 2        certifications.
+             All right. Now --
+   A    (WITNESS MENDEZ)    I'd like to say that was one of the 5       questions I asked -- it was a particular question -- and 6       most of them said yeah -- yes to that question.
+   Q    You say they said yes?
+   A    (WITNESS MENDEZ)    It was a leading question, "Do you 9        think anybody can be made proficient in a particular 10        inspection if he had multiple certifications."
+   Q   And the answer to that question?
+   A    (HITNESS MENDEZ)    Was generally yes.        As a general rule, 13        people felt that a person couldn't be proficient if he 14        had multiple certification.
+                   MR. GUILD:    Could not?
+   A    (WITNESS MENDEZ)     Could not.
+   BY MR. MILLER:
+   0     I guess I'm a little confused.
+             Why would they answer yes to the question if they 20        felt --
+                   JUDGE GROSSMAN:         I was, too, but you must 22        have phrased the question in the negative, and they 23        answered affirmatively to that.
+             Dut go ahead, clarify.
+() 25   BY MR. MILLER:
+Sonntag_ Reporting _ Service,_Ltd,
+!                          Geneva, Illinois        60134 (312)   232-0262
+3
+(v 1 Q    All I want to know is:
+           As a result of the interviews that you conducted, 3      did you understand that the Inspectors were concerned 4      that they were not able to remain proficient in all the 5     areas in which they were certified?
+                 JUDGE GROUSMAN:     Well, let me state it.
+           I understood you to answer three times that most of 8      the Inspectors were of the opinion that they couldn't 9      remain qualified in multiple disciplines.
+           Is that a correct understanding?                         !
+A    (WITNESS MENDEZ)     I think we're talking about a 12     multiple cert -- multiple certification as it relates to 13      the quality of a person's inspection.
+                 JUDGE GROSSMAN:     Yes, yes.
+A    (WITNESS MENDEZ)     Okay.
+                 JUDGE GROSSMAN:     Okay. My terminology was 17      faulty. I'm sorry.
+                 MR. MILLER:     No, no. I think we still need 19     some clarification.
+BY MR. MILLER:
+0    Could you recite for the record the question that you 22     posed to the Inspectors on this subject?
+A    (WITNESS MENDEZ)   I think the question was whether 24     having multiple certifications would keep an Inspector
+(}  25      from being proficient. That is, would he still be able Sonntag Rep ~orting Service, Ltd.
+                           ~ Gensia, I11~1nola~ 60134 -
+(312) 232-0262
+O
+   to identify quality problems in the field if he had too 2   many?
+         Most felt that if he had too many certifications, 4   that his -- the degree of inspections would -- would 5   fall; that he wouldn't be able to identify all the 6   problems.
+                     (Indicating.)
+0 Well, all right.
+         Now, in Answer 65, the second sentence says, "The 10   Inspectors I interviewed told me that they could 11   maintain the quality of their inspections in all the 12   areas in which" -- I think the word should be "they" --
+   "in which they were certified."
+         Is tha t --
+A (WITNESS MENDEZ)     Well, they all felt that they had just 16   about the right number of certifications for themselves, 17   but for someoody else it was different.
+Q Oh, I see.
+         And what was the maximum number of certifications 20   that any Inspector that yon interviewed had, if you 21   recall?
+A (WITNESS MENDEZ)     Pour.
+               JUDGE GROSSMAN:     They felt that they are 24   entitled to that 50 cents an hour for each 25   certification, but the others weren't; is that the gist
+(])
+Sonntag_ Reporting Stryice,_Ltd.
+Geneva, Illinois    60134 (312)   232-0262
+[~)
+x/
+                 of it?
+  A              (WITNESS MENDEZ)             That's right, that's correct.
+                            MR. GUILD:            Well, I understand that the 4                 Question and Answer 65 are Mr. Neisler's question and 5                 answer, not Mr. Mendez' .
+  A              (WITNESS MENDEZ)             I had the -- I had the initial crack 7                 at all these allegations.            John finished up on the ones 8                 that still needed some work on them.
+                                    (Indica ting . )
+  BY MR. MILLER:
+0               Well, Mr. Neisler, you are the identified individual who 12                 is responsible for Answer 65.
+                      Could you describe for us what the substance of the
+;     14                 responses that you got from the question were?
+  A              (WITNESS NEISLER)             The responses I got to the question 16                 is "Yes, I can, but I'm not so sure about these other 17                 people."
+l     18 0               Did you then go and check the other identified -- well, 19                 did they identify the other individuals by name?
+  A              (WITNESS NEISLER)             They did not identify the other l     21                 individuals; just "Some people can't, but I can."
+;     22 0               What review, if any, did you make of the other I     23                 Inspectors' certifications?
+  A              (WITNESS NEISLER)             Well, actually, reviewing the i
+i
+(~) 25                 certifications, all I did is, I asked each one of the V
+i Sonntag Reporting Service, Ltd.
+!                                ~GoneVa, ~Illino'la ~60134 ~ ~
+j                                         (312)        232-0262
+O
+                            people I interviewed how many he had -- he or she.
+              Q             Did any of them have more than four?
+              A              (WITNESS NEISLER)                   There was one individual -- I don't 4                             remember which -- had eight.
+             Q              Did you ask that individual the question?
+              A              (WITNESS NEISLER)                   That individual did not think he had 7                            too many, but he wasn't sure about some other people.
+                                                            (Laughter.)
+              BY MR. MILLER:
+             Q              Now, you say that you verified that Comstock provides 11                            refresher training for any Inspector who feels the need
+ )
+gg  12                            for more training.
+O  '13                                          How did you do that?
+              A              (WITNESS NEISLER)                   I reviewed the training records on 15                            the people, my monthly review.
+                                          As I went to the drawer where they were, I picked 17                            out a handful here and a handful there and I looked 18                            through, and the people there had refresher training on i
+                            their records.
+                                          The other is:          I verified that -- as I say in the 21                            testimony, that they did have posted on the bulletin 22                            boards all the latest changen to the procedures.
+                                                            (Indicating.)
+             Q              All right.
+()  25              A              (WITNESS MENDEZ)                   I asked each one whether they had Sonntag_Repor. ting Service,_L_td, Geneva, Illinois   60134 (312)  232-0262
+0
+    ever been denied any additional training.
+,                    2  Q And what response did you get to that question?                  ,
+  A (WITNESS MENDEZ)     Not a single person said he or she was 4    donied any additional training.
+!                    5    Do you know if any of them asked for additional                  t Q
+    training, the Inspectors you interviewed?
+                   -7   A (WITNESS MENDEZ)     I believe Julie Bullock did. She got     !
+    the training.
+  Q I'd like to return for just a minute -- I'm sorry to 10      jump around -- but there was an earlier allegation' that 11      I asked you about -- it was Concern No. 3 -- that was 12      the joint responsibility of both Mr. Mendez and Mr.
+!                 13      Neisler, and that was the allegation about Mr. Saklak, 4
+      who was constantly intimidating and harassing QC l                 15      Inspectors.                                                      <
+             I think you stated that you inquired of all the QC j                 17      Inspectors with respect to their dealings with Mr.
+      Saklak; is that correct?
+:                 19    A (WITNESS MENDEZ)     Yes.
+    Q All right.
+             Did each Inspector that you interviewed state that        ,
+)
+i                 22      Mr. Saklak was constantly intimidating and harassing the 23      Inspectors?
+I
+!                 24    A (WITNESS MENDEZ)     Some of the QC Inspectors felt Saklak I
+      was intimidating the QC Inspectors.       Not all of them        i I
+i i                                Sonntag Reporting Service, Ltd.
+l                                    Geneva,~I1Tlniis   6013'4                              :
+l                                        (312)   232-0262
+p)
+      \-
+   did.
+0 Was there any individual. who initially told you that --
+   or who you initially believed, on the basis of your 4   document review, had a problem with Saklak but who later 5   indicated to you that they did not?
+A (WITNESS MENDEZ)        I think Mustered was the one, 7   Mustered.                                                               >
+0 What did Mr. Mustered tell you?
+A (WITNESS MENDEZ)        Well, the questions were more of a 10   general type, whether he felt Saklak was intimidating, 11   harassing him, and if he said yes, I would have asked 12   him the next question, which would be, "Has he harassed 13   you?  Have you accepted discrepant work based upon his 14   intimidation and harassment?                Do you have any problems 15   with him now," and that sort of thing?
+0 What were Mr. Mustered's responses to those questions?
+A (WITNESS MENDEZ)        As I recall, he said at one time he 18   did have a problem, but he didn't have a problem with 19   him anymore.
+                       (Indicating.)
+               JUDGE GROSSMAN:              Excuse me.
+        I take it Mr. Mustered was one of the original 23   eight that you had filed the list before --
+A (WITNESS MENDEZ)          12.
+  !(])   25               JUDGE GROSSMAN:              One of the original 12.
+i So n n t a g _R e po r.t i ng_Se ry_i ce ,_Lt d .
+Geneva, Illinois             60134 (312)     232-0262
+(~'s                                                                                             !
+\)
+           Okay, fine.         And.not one of additional four?
+A    (WITN"SS MENDEZ)         That's right.
+                 JUDGE GROSSMAN:          Okay. There's two groups.
+            So he makes the 12th I think we have on the 5      original list, and we were only missing the two of the 6      original four?
+A    (WITNESS MENDEZ)          Right.
+           One thing I'd like to mention:          It's been pointed 9     out that I didn't limit myself to the 16 QC Inspectors.
+      The 16 are only'significant only because I asked them 11     nearly the came questions.           I had a list of 350 7-   12     questions I asked all 16.
+           There were other Inspectors I spoke to during the 14      course of my inspection, and'one was Julie Bullock, and 15      a few others who I never asked their names.
+                 JUDGE GROSSMAN:          Okay, fine.
+           But Mr. Mustered wac the missing 12th man?
+A    (WITNESS MENDEZ)          Yes, he's one of the 12.
+                 MR. MILLER:         Thank you.
+BY MR. MILLER:
+Q     Now, I'll try and go back in order.
+           And the next one, Mr. Mendez, is apparently your 23      responsibility .        It's Concern No. 10.           That's the 24     subject of testimony beginning on Page 28.
+(}   25           Pirot of all, can you identify the Inspectors who Sonntag Rep ~orting Service, Ltd.
+dineva, 11Thi61'6        60134
+                      '-    (312) '232-0262
+(')
+V 1                 made the allegation about the selection of Lead QC 2                 Inspectors?
+           A     (WITNESS MENDEZ)     Basically the same people that had 4                 concerns :    Snyder, Bassong, Wicks.        Stout may be another 5                 one.
+           Q     Now, did they identify the Lead QC Inspectors who had 7                 purportedly been selected for their willingness to sign 8                 off NCR's or ICR's?
+           A     (WITNESS MENDEZ)     I believe they gave me names, but I 4
+                 can't recall any at this time.
+;      11                      Maybe Nemeth and Phillips.
+           Q     All right.
+                      Did you go and talk to Mr. Nemeth and Mr. Phillips            i 14                 about this?
+           A     (WITNESS MENDEZ)     I think I did talk to Nemeth.
+                              JUDGE GROSSMAN:     Excuse me.
+                      Those were the only two names or the only two of 18                 the ones that you can now recall?
+           A     (WITNESS MENDEZ)     Those are the only two that I can
+;      20                 recall.
+                              JUDGE GROSSMAN:     Okay.
+           BY MR. MILLER:
+l      23           Q     At the top of Page 29, you say that you reviewed the NCR i
+j      24                 log book and the ICR log book, and I represent to the
+(}  25                 Board that we've identified a portion of the ICR log as l                              Sonn tag _ReRorling se rv_i_c e,_L td .
+l                                     Geneva, Illinois 60134 f
+(312) 232-0262
+                                              _
+        /   \
+      -U.
+                         Applicant's Exhibit 29.
+i 1
+                                 What were you looking for when you reade that 3                         review, Mr. Mendez ?
+                     A    (WITNESS MENDEZ)             Well, at the time I had a list of Lead 5                         Inspectors.
+                                 Byi looking at the ICR/NCR log, I could determine 7                         wheA.her a particular Lead -- a.particular person who had 8                         become Lead had previously signed off a great number of 9                         NCR's or ICR's.             That is, if he signed of f more than, i
+N+             <
+                     ~10.\                        say, for example,10 in .one day, that would be 5      11                           significant, although I never Noand anybody that signed 12                          off more than maybe 3, 4 or 5.
+                                                   (Indicating.)
+.4                     Q   Okay.
+;                                 of the individuals that you found who had signed 7
+                  ' 16              ,
+                                                  'of 'f th r e e, four or five in one day, were they 17                          individuals who were subsequently selected as Lead t
+                          Inspectors?
+i 19                   . A    (WITNESS MENDEZ)-           Yes; but that's not uncommon to sign j                    20                           of f that many NCR's or ICR's.
+                       Q   I guess I should ask the next question.
+[
+                    22 L                                 Did you find instances in which individuals signed 23                           off three, four or five NCR's a day and were not 24                           selected as Lead Inspectors?
+L 25           ,
+A    (WITNESS;MENDEZ)            Yes, yes.
+:            p SonbtagReportingService,Ltd.
+Giineva, IIITri61s             60134 (312)     232-0262
+10575 h
+        Q All right.
+                       Let me go on to Concern No. 11, which is the 3          subject of testimony beginning on Page 29.
+                       Mr. Mendez, can you identify the Inspector who made 4        5          the allegations?
+        A (WITNESS MENDEZ)                       Concern No. 11?
+        Q Excuse me?
+        A (WITNESS MENDEZ)                       Concern No. 11?
+        Q 11, yes, sir.
+: 10.       A (WITNESS MENDEZ)                           Franco Rolan, Snyder.
+        Q All right.
+                       Now, about three lines up from the bottom of the O    13          page, there's a sentence that begins, "Some of the QC 14          Inspectors told me," and so on.
+                       Which Inspectors made that. comment to -you?
+        A (WITNESS MENDEZ)                        I believe all of them did.                         It's one 17          of the questions I asked.
+        Q Did any of them identify an instance in which they had 19          persuaded or attempted to persuade Comstock Engineering 20          to change its position on the disposition of an NCR?
+        A (WITNESS MENDEZ)                        There were some, yes.                                                  ,
+        Q Did any of them represent to you that they had been 23          successful in persuading Comstock Engineering to change 24          its position?
+        A (WITNESS MENDEZ)                       As I remember, there may have been
+(}
+Sonntas_ Reporting Se rvice,_Ltd.
+Geneva, Illinois                                   60134 i                                         (312)                    232-0262
+O
+                                    some instances where that did occur.
+              Q                     All right.
+-                                                       Now, the answer to Answer 71 continues on over to 4                                    Page 30 and goes on to say, " A f ew of th e LKC QC 5                                     Inspectors did not feel comfortable .with a 'use-as-is' 6                                    disposition."
+7                                                        Can identify the Inspactors who made that 8                                    statement?
+               A                     (WITNESS MENDEZ)                    No, I can't; no, I can't.
+              Q                     Your testimony goes on to say, "NCR 1616 and," which was 11                                    changed this morning to, "ICR 2900 were provided as 12                                    e xam ples. "
+O 13                                                        I don't want to mark these as, exhibits, but I'd 14                                    like to show you Comstock NCR's 1616 and 2900 and ask 15                                    you whether those are the documents that you reviewed in 16                                     connection with your investigation of this concern.
+                                                                   (Indicating.)
+              A                      (WITNESS MENDEZ)                    NCR 1616 was one that I reviewed.
+              Q                     All right, sir.
+                                                        Would you take a look at .NCR 2900.
+               A                     (WITNESS MENDEZ)                     I don't know if I have ever seen NCR' 22                                    2900.
+              Q                     All right.
+                                                        So it's your recollection that it's ICR 29007
+(} 25               A                     (WITNESS MENDEZ)                    Yes.
+Sonntag Reporting Service, Ltd.
+Geneva, IITrnois 60134 (312)     232-0262
+       . _ _ __ ._ _ ..__ ______. . _ . _ . _ ._ . _ . _ _ . _                                  _ _ . _ _ _    _._ . _ . _ - . ~ _ _ .
+/~'i
+()                                                                                ,
+  Q All right, sir.
+          You said that -- the testimony, Answer 71, ends 3-   with the statement that you reviewed the NCR 1616 and 4    ICR 2900 and found the dispositions acceptable. .
+          How did you make the determination the dispositions 6    were acceptable?
+  A (WITNESS MENDEZ)     It seemed I had just -- it seemed I 8    had the right -- that is, I had the right -- it went 9    through the chain of command. The identified problem 10    went through their QC/QA, through engineering and came 11    back. It seemed to have gone through the correct design gg   12    and review process.
+V 13  0 All right, sir.
+  A (WITNESS MENDEZ)     The design and review process was 15    adequate and it seemed plausible that it was acceptable.
+                     (Indicating.)
+  Q All right.
+          Turning now, Mr. Mendez, to Concern No. 12, which 19    is the subject of your testimony on Page 30:
+          Who was the individual who made the allegation that 21    if inspection quotas were not met, overtime was not 22    given to an individual?
+  A (WITNESS MENDEZ)     I believe it was Herschel Stout and 24    Wicks that made a statement like this.
+    And this was based, again, on -- originally on the
+(])      Q Sonntaa Rep _orting Service,_Ltd.                              l Geneva, Illinois    60134 (312)   232-0262
+O
+             assertions that are found in the three memoranda that 2             were prepared by the Staff, two of them on March 29th 3             and one on April 5th, Intervenors' Exhibit 42 and 42A?
+A           (WITNESS MENDEZ)                Yes.
+0           All right.
+                   Mr. Neisler, you are the individual who's 7             identified as investigating Concern No. 13 on Page 30 of 8             the testimony.
+                   Who was the individual who made those allegations?
+A           (WITNESS NEISLER)                  This individual was unidentified in 11             the March 29th memo.
+Q           All right, sir.
+                   Turning to Concern No. 14:
+                   Again, this refers to the NCR and the ICR, and 15             we've already had testimony on that.
+                   Do you recall who the individual was who made this f               17             allegation?
+A           (WITNESS NEISLER)                  This came from part of -- our l
+             Resident Inspectors, they didn't identify this as being 20             an allegation f rom one of the groups.                It was part of 21             the list of things that they had identified in one of 22             their March 29th memos, and so it was treated as an f
+             allega tion.
+Q           Now, Mr. Neisler, continuing on Page 31 of.your 25             testimony, you are the individual who is responsible for
+(]}
+i l                                    Sonntag Reporting Service, Ltd.
+Geneva, IIIInols 60134 (312)    232-0262
+(~)'i q
+    investigating Cencern 15.
+         Who was the individual who made that allegation?
+A  (WITNESS NEISLER)               I don' t have tha t -- I don't know 4    the identity of that individual.                          I don' t know that --
+   who made that allegation.
+                           (Indicating.)
+Q  Excuse me?
+A  (WITNESS NEISLER)              I do not know who made that 9    allegation.
+                          (Indicating.)
+11 Q  The QC supervisor that was the subject of the g-)   12    allegation, was that person identified to you?
+   ~
+i       13 A  (WITNESS NEISLER)               That was Saklak.
+Q 'Now, Answer 83 on Page 32 of the prepared testimons says 15   you found no evidence that the supervisor violated 16   procedures.
+         Would you describe for us how you made that 18   determination?
+A  (WITNESS NEISLER)               In the training records that I had 20   reviewed, as I mentioned earlier, that I pulled out of 21    the drawer, I found no -- nothing in there that showed 22   me that Saklak had ever certified anyone in anything; 23    and I also found, by reviewing the procedure, that the 24    procedure -- that the procedure for certifying 25    Inspectors -- or qualifying Inspectors did not include
+(])
+S o n n t a g _ R e p o r.t i n g _ S e rtire ,_L_t d_.
+Geneva, Illinois 60134 (312) 232-0262
+  ,#w
+(_)
+I   the supervisor.        This was all done by training.
+Q Well, did you review any on-the-job training records 3   which indicated one QC Inspector can provide training 4   for another QC Inspector?
+A (WITNESS NEISLER)         No.
+0 What did you understand the words "that the supervisor 7   violated procedures" to mean?
+A (WITNESS NEISLER)         I understood it to mean that he was 9   either showing favoritism and certifying people to 10   higher levels or else he was showing discrimination and 11   not certifying other people.
+                        (Indicating.)
+Q All right, sir.
+         Turning to Concern No. 16, I think Answer 85 says 15   that it's an unidentified alleger that expressed the 16   concern.
+        Were you able to determine the source of the 18   allegation?
+A (WITNESS NEISLER)         No.
+0 Mr. Mendez, were you?
+A (WITNESS MENDEZ)        No.
+Q Now, turning to Concern No. 17, Mr. Mendez , can you 23   identify for the record the name of the person who made 24   the allegation?
+(}  25 A (WITNESS MENDEZ)        Rick Martin.
+Sonntag Reportijn Service, Ltd.
+Geneva, ITlinRs 60134 (312) 232-0262
+   .o V
+              MR. MILLER:      Your Honor, if I could have just 2   a second --
+              JUDGE GROSSMAN:       Sure.
+              MR. MILLER:      -- I could very well be 5   finished.
+        I have no further questions.
+                    BOARD EXAMINATION 8                    BY JUDGE GROSSMAN:
+Q Mr. Neisler, aren' t QC Inspectors required to write 10   ICR's or NCR's when they see discrepant work, even if it 11   isn't work that they are required to inspect?
+   (WITNESS NEISLER)       Not normally.
+    -)    A 13        If you mean is an electrical contractor QC required 14   to write an NCR on a civil or a mechanical contractor, 15   No.
+16 Q No, no, no.
+        I'm speaking now of, let's say, a Welding Inspector 18   who sees that there are discrepant welds where he is i      19   working, even though he's not required to inspect those 20   welds.
+I 21        I'm not talking about some other company's work, 22   but work of his own company.
+A (WITNESS NEISLER)       Now, for his own company, yes, I 24   would say there; but if not for his own company, no.
+(}  25                   (Indicating.)
+j Sonntaq Reporting Se rvi ce ,_.L td .
+Geneva, Illinois     60134 (312)     232-0262
+  /~T                                                                      4
+(-)
+  Q   Well, don't you think a QC Inspector would be reluctant 2      to tell you that he had seen discrepant work that he 3      hadn't written an NCR on?
+' A   (WITNESS NEISLER)          No.
+  0   You don't think he would be reluctant to tell you about 6      it even though he was required to write an NCR and 7      didn't?
+  A   (WITNESS NEISLER)          No, I don' t think he would.
+  Q   Mr. Mendez, did you tell anyone in QC management -- or 10      anyone in Comstock management, other than QC, that Rick 11      Martin had spent 5 hours helping you try to locate Mr.
+      DeWald's 1,000 or more welds?
+  A   (WITNESS MENDEZ)      I had spoken earlier to Dick Bower, 14      the -- I think he's the vault supervisor.          He's either 15      above vault supervisor or he is the vault supervisor; 16      and he had no problem with people in the vault helping 17      me out.
+                        (Indicating.)
+           I just couldn't go physically inside the vault.              I 20      was inside the -- the bench area, but I wasn't inside 21      the vault. I needed special permission for that; but as 22      long as somebody could get me the records, I had no 23      problem.
+                        (Indicating.)
+()  25  Q   But subsquent to Mr. Martin helping you out, did you Sonntag Reporting Service, Ltd.
+Geneva, IH Tnois 60134 (312)      232-0262
+l      .
+   - (:)-
+                                         ever have occasion to mention that to people in Comstock 2                                         management, that he had actually done that?
+                                       A (WITNESS MENDEZ)      I don't think I mentioned it to 4                                         anyone. It was af terwards.
+                                                           (Indica ting .)
+                                       Q Mr. Mendez, when you checked to see if any individuals 7                                         had signed 10 or more NCR's or ICR's -- had signed off 8                                         on them, dispositioned them, did you also check to see 9                                         if any individuals had signed 3, 4 or 5 NCR's or ICR's 10                                         in successive days, something like 3 or 4 days in a 11                                         reason with that number of ICR's or NCR's?
+                                       A (WITNESS MENDEZ)      Yes, I did check for patterns to see 13                                         if -- if there was any one individual or individuals who 14                                         signed off a great many NCR's or ICR's.
+                                                     JUDGE GROSSMAN:        Why don't we take a 16                                         10-minute recess.
+                                                          (WHEREUPON, a recess was had, after which 18                                                           the hearing was resumed as follows:)
+                                                     J UDG E GROSSMAN:      Mr. Guild, your Cross 20                                         E xamina tion.
+                                                     MR. GUILD:      Judge, before we begin the Cross 22                                         Examination, I'd like to ask the Board to take a moment 23                                          to address some matters with respect to the recent 24                                          information that Staff has only now disclosed regarding 25                                         what appears to be Allegation RIII-86-A-0096.
+(}}
+S_onn_taa_ReRort_ing Se rvice, Ltd.
+Geneva, Illinois       60134 (312)   232-0262
+                                                                                                                    )
+i l
+l
+O 1                 It's the stack of information with a transmittal 2            letter of August 11, 1986, distributed to counsel over 3            the morning recess.
+                 I have not had an opportunity to examine this 5            material in any detail, only the most cursory review, 6            but it appears that it is not only relevant, but highly 7            pertinent to the subject of the Staf f's case and, 8            indeed, these entire proceedings.
+                 It appears to be       pecific allegations of . production 10            pressure again; morale problems again; harassment again; 11            specific workmanship identified or at least areas of g- 12            work identified.
+V) 13                 I've been handed this document today.               I'm being 14            asked to examine the two NRC Inspectors who are offered 15            by the Staff presenting the opinion that there's no 16            evidence of adverse work effects from harassment, 17            intimidation, production pressure.
+                 Simply a cursory review of this document suggests 19            to me that they themselves are admissible and relevant 20            to the subject of these witness' testimony or, indeed, 21            at the very least, that they are reasonably calculated 22-           to lead to the identification of admissible evidence.
+                 Since, of course, the documents are subject to 24            protective order, I'm not going to discuss names, but I
+() 25            would suggest that the alleger identification sheet, Sonntag Regorting Service, Ltd.
+Geneva, illTnois       661~34 (312) 232-0262
+4
+         which is attached, indicates an individual whose name I 2         had never heard-of before, not only not a witness yet in 3         this proceeding, but not someone whose name has ever i
+         come to my attention personally.
+                  I'm somewhat at a loss to know what exactly to say, 6         except that I don' t want to be understood as waiving any 7         rights that that party has by proceeding at this time 8         with the examination of these witnesses, and suggest, 9         frankly, that since these are the only witnesses who are-10         offered by . the Staff on the subject of the Staff's 11         conclusions, at least as to the general questions of 12         harassment and intimidation in this case, I see'the 13         distinct possibility that there may be further 14         examination. required of these witnesses at a time when I 15         have had some opportunity to prepare from the 16         newly-distributed information.
+                  I'm disturbed that the Staff has not provided this
+:        18         information earlier.
+                  I can't conceive of a justification for not having 20         at least identified the existence of such information, 21         indeed, even if the Staff claimed some privilege for not 22         actually reproducing and disclosing the documents 23         earlier.
+                                   JUDGE GROSSMAN:                 Especially, wouldn't you
+()   25         say, Mr. Guild, referring to the allegation management SonntagJepo_rting Service, Ltd.
+Geneva, Illinois 60134 (312)  232-0262
+1             system sheet in here, which one of my fellow Board 2             members points out to me indicates that, as of June 5th, 3             it had already been determined that there ought to be a 4             Board notification, where we're over two months beyond 5             that point and we just get that notification?
+                  If that slows the hearing up, well, that's 7             unfortunate, but certainly we're not going to allow an 8             untimely notification to slip through the cracks that 9             way.
+                   If it should be heard, it will be heard.
+I           11                   Okay. Mr. Guild, would you now proceed with your 12              Cross Examination.
+                         MR. GUILD:               Yes.
+                                           CROSS EXAMINATION 15                                             BY MR. GUILD:
+  0           Gentlemen, let me ask you first if you would turn to 17              Intervenors' Exhibit 42.               That's the March 29,      '85, 18              memos that were prepared by the site -- Braidwood site 19              Residents, Mr. McGregor and Mr. Schulz, on the subject 20              of the Comstock Inspector allegations.
+         .21                     If you would, please, look at the last page of the 22              March 29th memo that is McGregor and Schulz to Warnick 23               and Weil. It has a paragraph that appears above the 24              names McGregor and Schulz.                The paragraph begins, "The            i 25               Resident Inspector called the Region for a conference
+(])
+Sonntag Reporting Service, Ltd.
+Geneva, IllTnois 60134 (312)             232-0262
+           .                 _        _                                                  _ - - _               _. ~            _.    ._.. _ . _ _. _ ._-       .. _- _     __.m.
+   l j
+(1)                                                                                                                                                                             1
+                         -1                                                  call"; is that right?
+'                                                                   Do you have that?
+                              A                    (WITNESS NEISLER)                                     Yes.
+                             Q                   You have to speak up so that the Reporter can get you.
+                                                                     Do both you gentlemen have that before you?
+                             A                    (WITNESS NEISLER)                                     Yes.
+                              A                    (WITNESS MENDEZ)                                    It's here.
+: i.                         8                             Q                   All right, sir.
+                                                                     Now, I take it this portion of the document was
+,                      10                                                    available to you at the point where you -- first you, I
+                                                    Mr. Mendez, were assigned to investigate the allegations 12                                                    that -- to inspect to the allegations that you've i                      13                                                     testified to this morning, this afternoon; correct?
+                    '14                                  A                    (WITNESS MENDEZ)                                    Yes.
+]
+ ;                  -15                                  Q                   All right, sir.
+T
+                                                                       Mr. Neisler, did this portion of the document.come
+;                      17                                                    to your attention when you were asked to take up
+(                      18                                                     responsibility for this inspection?
+i 19                                A                    (WITNESS NEISLER)                                     I saw this document.          Mr. Mendez had 20                                                    it at Braidwood when I came to Braidwood.
+                                Q                   All right sir.
+                                                                        Before you began your inspections?
+                                A                    (WITNESS NEISLER)                                     About the same time.
+j
+.                      24                                Q                   All right, sir.
+l i
+()                  25                                                                        Now, Mr. Mendez, from your previous answers, I take l
+;                                                                                                                                                                                  i Sonntag_ Reporting _Stryice,_htd.
+Geneva, Illinois                        60134 (312)   232-0262
+(~h.
+   ,v 1                           it that you conducted this inspection activity solo for
+: 2.                          some months until Mr. Neisler joined you in August; is' 3                           that right?
+                         A (WITNESS MENDEZ)          Yes, I did.
+                         0 All right, sir.
+                                And you did have this March 29th memo when you 7                           first went to the site on April 30, 1985; correct?
+                         A (WITNESS MENDEZ)          Yes, I did.
+                         Q Now, it then was certainly known to you what the written 10                           recommendations had been of the site Residents, Mr.
+                           McGregor and Mr. Schulz, who had heard the complaints 12                           from the 24 Comstock Inspectors --
+                         A (WITNESS MENDEZ)          Yes.
+.         14                         0 -- embodied in the paragraph that I have shown you?
+                         A (WITNESS MENDEZ)          Yes.
+                         Q And you were aware, of course, that McGregor and Schulz i
+                           had both been assigned as Residents at Braidwood for 18                           some time at the point when they heard these complaints?
+                           Did you know that?
+                         A (WITNESS MENDEZ)          I know McGregor had been there awhile.
+                           Schulz was there about a year.
+                         Q About a year at the time?
+                         A (WITNESS MENDEZ)          Uh-huh.
+                         Q Both Inspectors had had an opportunity, wouldn't you 25                           aurmise, to have dealings with the L. K. Comstock
+(])
+Sonntag Reporting Service, Ltd.                                        '
+Geneva, IITFnols        60134 (312)   232-0262
+1                                   Company, the electrical contractor?
+                         A         (WITNESS MENDEZ)        I think so.
+           .3                                         They are generally involved with all contractors.
+{
+                         Q         And they would have had contact over that time with the 5                                   Comstock quality control program and the Inspectors who l
+                                   worked on that program?
+                         A         (WITNESS MENDEZ)        Yes.
+                         Q         And that they would be in a position, because of that 4
+                                   contact, better than you, to have evaluated the 10                                     appropriate course of action to take when they heard 11                                     these 24 Inspectors' complaints in March of '85?
+                           A         (WITNESS MENDEZ)        I think at this.particular' time, yes.
+{
+I 13                          Q          Did you understand that Mr. McGregor and Mr. Schulz.
+                                     recommended that there be more or less im.aediate action 15                                     taken by the NRC.with respect to these complaints?
+                           A         (WITNESS MENDEZ)- On March 29th, I think that was my-17                                     understanding.
+l         18                          Q          All right, sir.
+                                          Did you understand that they recommended -- they, 20                                      McGregor and Schulz, recommended that an investigation 4
+                                     be undertaken of these complaints, and I use the word i
+                                     " investigation" to distinguish the response from simply 23                                     an inspection, but someone actually go out who had 24                                     investigative training and tools available to conduct an
+()    25                                     investigation of the complaints?
+Soont a g_ Rep o rAi ng_S e_ry_i c e ,_L t d .
+Geneva, Illinois         60134 (312)     232-0262
+.                                                                                                                                                        10590
+      /~S l  V 1                                           Did you understand that was their recommendation?
+                              A     (WITNESS MENDEZ)' ' I can' t recall --                                                       .
+                              Q     All-right.
+;-                               4                              A     (WITNESS MENDEZ)                -- that particular part.
+                              Q     Do you recall them recommending that someone take sworn-1 6                                    written statements -from the complaining QC Inspectors,-
+                                    for example?
+                                 8                             A     (WITNESS MENDEZ)                I think I do recall them talking about 9                                    tha t,
+,l                                                                                                                                                                 +
+                                Q     All right,. sir.
+                                              Taking sworn written statements is consistent with
+   - -                        12                                      an investigative approach, is it not?
+                                A     (WITNESS MENDEZ)                Ye s . --
+                                Q     And the NRC typically would take sworn written i
+                                      statements if they were conducting an investigation-as i                                                                                                                                                                  i 16                                      opposed to merely an inspection?
+!                             17                                A     (WITNESS MENDEZ)                Yes.
+                                Q     All right.
+                                              By " inspection," do I understand correctly that 20                                       would mean more or less a technical review conducted by i
+                                       engineers such as yourselves, Mr. Neisler and Mr.
+i                            22                                       Mendez, as contrasted with an investigation conducted by 23                                      someone with law enforcement background?
+i j                            24                                 A     (WITNESS MENDEZ)                Yes.
+(}                      25                                Q     And you, of course, did not take sworn written
+?                                                                             Sonntag Reporting- Service, Ltd.
+I                                                                                   Geneva, f11Tnois            6~013 4
+,                                                                                       (312)            232-0262
+1     statements from the QC Inspectors that you interviewed, 2     did you?
+   A (WITNESS MENDEZ)          That's correct, we don't perform 4     investigations.
+   Q And, Mr. Neisler, you didn' t either, did you?
+   A (WITNESS NEISLER)           No.
+   Q Now, you don't perform investigations?           That'c not 8     within the scope of your duties, is it, Mr. Mendez ?
+   A (WITNESS MENDEZ)          That's correct.
+   Q And Mr. Neisler?
+   A (WITNESS NEISLER)            No.
+   Q All right, sir.
+          You both are trained as technical people; you, Mr.
+     Mendez, in the electrical area?
+   A (WITNESS MENDEZ)          Yes.
+   Q And Mr. Neisler, what area is your specialty?
+   A General reactor inspection.
+   0 But of a technical character, Mr. Neisler?
+   A (WITNESS NEISLER)            Normally, yes.
+   Q Normally yes?
+   A (WITNESS NEISLER)           Yes.
+   Q All right, sir.
+          Both of you have conducted some allegations 24     inspections, though, haven't you?
+   A (WITNESS MENDEZ)          Yes.
+(]).
+Sonn_ tag _Repotting_Servicoltd.                                   ,
+Geneva, Illinois 60134 (312)    232-0262
+I 10592        '
+   Q          By " allegations," can you tell us what an allegation is 2              as you use it -- as the NRC uses it as a term of art?
+                    Mr. Mendez, how about you?
+   A          (WITNESS MENDEZ)          I think it embodies any safety-related 5              concern that a QC Inspector has or anything that could 6              keep them from performing his duties fully.
+   Q          I'm sorry.         I didn't mean to interrupt.
+                    An allegation could come f rom any source, could it 9              not?
+   A          (WITNESS MENDEZ)          Yes.
+   Q          Not necessarily limited to a QC Inspector?
+fw    12   A          (WITNESS MENDEZ)          That's right.
+     \
+   Q          But is it information that comes to the attention of the 14              Agency on which you act that relates to safety?
+                    Is that the shorthand definition of what an 16              allegation is?
+   A          (WITNESS MENDEZ)          Most of the allegations we follow up 18              on. That is, almost any concern, whether it relates to 19              safety or not.
+                    It's for us to decide whether it has any safety
+:         21              significance later on.
+          -22   Q          Fine.
+                    Why don't you just tell me what you understand an 24              allegation to be as the term is used in NRC practice?
+i
+(}    25   A          (WITNESS MENDEZ)          Just any concern that relates to the Sonntag Regortijn Service, Ltd.
+Geneva, Yllinois 6~013~4 (312)    232-0262
+O
+        safety of a plant.
+Q      Mr. Neisler, do you concur with that?
+A      (WITNESS NEISLER)               This is -- basically it's a concern 4        that an individual not within the NRC would have that                                    i 5        could impact the safety of the power plant.
+Q      All right, sir.
+               And do I understand correctly that might -- that
+ ;              8        would distinguish it from Inspector ---NRC Inspector-initiated matters that you conduct, either 9
+(
+           because you are instructed to look at a particular area                                  ,
+l 11           or because, based on your training and experience, you (s    12           determine to initiate an inspection in a .particular 13           area?                                                                                    ,
+    A      (WITNESS MENDEZ)              Yes.
+    Q      All right, sir.
+                  And these, indeed, were allegations that you were 17           getting, because they were brought to the Agency from
+!           18           another source; in this case, the Comstock Inspectors?
+J
+;           19    A      (WITNESS MENDEZ)              Yes.
+i l           20    Q      Now, both of you state in your testimony that you have j           21           conducted inspections of allegations in the past.                                        >
+    A      (WITNESS MENDEZ)              Yes.
+    A      (MITNESS NEISLER)               Correct.
+    Q      All right, sir.
+()    25                  Both of you, in fact, have inspected allegations i
+Somntag_Renottlng_Selyicm _ Lid, i                                  Geneva, Illinois           60134 (312)           232-0262
+LJ l         against L..K. Comstock Company in the past, haven't you?
+A       (WITNESS NEISLER)           I have.
+Q       Mr. Mendez, haven' t you?
+ ,        4 A       (WITNESS MENDEZ)          Yes.
+0       In fact, both of you conducted an inspection of l        6         allegations against the L. K. Comstock Company at the 7         Perry site --
+A       (WITNESS MENDEZ)          Yes.
+0       -- is that right?
+               Involving allegations by Comstock Quality Control 11         Inspectors?
+f-  12 A       (WITNESS NEISLER)           Yes, I have.
+13 Q       Mr. Mendez ?
+A       (WITNESS MENDEZ)          Yes.
+Q       Do you recall any allegations involving any of the same 16         persons who ultimately turned up to be supervisors at 17         the Braidwood site, allegations at Perry?
+A       (WITNESS MENDEZ)          Yes.
+A       (WITNESS NEISLER)           Yes.
+0       And can you identify which supervisors you wound up 21         seeing again at Braidwood -- or hearing from again at 22         Braidwood?
+A       (WITNESS MENDEZ)          Larry Seese.
+0       What was the nature of the allegations against Mr. Seese 25         that you inspected to at Perry?
+(]}
+Sonntag Reporting Service, Ltd.
+Geneva, IT1Tn61s 60134 (312) 232-0262
+     )
+   A  (WITNESS MENDEZ)            It was about Larry Seese's wadding up 2      some documents, throwing them away.
+   0  Was it a quality concern on the part of the Inspector?
+   A  (WITNESS MENDEZ)            The Inspector felt this was a quality 5      document.
+            We later determined it wasn't.           It was not a 7      quality control document.
+   Q  Did that reflect in the Inspector's concern that Mr.
+_     Seese was evidencing a lack of concern for quality by 10      that action?
+   A  (WITNESS MENDEZ)            I don't have the report, but I think 12      that was his concern, yes.
+   Q  Mr. Neisler, do .you recall the incident?
+   A  (WITNESS NEISLER)             I recall the incident.           I don't 15      recall -- I recall -- and I recall it's -- the 16      allegation was that Seese wadded up a -- wadded up a 17      document and -- in this case, I believe a work request, 18      and threw it on the floor, but I don't recall whether it 19      was a QC Inspector who made the allegation or if he was 20      an electrician.
+   0  All right, sir.
+            Now, I take it in the Perry example, as I see the 23      Inspection Report -- and it's Inspection Report 8421, 24      8419, May 9, 1985 -- you found no evidence of any 25      quality problems there, did you?            Is that correct, no
+(])
+i i
+Sonntag_RepottingJterri_ce,ltch Geneva, Illinois 60134 (312)   232-0262
+1             evidence of any quality problems there?
+       A     (WITNESS NEISLER)        I don' t remember if there were any 3             citations with that report or not.
+       Q     Do you recall, Mr. Mendez ?
+       A     (WITNESS MENDEZ)     No, I don't, either.
+       Q     I submit the reports reflect that there were no items of 7             non-compliance identified in that allegations 8             inspection.
+                        JUDGE GROSSMAN:          Well, you can show them the 10             document and ask them if that's the case.
+                        MR. GUILD:         That would be fine.
+       BY MR. GUILD:
+       0     I've got a transmittal of May 15, '85, and I'm showing 14             you the cover page.
+                              (Indicating.)
+                   And does that reflect that there were no items of 17             non-compliance identified?
+       A     (WITNESS MENDEZ)    Tha t's correct.
+                              (Indicating.)
+       Q     Now, of course, before you published your Inspection 21             Report in this case, you were aware of -- you already 22             conducted your Perry activities and had published the 23             report in that case, too?
+       A     (WITNESS MENDEZ)    Yes.
+(} 25       Q     Did you make anybody within Commonwealth Edison Company Sonntag Rep ~orting Service, ~ Ltd.
+Geneva,~Il1Tnols         60134 (312)      232-0262
+I 10597 1
+U
+           or Comstock management aware of the fact that you had 2           conducted an allegations inspection at Perry of Comstock 3           QC matters, Mr. Mendez, Mr. Neisler?
+A         (WITNESS MENDEZ)           No, I didn't.
+Q         Did anybody with Edison or Comstock ever ask you about 6           your Perry inspection?
+A         (WITNESS MENDEZ)           No.
+A         (WITNESS NEISLER)            No.
+Q         All right, sir.
+                 Back to Intervenors' Exhibit 42, the March 29th 11           memo signed by McGregor and Schulz.
+f-- 12                 The language I'm looking at reads, "It appears, at 13           first glance, with the information we have received, a 14           shutdown or some other aggressive action of the 15           electrical work may be necessary to establish the 16           quality of past work and the quality of the ongoing 17           work. The lack of action by CECO QA in this area needs 18           to be addressed along with CECO management's slowness or 19           inability to take corrective action.                 The Resident 20           Inspectors appraised CECO management last fall of the 21           problems in L. K. Comstock Quality Control Department."
+                 All right.         Now, again, Mr. Mendez, you were aware 23           of those statements by the site Residents and those 24           recommendations at the time you undertook your
+(}  25           inspection activities; correct?
+So n n t a g_R e po rt i ng_Sa rri_qe ,_Lt d .
+Geneva, Illinois            60134 (312)   232-0262
+7's .
+b 1 A (WITNESS MENDEZ)      Yes.
+Q And, Mr. Neisler, you learned of them later when you 3   undertook your inspection?
+A (WITNESS NEISLER)       That's correct.
+Q Okay.
+         Now, let'me start with the last point first.        "The 7   Residents note that they appraised Commonwealth Edison 8   Company management the previous fall" -- that would have 9   been the f all of '84 -      "of problems with Comstock's 10   Quality Control Department. "
+         That fact is stated in this memo, Mr. Mendez.
+         Did you ask Mr. McGregor and Mr. Schulz to provide i
+()-      13   you further information on that point?                             >
+A (WITNESS MENDEZ)      I'd been to the Resident -- I think I 15   ought to explain.
+         I'd been to Braidwood several times --
+Q All right.
+A (WITNESS MENDEZ)      -- and we, as Electrical Inspectors, 19   knew of the problems of L. K. Comstock, we knew their j            20   numerous corrective action programs, so I didn't think
+.            21   it was necessary to ask him about the problems in the 22   previous fall --
+Q All right.
+A (WITNESS MENDEZ) -- of '84.
+{}       25 0 What problems -- both of you gentlemen have been present Sonntag Reporting Service, Ltd.
+Gerreva IlTinois-60134 (312)    232-0262
+l 10599 3-Nw/
+   during these ' proceedings almost as much as I have.        i 2        You've heard a good bit of the testimony, have you 3   not, Mr. Mendez ?
+A (WITNESS MENDEZ)    Some, yes.
+A (WITNESS NEISLER)      Yes.
+Q It may be a.little hard to sort out what you know now 7   from what you knew then, but let- me ask you:
+        At the time you undertook this inspection of May --
+)
+   rather, April of 1985, were you aware then that there 10   had been a previous backlog in inspection activities at 11   Comstock?
+A (WITNESS MENDEZ)    Yes.
+()  13 Q And were you aware of the extent of that backlog and 14   essentially when it had occurred or' peaked?
+A (WITNESS MENDEZ)    Well, the NRC raised our concern-in 16   the fall of '83 to Comstock, to Edison.
+Q So you were aware of it in '83?
+A (WITNESS MENDEZ)    Yes.
+Q And, Mr. Neisler, were you previously aware of backlog
+(       20   problems when you started your inspection?
+A (WITNESS NEISLER)      No.
+Q Mr. Mendez, were you aware of changes in management at 23   Comstock that had taken place in the past when you 24   undertook this inspection?
+{}  25 A (WITNESS MENDEZ)    No, I wasn't.
+Sonntag Reporting Service, Ltd.
+Geneva, II1Tnois 60TT4 (312)    232-0262
+1    Q    You weren' t aware that Mr. Corcoran had replaced the 2         preceding QC manager, and Mr. DeWald, in turn, replaced 3         Mr. Corcoran?
+    A    (WITNESS MENDEZ)          No, I wasn't.
+                                                      ,              *'t 5              What I did know is that ,a'f te'r November, 1983, 6         Comstock did increase their staff, QC, Quality Control 7         Inspectors                                                                         ,
+,             8    Q    You were aware they 'added staff in the QC Department?
+    A    (WITNESS MENDF;Z).        Yes,  I, was aware of that.
+    0    Were you aware of deadlines imposed by Commonwealth',
+         Edison Company on Comstock 'to' complete the backlog of
+      -      12         inspections, for one, Mr. Mendez, at the time you
+     '~#
+         started your inspection?
+                          MR. MILLER:         I'm going to obj ect to the 15         question.                                        ,,      _
+              I don't believe that there''s any testimony that 17         establishes deadlines, r
+                          JUDG E GROSSMAN:           Change the question to any 19         deadline imposed by Edison.
+                          MR. GUILD:     I will be happy to do that, Mr.
+         Chairman.
+              I believe that if the Applicant's attorneys are 23         allowed to pose hypotheticals without restriction as to 24         the facts supposed, I should be able to do likewise.
+{}      25              My objections have been overruled at every turn Sonntag Reporting Service, Ltd.
+Ueneva, 1111MUl~s- 60l?4 (312)   232-0262
+         - -    ..   --         -_._=- __                . - -       -   --.   - - - _ _ _ - . . _ .         -.
+-I      when challenged, and I don't know why.
+                 JUDG E GROSSMAN: -    The question is rephrased.
+           Are you aware of any deadline imposed by -- well, 4      were you aware at that time of any deadline imposed by 5      Edison on Comstock's backlog?
+A    (WITNESS MENDEZ)     On March 29th, I wasn't.
+                 JUDGE GROSSMAN:       Then or before?
+A    (WITNESS MENDEZ)      Not by Edison, no.
+BY MR. GUILD:
+i 10 Q    By anyone, Mr. Mendez ?
+A    (WITNESS MENDEZ)     I think we had some concerns, the NRC 12      had concerns, but as far as deadlines go, we had-
+ '   O      13      concerns about Comstock and their ability to keep up 14      with the -- the amount of work at the time; but I don' t 15      know if there was any evidence of any deadlines, 16 0    Well, you were aware, then, of concerns that Comstock QC 17      could not keep up with the pace of current. installation 18      because of the existence of a backlog?
+A    (WITNESS MENDEZ)     I knew tha t in ' 83 --
+Q    Yes.
+A    (WITNESS MENDEZ)     -- November,   '83.
+Q    All right.
+           And those concerns were the subject of inspection 24      report findings, were they not?
+{}     25 A    (WITNESS MENDEZ)     Yes.
+i Sonntag Reporting Service, Ltd.
+Geneva, Illinois 601T4 (312)     232-0262
+                                                                           . 7
+    ,g ,17                             .
+                                         "k.          .
+L                    1 10602 A N \.
+:# nw         .
+                        "1 <                       Q                  You don't know whethen Edison :was involved in 2                                         establishing any deadlines, .though', to which Comstock QC I
+                                         was required to wo'rk?
+                         ~4                        A                  (WITNEr,S .MENDEZ)       That's correct.
+t 5                      Q                  All right, sir.                   ,
+jy -                   6                                                 Now, Schulz and McGregor, in the March 29th memo, 7                                         say, "The lack of action by QA/QC in this area needs to 8                                        be addressed, along with CECO management's slowness or 9                                         inability to take corrective. action."
+                                                       Did you know what McGregor and Schulz' were 11                                               r$ ferring to there in March of '83 -- or March or . April L12                                               of '83 when you started your inspection?
+O v        13                            A                  (WITNESS MENDEZ)         We talked -- when I met with the 14                    '\                         Residents on April 30th, we talked and we -- we s' L "15                                               discussed -- I suppose we discussed.it.                         We would have
+                 ' %.16                                               had to.
+                            Q;                 Well, you' re surmising now that you must have. discussed'
+                'f n                     18                                              that; is that what you cret saying?
+i                    19                            A                  (WITNESS MENDEZ)         Only ~ to get the feeling of the --
+                                               the -- the inspection -- I mean, the allegations                                              <
+                                               themselves; only to get some kind of -- kind of feeling 1
+                                               for the allegations.
+                            Q                  All right, sir.
+                                                  ,    Well, my question is a l'ittle more specific, and 25                                               tha t is:
+Sonntag Reporting Service, Ltd.
+I                                                                                 Geneva, Illinois 60134 (312)     232-0262
+     ,- ,            ~ , - - , - - -                    . , - , - , -
+                                                                                         ,~-5,,-,,-n      - - - .     ---
+                                                                                                                          -----r.,----,,a-    - , , - -.,,v-w --, ,
+p
+  ' \v/ -
+              At the time you began your inspection, did you 2    understand what McGregor and Schulz were referring to in 3    that sentence I just read, beginning, "The lack of 4    action by CECO QA," et cetera?
+  A (WITNESS MENDEZ)            You know, it was a long time ago.                      I 6    believe it was just the -- no, I take it back.                          I don't
+.            7     think I knew at the time.
+Q All right, sir.
+               I take it it follows you didn't ask McGregor and 10       Schulz to inform you of what ' they had reference to, 11       then, did you?
+l    -    12     A (WITNESS MENDEZ)            I don' t remember one way or the other.
+    '~'
+     0 Well, as you sit here today, can you now tell us what 14       they were referring to?
+     A (WITNESS MENDEZ)            No, I can't.
+     Q Mr. Neisler -- I'm sorry, Mr..Mendez.                          I didn't mean to 17       cut you off, 18     A (WITNESS MENDEZ)            No, I can't.
+     Q Mr. Neisler, when you undertook this inspection 20       activity, did you understand what McGregor and Schulz 21       were referring to there, the lack of action by CECO QA, 22       et cetera?
+     A (WITNESS NEISLER)            No, I did not.
+     Q And did you undertake to determine what they were
+{}    25       referring to by asking McGregor or Schulz?
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312)      232-0262
+e 10604
+  .I     4
+   \/
+       A    (WITNESS NEISLER)            McGregor and Schulz were off site 2            for training at the Morris simulator, or whatever, or 3           .some place at the time I was there.
+       Q    And that interferred with your ability to find out from 5            them what they referred to here?
+       A   -(WITNESS NEISLER)            Yes.
+      Q     All right, sir.
+                  Well, founded upon those facts I have just referred 9            you to, Schulz and McGregor make the recommendation that 10            shutdown or some other aggressive action for the 11            electrical work may be necessary to establish the 12            quality of past work and the quality of the ongoing 13            work.
+                  Did you know what the basis was for Schulz' and 15            McGregor's recommendation to that ef fect, Mr. Mendez, 16            when you began this inspection?
+       A    (WITNESS MENDEZ)           No, I didn't.
+      Q     Did you undertake to find out what McGregor and Schulz 19            had in mind, what their basis was for that 20            recommendation?
+       A    (WITNESS MENDEZ)           Just a general feeling about issuing a 22            stop work order.           I don't think they really elaborated.
+            They felt, because the 26 Inspectors had gone to the 24            Residents' office, that in itself was evidence of --
+{}      25            that in itself should have been enough to issue a stop Sonntag Reporting Service, Ltd.
+l uenHVB, Illi6BTR- 60174 (312)          232-0262
+I
+e i[3).
+                     work order.
+                 0   :I see.
+                                    Well, I take it from that that you surmised that 4                     Schulz and McGregor perceived the event, th e 24 5                     Inspectors coming over as a group, as a significant
+ +
+                     event?
+                 A    (WITNESS MENDEZ)                          Yes.
+                 Q   All right.
+                                    And did you, when you undertook your inspection?
+                 A    (WITNESS MENDEZ)                         When I started, yes.
+                 Q   Had you ever heard of as many Quality Control Inspectors
+      -      12                     at any site in the country ever going to the NRC as a 13                     group with harassment, intimidation, production pressure 14                     complaints?
+                 A    (WITNESS MENDEZ)                          I have heard of many instances where 16                     QC Inspectors allege harassment and intimidation.
+                 0   You had heard of other instances?
+                 A    (WITNESS MENDEZ)                          Yes.
+                 Q   All right.
+J 20                                    Well, in fact, at Perry, there were two Inspectors l
+                     that initiated the allegations, were there not?
+                 A    (WITNESS MENDEZ)                          I don't recall.
+                 Q   One or two.
+                                    There weren' t 24, were there?
+{}        25                 A    (WITNESS MENDEZ)                         No, there were not 24.
+Sonntag Reporting Service, Ltd.
+Geneva, IITrnois 60131 (312)                232-0262
+                                                                                    -10606
+  /
+L /.
+Q Mr. Neisler?
+A (WITNESS NEISLER)      I am not sure how many.                  The highest 3   one that was identified to me was individual J, so there 4   could have been more or less.
+                     (Indicating.)
+Q Well, it all started because one Inspector complained to 7   the newspaper; right?
+          Do you remember that, the Cleveland Plain Dealer?
+A (WITNESS NEISLER)      There was more than one.
+Q Pardon me?
+A (WITNESS NEISLER)     There was more than one.
+0 Well, there was more than one that complained to the 73 V     13   newspaper; is that what you are saying?
+A (WITNESS NEISLER)      Yes.
+i                                                  .
+0 Were there 24?
+A (WITNESS NEISLER)      I really don't know how many.
+0 Well, had you ever -- were either of you gentlemen ever 18   aware of 24 Inspectors at any site -- that was my 19   original question -     going to the NRC?
+A (WITNESS NEISLER)      No.
+A (WITNESS MENDEZ)      No.
+Q About anything?
+                JUDGE GROSSMAN:            Mr. Guild, please don't 24   badger the witnesses.      Just ask the questions that are necessary.
+p/
+   \_
+Sonntag Reporting Service, Ltd.
+GenevaTTM inois-60134 (312)  232-0262
+: k. jO 1     BY'MR. GUILD:
+     Q                  About anything?
+     A                   (WITNESS NEISLER)      No.
+     Q                  Mr. Mendez ?
+     A                   (WITNESS MENDEZ)     No, I've never heard of 24 Inspectors 6                        going to a Resident's office.
+     0                  All right.-
+                                Did you, Mr. Mendez, yourself take any action with 9                        respect to -- with your' management to recommend that 10                        they respond a little more promptly than they ultimately 11                        did in sending you out there?
+          -        12     A                   (WITNESS MENDEZ)     I did happen to ask my section chief 13                        why we weren't acting on those allegations more 14                        promptly.
+     Q                  Mr. Williams?
+     A                   (WITNESS MENDEZ)     Yes.
+     0                  And what response did you get from Mr. Williams?
+     A                   (WITNESS MENDEZ)     He mentioned that the decision had 19                        already been made.      We get -- he said we of ten don't 20                        turn enough allegations over to the licensee, and that 21                        in this particular case, it warranted that action.
+                                     JUDGE COLE:            I didn't hear that answer.
+ ,                 23                                Would you read it back, please.
+l                  24                                          (The answer was thereupon read by the i
+(}        25                                           Repor te r . )
+Sonntag Reporting Service, Ltd.
+Geneva, Illlnois                60134 (312)   232-0262
+_ .-iO v
+               BY MR. GUILD:
+               Q    Did_Mr. Williams state why, in this particular case, 3                   such an action was warranted?
+               A    (WITNESS MENDEZ)                  I think he mentioned that his -- it 5                   was, it seemed to be, more of a labor-management
+;         6                   dispute; that we would give Edison the benefit of the 7                    doubt and let them review those allegations.
+               Q    A labor-management dispute between the Inspectors who 9                    complained and their management; is that your -
+                    understanding?
+               A    (WITNESS MENDEZ)                  Yes.
+               Q    That was what Mr. Williams had to say?
+O   13               A    (WITNESS MENDEZ)                  Yes.
+               Q   All right.
+                         And for that reason, you would give Edison the 16                    benefit of the doubt and let them do a self-inspection 17                    first, which you would then follow up?
+               A    (WITNESS MENDEZ)                  Yes.
+               Q    Did Mr. Williams or any other management at the NRC 20                    state to you that there was any NRC Staff resource 21                    consideration involved?                   By I that mean, none of the 22                    Inspectors were available to take up such a large number 23                    of concerns?
+               A    (WITNESS MENDEZ)                  No.
+{}  25               Q    Mr. Neisler, did you ever hear of such a concern on the i                                   Sonntag Reporting Service, Ltd.
+u6h wa, Tll1woi r 60174 (312)   232-0262
+O
+V 1          part of the Agency?
+        A (WITNESS NEISLER)                            Not in this instance.
+        Q Okay.
+        0 Gentlemen, I've placed before you a November 21, 1985, 5          letter. It's from me to Mr. Felton, and it's a Freedom 6          of Information Act request.
+i 7                I recall showing -- I recall having shown you this
+:            8          document at your depositions.-
+                It seeks information related to your inspection 10          report and to the activities which are the subject of 11          your testimony.
+                Do you recall me showing you this document at your
+      .O    13          deposition?
+        A (WITNESS NEISLER)                            Yes.
+        0 Mr. Mendez ?
+        A (WITNESS MENDEZ)                          I don't recall.
+        Q All right.
+                Gentlemen, do you recall ever having seen -- Mr.
+          Mendez, do you recall ever having seen the document 20          before at any time?
+        A (WITNESS MENDEZ)                          No, I don't think I have.
+        0 Okay.
+                Mr. Neisler, aside from the deposition, do you 24          recall ever having seen the document?
+{}    25        A (WITNESS NEISLER)                            I don't think I saw the particular Sonntag Regorting Service, Ltd.
+Geneva, Illinois 6013f (312)                232-0262
+                                                                                         =10610 I            document.
+  Q         All right.
+                 Let me ask you directly.
+                 -Did the Agency, the NRC, transmit a copy of this 5            Fredom of-Information Act request to you?
+                  It bears both of-your gentlemen's names in the
+ !               7            first paragraph; seeking documents, et cetera, in the 8            possession or control of R. Mendez and J. H. Neisler, 9            among others.
+-                Did your management or anyone at the Agency 11            transmit a copy of this request- to you, Mr. Mendez ?
+  A        -(WITNESS MENDEZ)        No, I didn' t see it, although I did --
+O 13           my management did make'me aware of this Freedom'of 14            Information request.
+  Q        All right.
+                 Mr. Neisler, did you ever get a copy of this 17            request transmitted to you?
+l.
+  A         (WITNESS NEISLER)         No. I said I hadn't seen it.
+I 19                         MR. GUILD:       Mr. Chairman, I'd ask this be 20            identified as Intervenors' Exhibit 89, please.
+,               21                                (The document was thereupon marked 22                                 Intervenors' Exhibit No. 89 for 23                                 identification as of August 13, 1986.)
+  BY MR. GUILD:
+{}           25  Q        Mr. Mendez, you just stated a moment ago that you had Sonntag Reporting Service, Ltd.
+GBneva, 111ini61s 60134 (312)    232-0262
+O
+    been -- were made aware of the fact that such a request 2    had been made; correct?
+A  (WITNESS MENDEZ)     Yes.
+0 .All right.
+         And who made you aware of that fact?
+A  (WITNESS MENDEZ)     I believe it was my section chief, 7    Cordell Williams.
+Q  All right.
+         What, in substance, did Mr. Williams say to you?
+A  (WITNESS MENDEZ)     Try to keep everything _I had relating 11    to the inspection I performed at Braidwood relating to 12    the allegations.
+O 13 Q  All right.
+         And did you do as he requested you to do?
+A  (WITNESS MENDEZ)     Well, I did tell him that all I had 16    was a few procedures, Comstock procedures.
+         We always keep the procedures laying around, and 18    that's all I had, and he said no, that's not what he was 19    looking for.
+          I really couldn't help you with anything else.
+Q  All right.
+         At the time you were informed of his request, did 23    you have any notes or memoranda reflecting the                )
+    interviews you had conducted with the Comstock QC 25    Inspectors?
+Sonntag Rep ~orting Service, Ltd.                       ,
+Geneva, Il~lTnois    (0T34                          l (312)    232-0262                              l
+7 (
+l                         A    (WITNESS MENDEZ)        No, I didn't.
+                         Q    How about any notes or memoranda of interviews with 3                              anyone with respect to this inspection?
+                         A    (WITNESS MENDEZ)        No. It's -- the only thing I ever 5                              keep is procedures or drawings.         I don't keep anything 6                              else after the report is issued.
+                         Q    So the report was issued on November the 5th,1985 --
+                              I'm looking at NRC Staff Exhibit 17 -- and my letter is 9                              dated the 21st of November, as soon as I got. the 10                                inspection reports.
+                                     I take it by the date this request came to your 12                                attention, some time af ter November 21st, you had O    13                                already discarded your notes and memoranda; is that 14                                correct?
+                           A    (WITNESS MENDEZ)        Yes.
+;      16                           Q    Mr. Neisler, how about you?          Did you ever learn there i
+                                was a Freedom of Information Act request?
+                           A    (WITNESS NEISLER)         I learned there was,g 19                                     Mr. Williams came to me about the 12th of December 20                                or thereabouts or the end of November and asked did I 21                                have any' documents relating to the Braiddood allegations 22                                inspections.
+                           Q    All right.
+                                     And what did you tell him?
+{}   25                           A    (WITNESS NEISLER)         And I told him no.
+Sonntag Reporting Service, Ltd.
+GenevaDITIriNIs 60134 (312)       232-0262
+10613 n.
+~
+v l                           Q   And had you prepared any notes or memoranda of your 2                                interviews at the time you conducted them?
+                            A   (WITNESS NEISLER)       Notes, memoranda and draf t --
+                               principal drafts of inspection reports I throw away when 5                                I get the typed draft back.
+                           Q   And you did that in this case?
+                            A   (WITNESS NEISLER)       Right, when I review my first draf t, 8                               I throw them away.
+                           Q   And you did that in this case?
+                               A   (WITNESS NEISLER)       Yes.
+                                              MR. GUILD:       Mr. Chairman, I'd ask that 12                                   Intervenor Exhibit 89 be received in evidence.
+O                 13                                              JUDGE GROSSMAN:          Any objection?
+14                                              MR. BERRY:       I obj ect; relevance.
+                                              MR. MILLER:      I object on relevance grounds.
+                                              MR, GUILD:       Do you want to hear arguments, i                        17                                   Mr. Chairman?
+                                              JUDG E GROSSMAN:         Considering what's happened
+                       '19                                    with regard to Staff's production or non-production of
+.                        20                                   documents, I think we'll let it in without any argument
+                      . 21                                    on that, so we'll receive Intervenors' Exhibit 89.
+                                                     (The document was thereupon received into 23                                                      evidence as Intervenors' Exhibit No. 89.)
+                                              MR. BERRY:       I don' t know what that means.
+       /                 25                                              JUDGE GROSSMAN:          Pardon?
+i                                                                  Sonntag Reporting Service, Ltd.
+Geneva, IITinois         60TH (312)    232-0262 i
+     -   _,-........__.._,.-.,.,_,.____,.._.._....,.m_,_,                                .,_.m._   . , , . . , , . _ _ , , . . _ . . ~ _ _ _ _ , , - , ~ , . . - . _ _ , , _ _ _ _ _ _ _
+                ;
+L-.
+: 1.                                                           MR. BERRY:                        I'm not sure I understand what 2~                                               that means, considering Staff's production of documents.                                          j 3                                                        The objection stands.
+                                                        I'm not'sure what the Board is referring'to in this
+* 5                                                particular instance..
+                                                        As a matter of f act, 'it's my understanding that 7                                                there was a response to this POI request.
+                                                            JUDGE GROSSMAN:                        Okay. Well,~maybe we ought>                    ;
+                                               to have arguments on,that.
+                                                        I'll perhaps ---I'm not retracting the receipt'of                                          ,
+                                                 this document yet, but let's~have some arguments on 12                                                 that.                                                                                             ;
+O'        13                                                         Mr. Guild, . could you indicate the basis for your i
+                                               belief that it's relevant?                                                                         :,
+!-                15                                                             MR. GUILD:                       Yes, sir.                                            ,
+t-
+?.
+                                                         We believe that it may be questioned whether or not -
+                                                this party has exercised diligence in trying to obtain f.
+j                18                                                or protect from loss or destruction evidence that's i                                                                                                                                                                      -
+[                19                                                 relevance to this case, and we timely filed a Freedom of 20-                                                Information Act request which, in our view, legally 4                                                                                                                                                                      .
+i                21                                                binds the Agency to have secured these materials, and.
+i 22                                                 if, indeed, they didn't exist at the time, tha t's
+[
+                                                another matter; but the fact of the matter is there have f
+!                24                                                been many other pieces of information we believe are                                                i i
+I
+{}        25                                                 responsive to this Freedom of Information Act request i
+Sonntag Reporting Service, Ltd.
+Geneva, 11TinoiE-~60134 3                                                                                    (312)              232-0262 r
+("'
+V) 1 that I submit have dribbled in far after the request was 2 due and answerable.
+            JUDGE GROSSMAN:      Mr. Berry.
+            MR. BERRY:    Well, first, to that extent, a 5 number of documents that have been produced by the Staff 6 throughout this proceeding were produced -- were created 7 af ter the Agency responded to the FOI request.
+       There's no requirement under the FOI that the 9 Agency create a document to satisfy an FOI request.
+       In particular, at the time this request was made, 11 the documents relating to which was sought, you know,
+,    12 did not exist.
+G, 3 13       It's my view, you know, that it doesn't establish 14 what Mr. Guild represents it establishes.
+       I don't see it has any relevance or issue in the 16 case.
+            MR. MILLER:    Your Honor, unless some part of 18 Intervenors' case is based on asking the Board to draw 19 adverse inferences with respect to either the Staff 20 position or some ultimate issues in this proceeding 21 because of either an apparent inadvertent or deliberate 22 withholding of information by the Staff from the 23 parties, I don' t see what the status of Mr. Guild's 24 discovery requests and these witnesses' responses to
+(~T  25 them has to do with the issues.
+V Sonntag Reporting Service, Ltd.                       -
+GenEV5, IITinois   6013~4 (312)   232-0262
+-i
+          - j-~3 _
+            \          )-
+l'                            In terms of how the Staf f has responded to 2                       discovery requests,    I,   as you know, have joined with Mr.
+                       Guild in urging the Staff to better performance, and r                                          4                       Staff counsel and Staff have responded.
+                              Again, given the size of the organization and the
+                                       -6                          different divisions and departments' that have to be gone 7                        through, perhaps it could not have. been done any sooner; 8                       but it seems to me this is just-tangential to the issues 9                        that confront the Board.
+                                      JUDGE GROSSMAN:           Well, from the'first, I've 1                                    11                           taken a position that the character of Staff's 12                          investigation really is not critical to-this-case, but j
+()                        13                           apparently Staf f would not be happy with that type of 14                           ruling, because a lot of Staff's case and a lot of its 15                           examination with regard to the other parties' case has 16                           been to establish that the character of the Staff's
+;                                     17                           investigation has been high, and we can't allow evidence
+!                                     18                           in on one side and not on the other with regard to that 19                           issue, and so unfortunately, while the issue may be 20                           collateral, it's in the case, whether we like it or nott
+!                                     21                           and I don't want to waste any time with this.
+[I 22                                 I don't think it's really worth arguing over,
+'                                                                  because the document is there, and whether we admit it 23                                                                                                           .
+                           or not, there's still notification in the recor6, notice                        !
+(}                         25                           that the document was served.
+Sonntag Reporting Service, Ltd.
+Gen 4Va, T11ino1~s-~60134                                             ;
+(312) 232-0262 4                                                                                                                                                  :
+<                                                                                           10617 f'^3 l %.J 1                  I think it would just expedite things to let it in; 2             and there's no way we're going to kill that collateral 3             issue, so we might just as well hear it.
+                  Now, I don't understand that Mr. Berry is offering 5             to withdraw any part of his case that is going to show l
+             that the investigations were conducted in a high quality 7             manner, are you, Mr. Berry?
+                              MR. BERRY:     Certainly not, your Honor.
+                              JUDGE GROSSMAN:      Okay.          So why don't we allow
+!      10             it in for whatever it is worth, although I hate to say 11             those words, but we'll just admit that document and 12             let's just go on from there.
+(    13                              MR. GUILD:     Let me just state for the record, 14             Mr. Chairman, that I disagree with the Chairman's view 15             about the limited stature of the Staff's case here.
+l      16                  I think Applicant relies, in large measure, on the 1
+             corroboration and verification of its position by the 18             Staff, and we'll expect to see in findings quite 19             significant references to the Staf f's position from 20             Applicant.
+                  I'm simply protecting myself by doing what I think l
+             is necessary, and that is, by taking the Staf f as an 23             adversary on this point, and I don't --
+                              JUDGE GROSSMAN:      Okay.          We take note of that.
+                  That's correct, also, that Applicant has also j (~}
+s_
+Sonntag Reporting Service, Ltd.
+l CenEV3, IIITnois 60174 (312)   232-0262
+i 10618 O
+\v' 1      relied on the confirmation of Staff as to its own 2      practices, and to that extent, it is an issue in the
+     -3      case, so we recognize that and we're letting the 4     document in.
+           Go on from there, Mr. Guild.
+                 MR. GUILD:     All right.
+           Mr. Chairman, I'm distributing another document 8     which I would ask to be marked as Intervenors' Exhibit 9      90 for identification.
+                       (Indicating.)
+                      (The document was thereupon marked 12                       Intervenors' Exhibit No. 90 for O   13                       identification as of August 13, 1986.)
+  BY MR. GUILD:
+  Q   Mr. Mendez, Mr. Neisler, first, have you ever seen this 16      document before?
+            It's a July 11, 1985, memo. It appears to be from 18      Mr. Schulz to Mr. McGregor,
+==Subject:==
+Restriction of 19       Information.
+  A    (WITNESS NEISLER)      I have never seen it.
+  A    (WITNESS MENDEZ)    I haven't, either.
+  0   All right.
+            Let me direct your attention to the bottom 24      paragraph on the first page.      This makes reference to a Freedom of Information Act request, one filed by GAP.
+{}  25                                                                  I Sonntag Reporting Service, Ltd.-
+Genevai Ill-inoin--60134 (312)    232-0262
+1    submit that's the Government Accountability Project; and 2    it appears to reflect that materials submitted by:Mr.
+    Schulz in response to that FOI request were not 4    forwarded to the requester.
+         Have either of you gentlemen ever had the 6-   experience of forwarding materials responsive to a 7    Freedom ~ of Information Act request that the Agency did 8    not forward, in turn, to the requester?
+  A (WITNESS NEISLER)     No.
+  Q Mr. Mendez ?
+  A (WITNESS MENDEZ)    I haven' t, no.
+  Q Let me ask you to turn to the second page of the O 13    document, please, the first paragraph.      " Additionally 14    NRC management did not properly handle the 25 L.      K. C.
+    Inspectors who complained of intimidation and 16    harassment."
+         McGregor, Schulz -- I'm paraphrasing -- recommended 18    to NRC management strong action to be taken by the NRC, 19    including stop work of all electrical installations.
+    Both senior residents insisted that the NRC send 21    personnel to the site immediately.      NRC management opted 22    to turn the issue over to the licensee.
+         Did Schulz and McGregor -- Schulz and McGregor did, 24    in fact, bring those opinions to your attention, did 25    they not, Mr. Mendez, opinions reflected in that Sonntag Reporting Service, Ltd.
+Gi~niVH, 11Tinois    60U4 (312)   232-0262
+J L
+                ~
+                         'l                          paragraph, Page 2?
+l
+                         -2                 A        (WITNESS MENDEz)             I think at one. time or another, yes.
+i-                                                      -
+i
+;                         3                 Q        Finally, the .last paragraph in the letter,                       the                             j 4                          memorandum, states, "The majority of the Intervenors
+,                         5                          interrogatories required to be answered by the US NRC 6                         ' have been assigned to the Division of Reactor Safety                                             ;
+                          instead of to the Senior Residents at Braidwood who are                                           ,
+                                                                                                                                                      i 8                          more familiar with the issues.                      Also, the answers being_                      j i
+                          provided to the Region are not complete and again tend                                            ;
+l                       10                           to purposely restrict the flow of information."
+j                       11                                All right.             Were you ever asked to supply'                                      -r I                       12                           information in' response to Intervenors' interrogatories
+(^)           13                           with regard to the QC Inspector harassment issues, Mr.
+                           Mendez?
+                  A        (WITNESS MENDEz)             I don't know how -- how is the                                       .
+                           question different from the one you asked me before?
+l                       17                  Q        Well, first I was talking about a Freedom of Information 4
+                           Act request.
+i                       19                  A        (WITNESS MENDEz)             Right.
+I j                       20                  Q        And I submit to you that in this proceeding, Intervenors                                          ;
+i j                       21                           have submitted legal requests for information --
+)                       22                           documents and information known to the Staff.                                They are             ;
+ ;                                                                                                                                                     i j                       23                           referred to as interrogatories.                      They are written                             l j                       24                           questions.
+25                                And I ask you whether or not the -- whether or not
+]         [}
+i t
+f                                                         Sonntag Reporting Service, Ltd.                                                              i l                                                             Geneva D 111no11 60134
+!                                                                            (312) 232-0262                                                            i
+rs b
+   the existence of any interrogatories served on the NRC 2   Staff by Intervenors regarding your work on the 3   harassment contention was ever brought to your 4   attention, Mr. Mendez.
+A (WITNESS MENDEZ)    I wasn't aware of anything.
+Q Mr. Neisler, did you learn of the existence of any 7   interrogatories by Intervenors on this subject?
+A (WITNESS NEISLER)     At the time this letter was written, 9   no.
+Q Well, sir, not at the time that letter was written.
+         But as you sit here today, are you aware of any 12   interrogatories having been served by Intervenors with q( /
+   respect to the harassment -- QC Inspector harassment 14   issue?
+A (WITNESS NEISLER)     I may or may not have had an input 16   to tha t.
+         I was aware there were some, yes.
+Q And can you recall how you became aware there were some, 19   Mr. Neisler?
+A (WITNESS NEISLER)     I think someone asked me for 21   comments or responses or whatever.
+0 Did you see a copy of the interrogatories, the 23   questione?
+A (WITNESS NEISLER)     I might have seen a Xerox copy of
+(}   25   one page, one question or whatever, or if not -- if not Ltd.
+Sonntag  Reporting Gendia,        Service,F I111no1T ~6013 - ~
+(312)   232-0262
+r i
+1   the interrogatories, the contentions; one or the other.
+Q Did you make any response?
+A (WITNESS NEISLER)     I think I did,                        i 4 Q All right.
+         Can you recall what the substance of that response 6   was?
+A (WITNESS NEISLER)     No, I can' t. I was busy doing 8   something else at the time.                                 ,
+         It was just another job.
+Q You've got to keep your voice up a bit so we can all 11   hear you.
+        Do you recall whether you submitted any documents O   13   in response?
+A (WITNESS NEISLER)     I would not have submitted any 15   documents because I had no documents to submit.
+Q All right, sir.
+        Did you then prepare a document, a written 18   response ?
+A (WITNESS NEISLER)     If I did, it would have been a 20   document that I had -- that I handed to somebody.
+         I don't recall if I did or not.
+Q Who would you have handed it to if you did prepare such 23   a document, Mr. Neisler?
+A (WITNESS NEISLER)     It would have either been through my  ,
+{}  25   section chief or to a secretary.
+Sonntag Reporting Service, Ltd.
+* Genevs, 11~1^1hois- 60134'                        !
+(312) 232-0262
+1 Q Mr. Williams is your section chiefs correct?
+A (WITNESS NEISLER)        At that time, yes.
+Q And, Mr. Mendez, you still do not recall ever being 4   aware there were such interrogatories; is that true?
+        Not limiting it in time to July of 1985, but as you 6   sit here today, were you aware that there were any 7   written interrogatories served by Intervenors on the 8   Staf f on the subject of the harassment contention?
+A (WITNESS MENDEZ)     I think I learned of it later on, yes.
+Q All right, sir.
+        And did you make any response to those 12   interrogatories yourself, Mr. Mendez?
+O 13 A (WITNESS MENDEZ)    I'm really not quite sure what you 14   mean by interrogatories.
+               JUDGE GROSSMAN:      Excuse me.
+        I'm not sure what you meant by "later on."
+        You mean after the interrogatories were already 18   answered you learned about them or later on from some 19   other day?     Later on after July 11, 1985?
+        What did you mean by "later on"?
+        And if you wish to have your answer repeated, I'll 22   ask the Reporter to repeat it.
+A (WITNESS MENDEZ)       No.
+        If I can just get an idea of what Mr. Guild means 25   by interrogatories.
+Sonntag Rep ~orting Service, Ltd.
+                   ~GeniWa, ~Illi'n~61s 601'34
+                      ~
+(312) 232-0262
+l
+l'
+[                            1                                                 MR. GUILD:               Again, it'c a written question, l                            2                                and they were -- a series of them were submitted.
+f i                            3                                      In fact, Intervenors submitted three sets of 4                         ,      interrogatories to the NRC Staff beginning some time, I 5                                 think, in July or August of 1985 and extendir.g through                                               ,
+                                perhaps February of 1986, asking specific, detailed 7                                questions about the issues in this case, including the i
+                                harassment contention.
+                                      They were required to be answered by the NRC Staff.
+I
+                                    They are written questions that require written answers 11                                   by the Staff's counsel.
+                               A    (WITNESS MENDEZ)                      Oh, yes, I was.                   I was asked to
+   .O                   13                                    address, I think, this harassment, intimidation issue.
+                               BY MR. GUILD:
+* 15                               Q    All right, sir.
+i                       16                                          And can you recall who brought to your attention i
+                                    the existence of those interrogatories ?
+                               A    (WITNESS MENDEZ)                     Our management.
+l l                       19                               Q    All right.
+                                          Anybody in particular that you can recall?
+l l                      21                                A    (WITNESS MENDEZ)                     My section chief.
+                               Q    Mr. Williams?
+                               A    (WITNESS MENDEZ)                     Yes.
+                               Q    And what was the substance of your response to Mr.
+{}                  25                                   Williams on the interrogatories?
+l                                                                   Sonntag Reporting Service, Ltd.
+Gen'evaTI11'inois 60134
+!                                                                                            (312)   232-0262 l     . - . . _ _ _ _ . . _ _ _ _ . . . _ _ , _ _ _ __                  . _ , _ _ _ , . _ _ , _ _        ___    . _ _ _ _ _ _ _ _ _ , . _ _ _ _ _ _ _ . _ _ _
+A
+U 1 A (WITNESS MENDEZ)    I think they accigned questions to 2   Inspectors who had knowledge --
+Q All right.
+A -- and I believe harassment and intimidation was one of 5   mine, so I addressed that question.
+Q All right.
+        And you prepared written responses?
+A (WITNESS MENDEZ)    Yes.
+Q All right.
+        And do you know whether those written responses 11    were transmitted by the Agency to the Intervenors?
+A (WITNESS MENDEZ)    No, I don't.
+O  13  Q Do you know whether or not those interrogatories were 14   required to be answered by the Division of Reactor 15    Safety or was that you?
+  A (WITNESS MENDEZ)    That's my division, but I didn' t know 17    who had responsibility.
+Q All right.
+         Do you know whether or not those interrogatories 20    were transmitted to the site Residents, to Mr. McGregor 21    or Mr. Schulz?
+  A (WITNESS MENDEZ)    No, I don't.
+  0 Did you ever discuss answering those interrogatories on 24    the harassment issue with either Mr. Schulz or Mr.
+{} 25    McGregor?
+Sonntag Reporting Service, Ltd.
+                  ~ Geneva, Iffin51s 60T34 (312)   232-0262
+t
+('/
+x_
+T 1 A (WITNESS MENDEZ)         No.
+Q All right, sir.
+A (WITNESS MENDEZ)          That is, I didn' t.
+Q I'm sorry.
+A (WITNESS MENDEZ)         I don't think I did.
+              MR. GUILD:           Okay.       Mr. Chairman, I ask that 7   Intervenors' Exhibit 90 be received in evidence.
+              JUDGE GROSSMAN:                Any objection?
+              MR. MILLER:              Yes.
+        I note that the exhibit neither bears a Bates Stamp 11   Number or the typical NRC identification number for 12   documents that it has produced, which is ordinarily a O    13   magic marker or something like that in the lower 14   right-hand corner.
+        Discovery has been exercised in this proceeding in 16   both directions, and there have been outstanding 17   discovery requests to Intervenors from the Applicant for 18   many months.
+        Again, this is a document that's -- at least one 20   paragraph of which is arguably relevant to the issues in 21   this proceeding.
+        I know I have not seen it before; and I'd like -- I 23   don't believe that a document which comes bubbling up in 24   the course of the proceeding should necessarily be admitted when they have not been provided to the other
+{}   25 l                Sonntag Reporting Service, Ltd.
+Geneva 7 Il1~1nois-~60134 (312) 232-0262
+m
+U 1 parties in the course of discovery.
+             JUDGE GROSSMAN:               Well, we've admitted all the 3 documents, even though they haven't been provided, but 4 we have certainly allowed an inquiry as to why the 5 documents weren't submitted earlier.
+       I believe your first inquiry is towards Staff as to 7 why they didn't supply this, and then I will suppose you 8 might ask Intervenor; but we're certainly not going to 9 make a practice of trying to find out what whistle 10 blowers are here.
+       So why don't we have Mr. Berry first tell us why 12 the document wasn't submitted.
+             MR. MILLER:           I do have'some other obj ections, 14 but I'd like to get this preliminarily taken care of.
+     ,       JUDGE GROSSMAN:               Okay, fine.
+       Am I going about it --
+             MR. MILLER:           That's perfectly acceptable, 18 your lionor.
+             MR. BERRY:        The document was not disclosed by j    20 the Staff. Staf f is not aware of this document.
+       I know it's a document -- it's a memorandum from 22 Mr. Schulz to Mr. McGregor, who at that time were both 23 Senior Resident Inspectors at the site.
+       This document was not available in the Region III files and Mr. Schulz did not make this document
+{} 25 Sonntag Reporting Service, Ltd.
+                  ~deneva, Illinois              60T3'4 (312)   232-0262
+                           ..    -- .. _ _ _ - -              ~  - - - - - -    -
+O
+V 1     aval.lable.to Staff Counsel.
+           I have never seen this document before, and there's 3     nothing on it to indicate that it's ever been submitted 4     to the Region III dffices.
+           I have no idea where Intervenors could have 6     received this document, I mean, and Staff didn't 7     disclose this. I've not seen it.
+                 JUDGE GROSSMAN:     Who is, by the way, Marcia 9     Togliatto ?
+A   (WITNESS MENDEZ)      She's the secretary at Braidwood, 11                 JUDGE GROSSMAN:     Oh, I see.
+(-]
+V A   (WITNESS MENDEZ)     Togliatto.
+                 MR. BERRY:    She's the site secretary.
+                 JUDGE GROSSMAN:     Mr. Guild, I believe the' 15     question is why you hadn't submitted this.
+                 MR. GUILD:    We stand by our responsiveness in 17     discovery, Judge; that the discovery period has long 18     since been over.
+           We've responded completely and fully to both the 20     NRC Staff and Applicant; I'm afraid a practice which, in 21     my opinion, has not been shared by the other side, nor 22     have the other side been subject to cross examination by 23     anybody about why they hadn't submitted documents that 24     obviously were in their possession for years.
+()  25           In this case, I woul6 stand on the position I just
+_Sonntag_Repotting_ScIvice, Ltd Genova, Illinois 60134 (312)   232-0262
+(
+   stated, which is that we have been fully responsive 2   during discovery.
+         This document was not in our possession --
+                 JUDGE GROSSMAN:     I see.
+        Are you distinguishing now between documents that 6   were not in your possession at the time discovery was 7   over and -- I see.
+        Well, Mr. Miller, if I understand his position, 9   there is -- is that your position, Mr. Guild, tha t 10   there's only a continuing obligation to supply documents 11   that were on hand at the time discovery was open, but 12   not a continuing obligation to supply documents that 13   have become relevant or fit within the category after 14   discovery is closed?
+                 MR. GUILD:     Indeed.
+        Applicant certainly has followed that practice as 17   well as the Staf f.
+                 MR. BERRY:     So, then, I take it that Mr. --
+                 JUDGE GROSSMAN:     Mr. Berry.
+                 MR. BERRY:     I take it that Mr. Guild would 21   retreat from his earlier remarks regarding the Staff's 22   lack of diligence in producing documents.
+        Staff has produced documents that have been 24   completed under the scope of discovery.
+() 25         Under Mr. Guild's rationale, the Staff would not Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+     ..            _.    -     -             . _-     .     . = .
+                                            ,\            E                                                 .
+t                                                                                 10630 i
+O 1                      have been obligated to produce this material.
+                                           MR. GUILD:                    The Staff, indeed, falls under 3                      somewhat of a different-footing when they have material 4                      evidence that bears on issues that are in litigation.                                                     .
+I:
+          >
+I only need to state.this document came our way 6                      af ter the close of discovery and came f rom an anonymous 7                      source.
+         ~
+                                I can' t tell you what the source of 'the document 9                      is.       I believe that any further.-information might tend 10                       to identify the source of'that d'ocument.
+                                 I don't know who that source is; but I don't
+   .j            12                 ,     believe the source desired identification or I would f4               13                       have known more information about who the source was.
+                                            JUDG E GROSSMAN:                                Mr. Guild, my understanding i
+                       of your. prior positions is not that you accepted a 16                       discoverh cutoff on documents that are subsquently i
+                       received or produced, and Eit has been the Board's . ruling 18                       in the past, and we continue that ruling, that all                                                         ,
+t 19               '
+documents that are relevant within those categories 20                       requested during discovery ought to be turned over- to
+               - :21-                     the other parties when the party who possesses that 22                       document or comes into possession is cognizant of that 23                       fact; and in the past, the other parties have been 24                       derelict in doing that, and in this case, apparently, 25                       you uave been, too.
+(])
+t' Ronntag_ Reporting _ Service,_Ltd-Geneva, Illinois                                60134 (312)    232-0262
+1                     I don't know when you've had that document -- since 2           when you've had that document in your possession, but I 3           think we don't want any trial by ambush here.
+;                4                           MR. GUILD:                                           Let me just say this,-Judge, to-5            cut in short:
+                     If, indeed, Applicant will live by the same 7            principle --
+                           JDDG E GROSSMAN:                                              Well, no.
+                     Mr. Guild, no party can claim to get out of its 10               obligations because any other party is not perfect in 11               fulfilling its obligations.
+                        Our ruling is to admonish whatever party doesn't
+;           13               play by the rules when it turns out that they are not 14               abiding by the rules and --
+                               MR. GUILD:                                          I would just like.to be heard, if 16               I might.
+;           17                               JUDGE GROSSMAN:                                                Yes, you'can be heard after 18              I'm finished, but we both can't be heard at the same 19               time.
+                               MR. GUILD:                                           Indeed, we can't, Mr. Chairman..
+                               JUDGE GROSSMAN:                                                In the past, we have 22               admonished the other party for not producing documents 23               that they intended to use at hearing, and even those 4
+               that they did not use at hearing that were produced or                                                          j 25'              received after the discovery cutoff, including
+(}
+Son nt a g_ Report ing_SArxic e ,_kt;d .
+Geneva, Illinois 60134 (312) 232-0262
+(~.
+       photographs, as we had a few weeks ago, which were not i
+       made at the -- well, I don' t want to stand on' that.             I'm 3       perhaps mistaken on that; but that's been our consistent 4       ruling.
+            If you have any other documents that you intend to 6       use that you consider relevant so that you could use 7       them in this hearing, I think you ought to' disclose 8       those documents and give the other sides a chance to 9       prepare for those documents, the same way you are 10       entitled to get advance warning and not an lith hour
+.                   11       production of documents.
+            Now, if you have something to say about that, you 13       can speak up now.
+                  MR. GUILD:          Yes, sir.
+            First of all,          I understand the rules to call very 16       specifically for the supplementation of discovery under 17       narrow circumstances that are far narrower than what the 18       Chairman has just alluded to.
+            I don' t understand Applicant has: consented to 20        supplementation of the scope that the Chairman has 21        alluded to.
+             If they will consent to such supplementation --
+i 23                   JUDGE GROSSMAN:              No. I'm not asking --
+                  MR. GUILD:          -- I'll change my position.
+l
+()              25                   JUDGE GROSSMAN:              -- I'm not asking for i
+Sonntag_Repotting Sarvica, r.t a -
+Geneva, Illinois           60134                                l (312)        232-0262                                     l 1
+   ~/
+    con sen t.
+            But the ruling in the past has been if you are 3    going to use a document here, that you ought to produce 4    that document to the other parties prior to, giving them 5     as much advance warning as -possible that that document 6    is going to be used, and that's what we've done in the 7     past and that's the ruling we're going to have now.
+            So if you have any surprise documents, you really 9    ought to produce those that fit in the relevant 10          categories.
+                       MR. GUILD:       May I finish, Mr.. Chairman?      .May 12          I be heard?
+(-)s
+  \_
+                       JUDGE GROSSMAN:               Yes.
+                       MR. GUILD:        Secondly, I understand the 15          Chairman's ruling, and that's the first I've heard of a 16          ruling of that sort, and I'll abide by it.
+                  I would ask that Applicant and the Staff abide by 18          it as well so that documents, indeed, that are to be 19          used in evidence are disclosed in advance.
+                  That certainly has not been the ruling in the past; 21          and Applicant did move that such a position be taken, 22          and for good reason, I believe, the Board ruled at the 23          outset of this proceeding that it would unduly -- it 24          would unduly burden Intervenors to be bound, given our I
+()   25          resource disparity and given the needs of cross
+[                          Sonntag_Repar ting _SenLce,_ktd.
+Geneva, Illinois              60134 (312)   232-0262
+  .                                                                                                                          10634 f'N,
+           \_/
+i 1                                examination, to have identified, either by prefiled
+                                                                                                                         ~
+                                testimony or prefiled exhibits, all of the documents we 3                                intended to use.
+                                     Now, these documents, indeed,.do' fall in somewhat lJ                              5                                -of a different footing because they 'have not been
+;                                6                                circulated among the parties in discovery.
+                                      They have not been circulated among the . parties for' 8                                two important reasons.
+                                     The first is they came into . possession _ of this -
+                                  party af ter the close of discovery; and secondly, 11                                   because they came from a whistle ' blower, someone who 12                                  obviously desired that their position, under 13                                   confidentiality, anonymity, be protected out of what 14                                  appears to .be' a concern that they may_ by subj ect to 15                                  reprisal if they made what is obviouely some pretty 16                                  critical information available to us.
+                                        I think the Agency ought to be ashamed to see a 18                                 document such as this on the public record; and 19_                                 unfortunately, it's the Intervenor who is sort of being' 20                                   tarred because the document exists.
+                                        Now, I would be more than happy to disclose to this 22                                  Board in camera a series of documents that have been 23                                  disclosed to this party by way of such a source, but I 24                                   strongly, strongly obj ect to disclosing those documents
+()                 25                                  to either Commonwealth Edison Company or to the Nuclear SonntagJepor H ng_ Service; Lt el; Geneva, Illinois           60134 i                                                                               (312)        232-0262
+g
+L_)
+Regulatory Commission Staff; and I believe that .if this
+       .2 Board desires to reach the truth in this' case, the 3 quickest way to avoid reaching the truth is to dry up a                   ,
+source of information that, indeed, reveals the fact 5 that this Board is not receiving all of the information 6 it needs for a decision, and I think that's the 7 character of the document that you have before you.
+      So I don' t think that I have at all been playing 9 fast and loose with the rules.      I'm trying to get to the 10 truth, but I'm also trying to protect my source of                   ,
+information, who will no longer talk to me or no longer j) e   12 provide me any information if I ' dishonor their trust.
+: v.                                     Mr. Guild, let's not 13           JUDGE GROSSMAN:
+overlook the fact that you are producing the document 15 and using it --
+           MR. GUILD:      Indeed.
+      .17           JUDGE GROSSMAN:      -- so you are disclosing it; 18 and perhaps you have an argument with regard to the 19 documents you are not disclosing, but the ones that you 20 are exposing to the public, the question is why they 21 weren't publicized earlier.
+            MR. GUILD:     Because, Mr. Chairman, I suspect 23 that there would be an immediate and -- may well be an 24 immediate headhunting expedition as soon as this
+()   25 documents f alls into the hands of an adverse party.
+Sonntag_RepoI_ ting _ Service,_Ltd Geneva, Illinois     60134 (312)   232-0262
+1                                     I make a very careful judgment, not only in the 2                     interests of my client but in the interests of the
+;;               3                    source that I don't know the identity of, what the risk 4                     and what the-potential benefit is for this record of a 5                      particular piece of evidence.
+                                     But I trust that this Board, when this document, 7                      the one that's in question now, is a matter of public 8                     record, will show some interest in seeing that whoever 9                     the source of that document is, if th ey are the . subj ect 10                        of any reprisal for having disclosed an obviously 11                         important piece of information -- this Board would see 12                         that they are protected; and ' that's, in part, the reason 13                        why this information is disclosed first on the record.
+;           14                                       _ I have no obj ection, as'I stated, to disclosing 15                         documents of this character in -camera to this Board, i
+                         trusting that this Board will protect the confidence ~ of 17                        my source, but I strongly -- I strongly resist the 18                         notion that fingering a whistle blower by turning over 19                         these documents to Commonwealth Edison Company or' the 20                         NRC Staff is the course that I'm required to follow.
+                                        When I identified the fact that I had confidential
+;           22                         information early in this proceeding, I did so to Edison 23                         and to the NRC Staff, and declined to make those 24                         documents available.
+()       25                                         If those parties had sought to produce that
+{
+Sonntag_ Reporting Service, Ltd_
+Geneva, Illinois           60134 (312) 232-0262
+p
+(j' 1    information -- or sought to require the production of 2    that information, then I would have sought from this 3    Board a protective order and in-camera examination of 4    those documents..
+         I believe I acted properly.
+         Neither the Staff nor Applicant sought to compel 7    production of those documents.
+         We now find ourself in the situation where you have 9    documents that have come to me after the close of
+,     10    discovery, dur'ing the course of this proceeding, and I 11    think that I've handled the matter properly, Mr.
+    Chairman.
+(S
+   ,)
+               JUDGE GROSSMAN:   Mr. Miller.
+               MR. MILLER:   Your Honor, let me deal with the 15    two points that Mr. Guild has made.
+         First of all, the Board's ruling at the beginning 17    of this proceeding was in response to a motion-that Mr.
+    Guild identify the documents that he was planning on 19    introducing, and it was my belief at that time that 20    those documents were going to be culled out of the 21    universe of documents that had been supplied by 22    Applicant and Intervenor during the course of discovery, 23    and it was simply a matter of attempting to expedite the 24    proceeding.
+         The ruling was against me, and we proceeded on
+(}
+Sonntagleporting_Selyice,_I,td, Geneva, Illinois 60134 (312) 232-0262
+lt 10638 3)
+(.
+                 another basis.
+                                 This document, obviously, is not within my-3                 contemplation because I didn't know anything about it.
+-                                So we move to the second point, which is that Mr.
+                 Guild makes some judgments about whether and under what 6                 circumstances to disclose these documents, and all of us 7                 simply have to rely on him as to whether or not. the 8                 material is relevant and otherwise involved with the 9                 issues before the Board, but until he makes that 10                 judgment, none of us know.
+                                 I don't see how we -- that is, Applicant -- can r's 12                  intelligently deal with the issues in the case when it O
+                 does not know of . the evidence which may be produced in 14                  the course of this proceeding.
+                                 It had been my belief that, to the extent exhibits 16                 were going to be introduced -- I don' t care what Mr.
+                 Guild has in his anonymous envelopes.                    That's of no 18                  interest to me until-it comes walking in the door in 19                  this proceeding; but once Mr. Guild receives his 20                  information, it seems to me that the rules work the same 21                 for all the parties, and I don't see that we should 22                  await Mr. Guild's discretion as to when and under what 23                 circumstances he decides he's going to use a particular 24                 piece of paper before making discovery on documents that
+()  25                 are clearly relevant, at least in part, to the issues in Ronntag_ Reporting __ Serv ka, r.td:
+Geneva, Illinois            60134 (312)      232-0262
+('i V
+   the proceeding.
+             JUDG E G ROSSMAN : -  Mr.. Berry, did you have 3   something further to add?
+             MR. BERRY:     Your Honor, I would just endorse 5   what Mr. Miller stated.
+        I would also just like to point out, this is 7   slightly different from what's happened-in this case, 8   particularly from the Staff's point of view.
+        Staff has never introduced a document in evidence, 10   questioned a witness on any document, that had not been 11   produced .well in advance to the other parties; but what g3  12   we have here is the case that Intervenor now is
+\_J 13   disclosing a document for the first time, and when he 14   moves it into evidence, he has effectively deprived the 15   other parties of any discovery or any preparation.
+        Exactly what we have is a surprise; and I would 17   object to the admission of this document at this time on 18   that basis.
+             JUDGE GROSSMAN:       Well, for one thing, to 20   respond to Mr. Guild, we're not conducting a witch hunt 21   here and it is not relevant who the anonymous whistle 22   blower is, and as far as we're concerned, we'll keep 23   that whistle blower anonymous, but Mr. Miller is correct 24   that our ruling initially with regard to not requiring
+()  25   that Intervenor determine which of the universe of             j Sonnlag Repor_t_inLServic_e., Ltd.
+Geneva, Illinois      60134 (312)   232-0262
+r~.
+      documents that were known to all the parties that it was 2      going to use did not extend to documents outside that 3      universe, and that we assumed, and I thought it was 4      known to the parties, that we intended that all the 5      documents that were going to be offerred or produced 6      would be shown to the other parties in advance so that 7      they could prepare their cases as well as Intervenor is 8      permitted to prepare its case.
+                 Now, we think that you ought to go through your 10        documents and decide which ones you are going to 11        produce, because those are going to see the light of 12        day, anyway, and I think it's time that you disclose 13        them to the other parties, because they are entitled not 14        to be conf ronted with trial by ambush as well as you 15        are.
+                        MR. GUILD:    Mr. Chairman, I will accede to 17        that instruction.
+                   What I would ask, though, is that all of these 19        documents, then, that I turn over in discovery or by way 20        of discovery, disclosure, the whistle blower 21        documents -- and that's the only category we're talking 22        about here, documents where the safety of some person 23        really is, in my judgment, going to be at stake, and I 24        make that judgment, indeed, when I know basically what
+()  25        the status of these witnesses' testimony is going to be, Sonntag_ Reporting _ Service,_1td; Geneva, Illinois          60134 (312)   232-0262
+' lO           1                                           which was last night, that this is evidence that I 2                                           intend to use after weighing the' considerations that 3                                           I've already identified -- I would ask that these 4                                           documents be disclosed to the parties under a very                                         c :
+5                                           narrow protective order, the same protective order tha t
+;            6                                           Mr. Berry asks for on his pending investigation, and 7                                           that is that they be disclosed only to trial counsel,
+:                                                                                                                                                     4 i
+                                           and that if trial c6ensel wants to use them any -more                                        ,
+                                           generally, that they seek authority from the Board 3                                         ,
+                                           because I have as mucts intecest in protecting the source.
+                                           of this information, both because 'there may be evidence-12                                           that's relevant to this proceeding which I want to 13                                          encourage the production of, and secondly, because I 14                                           have an interest in seeing someone who takes some 15                                           personal risk and dcaanstrates some personal integrity 16                                           in bringing these matters to the public's attention be
+!           17                                           free from reprisal.
+                                                So I would request that such disclosure, which I l
+!           19                                          will make under the Board's direction, be done under a L
+l          .20                                           protective order.                                                                            !
+:           21                                                      JUDGE GROSSMAN:           Well, I'm not sure that the l
+                                          other parties are going to object to that, because I'm 23                                           not sure that Staff, for one, does want public 24                                           disclosure of Intervenors' Exhibit 90.
+                                                Did you intend that to be disclosed in camera, too,
+(])
+Sonrttag_Repo tt ins _S e rv.i.c.e ,_L td .
+Geneva, Illinois 60134 I                                                                       (312) 232-0262
+1                    Mr. Guild?
+                                       MR. GUILD:    No, sir.
+                            The documents that I offered today, I offered under 4                    the belief that they would be made a part of the public 5                     record in this proceeding, and that, indeed, that is 6                     part of the-protection for the source of the 7                     information; but if I'm being told now that -- at risk 8                    that I will never be able to use any more of these 9                     documents in this proceeding as evidence, I'must                                         .
+                       disclose them to the other parties' counsel, I ask that 11                       that disclosure be done under protective order.
+r3     12                              I don' t intend --
+V 13                                          JUDGE GROSSMAN:       Okay.          So, in other words, 14                       what you are willing to do is disclose all of the 4
+                       documents that you have, some of which you may decide to 16                       produce here publicly, but that only trial counsel be 17                       permitted to view all the documents you have other than 18                       the ones that you eventually will produce publicly; is 19                       that correct?
+                                          MR. GUILD:    Well, I'll make available any 21                       documents that I might use in this proceeding, and will 22                       be bound by that as a restriction.
+                              I will disclose any documents that I might use in 24                       this proceeding, but only under a protective order.
+(])    25                              I,        indeed, reserve the right to withhold some of l
+Sonn tag _ R e po r ting- S e r vi ce ,__Ltd .
+l                                                   Geneva, Illinois 60134 (312) 232-0262
+  /~)
+  \/
+                              those documents after I reach a judgment that disclosing 2                               them would endanger the source of that information or 3                               might, and that I would never use it in this case 4                               because of that reason.
+                                          JUDGE GROSSMAN:                       I take it as trial counsel 6                               you will include Mr. Treby and Mr. Miller's colleagues 7                               here, Ms. Kezelis and Mr. Gallo?
+                                         MR. GUILD:            Certainly, so long as they would 9                               be bound by the standard non-disclosure obligation 10                                  that's been applied in this proceeding under protective
+.           11                                  order.
+                                             JUDGE GROSSMAN:                      Well, Mr. Berry, I 13                                  understand that you would have to check out that
+!           14                                  agreement with your superiors to see if you could 15                                  voluntarily enter into that agreement or perhaps you 16                                  know that the answer is you can and that perhaps the 17                                  Board would have to order you to do that; is that i           18                                  correct?
+                                             NR. BERRY:            That's correct, your Honor.
+                                              JUDGE GROSSMAN:                       You do want to check that l
+                                  out first?
+                                              MR. BERRY:            Yes.
+                                             JUDG E GROSSMAN:                      Well, we have to take a l
+                                  recess, anyway, and so why don't we do that.
+()        25                                       I don' t know if we'll have much time lef t for l                                                    Sonnt a g_Repo tti ng_S e rv i c e , _ L td. ..
+Geneva, Illinois                     60134 i                                                              (312)      232-0262
+3
+N 1               hearing -- yes.                     I'm sorry.                 It's after the hour that 2               you can check it out.
+                                           MR. BERRY:            That's right.
+                                     But I still would like a short, brief recess, your 5               Honor.
+                                           JUDGE GROSSMAN:              Oh, okay, fine.
+                                    Why don' t we take a 10-minute recess.
+                                                (WHEREUPON, a recess was had, after which 9                                                 the hearing was resumed as follows:)
+                                           JUDG E GROSSMAN:             Back on the record.
+                                      I assume, Mr. Berry, that you haven't been able to 12               contact anyone in Washington, have you -- in Bethesda?
+                                           MR. BERRY:            No, Mr. Chairman.
+                                     My understanding is they have lef t for the day.
+                                           MR. MILLER:            Your Honor --
+                                           MR. BERRY:            I will approach them overnight.
+                                           JUDGE GROSSMAN:              Mr. Miller, 18                                           MR. MILLER:            I just had some observations on 19               the protective order that Mr. Guild requested.
+                                     There's been at least one anonymous document that 21               was disclosed to the Board and the parties at the same 22               time that it was disclosed to an investigative reporter 23               for the Chicago Tribune.
+                                     I don't know whether you recall Mr. Cassel standing
+()  25               here with such a document stating that it had been Sonntag Reporting Service,_Ltd.
+Geneva, Illinois 60134 (312)        232-0262
+l l
+i                                                                                                                       10645  ;
+O 1                received at BPI's offices at the same time the 2                investigative reporter was present.                                  Therefore, the 3                document had, in fact, attained public status.
+                           I had no obj ection, at least initially, to abiding 5                by the terms of protective order, assuming that the.
+                documents have, in fact, been maintained confidential by 7                counsel for the Intervenors.
+                          However, if they are available to the world through 9                the media, and they are simply not being made available 10                  to the parties to this proceeding,-then I, of course, 11                  would object to the imposition of any protective order.
+                            My caveat with respect to protective order 13                  generally is that there may be matters disclosed that 14                  I'm simply not qualified to assess and will need P
+                  assistance from somebody in the employ of Commonwealth 16                  Edison or Comstock, and at that point, as Mr. Guild 17                  suggests, I would approach to Board and ask for a 18                  modification of any protective order that was entered to 19                  enable me to do --
+l          20                                                  JUDGE GROSSMAN:             You understand, Mr. Guild, i          21                  that that would be part of the protective order, that I
+                  the Board could determine that disclosure is warranted?
+                                                  MR. GUILD:            Yes, sir; and I would hope 24                  that -- I mean, I would expect that Intervenors would be
+()    25                  heard before the Board made any such determination, Sonntag_ Reporting _ Service,_Ltd, Geneva, Illinois               60134 (312) 232-0262
+a
+   would have a right to at least seek review of a decision 2   if that situation came up.
+         I don't envision it coming up, but if it did, we 4   certainly would like to be able to protect our interest 5   and the interests, whatever they may be, of the source 6   of this information, by bringing our position to the 7   Board before a disclosure was made and by --
+              JUDGE GROSSMAN:       Okay, fine.
+         Are all the documents that we're referring to now 10   in your possession that have not been disclosed, that 11   you are willing to turn over under protective order, 12   internal NRC documents or are there any documents --
+              MR. GUILD:     I can't identify the source with 14   any certainty.
+         Obviously, the document that's prompted this 16   discussion bears identifying information that makes it 17   appear that its source was at least at some point an NRC 18   file.
+              JUDG E GROSSMAN:      No. What I mean is:
+         Are they all internal NRC memoranda?
+              MR. GUILD:     No, they are not, they are not.
+              JUDGE GROSSMAN:       You know, we're going to 23   have the Staff take a position that those that are 24   not -- at least those that are not internal NRC
+() 25   memoranda, should be turned over to not just trial Sonntag_ Reporting _ Service,_Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+10647 73 V
+counsel, but other NRC personnel in order that they may              I l
+fully investigate.                                                 .I l
+       I don't see how they could make that argument with 4 regard to internal NRC documents, because we're not 5 going to participate in an investigation of who turned 6 over the documents to you, whatever may be anyone else's 7 desire; but with regard to those other docmnents, there 8 certainly is going to be some position put forth on 9 that.
+              MR. G UILD:       Well, let me just state this:
+       I can't say with confidence -- and I'll make a 12 further review -- but I recall seeing a document that 13 appeared to be a Commonwealth Edison Company document, 14 and one that may, in fact, have be.en available in 15 discovery.
+       It didn't appear to be one of controversy, but 17 that's what came to mind when you asked me that 18 question, so it wouldn't surprise me if it hadn't 19 already come into the Staf f's hands.
+       But I understand the Chairman's point, and I will 21 try to ascertain if there is a class of documents that 22 would arguably fall within the class that I have 23 identified and would be, th er ef or e, of interest to the 24 Staff and not already available to them.
+() 25       If I may just respond to one point that Mr. Miller Son n t ag_Repo tt ing _S e ry_i c e ,_ Ltd .
+Geneva, Illinois 60134 (312)     232-0262
+O
+sg 1 made, and that is this observation about the reporter, I 2 don't have enough personal knowledge to be able to 3 intelligently speak with confidence to that observation.
+       My information was that what Mr. Cassel was 5 speaking to was a limited disclosure to an investigative 6 reporter who made a commitment to maintain in confidence 7 any documents that he reviewed, and it was 141th --
+indeed, with the consent of this cousel -- or counsel 9 for Intervenors that the document Mr. Miller has 10 reference to was disclosed to the reporter and was 11 permitted to be used publicly.
+       That's a position that I have taken from the 13 outset, that documents should be public.
+            JUDG E GROSSMAN:     I'm sorry. You had us both 15 confused.
+       You are now talking about a commitment to the 17 investigative reporter with regard to that previous 18 document, but not the ones that we're talking about now; 19 is that so?
+            MR. GUILD:     Well, that's what I can't say is 21 for sure and that's why I'm hesitant to make any 22 representations beyond what I have just said.
+            JUDGH GROSSMAN:      You have to check that, 24 also.
+() 25            MR. GUILD:     I hope I am not being too obtuse; Sonn_t Ag_Re99tting_Sary_ ige,_1t;d, Geneva, Illinois    60134 (312)   232-0262 Y
+                                                                                           .q
+                                                                                            'I
+                                                                                   ~10649.
+but' my understanding is that any documents that have                      :
+been made available to that reporter were made available 3 in confidence and with _ the commitment from - that reporter 4 to maintain their confidentiality, with the exception of 5 documents that were published with our consent, 'and that' 6 it covers the document in question that Mr. . Miller's 7 referred to that became the subject- of a newspaper 8 article.
+       I'll agree with him in principle that documents 10     that have been disclosed publicly certainly -are beyond 11    the scope of. any protection that the Board .can make or 12    any obligation of counsel to maintain confidence.
+           I agree with Mr.= Miller in principle on that point; 14     and as to the specifics, I just have 'to make' further 15     inquiry .
+I             16                    MR. MILLER:   Well, your Honor, this i
+     proceeding with respect to Braidwood, as I think I've j
+l             18     mentioned before, is simply part of a larger controversy 19     that involves the same parties;' but within the confines                  i
+!             20     of the procedures that are established by the -NRC's l
+     rules of practice and it seems to me elemental fairness                   .
+,             12     in the way contested proceedings are litigated, that it                  '.
+i
+!             23     is simply not proper for a party to pick and choose the i
+i             24     individuals, regardless of promises of confidentiality l
+(}        25     or not, to whom it discloses documents and to keep from                   ,
+i
+}
+j                          Sonntag Reporting Service, Ltd.                                    .
+i
+'                                  Geneva, iffInols  6013T (312)  232-0262
+[
+                        .                                         ~
+1 the parties to the proceeding those same documents.
+      Mr. Guild says he doesn't have the information.         I 3 certainly accept that representation; but on behalf of 4 Applicant, I will not accept a protective order if, in 5 fact, these documents have been turned over to a member 6 of the public, which is what a reporter constitutes.
+            JUDGE GROSSMAN:      Well, I'm not sure that 8 that's the case.
+      I don't know. I don't profess to be an expert on 10 the rules with regard to disclosure of confidential --
+or what constitutes a waiver of -- I will have to look rS 12 further into that; but I might suggest that you V  13 yourself, as representing your party, might decide that 14 perhaps it is also in your interest not to have any 15 further disclosure of those documents.      I just don' t 16 want you to ignore that possibility.
+      Maybe each of the parties here ought to be 18 examining their entire position with regard to this 19 overnight, at least, and see whether we can come up with 20 any agreement as to at least now to proceed initially 21 with regard to that.
+      I think we've all indicated some basic principles.
+      I think now Mr. Berry probably can't agree to 24 everything or anything that we've said now and, of
+() 25 course, he's probably going to be forced to only accept Sonntag_ Reporting _Serrice,_Ltd.
+Geneva, Illinois     60134 (312)   232-0262
+' J
+l an order imposed by the Board with regard. to that, but I 2 can' t even speak to that, because Mr. Berry hasn't 3 checked that out.
+           MR. BERRY:    Mr. Chairman, I would like to 5 point out that Staff is not interested in learning from 6 or having Intervenor disclose the identity of their 7 sources. That's not our objective at all.
+      Our objective is twofold.
+      One, if Intervenor has in its possession documents 10 that bear on the health and safety of the plant, we 11 certainly would be interested in obtaining that f-   12 information so the Staff -- the appropriate personnel in V)'  13 Staff, you know, can look into that and investigate it 14 and find out if there's any basis to, I guess, _any of-15 the concerns, whatever is expressed in the documents.
+      Secondly, your Honor, the Staff -- well, Staff 17 Counsel has an obligation to protect the interests of 18 his client in this proceeding, which is Staff.
+      It's exceedingly difficult to prepare witnesses, 20 prepare for examination, when documents or evidence is 21 going to be introduced that has not been disclosed in 22 discovery to the parties.
+      I believe that there is an obligation on the part 24 of the Intervenor to notify and disclose this particular
+(~'  25 document, you know, to the other parties, or at least
+! (
+Sonntag Reporting Service, Ltd.
+Geneva, IITInois 6013~4 (312)   232-0262 L
+l l
+m
+                                                                                     l 1     identify the existence' of this document, pa r ticula rly 2     since they were going to introduce it into evidence.
+I 3           So now what I will do overnight is I will be in 4     touch with senior people in the Staff, consult with them 5     and report back to the Board on our position with 6     respect to any protective order and the terms and 7     conditions which the Staff could live with.
+           But I did want to point out for the record that the 9     Staff is not interested in having Mr. Guild divulge the 10     identity of his sources, nor are we interested in taking 11     retaliatory action against any NRC individual, if any 7x  12     NRC individuals are involved.
+U   13           Our interest there is having access to any 14     information that may bear on the health and safety and 15     the quality of construction of the Braidwood power 16     plant.
+                    JUDG E GROSSMAN:    What Mr. Berry has pointed 18     out, of course, is the fact that the documents that you 19     are going to produce ought to be shown to the 20     individuals that you are going to produce those 21     documents for, the witnesses.
+           Again, we're back to the trial by ambush, and it 23     certainly would not further the Board's direction that 24     we not try the case this way -- that is, a trial by 25     ambush -- if the witnesses aren't going to be shown the
+({}
+i'                    Sonntas_Repotting_SeIvice,_Lti Geneva, Illinois 60134 (312) 232-0262
+N) 1 document, if it's going to be produced when they are 2 testifying.
+      So I think, you know, there's going to have to be 4 prior disclosure to the witnesses of those documente, so 5 that's a matter you ought to consider, Mr. Guild.
+           MR. BERRY:    One other point, if I may, your 7 Honor.
+      You know, the Staff has tried to be accommodating 9 to the wishes and ' desires and the interests of the other 10 parties in this proceeding.           To that end, we've 11 commenced putting on our case and producing our 12 witnesses prior to tne completion of the Intervenors' 13 direct case.
+      In light of -- I think it's the turn in the case 15 now, it appears at least from reference to Intervenor 16 Exhibit 90, that indicates that the Intervenors may -- I 17 guess it gives the Staf f the first indication as to.                        ,
+where Intervenors may go with respect to the examination 19 of certain Staf f witnesses tnat we've identitied.
+      At tnis point, because of that, I would retreat 21 from any suggestion that I could produce Mr. Little as a 22 witneskbeforewehearfromIntervenorsremaining 23 witnesses, Mr. Schulz and Mr. McGregor.
+      At this point, I can no longer agree to produce Mr.
+(}. 25 Little until before the testimony is heard of Mr. Schulz Sonntag Reporting Service, Ltd.                                       ,
+Geneva, IITInois   61 FIT 4 (312)  232-0262
+1- and Mr. McGregor.
+              JUDGE GROSSMAN:           Well, I don't think we're 3  going to reach Mr. Little this week, anyway, so that may 4  be academic.
+       But when are we going to have Mr. Schulz here and 6  Mr. McGregor?
+              MR. GUILD:          Mr. Chairman, I expect that we 8  would start up with those gentlemen the 25th, if that's 9  the Board's pleasure, if we're done -- if we hre --
+  well, whatever the Board's pleasure is.
+       If the Board is prepared to take Mr. -- if we' re 7s  12  not done with these gentlemen or Mr. Schapker, who
+   <-)
+  follows them, or Mr. Littl e, if the Staff chooses to 14  offer him next, and you want to take them down and begin
+!      15  with Schulz and McGregor, that's fine.            Whatever the 16  Board's pleasure is or the parties' pleasure.
+              JUDGE GROSSMAN:           Well, the question is:
+       Is Mr. Schulz going to be available?
+              MR. GUILD:          That I can't say, Mr. Chairman.
+              JUDGE GROSSMAN:           Have you contacted him?
+              MR. GUILD:          Mr. Schulz is not a witness that 22  is in the employ of BPI or the Intervenors.
+              MR. BERRY:          Nor is Mr. Schulz subj ect to the
+.      24  control of the NRC.
+(}  25              MR. GUILD:          And I have madeepic:r -thct ny       -
+So n nt a g_R e p.o r. tin g_Se.rvice,_L td, Geneva, Illinois 60134 (312)        232-0262
+           )
+                          expectation as of Friday afternoon was that Mr. Schulz 2                          would be the witness this week, and I was as surprised 3                          as anyone to find that Mr. Schulz was unavailable or not 4                          available.
+                                 So I will do my best to make arrangements for his 6                          attendance, but I don't have the US Marshal Service at 7                          my disposal, so I can' t guarantee that he will be here.
+                                      JUDGE GROSSMAN:               I would hope you would be 9                          able to serve a subpoena on him.
+                                      MR. MILLER:             Has he not been served with a 11                          subpoena?
+f-     12                                      MR. BERRY:             I understand he has been served U      13                          with a subpoena.
+                                      JUDGE GROSSMAN:              Oh, it has been served on 15                          him?
+                                      MR. BERRY:             That's my understanding, yes.
+                                      JUDGE GROSSMAN:              Oh, well --
+                                      MR. MILLER:             Ic seems to me he disobeys at 19                          his peril.
+                                      JUDG E GROSSMAN:             Pardon?
+;              21                                      MR. MILLER:             It seems to me he disobeys at 22                          his peril.           It seems to me we've tried to accommodate 23                          his schedule, but --
+                                      MR. GUILD:             Well, I think maybe it's time to
+(}     25                          cay f or the record that Mr. Schulz informed me on the
+;                                                 Sonntag Reporting Service, Ltd.
+Geneva, Illinois            6013~4 (312) 232-0262
+l I
+l
+(~h L.)
+                  telephone that he was very scared about the prospects of 2                  appearing in this case; that he works for the utility 3                   industry and has to deal with the Nuclear Regulatory 4                  Commission on a day-to-day basis; and that I think he, 5                   indeed, fears reprisal for his potential testimony in 6                   this case.        That's my opinion; and obviously, it's not 4
+                  of evidentiary value, but that is, 'in fact, what I will 8                   represent that Mr. Schulz told me .on the phone.
+                        In addition, he offered personal reasons, as I 10                    stated, but I don' t control the ~ gentleman; and I have to 11                    say I'm sympathetic with his position.                                   He's not a 12                    volunteer; that's for certain.
+                                   JUDGE GROSSMAN:                         W ell, right now, we've been 14                    asked to admit Intervenors' Exhibit 90.                                   We don't have 15                    any authentication of this exhibit, so we can't do it at 16                     the moment, anyway, and jso we might just as well go on.
+                          Do you have any further surprise documents in the 18                    next few minutes?
+                                   MR. GUILD:                         Only the documents I was 20                    surprised with this morning when the Staff gave me their i
+                    last batch of allegations, Judge.
+                                   JUDGE GROSSMAN:                         Fine. We have 12 minutes.
+                          Do you want to use that to examine?
+                                   MR. GUILD:                         Yes, sir, I'm prepared to go 25                    forward.
+S o n n t a g_R e po r_t i ng_S_e_r v_i c e ,_L t d .
+Geneva, Illinois                          60134 (312)                232-0262
+o
+Q-1          Oh, let me just add one point in this discussion, 2     and that is this:
+          I am mindful of the fact that when a document comes 4     out, that it, indeed, may take a party by surprise, and 5     I would be the last to obj ect to, in this case, Staff 6     having an opportunity to take that surprise into account 7     or Applicant having that opportunity, and that's 8     certainly something that I'm aware of when a document 9     comes out as it has here.
+          I would expect the similar accommodation when a 11     document is newly produced by the Staff as it was -- as
+  ,f 3 12     a whole stack were this morning, on the eve of their U
+     witnesses taking the stand on this issue; but certainly 14     one remedy that's available to try to balance, but it's 15     a very difficult, complex set of considerations here, I 16     think, is recognizing that a party who is~ disadvantaged 17     by learning of a document late or in surprise should be 18     accommodated.
+          I just vontc i to add that point for the record.
+               J ' uJ # tOSSMAN:     W ell, though, it is a little i
+     different when you confront an adverse or hostile 22     witness with a document than when you don't have a 23     document available that you might be able to use at the 24     time, which you then can remedy by having a witness
+{}   25     recalled and using the document later on.
+Sonntag Reporting Service, Ltd.
+Geneva, I111nois (6131 (312)   232-0262
+     ~~T (U
+          -1               It's a little dif ferent natter than the adverse or 2  s       hostile witness being confronted with a surprise 3          document at that time, where their responses are colored 4          by their lack of foreknowledge of the document, so it's 5         not exactly the same same.
+               But, in any event, let's just continue with 7         whatever time we have left.
+                    MR. GUILD:        Yes, sir.
+     BY MR. GUILD:
+      0    Mr. Mendez, when you initiated your inspection 11    ,
+activities in April of 1985, as you stated, you had a 7 si   12          general awareness that,there had been problems with L.
+G      13           R. Comstock before, their QC department?
+      A    (WITNESS MENDEZ)      Yes,' sir..
+      Q    All right, sir.
+                And yet you did not make any sp'ecific inquiry of 17-         McGregor or Schulz as to what they referred to directly 18           in their March 29th memo alluding to past difficulties 19          with Commonwealth Edison and Comstock; correct?
+      A    (WITNESS MENDEZ)      I don't think I asked them about that.
+      Q   All right, sir.
+                If I could ask you to examine a document.      This is 23          a document that bears a date of September 25, 1984.
+           It's a memo from Schulz to Forney with attachments, and
+(}     25           it was made available by Staff Counsel today, August 13, Sonntag_ Reporting _ Service,_Ltd.
+Geneva, Illinois       60134
+             ,                        (312)   232-0262
+O
+V 1         1986, by way of, I guess, supplemental discovery.
+                                   (Indica ting. )
+                             MR. BERRY:     Just to clarify the record, 4         technically that's not true.                      It was made available, as 5         I recall, last week, on August the 4th.
+                             MR. GUILD:      I stand corrected and apologize.
+         I mistook it tor tne one that was handed over today, Mr.
+         Berry.
+                   Mr. Chairman, I apologize.                 Last week, tnen.
+         Again, indeed, August'ot 19 -- July of 19 86 -- was it 11         July or August?
+                   August, 19u6.         I'm losing track of time.
+    )
+  \_/
+                   I'd ask this document be marked for identitication 14         as Intervenors' Exhibit 91.
+                                  (The document was thereupon marked 16                                   Intervenors' Exhibit No. 91 for 17                                   identitication as of August 13, 1986.)
+    BY MR. GUILD:
+   Q     Mr. Menaez, do you have a copy ot tnis Derore you?
+   A     (WITNESS MENDEZ)             Yes, sir.
+   Q     All right, sir.
+                   Now, it does
+==Dear a date or SeptemDer 26,==
+, and 23         it appears to relate to Comstock Inspector concerns or 24         tnat time period.
+                   Have you seen this document Derore?
+l [}
+Sonntag Reporting Service, Ltd.
+Geneva, Illinois 60134 (312) 232-0262
+I 10660   ;
+I l
+(:)2 l-     A         (WITNESS MENDEZ)    No, . I . n aven ' t.
+..
+c           2      Q         I take it you didn' t see it at the pointt where you 3                commenced -your inspection. activities --
+      A         (WITNESS-MENDEZ) . That's correct.
+: 5. Q         -- at Braidwood?
+;           6                      All right, sir,                                                                                i 7                      Now, who was Mr. Forney, tne' recipient or addressee' 4
+                or tne document?
+      A.        (WITNESS MENDEZ)    I believe Bob Schulz works tor Forney.
+ -         10                Tnat is, Schulz' supe rvisor.
+-     Q         Okay.
+                      He's'snown nere, as or September or '84,;as tne 13                Chiet, Projects Section lA.
+                      Does ne nold tnat position today?
+i i          15      A         (WITNESS MENDEZ)    Okay.            I know that he's a section 16                chiet ano I also know that he works for Projects.
+.          17                      I don't know it ne works for -- it he's section i          18-               cnler in lA.
+      Q         Do you know wnetner tue Resloents at Braidwood, Schulz 20                and McGregor, reported to Mr. Forney in tne spring or 21                '85 wnen you initiated your inspection activities?
+      A         (WITNESS MENDEZ)    Repeat tne question, please.
+      Q         Did they work for Forney back in March of '85, April of i          24                '85?
+l 25      A         (WITNESS MENDEZ)    I don't know if one or both worked for i
+     .(])
+I
+!                                  Sonntag_ Reporting _Serylca,_Ltd.
+Geneva, Illinois                  60134 I
+(312)    232-0262
+'
+                                                                                                                                                                               't f  .\
+l                                                       .Forney.
+                                  Q                     Okay.
+                                                              The document, in the second numbered paragraph'on 4                                                        the first page, after reciting 'that five Comstock 5'                                                       Inspectors came to-see the Resident -- states there, 6                                                        Paragraph 2,     " Morale was extremely low or non-existent
+                 -7                                                        due to poor management," and it states, "One of the five-8                                                        individuals believed the quality of work was being 9                                                        affected," one believed ~ the quality of work was not 10                                                        being affected.           The bottom line is the other three 11                                                        Inspectors felt it could be affected in the future due e
+g-           12                                                        to morale problems.
+      ^
+* 13                                                              Do you see those observations there?
+!                14                                  A                     (WITNESS MENDEZ)            .Yes.
+                                  0                     All right, sir.
+                                                              Now, were you aware that in September of .1984 --
+                                                        were you aware, when you began your inspection in 18                                                        September of 1984, there had been extremely low or l                19                                                        non-existent morale among the QC Inspectors at Comstock l                20                                                        due to poor management?
+I-               21                                  A                     (WITNESS MENDEZ)              I was not aware.
+^
+                                  Q                     Were you aware that there was a belief among some f
+                                                        Inspectors that due to that problem, there was a 24                                                        potential that the quality of their quality control i
+(}           25                                                        inspection work might be af fected in the future?
+Sonntag Reporting Service, Ltd.
+Geneva, IITinois 60T31
+;                                                                                           (312)                   232-0262 a
+        .,,,_y.,     ,_,_._.,_.,-,,_,,-,._-~.-~,.m.,--..-,,,,.,,.,,.,,,,_                            _,,, _ ._ , _ ,_ __._ -., .__,_, , ,,_,- ,,,.,_.        .__,,,_,.ymm_.m,,
+1 A       (WITNESS MENDEZ)         No, I wasn't.
+Q      You did, in fact, speak with a number of the Inspectora 3        who are listed on Page 2 of this document, did you not, 4         in the course of your inspection activities?
+A       (WITNESS MENDEZ)         No, I didn't.
+               I think the only one I spoke to was Danny Holley.
+Q      So you spoke to one of them?
+A       (WITNESS MENDEZ)         Yes.
+0      All right.
+              When you initiated your inspection activities in 11         the spring of '85, were you aware that Mr. John Seeders
+; ,f S . 12         had raised complaints of harassment, intimidation, V
+        production pressure and retaliatory transfer back in 14         September of '84?
+A       (WITNESS MENDEZ)         No.
+Q      Did you ever speak to Mr. Seeders in the course of your 17         inspection ?
+A       (WITNESS MENDEZ)         No.
+                       MR. GUILD:          Mr. Chairman, I'd ask that 20         Intervenors' Exhibit 91 be received in evidence.
+                       MR. MILLER:          No objection.
+                       MR. BERRY:          No obj ection, Mr Chairman.
+                      JUDGE GROSSMAN:              We'll receive 91.
+                            (The document was thereupon received into
+(}     25                              evidence as Intervenors' Exhibit No. 91.)
+So n n t a_g_R e po r_t i ng_S e r v i c_e;_Ltd .
+Geneva, Illinois             60134 (312)      232-0262
+(')
+v 1                           JUDGE GROSSMAN:                           By the way, is there 2 obj ection to 90, other than on grounds of surprise?
+                           MR. MILLER:                       Yes, sir, there was, but since 4 it wasn' t being received now, I thought I would save my 4         5 objections until such time as it was reoffered.
+                           JUDG E GROSSMAN:                          Okay, that's fine.
+                           MR. BERRY:                       Me, also.
+                           MR. GUILD:                       Mr. Chairman, it's being offered, 9 and I understand the Board's position about the 10 authentication issue, but I would ask that counsel be 11 required to state what their objections are, if they 12 have any, other than the surprise issue.
+                           MR. MILLER:                       I'll be happy to do so.
+                      Your Honor, of this five-paragraph memorandum, 15 there is only one paragraph that deals with the issues 16 before the Board; that is, the question of how the 17 Comstock QC Inspector investigation was handled by the 18 NRC Staff, and even that is, as the Board has previously
+!        19 observed, somewhat a tangential matter.
+(        20                      The remaining paragraphs of this document relate to 21 other subject matters and call into' question matters i
+that were the subject of contention items that were 23 dismissed by the Commission.
+(
+                      If the document is admitted, it seems to me that l
+{}  25 these statements are both prejudicial and they raise I
+l                                Sonntag Reporting Service, Ltd.
+I                                    Geneva, IlTiiiois                     601~34 l                                                  (312)        232-0262 i
+O
+      extraneous issues that may well have to be addressed 2      through the course of examination of Mr. Schulz and 3      perhaps others as to what his grievances were with 4      respect to the way in which these material. traceability 5      verification program print-outs or the GAP FOIA request 6      were handled, and the point, with respect to the 7      management by the NRC of the inspection of the 8      grievances of the Comstock Quality Control Inspectors is 9      perhaps a legitimate issue to be explored with these 10      witnesses and certainly with Mr. Schulz and Mr. McGregor 11      when they appear, but it seems to me that the 12      prejudicial and irrelevant nature of the bulk of this 3
+G           document outweighs whatever probative value it will 13 14      have, since the subj ect can be fully explored by oral 15      examination of the witnesses who are knowledgeable on 16      the matter.
+                         JUDG E GROSSMAN:             Well, first of all, what we 18      did say was that while we have reservations about trying 19      the issue of the character of the NRC investigations or 20      confirmations of the NRC of company practices, that it 21      has become an issue, and we've recognized that both 22      Staf f and Applicant have put that in issue, the fact 23      that the NRC has confirmed the practices of the company, 24      both CECO and Comstock, to a certain extent, and Staff
+(}  25      generally defends the character of its investigations, So n n t a g _R ep_o_r t_i n g_S e rv i c e ,_L t d .
+Geneva, Illinois              60134 (312)     232-0262
+l   1
+   \_/
+    so that is in issue.
+               Now, I believe this entire document reflects on 3-   that issue.
+               As to items that are collateral to the exact issues 5    that we're hearing here, we're not going to be taking 6    evidence on collateral matters.               We have made that plain 7    from the beginning.
+               Parties have objected, and one ruling that we made 9    was not entirely consistent with that, but we certainly 10    have no intention of going outside the contentions that 11    are in issue here to try collateral matters.
+fg    12               But it seems to me as though-the entire document N./I 13    does reflect on the character of the NRC review of this 14    entire issue here.
+               Now, as far as Staff is concerned, of course, the 16    documents are admissions, and to the extent -- assuming 17    they are authenticated, and to the extent that Applicant 18    relies upon Staf f's approval of its positions, the fact 19    that they are admissions against Staff, to a certain 20    e xten t, would be admissions against Applicant, so I 21    don't see too much of a problem.
+               But, Mr. Berry, let's hear further from you.
+                    MR. BERRY:        Maybe you can just help me out, 24    your Honor.
+25               The Staff's position in this case is reflected in
+( })
+Sonntag Reporting Service, Ltd.
+Geneva, Ill'inois      6013'4 (312)      232-0262
+                                                                                                                                           ,10666 f)-
+v 1                                    the testimony of the witnesses we produced; for example, 2                                   Mr. Mendez and Mr. Neisler, when they were assigned to 3                                    investigate the allegations of the' 24 QC Inspectors..
+                                                We have witness who investigated Mr. Puckett's 5                                    allega tion s.          Another witness will speak to the Staf f's -
+                                    investigation of Mr. Seeders' complaints.
+~
+                                                You know, that is what- the Staf f _ is of fering.
+j        8                                                I don't understand that the Staff's conduct is on 9                                   trial in this case.
+                                                To the extent that -- to the extent that'Intervenor e        11                                   or another party wants to challenge the thoroughness of 12                                    the Inspectors' investigation, I can understand that, 13                                   but internal disagreements, you know, or an internal 14                                   decision is made within the NRC, I do not agree that l
+i 15                                    that is part of this case and that it is a proper 16                                   subj ect of testimony in this case.
+l        17                                                      JUDGE GROSSMAN:            W ell, it's not just the 18                                    thoroughness, but it's also the credibility of' its f        19                                    investigations and the general character, and this l        20                                   certainly reflects on that.
+]'       21                                                I don't think any party has a right to determine 22                                   which people can be appointed as spokesmen for the 4
+                                   company by either their actions or statements.
+                                                To the extent that these documents reflect internal 25                                   NRC positions that may af fect the credibility of its
+{}
+i S Rnnt a g_R e por ti n gle_tV_Lc_e ,_Lt d_.
+Geneva, Illinois           60134
+: j.                                                                    (312)      232-0262
+110667-9     7
+                                    .1                                                  investigations or confirmations of the -company
+                                    '2                                                  performance, I think itListrelevant to the-hearing.
+  .                                 '3                                                       Mr. Miller.-
+                                                           'MR., MILLER:. Your Honor,lI respectfully 5                                                 disagree with respect to-Staff's_ prerogatives.
+                                                       Unlike any other party, they are entitled to 7                                                 designate the spokes persons for the Staff position, and -
+                                                those people rise-or fall on the testimony that they 9                                                present and the cross examination.
+                                                        But this document goes quite well beyond.that to 11                                                   not only -- it really doesn' t impune directly . the -
+l                            12                                                   investigative efforts or the testimony of the witnesses 13                                                    that are on the stand.
+                                                         It is, rather, a more generalized attack 1by, Mr.
+                                                    Schulz over the way in which he was being dealt with by 16                                                   his superiors on some specific items that do'not,:in
+                                . 17                                                    fact, relate to the subject matters' of this hearing.
+                                                        And to that extent it really does fall into the 19-                                                  category of a -- if it's admitted, of a generalized 20                                                    attack on the way in which the Staff conducts its 21                                                    af fairs, and I don't believe that that is an appropriate
+          ,                       22                                                    subj ect for this hearing.
+                                                                MR. GUILD:     Mr. Chairman, I agree 24                                                    wholeheartedly that while we believe there are serious 25                                                    issues involving the adequacy of material traceability
+(]}
+Sonntag  Reporting deneva,   IlTIn 61sService, 6bl~31 Ltd.
+i
+{                                                                                                       (312) 232-0262
+e 10668 VlD
+           - .1      at Braidwood, that matter is pending before the Court of 2       Appeals for the District Court of Columbia.                  We may orl 3       may not get to trial' on those.
+                I don't purport to -try those issues here; and I 5       understand the Chair's ruling to the contrary, but the 6       Staff can't be cloaked or shielded f rom having questions 7       raised about the reliability of its work product to the 8       extent it's an adversary in this case or to its            -
+       credibility, to the extent it's an adversary in this 10         case, by simply raising this specter that it's an 11         internal disagreement among the Staff.
+                  Lord knows there's been considerable examination of O   13         QC Inspectors about their motives and reasons why their 14         testimony should be credited or not credited in this 15         case, and I think that the Staff is not on any 16         fundamentally different footing having taken an 17         adversary position.
+                        MR. BERRY:          Mr. Chairman, this document is 19         offered -- Intervenors offered this document through Mr.
+         Mendez and Mr. Neisler.
+                  Neither one of them authored this document.
+         Neither one of them can authenticate this document.
+23                       JUDGE GROSSMAN:            You are referring now to
+;         24         which document?
+                        MR. BERRY:          Intervenor Exhibit 90, which is
+        }
+Son _n_t.ag_Renotting Se rvice,_Lt;d.
+Geneva, Illinois           60134 (312)     232-0262
+m
+h 1 what we're still arguing.
+            JUDGE GROSSMAN:     Which we're arguing on.
+Fine.
+            MR. BERRY:    Yes.
+       I mean, I would just object to attempts by 6 Intervenor to introduce a document through a witness who 7 cannot speak to it.
+       The witness has never seen the document before, the 9 witness cannot authenticate it; and the bulk of the -- I 10 mean, the document only tangentially relates to anything 11 that -- any action that they took or failed to take for s 12 whatever -- for the reasons stated in this exhibit.
+       I mean, I think it's just simply inappropriate, 14 highly inappropriate, to try to attempt to introduce 15 this document through anyone other than Mr. Schulz or 16 Mr. McG regor.
+            JUDGE GROSSMAN:     Okay. Well, so we have the 18 problem of authentication of the document; but, again, 19 we expect both Mr. Schulz and Mr. McGregor to appear, 20 and hopefully that will obviate the problem and we won't 21 have to resort to directing Staff to authenticate the 22 document on its own.
+       Nowy as far as having a foundation witness, the 24 document would be an admission, and I know we won't need 25 a foundation witness for that type of document, so you
+(]}
+Sonntag Repor_tijn Service, Ltd.
+Geneva, Illinils    6~0134 (312)  232-0262
+i 10670 t'
+(
+       'l                 ought to bear that in mind; but I assume we've heard all 2                 the arguments you have, and we're not ruling on it right                _
+       -3                 now, anyway.                                                                                             -
+                                     So with that, I think we might as well conclude                                      ,
+                 until 9:00 o' clock tomorrow morning.                                                                    l t
+                                                                        (WHEREUPON, at the hour of 5:06 P. M., the        ,
+                                                                           hearing of the above-entitled matter was       !
+                                                                           continued to the 14th day of August, at        ;
+;       9                                                                            the hour of 9:00 o' clock A. M.)
+11 12                                                                                                                           >
+iC   13 14 15 16 17 18 19 4
+4
+i
+i     22 23 24 i
+l(~)
+s Sonntag_Repotting_Servica,_Ltd.                                                     .
+i                                                           Geneva, Illinois                          60134 (312)             232-0262
+CERTIFICATE OF OFFICIAL REPORTER This   is  to certify that the attached proceedings before the   UNITED  STATES   NUCLEAR  REGULATORY    COMMISSION in  the matter of:
+NAME OF PROCEEDING:    BRAIDWOOD STATION UNITS 1 4 2 COMMONWEALTH EDISON COMPANY DOCKET NO.:            50-456/457-OL PLACE:                 JOLIET, ILLINOIS
+* O DATE:                  WEDNESDAY,' AUGUST 13, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
+(sigt) 3 6.ua f.8 1 (TYPED)
+                                                      "         U Gary L. Sonntag Official Reporter Reporter's Affiliation O}}

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