Text

Transcript of 851003 Evidentiary Hearing in Apex,Nc. Pp 9,072-9,355.Supporting Documentation Encl
	ML20137Z515
Person / Time
Site:	Harris
Issue date:	10/03/1985
From:	; Atomic Safety and Licensing Board Panel
To:	;
References
	CON-#485-754 OL, NUDOCS 8510080261
	Download: ML20137Z515 (285)
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. 444 North CapitolStreet n , a51oos0261 e51003 Washington, D.C. 20001 L PDR ADOCK 05000400 9 02)347-3700 T PDR *

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NATIONWIDE COVERACE

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9072 tm 1-1 1 UNITED STATES OF AMERICA v 2: NUCLEAR REGULATORY COMMISSION l

3' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Al ------------------g 5 .

i In the Matter of: :

I -

0! CAROLINA POWER & LIGHT COMPANY :

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

0' (Shearon Harris Nuclear Power :

9; Plant) :

X Ramada Inn l Interstate 55 i U. S. 1 South I2I Apex, North Carolina (l

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}3 Thursday, October 3, 1985 14 The hearing in the above-entitled matter reconvened, 15 pursuant to recess, at 9:14 a.m.,

BEFORE

l l JAMES L. KELLEY, ESQ., Chairman A m c Safety and Mcensing Board 18 U. S. Nuclear Regulatory Commission 39 Washington, D. C. 20555 20l GLENN O. BRIGHT, Member Atomic Safety and Licensing Board 21 Nuclear Regulatory Commission Washington, D. C. 20555 h l JAMES H. CARPENTER, Member At mic Safety Licensing Board 23

! U. S. Nuclear-Regulatory Commission .

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" =ht"eco", o. C. 20555 25; .-

9073 (

APPEARANCES:

1

'[")

On Behalf of the Acolicants:

2 THOMAS A. BAXTER, ESQ.

3: Shaw Pittman, Potts & Trowbridge

(' 1800 M Street, N.W.

4 Washington, D. C.

5 DALE HOLLAR, ESO.

RICHARD E. JONES, ESQ.

6! ANDREW H. McDANIEL, ESO.

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

! Appearing Pro Se:

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

12 es JOHN D. RUNKLE, ESC.

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, 307 Granville Road Chapel Hill, North Carolina 27514 14!

On Behalf of the State of North Carolina:

15 H. AL COLE, ESQ.

16 STEVE BRYANT, ESQ.

State of North Carolina 17 Department of Justi'ce

P. O. Box 629 18: Raleigh, North Carolina 27602 I

191 On Behalf of the Nuclear Regulatorv Commission:

20- CHARLES A. BARTH, ESQ.

JANICE E. MOORE, ESQ.

21 Office of the Executive Legal Director U. S. Nuclear Regulatory Commission

{} 22 Washington, D. C. 20555 23: BRADLEY W. JONES, ESQ. ,

/^) 24 l U. S. Nuclear Regulatorj Commission, Region II l 101 Marrietta Street bi neornm. rne.l Atlanta, Georgia 30303

25, l

l

9074 Sim 1-1 1 CONTENTS O 2

ratsszs o arcr caoss ato accr arcaoss so^ao 3 Patty Miriello 9083 9088 9157 9159 9151 4 )

T. W. Lanier

)

5 1 K. G. Hansley 9164 9197 9262 9263 9245

)

6 }

Donald Williams )

7 Charles overton, III )

Shirley Burch ) 9267 9276 9302 8

9 LAY-IN DOCUMENTS 10 TESTIMONY OF FOLLOWS PAGE 11 Patty Miriello ................................. 9084 12 Messrs. Lanier, Self and Hansley ............... (None) 13

' ]' Messrs. Williams, overton and Ms. Burch ........ 9274 14 15 EXHIBITS 16 17 EXHIBIT NO. IDENTIFIED RECEIVED 18 Applicants' 41 9086 9124 42 9087 19 "

43 9087 44 9087 20 "

45 9088 21 22 23 p 24 Aes ol Reporters, Inc.

25

9075

1-1-SueW I PROCEEDINGS K- 2 (9:14 a.m.)

3 JUDGE KELLEY: Good morning. We have received 4 from Mr. Eddleman a motion for protective order which has 5 been served on counsel here at the hearing.

6 Our initial reaction, subject to counsel's 7 thoughts on it -- it's a brief one-page Order, but still 8 we just got it -- is to hear counsel on this after the 9 first break. Is that a reasonable proposition, Mr. Baxter?

10 MR. BAXTER: We can do it then, or we can ,

11 address it now, Mr. Chairman. We are prepared. l i

12 JUDGE KELLEY: Are you ready, Mr. Barth?

,r

'w ' 13 I MR. B ART!!: Yes, Your Honor. ,

14 JUDGE KELLEY: Just a minute, then. We will ,

I 15 do it now. Juct a second.

16 (Pause.)

17 As I understand it, Mr. Eddleman, having myself 18 just read the one page you handed out, this is a preliminary i 19 to the motion itself. It isn't the motion itself?

i 20 1 MR. EDDLEMAN: That's correct, Judge. This is ,

21 a motion for a protective order which would protect against l 22 disclosure the information in the motion itself which l l

23 consists of three handwritten pages. I will apologize for i r

!m) x . 24 the third page.

efesteret Reporters, Inc.

25 1 I got to the point where I would either have to l

I

9076

1-2-SueW I go to a fourth page or not. And I went up the side of the

'/ 2 But other than that, what I would like to do is page.

3 have this motion ruled on before I even pass the other 4 thing out, because --

5 JUDGE KELLEY: This is a threshold step. I didn't 6 quite grasp that. But now I understand it's a threshold 7 step to the motion itself.

8 MR. EDDLEMAN: And then as to the motion itself, 9 I think the parties and the Board can take as much time as 10 they feel they need.

II JUDGE KELLEY: All right.

12 MR. EDDLE"AN: I'm not trying to press that at i l

?>

?\>) 13 this point. I 14 JUDGE KELLEY: I misunderstood what was going on.

15 This is just a threshold step.

16 Okay. Mr. Baxter.

l 17 HR. BAXTER: We do not oppose the motion. I 18 would say that the grounds -- I have some personal skepticism '

19 that the motion will indood have the offect stated. But, 20 if it di.d those are serious enough reasons to warrant f l

21 issuance of a protective order. i 22 And if when the Board and the parties review it, {

23 if the determination is made that it doesn't deservo I!i

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( ))

'w 24 CAMERA treatment it can be returned to Mr. Eddleman or ho i ufasna ceoonus. ix. !

25 can withdraw it.

I

9077

1-3-SueW 1 MR. EDDLEMAN: I would prefer respectfully that

/ 2 if the Board denies the motion that the motion itself still 3 be treated as an IN CAMERA document and just be kept in 4 the record.

5 JUDGE KELLEY: In some fashion, it would have 6 to be in the record in any event. I think Mr. Baxter might 7 have been referring to the numbers of copies floating 8 around.

9 But, in any event --

10 MR. EDDLEMAN: Yes, sir.

11 JUDGE KELLEY: Okay. Mr. Barth, any objection I i

12 to this motion? l

,~w mj 13 MR. B ART!!: Yes, Your Honor. The Agency's l 14 regulations do not specifically cover this. If you recall ,

t 15 under discovery, under 2.740 (c) it provides for protective i 16 order in discovery which is the closest analogy we can come.

l 17 In that regulation it requires a good cause for l 18 the issuanco of protectivo order be given. There is no i

19 kind of cause whatever given in the motion for the protective '

l 20 order. All it says is protect and keep secret what I may 21 do lator.

22 And that cortainly does not constituto good cause.

I 23 I think that by the analogy you would have to come fo rwa rd l l

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() 24 at this time with a threshold showing of why the information j w r.imi r,.oon.n, i=.

25 chould be protected. I I

r

9078 31-4-SueW I JUDGE KELLEY: What about the bottom of the page D

d 2 where Mr. Eddleman says that he believes in all probability 3 that the motion would disclose the identity of an informant?

4 MR. BARTH: We are not talking about his motion 5 itself, Your Honor. He has to disclose in this piece of 6 paper, in my mind, why there is good cause.

7 And I don't think that sets forth sufficiently 8 a good cause argument. It's merely a statement that his 9 motion would set forth the identity.

10 JUDGE KELLEY: Isn't it though something of a 11 matter of degree? I understand the point you are making.

12 But isn't it to some cxtent a matter of degree 13 in the sense that if someone makes a motion to, let's say, 14 close a hearing, exclude the press, really batten down the 15 hatches on something, you have to have pretty good cause i

16 to do that?

17 The motion here is just to protect this piece !

I 18 of paper pending a ruling on it, as I understand it. What j 19 is sought is fairly modest, it seems to me. l 20 Doesn't the showing of good cause sort of go 21 down commensurately?

l 22 MR. BARTH: I defer to the Bench's consideration 23 of this matter, Your Honor. I just don't think that this l

( 24 nudum pacum by itself can stand alor.g as good cause, but pr.s.<3 c.oore.... inc.

25 I certainly will not argue with you on this matter, l

i 1

l t

9079 l

l#1-5-SueW ] JUDGE KELLEY: Any comment, Mr. Eddleman?

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(_/ 2 MR. EDDLEMAN: Well, Judge, the dilemma is if 3 I am showing good cause, explain exactly why I think it 4 would reveal the identity, then I would have done as the 5 transcript says at one point, what we seek not to do.

l l 6 And I think also the Board in its discretion 7 is empowered to do what's necessary for an orderly conduct i

8 of the hearing. And although I'm not quite sure if that l

l 9 covers this, what I'm basically saying here is that I don' t 10 want to reveal information which I believe might compromise 1

11 the identity of this confidential informant for a reason '

12 which is stated in the written motion and which I don't

( 13 want to road out here.

14 JUDGE KELLEY: Something like a stay pending 15 appeal when you have to get some kind of relief because 16 disclosing it will take your appeal away? {

17 MR. EDDLEMAN: Well, I think disclosing would l l

18 possibly do irroparable harm to somebody who is not able 19 to reprosent or defend themsolves horo, namely the informant.

l l

20 JUDGE KELLEY: Okay. Excuse us a moment.

21 (The Doard members are conferring.) f l

22 JUDGE KELLEY: Taking into account the fact that 23 this is moroly a motion for a protectivo order to protect

() 24

u. ras.,a ceuon.,.. inc.

the contents of another motion and is not really much of 25 an intrusion on the public's right to know, wo aro going to

9080

)1-6-SueW j grant this motion, and it's granted.

<x ks 2 MR. EDDLEMAN: Judge, if I may then just now 3 distribute the copies of the motion to the parties and 4 the Board, and you can take as much time as you feel you 5 need to review that.

6 JUDGE KELLEY: Yes, if it's brief -- let me 7

just --

8 MR. EDDLEMAM: I'm not asking you to review it 9 now. I'm just --

10 JUDGE KELLEY: I understand that. But, let me j 11 ask you this. Would it be -- would it not be, if your 12 motion is granted and a panel was recalled, or some other O)

(_ 13 witnessos are called, on the point you want to got into, 14 are you thinking about today or tomorrow?

15 MR. EDDLEMAN: Yes, sir.

16 JUDGE KELLEY: So, we ought to road it pretty l i

i l

17 soon to got to it, at least argue it after lunch.

jg MR. EDDLEMAN: Judge, there is another option l

pp which I hadn' t immediately thought of, but it's pretty l

20 obvious, and that is that there is going to be a continuation I 21 of those hoarings in November.

22 And if the parties considor this to take moro 6

23 timo to decido, there is no reason why we cculdn't agroo

() 24 er.w.rm caermi anc.

to tako it up further then.

25 JUDGE KELLEY: Why don't we do this? If tho t >

t

9081

01-7-Suew j motion is three or four pages in length, it doesn't take

() 2 a long time to read it, could we not at least come back 3

and have a preliminary assessment from the Board and parties 4

as to whether we should go right on into this motion and 5

rule on it or whether it's going to take longer or whatever?

6 And af ter we have got it and had a chance to 7

read it, maybe if you would distribute it now perhaps 8

f ter the first break we can at least make that much 9

p rogres s .

in MR. EDDLEMA N: Judge, if you want to proceed l

11 that way, that's fine with me.

12 JUDGE KELLEY: Okay. Why don't you distribute

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(~-) j3 it now? And thet will be the expectation. l END #1 ja Joa flws 15 I i 16

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1 18 l 19 20 l

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22 l 23 ll) 24

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9082 2-1-Jo Wal l

1 JUDGE KELLEY: Mr. Eddleman is distributing O

is_/ 2 his motion for In-Camera hearing, and pursuant to the ruling 3 we just made, this will be held under protective order, 4 or at least pending disposition of ruling on the motion, 5 and we will consider what further steps are appropriate.

6 (Mr. Eddleman passes out document.)

7 It appears we are about ready to go to the 8 Interveners direct case. May I just ask once more, 1

9 if the subpoenaed witnesses that we anticipated being here 10 today, are they all on tap?

11 MR. RUNKLE: The Sheriff's Department should be 12 here by ten o' clock, so I fully expect them to be here on 13 time.

14 JUDGE KELLEY: Your people, Mr. Cole?

15 MR. COLE: Should be here by ten o' clock also, 16 sir. f I

l 17 JUDGE KELLEY: Fine. Okay. Anything else before ;

. i 18 we go to Mr. Runkle, or his first witness?

l l

19 Okay, Mr. Runkle.

20 MR. RUNKLE: Yes. For the Conservation Council 21 of North Carolina, we would like to call our first witness, 22 Patty Miriello.

l I

23 JUDGE KELLEY: Fine.

() 24 Whereupon, 25 PATTY MIRIELLO, j

l

!2-2-JoeWal 9083 i

l 1 was called as a witness on behalf of the Interveners, and 2 having first been duly sworn by Judge Kelley, testified 3 as follows:

XXX INDEX 4 DIRECT EXAMINATION 5 BY MR. RUNKLE:

l 6 Q Ms. Miriello, will you state your name and address 7 for the record?

8 A My name is Patty Miriello. My address is Post 1

l 9 Office Box 28071, Raleigh, North Carolina.

l 10 0 Did you file testimony in this matter, a document 11 entitled: Testimony of Patty Miriello for the Conservation 12 Council on Contention WB-3, Drug Abuse During Construction?

( 13 A Yes, I did.

14 (Mr. Runkle approaches the bench and parties 15 to show a document.)

16 Q Ms. Miriello, I have handed you a copy that is l 17 marked to reflect the stipulationc that was entered into i

18 about eleven o' clock yesterday morning. Can you review 19 that document and see if it is so marked?

20 A It certainly is.-

21 Q Is it your understanding that your testimony 22 on the stand today is to reflect the stipulation that 23 was entered into yesterday?

() 24 y e e c u m , m .,Inc.

A Yes, I do.

25 Q Is your testimony to reflect tne stipulation of

2-3-Jo W31 9084 1 yesterday true and correct to your knowledge and belief?

/

2 A Yes.

3 MR. RUNKLE: I would then move to enter the 4 testimony of Patty Miriello into the record.

5 JUDGE KELLEY: No objection.

6 MR. BARTH: No objections from the Staff, Your 7 Honor.

8 MR. HOLLAR: No objections.

9 JUDGE KELLEY: Motion granted. Testimony is 10 admitted.

11 (Profiled testimony of Ms. Miriello follows.) l 12 !

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T September 23, 1985 (G

UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINO BOARD l

In the Matter of )

)

Carolina Power & Light Company ) Docket No. 50-4C0 OL and North Carolina Eastern )

Municipal Power Agency )

)

(Shearon Harris Nuclear Power VlarrH )

W TESTIMONY OF PATTY MIRIELLO FOR THE CONSERVATION COUNCIL M CONTENTION tiB-3 (DRUC ABUSE DURING CONSTRUCTIO?O O

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l Q: What is your name? i i

I A: My name is Patty Miriello.

j ,

Q: What is your address?

A: My address is Post Office Box 28071, Raleigh, North Carolina 27611.

j Q: Have you ever worked at the Shearon Harris Nuclear Plant? If so, in I

', what capacity and for how long?

A: I was employed by Nuclear Energy Services of Danbury, Connecticut, i

which was a contractor for Carolina Power & Light and also employed by f ,

Carolina Power & Light. I worked at the Harris plant from April 1984 1 -

through August 1985. I was as an engineer in in-service inspection which is '

involved in inspecting safety-related piping welds and other components.

]

i Q: Have you had any other education or experience with nuclear power O at c2 tr at d crid -

l As Yes, prior to my employment at the Harris plant, I was an engineer l with EG&G of Idaho, a DOE contractor, and worked at the Three Mile Island

(

j plant in accident investigation and data analysis. I have an M.S. in Ceramic Science which was funded through a nuclear waste management traineeship with DOE. I am currently finishing my M.S. in Nuclear i Engineering at North Carolina State University. l

( i I Q: Are you familiar with the Conservation Council's contention WB-3 i

(Drug Abuse During Construction) in the Operating License proceedings for l l

l the Harris plant?

t I i As Yes, it deals with the drug abuse at the plant during construction !

)

and the resulting safety-related issues. j j

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l . e g io N as 54i @ W Q: While you worked at tha Harris plant, did you notice any drug abusa '

by any of the workers, inspectors, or management at the plant?

O ^ v sv rie 1 21 erea s7 ce t e ccie er aics e a.

California, and others.

Q: Please describe the drug activities of Conam Inspection personnel and their inspection activities.

A From July through November 1984, eddy current data at Harris was' obtained by Conam personnel I have seen deal or use cocaine. On one< i occassion I witnessed John Camburn of Conam purchase several grams of cocaine from Mark Matheson, also of Conam, at the Micsion Valley Inn in Raleigh and then proceed to use. Mr. Camburn alleged that other persons employed in the Conam organization also were using drugs, including John -

Funanich, Mr. Dugas (inspector), Mr. Dobson (data analyst), Mark Phtheson l

l (inspector), and others. These people were involved in inspection / analysis' of the steam generators at Harris.

In October or November 1984, Conam also did eddy current work at the VC i i

! Summer Nuclear Plant near Columbia, South Carolina, operated by South Carolina Cas & Electric. Mr. Camburn said that one quarter to one half a l pound of marijuana was brought into the plant in an equipment case or l

package which was then opened on-site in a Conam data analysis van. The drugs had been flown to South Carolina from Richmond, California, and were alleged to have been sent by Richard Marlow, Jr., vice president of Conam.

l Mr. Camburn said drug were routinely shipped to Conam personnel.

Q: What is the possible safety significance of Conam personnel's i

i l involvement in drugs?

At Conam Inspection provides eddy current inspection personnel and eddy ,

current data analyst personnel to obtain and analyze steam generator tubing 1

3 i l __ ____ _ _ _ _ - _ _ __ _ _ __ -

J i

b eqk JG at a large number of the nation's operating and construction stage nuclear ^F 3 t o l a.{ 95 plants. Steam generator tubing contains the primary reactor coolant which shgg4%

l circulates in a loop continuously from core to the steam generator. Eddy l

current inspection is a means of finding any cracks or other indications in the tubing which may eventually lead to rupture. When inspectors or analysts are abusing drugs, flaws in the tubing may be missed, calibrations i

! of the equipment may be off, data may be confused as to its origin or from

}

j what tubes it is from, and finally the data may be mis-interpreted by the i

t final anal'yst. If the tubing ruptures and if enough primary coolant is lost i

in this way the core may become uncovered and reactor control may be lost.

j This is the type of problem operators are trained to handle, but the 1

i operators may not be able to handle deviations from this basic problem. .,

i.

Q: Have you witnessed any andmur workers at Harris who were involved with drugs?

At Yes, on one occasion last October, when I arrived at work in the

{

morning I observed seven or eight construction workers up on the boilers ,

obviously smoking marijuana. This was in plain view of the administration building.

Additionally, when I walked through the Daniel parking lot I could I

i smell marijuana at least three or four days a week, especially at lunch time or around shift changes. I am sure that the Wackenhut Security guards at i

the gate could verify this. ,

4 Q: What are the deficiencies in CP&L's drug testing program?

At If a worker has worked for CP&L, Daniels, or any of the other contractor, for three years or more, he or she does not have to take a urine test. These tests are also taken at the worker's own doctor's office or i

i' 4 l l

clinic and as the tests are often scheduled two waeks in advance, it is possible to substitute urine. This was commonly known at the plant as the

() best way to get around the urine test for drugs.

From what I have seen of the company's use of drug dogs, they were not used effectively. For example, in the spring of 1985 I was entering the site late one morning through the CP&L entrance near the cooling tower when I saw the drug dog being unload in full view of the construct 1'on workers near the diesel generator building and those working in all the trailers near the cooling tower. A much better entrance for the dog would have been through the receiving warehouse gate where only a few people could have seen the dog and these would have been CP&L employees. In order to,stop drugs the dog could be placed randomly at the entrances and have it sniff workers

~

lunch boxes, brief cases, and other belongings. As soon as a drug dog is spotted being taken out of the truck, the news is spread across the site in l

a few minutes by word of mouth.

l i

awesfiaw. M Q: Have you raised any safety-related issues concerning drug abuse at a-65uear w A Ac e l the Harris plant before this hearing? If so, when and with whom?

p , g, g q ,5 A: Last November I brought to my supervisor's attention the need to ' b f"A " " ' ' '

recheck steam generator data supplied by Conam as there appeared to me to be l mistakes in it. Around November 25, when nothing had been done I went to the Federal Bureau of Investigation with my concerns about Conam and drug abuse. This past August 15th or 16th, I contacted the State Bureau of Investigation with my concerns about drug abuse at the Harris site. During the second week in September I was interviewed by members of the Nuclear Regulatory Commission staff about my allegations.

1 Q: From your observations, is drug abuse at the Harris plant

() widespread?

5 E

A: Yes, drug abuse is widespread throughout the Daniel Construction Company and Carolina Power & Light at the Harris plant.

Q: Does that conclude your testimony?

A: Yes it does.

0$

O 1

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i O 6

2-4-JonWal 9085 1 MR. RUNKLE: We would also request that the

(- - -

'u/ 2 testimony be bound into the record as asked and answered.

3 JUDGE KELLEY: Yes.

4 MR. RUNKLE: This witness is ready for cross-5 examination.

6 JUDGE KELLEY: Thank you. Mr. Baxter? Or Mr.

7 Hollar.

- 8 MR. HOLLAR: Thank you, Judge Kelley. Before 9 I get into the cross-examination, just as a matter of 10 efficiency, I would like to have the documents that were i

11 distributed yesterday marked for identification.

12 JUDGE KELLEY: Fine.

,y

_' 13 MR. HOLLAR: The first document -- l 14 MR. RUNKLE: Excuse me counsel, but do you have l

15 another set of those? ,

16 l MR HOLLAR: I think we do. Do you have the

+

1 17 copics in front of you, Mr. Runkle? I 1

18 MR. RUNKLE: Yes, I do.

19 MR. HOLLAR: We would ask that the first document, t

20 which is entitled, Employee Exit Questionnaire, signed by 21 Patty S. Miriello and dated 2/19/85, be marked as Applicants '

22 Exhibit No. 41.

23 JUDGE KELLEY: Let me just be clear, Mr. Hollar.

(~b 24

() I thought that these documents that were distributed yesterday I v F=s.a ceommi. ine.

25 were contemplated for use, or possible use, in cross-

i (2-5-JocWal 9086 1 examination, and I understand why we might want to

! (. ) 2 identify them just for clarity.

l 3 But do you contemplate offering them as evidence?

l 4 MR. HOLLAR: Your Honor, I think we will probably l 5 not offer them as evidence, but for clarity I just wanted 6 to have them marked.

7 JUDGE KELLEY: This is only identification.

8 MR. HOLLAR: That is right.

9 JUDGE KELLEY: Okay, go ahead.

10 MR. HOLLAR: Now --

l 11 JUDGE KELLEY: So you are offering the exit 12 interview as 41?

13 MR. HOLLAR: Yes.

14 JUDGE KELLEY: I,t is marked as 41.

XX INDEX 15 (Above mentioned document is i

16 marked as Applicants' Exhibit 41 l l

17 for identification.)

i 18 MR. HOLLAR: As Applicants Exhibit No. 42, we ;

19 ask that an 18 page letter, dated August 9/10, 1985, to ;

I 20 Mr. M. A. McGuffie, and as attachments the two unnumbered 21 pages and a four page memorandum be marked as Exhibit No. !

l I

22 42.

23 JUDGE KELLEY: You said to Mr. McGuff'io. Fron

() 24 a f .nera c a re.,,,inc.

Ms. Miriello? +

25 MR. HOLLAR: From Ms. Miriello.

2-6-Jo;Wal 9087 l

1 JUDGE KELLEY: Okay.

!X INDEX 2 (Above mentioned document is 3 marked Applicants' Exhibit No. 42, 4 for identification.)

l 5 MR. HOLLAR: As Applicants' Exhibit 43, we 6 ask that a two page letter to M. A. McDuffie, from Patty 7 Miriello, dated Augus t 12, 1985, to which is attached a 8 resume of Patty S. Miriello, be marked for identification.

l 9 JUDGE KELLEY: As 43.

10 MR. HOLLAR: 43.

11 JUDGE KELLEY: Right.

XX INDEX 12 (Above mentioned document is

() '

13 l i

marked Applicants' Exhibit No. 43 l 14 for identification.)

15 MR. IIOLLAR: As Applicants ' Exhibit 44, we ask !

16 that the Affidavit of Patty Miriello, dated September 6,

! i 17 1985, be marked for identification, t 18 JUDGE KELLEY: Right. '

XX INDEX 19 ( Above mentioned document is i

20 marked Applicants' Exhibit No. 44 21 for identification.) i 22 MR. !!OLLAR: And' finally, as Applicants' Exhibit 45, l

23 wo ask that the Conservation Council's Supplement to i iO

() 24 Discovery Requents, also dated September 6, 1985, be marked '

praw.i c.iwe.... ine. ,

25 . for identificatian.

ri i

2-7-JosWal 9088 1 JUDGE KELLEY: Yes.

X INDEX 2 (Above mentioned document is marked 3 Applicants' Exhibit No. 45, for 4 identification.)

5 MR. HOLLAR: Thank you.

XX INDEX 6 CROSS-EXAMINATION 7 BY MR. HOLLAR:

8 Q Ms. Miriello, I have a few questions for you.

9 I don't have a lot of questions, because most of your 10 testimony has been striken per our stipulation yesterday.

II MR. RUNKLE: Excuse me, Mr. Hollar, can you 12 talk a little closer to the microphone, I can barely hear O 13 you.

14 MR. HOLLAR: Sure. Is that better Mr. Runkle?

15 MR. RUNKLE: I am You still have to talk louder.

i 16 sorry. l l

17 MR. HOLLAR: Okay. I thought I was talking !

18 pretty loud. -

I9 MR. RUNKLE: All right. That is fine. I 20 BY MR. !!OLLAR: (Continuing) 21 Q Ms. Miriello, just as a matter of background, 22 who is your present employer? '

23 A I am afraid to disclose that because of retallation ,

24 MR. !!OLLAR: Your Honor, I would move to

.- c .. ~.

25 direct the witnoss to snower the quantion, planne?

2-8-Jo Wal 1 JUDGE KELLEY: Can you indicate, Ms. Miriello,

,.r3

(_, 2 some basis for your fear of retaliation?

3 WITNESS MIRIELLO: Yes, I can. CP&L has a lot 4 of connections in Raleigh, and a lot of affiliations with 5 different businesses, and I do they have business with the

~

6 company I presently work with.

7 I could lose my job over this.

8 JUDGE KELLEY: Is the retaliation concerned 9 here of your loss of your job?

10 WITNESS MIRIELLO: Correct. My current job.

I 11 MR. HOLLAR: Your Honor, I would point out that 12 Ms. Miriello is participating in an open hearing, and there 13 -- it has been extensively reported in the press in this ;

I 14 area for the last few weeks. l i

15 If her employer doesn't know about it by now, !

16 l perhaps he doesn't read the papers. l l +

17 JUDGE KELLEY: Mr. Runkle, any comment?

18 MR. RUNKLE: Yes, sir. Just my first comments 19 is that is really beyond the scope of her direct testimony, i 20 ' and really doesn't go into any matter that would influence ;

21 the outcome of this hearing. !

l 1

End 2. 22 MS fois . ,

23 l l l

ll> 2' l

, . c .,_ ,.. . . ~ a l 25 l l l

l f f I i i l

9090 Sim 3-1 j JUDGE KELLEY: Excuse me. Am I just misrecollecting that there is no reference in the testimony or the affidavit 2

3 of Ms. Miriello of her current employer?

4 MR. RUNKLE: No, sir. We would at this point 5

stipulate that it is not with CP&L and it is not in any 6 nuclear power operating utility.

7 JUDGE KELLEY: I would just ask from Mr. Hollar why is this important from your standpoint?

8 9

MR. HOLLAR: Your Honor, we would be happy if she 10 w uld simply tell us what her job is and the length of time jj she has been employed.

12 JUDGE KELLEY: Could you say what it is you do and 13 h w 1 ng y u have been employed, Ms. Miriello?

j4 THE WITNESS: At the present I could say that I am 15 a graduate student, which I am.

16 JUDGE KELLEY: Are you employed at the present time, j7 Ms. Miriello?

18 THE WITNESS: Yes, I am.

99 JUDGE KELLEY: other than being a graduate student?

20 THE WITNESS: Yes, I am. l 21 JUDGE KELLEY: What is the nature of the work?

t 22 THE WITNESS: Security work.

23 JUDGE KELLEY: I think, Ms. Miriello, we might feel 24 that you should give more detail, but I am not clear that w I hponen, W.

25 Mr. H liar needs very much more than what he has got, unless

9091 Sim 3-2 there is something that is missing, or that I am missing.

1 Do you need further information, Mr. Hollar?

MR. HOLLAR: No, Your Honor. It was intended to 3

be a very innocent question.

4 JUDGE KELLEY: Just go ahead.

5 BY MR. HOLLAR:

6 0 Ms. Miriello, is it true that you were employed 7

by Carolina Power and Light Company at the Shearon Harris 8

plant between February 1985 and August 30, 1985?

9 A Yes, it is.

10 0 Is it correct that your job title during that 11 time period was radiation control technician, level II?

12 JUDGE KELLEY: Excuse me just a moment. This is

(~h 13 I think the worst we have had in terms of competing noise.

14 Is it bothering you, Ms. Miriello, or is it not? I guess 15 the witness and the quetioning counsel are my primary concerns.

16 THE WITNESS: No, I am accustomed to a lot of 17 static.

18 JUDGE KELLEY: Mr. Hollar? We might ask them to 19 turn it down.

20 MR. HOLLAR: It is a little distracting, but it is 21 not that big of a problem.

22 JUDGE KELLEY: Well, let's go ahead then. Proceed.

23 BY MR. HOLLAR:

54 i Reporten, a Q Ms. Miriello, did you answer the last question? Was 25

i i 9092 l

6m 3-3 i your job title while you were employed by CP&L at Shearon 2 Harris radiation control technician, level II?

(f 3 A Yes, it was.

4 0 While you were employed by CP&L, Ms. Miriello, 5 did you sent two letters to Mr. M. A. McDuffie, CP&L's Senior 6 Vice President?

f 7 A I turned in a grievance.

8 Q That was not my question, Ms. Miriello.

i 9 A That is what that is. Those two letters are part 10 of a grievance.

11 0 Can you answer the question yes or no? ,

12 A Yes, those two letters are part of a grievance, and i

() 13 yes, I did.

14 Q Turning your attention to the documents that have I 15 been marked as Applicants' Exhibit 42 and Applicants' Exhibit 16 43 ---

17 MR. RUNKLE: Counsel, I think you need to give her l

l 18 those documents.

19 JUDGE KELLEY: Could we provide the witness with i 20 copies. I assumed she had one. :

L 21 MR. HOLLAR: Your Honor, we handed the documents out f

22 yesterday, but I believe we do have an extra set. <

l 23 (The documents were handed to the witness.)

24 THE WITNESS: Are they marked? Which is 42 and kefu}l (~ Reporters, Inc.

25 which is 417 l

l l

9093 Sim 3-4 1 JUDGE KELLEY: Could you give the references to

() 2 the witness?

3 MR. HOLLAR: Certainly.

4 JUDGE KELLEY: The two letters are 42 and 43, are 5 they not?

6 MR. HOLLAR: Yes.

7 JUDGE KELLEY: And which is which?

8 MR. HOLLAR: Exhibit 42 is the August 9/10 letter.

9 Exhibit 43 is the August 12 letter.

10 JUDGE KELLEY: Okay.

11 THE WITNESS: Okay.

12 BY MR. HOLLAR:

() 13 Q Ms. Miriello, are these photocopies of handwritten 14 letters that you sent to Mr. M. A. McDuffie? l 15 A Yes, they are.

16 0 I would like to turn your attention to page 5 i

17 of the August 9/10 letter, Exhibit 42.

18 MR. RUNKLE: At this point I would like to object.

pp I have let this line of questioning go on for a while, but 20 I fail to see the relevance of these questions as it relates 21 to her testimony.

22 JUDGE KELLEY: Could you connect it up, Mr. Hollar?

23 MR. HOLLAR: Yes, Your Honor. These are letters

/~ 24 that Ms. Miriello sent to a senior executive of CP&L within Acm.}al c. porters, Inc.

25 three weeks prior to the time that she prod,uced her affidavit

9094 Sim 3-5 . .

j for the Conservation Counctl.

JUDGE KELLEY: Yes.

( 2 3 MR. HOLLAR: They shoe her interest and her motiva-4 tion in becoming involved in this proceeding.

5 JUDGE KELLEY: The portions of your letters that 6 you are going to focus on, in your view, will show that?

7 MR. HOLLAR: Well, the letters in their entirety l 1

i 8 demonstrate that there are only a couple of short passages that I intend to refer to specifically. t 9

10 JUDGE KELLEY: But just so that we understand and f

11 the record is clear, in bringing out the letter, the letter, 12 in your view, goes to credibility and it does not go to any

() 13 particular statement in the testimony; is that right?

ja MR. HOLLAR: That i's correct.

15 JUDGE KELLEY: Okay. So that is the thrust of 16 Mr. Hollar's purpose.

j7 Mr. Runkle?

18 MR. RUNKLE: Well, we would still object. I don't j9 think that the motivation of a witness for coming forward 20 and testifying is a matter for any cross-examination.

l 21 MR. HOLLAR: Your Honor, I am ---

22 JUDGE KELLEY: One at a time, gentlemen. We will 23 hear each side.

24 MR. HOLLAR: Your Honor, I cannot hear him. I am Ac ;ati R.porwes. inc.

25 having a lot of trouble with this now.

9095 Sim 3-6 : n un erstand that. We are going

)

/~'T to have to take care of that.

2

\_)

MR. RUNKLE: Sir, the point was that the motivation 3

of our witness to coming forward with this testimony should 4

not be a matter for cross-examination, and really it bears 5

nothing to the matters that we are having a hearing about.

6 We have not questioned any of the other witnesses 7

about their motivation for coming forward, and it seems to 8

us irrelevant the reasons why a witness would come forward 9

and make statements that a witness has made in their testimony.

10 JUDGE KELLEY: Are you arguing that we can't go into 11 the credibility of a witness at all?

12 MR. RUNKLE: No. I am saying if you look at this

(_) 13 witness and this witness' testimony, credibility should not 14 play a part in this testimony.

15 JUDGE KELLEY: Why not? Mr. Runkle, for heaven's 16 sakes, the witness is saying I saw this and this and this, and 17 maybe she is right and maybe she is not right. But she is 18 certainly making affirmative statements within the contention.

19 20 And the idea that you can't attack the credibility of a witness is to me startling. I thought the thrust of Mr. Hollar's 21 coment -- uell, we will get back to Mr. Hollar.

22 But if your proposition is that the credibility 23 24 of a witness is not a subject of inquiry in this hearing, then

(~}

heJ~M Reporters, Inc. you are not correct.

25

i 1 9096 3

Sim 3-7 -l Why do you think we talk to these experts at j

i

() 2 such great length and say how many undercover investigations j 3 did you have? You had questions of that at some length 4 the other day trying to find out if these witnesses knew 5 what they were talking about. This is in the same vein 6 I gather.

7 MR. RUNKLE: No. Those questions about the 8 expertise and the credibility of the experts that have come i

9 forward and made opinions I think is substantially different i 10 from question the motivation of a volunteer witness, to 11 question the motivation of that witness for coming forward l

12 and testifying.

() 13 JUDGE KELLEY: What is the difference between a 14 voluntary witness and any other witness in terms of 15 credibility?

1 16 MR. RUNKLE: We are going not towards credibility.

17 We are going towards the motivation for coming forward with 18 testimony in this proceeding.

j l9 JUDGE KELLEY: Well, Mr. Runkle, motivation can 20 have a great deal to do with credibility. I might ask 21 Mr. Hollar to expand on that.

i l 22 Your objection seems to be so far that you can't 23 go into the motive of a witness and that you can only I

! 24 talk about the very things that they have said in their

(}

. Ace 4%ud Rgomm, Inc I 25 direct testimony and that is not right. So we will pass l i

l

9097 sim 3-8 that one.

)

2 Mr. Hollar, could you expand a bit on your appr ach here. We have established, I believe, that the 3

4 approach is not to quarrel with any particular line or sentence of the substance of the testimony, but rather to 5

6 quarrel with the witness' possible bias or motive in 7

making the statement; is that correct?

-nd Sim 8

-ue fols 9

10 11 12 O '3 14 15 16 17 18 19 20 21 22 23 Ac.4 i n.por,.n. nc.

25

9098

4-1-SueW 1 MR. HOLLAR: Yes, that's absolutely correct, Your

(

() 2 Honor. We feel the fact that the witness sent these two 3 letters and then subsequently became involved in this pro-4 ceeding and brought certain allegations against Carolina 5 Power and Light Company and other persons, that has a direct 6 bearing -- or, the letters have a direct bearing on her 7 credibility.

8 JUDGE KELLEY: All right. Proceed.

9 BY MR. HOLLAP: (Continuing) 10 Q Ms. Miriello, I would again like to --

11 JUDGE KELLEY: May I just add one thing? Yester-12 day's entire discussion, the whole stipulation, had to do n

(j 13 with probing into the personal life of witnesses which the 14 Board did not wish to do, not just wish to do but felt under 15 the applicable legal principals we weren' t necessarily ,

16 required to do.

I 17 That all ended up in a stipulation. We certainly i i

18 did not establish by that whole discussion that credibility l <

l 19 was not part of this case. It is. ;

I 20 At the election of counsel, if you want to get !

l 21 into credibility, you can do that. Go ahead. -

l 22 MR. HOLLAR: Thank you.

23 BY MR. HOLLAR: (Continuing)

~~l i~~

~~17 Q Ms. Miriello, does it look like from this photo- l l~~

~~18 copy that a part of your mark may have extended into the l~~

~~19 "No" box?~~

~~20 MR. RUNKLE: I Ld 'ke to object at tais 21 point.~~

~~22 WITNESS MIRIELLO: Someone else could have 23 extended it.~~

~~r'N ,~~

~~(_) 24 MR. RUNKLE: This question --~~

~~W-Federd Ceporters, itse, 25 JUDGE KELLEY: I think that's enough on this. I'm ,~~

~~1 1~~

l

~~9108~~

~~4-ll-SueW 1 going to sustain the objection.~~
2 The mark is the mark. We can all read. Go 3 ahead.
4 BY MR. HOLLAR: (Continuing) 5 Q Ms. Miriello, I would like to turn your attention 6 now to the document that has been marked Appliccants' 7 Exhibit Number 44, entitled " Affidavit of Patty Miriello."
8 A I have it.
9 Q Is that an affidavit that you signed on 10 September the 5th, 1985 on behalf of the Conservation 11 Council?
12 A Yes, it is.
13 Q Ms. Miriello, in preparing this affidavit, how 14 did you first contact the Conservation Council?
IS A I had heard about them during the Summer -- no, 16 during the Spring, and also in In-Service Inspection, Phil 17 Temple, told me about the Intervenors and the Conservation 18 Council while I worked at CP&L in the In-Service Inspection 19 Group.
20 And I remembered /Mr. Runkle's name being mention-21 ed, so I called him.
22 O You telephoned Mr. Runkle?
23 A Uh-huh. He is listed in the Chapel Hill
() 24 wesw:s neoenm. inc.
directory I think.
25 Q Did Mr. Runkle work with you in preparing this
9109 6-12-SueW 1 affidavit?
')
2 A Most of it I already had in writing, which I 3 had given to the F .B. I . in November of 1984.
4 Q Did you actually write the affidavit, or was 5 it written for you?
6 A No. Most of it was taken out of the context of 7 the document I gave to the F.B.I. in February -- I mean, 8 in November of 1984.
9 Q Did you review the af fidavit before you signed 10 it?
l l
11 A Yes, I did. But we missed an error, a typo. l l
12 Q Ms. Miriello, turning your attention to the 13 document that has been marked as Applicants' Exhibit 45.
14 A Which one is that again?
15 ! Q Conservation Council's Supplement to Discovery 16 Requests. !
i 17 (The witness is looking through documents.)
18 A I really don' t think I have that one. ;
I 19 MR. RUNKLE: I will give the witness one.
l 20 (Mr. Runkle provides the witness with a paper.) l i
21 WITNESS MIRIELLO: I do now. j 22 BY MR. HOLLAR: (Continuing) f i 1 23 Q Ms. Miriello, in the middle of the one page l t' j \
(.)s 24 document, there is a sentence that begins, "Ms. Murrell." j j i
w-F 4*e cwornn.
25 w. f Do you see that? l l l ! I
! l I
9110
$4-13-SueW i A It looks like a typo. Yes.
( !
\> 2 Q That should be "Miriello," should it not?
3 A Yes, it should.
4 Q Would you please read that sentence?
5 A "Ms. Miriello contacted us this past week-6 end and we became aware of details which have been placed 7 in the affidavit only in the past two days."
8 0 And this document is dated September the 6th; 9 is that correct?
10 A Yes. But I had called Mr. Runkle previous to 11 that and we had discussed things.
12 Q The document is dated the 6th?
L
-) 13 A Yes, it is.
14 0 Ms. Mi riello , is the weekend previous to the 15 6th, the Saturday and Sunday previous to the 6th, would 16 that be August the 31st and September the 1st? !
l 17 A Yes, it would be. l 18 Q Does this mean that you contacted Mr. Runkle i
19 one or two days after the termination of your employment 20 with Carolina Power and Light Company?
l 21 A I think I contacted him before that. I don't 22 precisely remember which days I talked to Mr. Runkle.
23 Q Is Mr. Runkle incorrect?
I
(~)
(,/ 24 A I did contact him as he states in the affidavit.
l i
i.Jw a rmo,m.. w. l 25 Dut I also contacted him I think before tha t . l I
i
9111 04-14-SueW j Q Ms. Miriello, I would like to again turn your 2 attention to your affidavit, Exhibit 44, 3 A I'm at it.
4 0 In the first paragraph of that affidavit, it 5 states: "I was employed by Nuclear Energy Services."
6 But there is no mention of your having been 7 employed by Carolina Power and Light Company. I note in 8 that regard that your testimony reflects that you were also i
9 employed by Carolina Power and Light Company on Page 2.
10 Why did you not acknowledge in the affidavit 11 that you were employed by Carolina Power and Light Company?
12 A It was just a mistake. It's in my resume, and 13 it's obvious. l 14 Q Did you just forget that you were employed by 15 CP&L? l l
16 A No, no. It was just left out of that sentence.
17 It was an accident.
18 Q Was your resume filed with the affidavit?
19 A A copy of my resume was available. Nobody picked 20 up on it. It was just an accident.
21 Q Turning to your testimony, Ms. Miriello, at the 22 question at the top of Page 2, actually the third question 23 on Page 2, which asks what capacity and how long you were O 24 w w 5:eoorwes,inc.
emetered et ehe narris atene --
25 MR. RUNKLE: Do you mean -- are you referring to
9112
~~4-15-SueW 1 Page 2 of the prefiled testimony, sir?~~
Y- 2 MR. HOLLAR: Yes.
WITNESS MIRIELLO: Yes, go ahead.
3l 4 BY MR. HOLLAR: (Continuing) 5 Q Does the job description in your answer to that 6 question describe only your job function as an NES employee 7 and not your job functions as a CP&L employee?
8 A Could you repeat that question, please?
9 Q Certainly. Does your -- does the answer to 10 that question refer only to your job functions while you 11 were an NES employee and omit a description of your job 12 functions while you were a CP&L employee?
L_j #4 13 Joe flws 14 15 l 16 l 17 l 18 !
i.
20 21 22 23 n
') 24 a-Fedib Reconen, tne. l I
25 l
1 5-1-JonWal i
1 A The question asked me if I had ever worked at s
i i
(> 2 the Harris Nuclear Plant, and I plainly state I was employed 3
by both Nuclear Energy Services and also by Carolina Power 4
and Light in the time periods from April 1984 through 5 August 1985.
6 Q I am referring to the last sentence to that 7 answer.
8 A It states correctly, I was an engineer in in-service 9 inspection. Maybe I should have a second sentence in there 10 stating that I also worked in health physics, but that is in l II
. my resume.
12 Q So, the answer is you were only referring to your i
13 duties as an NES employee?
I4 A Basically, the whole affidavit pertains to my l i
15 duties only as an NES employee.
16 As a contractor of CP&L.
17 Q So, the answer is yes?
i 18 A Could you restate that question again?
f I9 Q The answer -- the answer on page 2 of your l l
20 testimony only describes your duties as an NES employee? l.
2I l A Yes, this does. I I
22 Q Thank you . Ms. Miriello, I would now like to 23 refer you to your next answer on that page. When did you A
kj 24 receive your Masters Degree in Ceramic Science from Penn eFMw3 Repomrs, Inc. j 25 State? !
t i
, . - - - ~ ~ - -
4 ,
i i 5-2-JosWal 9114 '
~~l I !~~
j 1 A The M.S. is Ceramic Science is complete. The 2 thesis is in review, and all that needs to be done is go 3 to the typist.
4 I have fifty credits complete, whereas only (
i j 5 thirty are required. It has not been finalized yet, but l t i i
6 it is complete. I do have an M.S. in Ceramic Science. It i l 4
7 hasn't been officially conferred. :
l 8 0 Ms. Miriello, is it possible to receive a
~~9 Master'7 Degree without having one's thesis approved? !~~
10 A The thesis -- really, it is a matter of getting it
+
1 i 11 to the typist. It is in the stage where there might be a '
i 12 few corrections, but it is a matter of getting it to the ;
~~13 typist.~~
f I
+ 14 And it is typical in industry in the State that I I
i r
j 15 the Masters Degree is done, becrise people can check with the '
16 university and say, yes, it is a matter of finalizing the l l l
17 thesis.
l l l
~~l 18 Q Ms. Miriello, ao you have a diploma from Penn State, !~~
! I 19 a Masters Degree diploma from Penn State in Ceramic Science?
f 20 A Not yet. ;
i i
21 Q Ms. Miriello, are you currently enrolled in the l
! 22 Masters Program in Nuclear Engineering at NC State University?
! 23 A I am currently finishing an MS there. (
() o . ..
24 0 Are you currently taking classes? !
j 25 A No; I assume taking classes in January. Right
5-3-Jo:Wal 9115 1 now I am working on picking out a thesis topic, and I am O 2 constantly in contact wi.h the University. Dr. Luckie there.
l 3 Have you taken classes in the MS program in Q
4 Nuclear Engineering in the past at NC State?
5 A Yes, I have.
6 At NC State?
Q 7 A Yes, I have.
8 Q But you are not taking classes now?
9 A No, but I am working on a thesis topic. I am 10 l deciding on which one, and conferring constantly with the I
II
! university.
I2 Q Ms. Miriello, I would like to turn your attention 13 to page 4 of your testimony.
Id In the answer that begins on about the middle II of that page, you discuss a couple of incidents involving '
16 observations of marijuana at the Harris plant.
I I7 Why did you not include a description of either !
l I8 of these particular incidents in the affidavit that was I9 filed on September the 6th? :
20 A I had been asked to go through what I had remembered I \
l i
21 j about Harris and drug abuse there, and put down all my l
22 l thoughts in writing, and this was after that affidavit was 23 filed on September 6th.
l
! ( 24 I was asked if I had seen additional drug abuse, es m coversers, ene.
25 which I had seen.
l l l l t
l l5-4-Jo:Wal 9116 1 Q Were these incidents so insubstantial that you did 2 not recall them before September the 6th?
3 A No, I recalled them, but the priority there was 4 the safety issue with the steam generator tubing, and we were 1 5 in a rush to get that brought to the attention of the 6 public.
7 Q Ms. Miriello, referring to your statement that you 8 observed seven or eight construction workers up on the boilers 9 obviously smoking marijuana, do you have the names of any 10 of those individuals?
11 A I don't.
12 Q Do you have any work crew identification for any 13 of those individuals?
14 A Yes. Not the work crew, but the hats . They 15 were we 7tr tan hats, and there were people always in the l
l 16 area wotuing outside around those boilers, and the'servic6 -
l 17 building at the IIarris plan t. j 18 Q Mr. Miriello, I turn your attention to the last 19 sentonce of that paragraph, where it says: This was in plain l 20 view of the administration building.
21 Are you contending that someone in the administration i
22 building would have been able to see workers smoking marijuana 23 on the boilers?
r O 2e
,e c. m re.... inc.
a no, but they wou1a be ab1e eo see a work crew i
25 congregating in a place during working hours where they should w
5-5-JocWal 9117 1 not have been.
O kJ 2 I have never seen that many people on those 3 boilers at one time before.
4 JUDGE KELLEY: Excuse me. If we are talking 5 about juxtapostion of buildings, can we at some time 6 establish what are they boilers, where are they? If 7 you are headed that way -- if you are headed that way I am 8 not asking a question yet, I am just concerned about a long 9 record talking about boilers and the administration 10 building, and I want to know what it means, so if you could 11 in some manner get into that.
12 I will leave it +.o Mr. Hollar in the first instance 13 to bear it in mind.
14 BY MR. HOLLAR: -(Con tinuing) 15 Q Ms. Miriello, are you referring to the auxiliary l l i 16 boilers that are between the service building and the water j l
17 treatment building at the !!arris plant?
l 18 A Yes, I am.
l i
19 Q Do you know the distance of those boilers from l 1 20 the administration building?
l 21 A Yes. The service building -- plus the parking --
l 22 wall, not the parking, but the lawn area in front of tho
( 23 administration building.
() 24 we-Feeerd Roon,ters, lac, 0 Would it surprise you to find that that distanco l l 25 is approximately 660 foot?
i __
5-6-JocWal 1 A No.
2 Q Would it surprise you to find that the service 3 building is between the administration building- and the 4 boilers?
5 A I don't think it totally . blocks the view of the 6 boilers?
7 0 It does obscure the view, doesn't it?
8 A It does, but it doesn't totally block it.
9 Q Ms. Miriello, referring to your next paragraph, 10 in which you alleged you smelled marijuana in the Daniel 11 parking lo ;, do you have the names of any individuals who 12 were smoking marijuana in the parking lot?
13 A No, I didn't walk over to the cars and look 14 inside, or take license plates -- I mean take the numbers 15 off of the plates.
16 MR. HOLLAR: Youre. Honor, that completes my 17 cross-examination. l 18 I would lika to move the admission of Applicants' 19 Exhibit No. 41, the employee exit questionnaire, in view of 20 the fact that the witness did not make an identification of 21 her responses to all of the questions.
l 22 JUDGE KELLEY: Any objections?
23 MR. RUNKLE: I would not object for that limited
() 24 mammes resen.n inc.
pu rposo ,
25 JUDGE KELLEY: While it is being put in for general l
9119 5-7-Jo Wal 1 purposes, I thought the argument for focusing. Am I right?
r~h 2 MR. HOLLAR: Yes. I am moving its admission.
3 JUDGE KELLEY: Right. Okay. There is no objection, 4 so it is admitted.
5 MR. EDDLEMAN: Judge, I wanted to object. And 6 my grounds for the objection is fairness. When the Applicants' 7 have objected to something that has not been prefiled as 8 of the d, ate of the simultaneous prefiling, which is a rule 9 that they asked for, that they have sometimes insisted that 10 it be put in for a limited purpose, and therefore I think 11 it is appropriate here to put it in for the limited purpose I
l 12 that Mr. Hollar stated.
13 Unless he has some other purpose that he can bring 14 forward and argue.
15 JUDGE KELLEY: I would like to hear comment from ,
16 counsel on whether or nct Mr. Eddleman is entitled to object 17 to the evidence that is being offered under the Prairie Island 18 doctrine.
I 19 Mr. Baxter? Mr. Hollar?
20 MR. HOLLAR: Your Honor, I believe that --
21 JUDGE KELLEY: If you will all stipulate that 22 we can hear objections from tir. Eddleman, then I suppose you 23 will hear them, --
( 24 MR. BARTH: Not I.
. . .~,,....,_
25 MR. USLLAR: Your Honor, !!r. Eddleman has not offered
9120 5-8-JocWal I this witness, and it is not his contention, and I believe O 2 he should not be permitted to object in this case.
3 JUDGE KELLEY: Mr. Barth?
4 MR. BARTH: Your Honor, addressing the question 5 you asked on the Prairie Island, the ability to ask cross-6 examination only in matters upon which he has interest.
7 You have extended him this courtesy, over my 8 objections. The Prairie Island decision by the Commission 9 gives him no authority to interject himself into the 10 objection or consent to the admission of documents on +
11 , contentions that are not his. It is not his contention, 12 and he is improperly before the Board, Your Honor, on this O ,
13 matter.
14 JUDGE KELLEY: Mr. Cole, just as background, 15 I don't know if you have read the Prairie Island decision 16 recently, but there was an issue before:the NRC, and it 17 was the very first adjudicatory matter, as a matter of l
i 18 fact, the citation is one that the NRC won, and it was 19 where one intervener had a contention, and anothar intervener 20 wanted to cross-examine.
21 And the Licensing Board barred it, I believe.
22 The Appeal Board let it in, and the Commission, on review, 23 said yes, an intervener at least in some circumstances can 24 bas-Federal Cowrters, Inc.
come in and ask some questions on the other intervener's 25 contention.
5-9-JonWal 9121 1 I don' t believe the case reaches the question 2 whether you can object to the introduction of evidence, 3 or other matters . So, as far as I know, it is sort of an 4 open question from a precedent standpoint. But the broad 5 issue we see is since this is CCNC's contention, and l 6 they are essentially the ones that are in charge, whether 7 we should have other interveners coming in and participating 8 to the extent of objections. l 9 Do you have any views on it one way or the 10 other?
11 MR. COLE: You are talking to me, Your Honor?
12 JUDGE KELLEY:- I am sorry. I wasn't sure who 13 was up this morning. Okay.
14 MR. COLE: Your Honor is correct, I have not 15 read the Prairieview decision.
16 JUDGE KELLEY: Prairieview is a school in Texas 17 with fine football players. This is Prairie Island, that 18 is in Minnesota.
19 But anyway --
20 MR. COLE: That shows I haven't read the case, 21 Your Honor. My views on it, am I' assuming that I am arguing 22 as to whether or not I will be allowed to ask questions 23 of --
( 24 JUDGE KELLE'?: No, no, no. Not at all.
W Reporters, Inc.
25 MR. COLE: Participating in argument on motions, L .
9122 5-10-JonWal l
1 is that your question?
O 2 JUDGE KELLEY: No. You are an interested state.
3 That is a different rule. You don't have to express an 4 opinion on this one way or the other. I am just asking 5 you whether you have got one, and whether you want to express 6 an opinion on it.
7 MR. COLE: Well, if you were to ask me should 8 Mr. Eddleman be allowed to participate, my answer would be 9 yes.
10 JUDGE KELLEY: That is not what I am asking you. ,
l 11 Participate. What does participate mean? Of course he is 12 participating, he is cross-examining. He has been doing it O 13 at some length for the past four days.
14 My question is: Can he come in and object to the 15 introduction of evidence? I l
16 MR. COLE: I would say that Mr. Eddleman would 17 certainly be entitled to participate in examination. I 18 would say that you would be correct if you said he could 19 not participate in arguments on motions and introduction of 1 20 evidence.
21 JUDGE KELLEY: Thank you. Mr. Eddleman?
22 MR. EDDLEMAN: I haven't got an argument'out of 23 Prairie Island. I just think it is a matter of fairness.
24 W Reporters, Inc.
If CCNC wants to be nicer to the Applicants' 25 than they are to us Interveners , I guess CCNC has that right.
9123 5-ll-JonWal 1
I would leave it in the Board's discretion, since
(~b
^ 2 I don't think there is precedent on it.
3 JUDGE KELLEY: There isn't as far as I know.
4 But that happens all the time in Boards. You get questions, 5 and you have to decide on whether there is a precedent or 6 not.
7 If you want to withdraw your objection, there 8 would still be no precedent, and then if you want to press 9 it, we will make a ruling.
10 MR. EDDLEMAN: Judge, I don't know that the NRC i l
11 will continue long enough, since there aren't many more 12 nuclear plants being brought up, but I think I would like n) 13 to see if we can get a precedent here, so I think I will 14 stand on my objection.
15 JUDGE KELLEY: Okay.
16 (Board confers.) l 17 JUDGE KELLEY:
The point here about the entitlement l 18 of the intervener whose contention it is not to object to 19 the introduction of evidence was raised sur responde 20 pretty much, but it is the Board 's feeling that the lead 21 intervener -- the intervener in charge here, so to speak, 22 is Mr. Runkle.
23 Now, certainly Mr. Runkle and Mr. Eddleman can O
\'> 24 a-Federd Reporters, Inc.
confer, and they have been doing so, but if the counsel for 25 the party that has the contention says no objection, then
5-12-JosWal I we think the evidence ought to go in, and the intervener who O 2 was hear on the lead intervener's coat tail so to speak, 3 does not have an independent right to make objections.
4 And so we so rule, and the evidence is admitted.
XX INDEX 5 (The document previously identified 6 as Applicants' Exhibit No. 41, is 7 admitted.)
8 MR. EDDLEMAN: Judge, if that is your ruling, that 9 is your ruling. I would like to say for the record that 10 I think the record will show that Mr. Runkle didn't say he 11 had no objection, but rather that he had no objection if t
~~12 it were used for the limited purpose that Mr. Hollar stated,~~
( 13 but the record will reflect that.
14 JUDGE KELLEY: Well, I sit on the other side of l
~~15 the table, and then we went through that, and Mr. Runkle I 16 thought nodded or assented. I didn't hear anything.~~
17 And at that point as far as I was concerned 18 CCNC, represented by Mr. Runkle and not by you, was not 19 objecting to this evidence.
20 We went through this whole argument without 21 Mr. Runkle coming in and saying you misunderstood me.
22 I thought that you said okay, Mr. Runkle, is that right?
I 23 It is a little late, but that is my understanding.
24 MR. RUNKLE: I stated my position. I had no us-Federil Reporters, Inc.
25 objection for limited purpose. You said it came for any
I 5-13-JocWal 1 general purpose. I did not say that I objected on that
( 2 grounds.
3 JUDGE KELLEY: Fine. So we interpret that to 4 mean no objection.
5 MR. RUNKLE: Yes, sir.
6 JNDGE KELLEY: And we hold that Mr. Eddleman may 7 not then come in and object on his own behalf, so the evidence 8 is in.
9 That takes us back to Mr. Hollar? Or Mr. Hollar 10 said he was through.
11 MR. HOLLAR: Yes, Your Honor. I am finished 12 with cross-examintion.
13 JUDGE KELLEY: A ten minute break.
14 (short recess taken.)
15 End 5 MS fois, 16 17 18 19 20 21 22 23 24 CE) us-Feder.-$ Reporters, Inc.
25 l
l
9126 Sim 6-1 1 JUDGE KELLEY: Back on the record.
I ) 2 This would take us to Mr. Cole.
3 MR. BRYANT: Are we going to reverse the order 4 here. Would not Mr. Eddleman now proceed?
5 JUDGE KELLEY: Well, I think yesterday in fact --
6 You are right, we had gone from Mr. Runkle to Mr. Eddleman.
7 Go ahead, Mr. Eddleman.
8 CROSS-EXAMINATION 9 BY MR. EDDLEMAN:
10 Q Good morning, Mr. Miriello.
11 A Good morning.
12 JUDGE KELLEY: Oh wait just a minute, excuse me.
n Now this is a witness proffered by CCNC,
() 13 This is cross.
14 correct?
15 (Board conferring.)
16 JUDGE KELLEY: This raises a related question, 17 and I am sort of going automatically to Mr. Eddleman. Here 18 we have eliciting additional direct it would appear.
19 Is that your intent, Mr. Eddleman?
20 MR. EDDLEMAN: Judge, as I understand it, when 21 you ask cross you have got to ask isn't it or wasn't it 22 or something like that, and, you know, that is what I am 23 going to do. I don't have a whole lot of questions.
24 I am not trying to say now, Ms. Miriello, do Ace-F9al Reporters, Inc.
25 you have any additional direct. That is Mr. Runkle's job
9127 4
Sim 6-2 on redirect, as I understand it or on direct or whatever.
1
()
2 I am not a lawyer enough to tell you.
3 JUDGE KELLEY: Any objection to Mr. Eddleman's 4 asking a few questions?
5 MR. BARTH: We do, Your Honor. ,
0 JUDGE KELLEY: All right, Mr. Barth.
i 1
I MR. BARTH: The purpose of cross-examination is <
j 8 to show some inconsistency in an opposition witness' testi-9 many, which is direct.
i 10 Certainly, it is the best of my knowledge that l
II Ms. Miriello is not opposed to Mr. Eddleman's interests and 12 All he he could have no cross-examination in interest.
.; 13 can do at the present time is make additional friendly Id cross, which is actually redirect.
i 4
15 This is not time to put on direct testimony
. i 16 under the guise of cross-examination. She is not hostile 1
17 to Mr. Eddleman or is he hostile to her. They have a 18 commonality of interests which would prohibit cross, Your 19 Honor.
20 Thank you.
' JUDGE KELLEY: So are you contending that the 22 Prairie Island doctrine just supports cross and not what 23 you might call redirect or further direct?
( Reporters, 24 MR. BARTH: That is correct, Your Honor.
hFu}el Inc.
JUDGE KELLEY: Mr. Hollar?
9128 Sim 6-3 1 MR. HOLLAR: Your Honor, applicants have no i
V 2 objection to Mr. Eddleman asking a few questions so long 3 as they limited to the direct testimony and are not designed 4 to expand Ms. Miriello's direct testimony.
5
~~JUDGE KELLEY: Very well, any comment, Mr. Cole?~~
6 11R . COLE : I will make the same inquiry, 7 Judge Kelley. Am I answering something that will preclude 8 me also?
9 JUDGE KELLEY: No.
10 MR. COLE: I certainly have no problem with II Mr. Eddleman asking questions. I don't know what Mr. Hollar 12 means when he talks about expansion. I would certainly
~~13 say he should be able to ask on matters that are at least Id set forth in Ms. Miriello's affidavit or the inferences 15 derived therefrom, questions about that.~~
16 JUDGE KELLEY: I thought that was consistent I7 with what Mr. Hollar had said.
18 MR. COLE: It may be, Your Honor.
19 JUDGE KELLEY: Is that a fair statement, 20 Mr. Hollar?
2I MR. HOLLAR: I don't think what Mr. Cole just 22 said is inconsistent with what I suggested.
23 MR. COLE: Thank you, Mr. Hollar.
24 Well, the Board's 9
3
. Ace-%Al Reporters, inc.
JUDGE KELLEY: All right.
25 sense is if you have a few questions, Mr. Eddleman, and l l
9129 Sim 6-4 1 you stay within the general parameters of the testimony sj 2 already before us, we will permit that.
3 BY MR. EDDLEMAN:
4 O Mr. Miriello, let me refer you to the question 5 and answer that begins at the bottom of page 4 of your 6 prefiled testimony concerning the drug testing programs of 7 CP&L. Do you have that before you?
8 A Yes, I do.
9 0 You state there that if a worker has worked for 10 CP&L, Daniels or any of the other contractors, and I presume 11 that means instead of contractor, for three years or more, 12 he or she does not have to take a urine test. Were you
) 13 required to take a urine test when you transferred to CP&L 14 from NES?
15 A Yes. I was.
16 0 How much notice of that did you get?
17 A One of the employees in John Ferguson's office 18 called me and asked if I would like to take a urine test 19 within the next couple of weeks.
20 0 And what did you say?
21 A She asked me to pick practically a day. She said 22 when it will be convenient for me, and I said well, I would 23 like to take it in two weeks. And she responded that it lll 24 Ace-Federal Reporters, Inc.
would be better to get it done as soon as possible. Therefore, 25 I took it the following week, but there was a period of about l
9130 Sim6-5 1 seven days in between the conversation on the phone and when
/
) 2 I actually took the urine test.
3 0 Right. The degree in ceramic engineering, or 4 materials -- ceramic science; is that correct?
5 A That is correct if you are referring to the master's .
6 0 Yes. Do you have Mr. Hollar's -- I think it is 7 marked as Exhibit 43, the August 12th letter to Mr. McDuffie?
8 A Yes I do, as soon as I find it.
9 (Pause.)
10 I have it here now.
11 0 Can you tell us why you attached your resume to 12 that letter?
[) 13 A I wanted to show him I had worked at the plant la and that I had been in in-servico inspection and worked in 15 hecith physics. I mean M. A. McDuffie would not have even 16 known that I was an employee really.
17 0 Okay. Can you tell me when that resume that l l
18 you attached to that letter to Mr. McDuffic was prepared? I l
19 A That is a resume I am currently using.
20 0 I mean was it made up this spring, or do you know 21 when it was made up? l 22 A It has been used I would say since the spring and l 23 it is currently being used now. l 24 JUDGE KELLEY: The Board would just like to note be-F9ral Reportett, IM.
25 that this is obviously redirect. If you want to do a little
9131 m 6-6 i bit of it, okay, but ---
( ) 2 MR. EDDLEMAN: Judge, I am setting up a question 3 which I am going to ask right now.
4 JUDGE KELLEY: Okay.
5 BY MR. EDDLEMAN:
6 0 Ms. Miriello, if you wanted to conceal the nature 7 of the situation of your thesis in the granting of that degree l
8 in ceramic science from CP&L or anybody else, why is it in 9 your resume?
10 A It is obviously there. I have no intention to l
l 11 conceal it. It is typical in industry to say once you have 12 our course work and your thesis written that you have the
() 13 master's degree. And right now I am applying for jobs and 14 people are offering me positions based on that master's 15 degree and offering me salaries based on that master's degree.
16 They know it is a formality having a thesis typed and the 17 degree conferred.
18 MR. EDDLEMAN: All right.
19 JUDGE KELLEY: As I just observed, this is redirect.
20 We can hear it now or we can hear it later. That is okay. But 21 that wasn't what I thought you had in mind, Mr. Eddleman.
22 MR. EDDLEMAN: Well, I may not be phrasing the 23 questions tho right way, Judge.
24 JUDGE KELLEY: It isn't phraseology, Mr. Eddleman, ll w~l.mngo.....inc.
25 This in so obvious redirect. !! ave you got other points that l
9132 Sim 6-7' 1 you want to develop having to do with the substance of this
() 2 witness' testimony that are not too collateral? If not, 3 we will move on to somebody.
4 MR. EDDLEMAN: Judge, I may not understand what 5 too collateral means, but I will defer to Mr. Cole at this 6 point.
7 JUDGE KELLEY: Okay. Mr. Cole.
8 CROSS-EXAMINATION 9 BY MR. COLE:
ENDEX 10 Q Ms. Miriello, let me call your attention to your Il filed testimony on page 6.
12 A Okay.
() 13 Q The question actually starts on page 5 wherein 14 you were asked from your observations is drug abuse at the 15 Harris plant widespread, and you replied yes.
16 Other than matters which have previously been 17 withdrawn from testimony or from those matters that you have 18 already testifed to, are there other incidences which you 19 have personal knowledge of which go to make up this 20 observation?
21 MR. HOLLAR: Objection. Your Honor, if the 22 witness had other incidences of drug use at the plant, the 23 ground rules of the proceeding were that that information 24 was to have been prefiled in direct testimony on September w I h ,. m.,:=.
25 the 23rd.
l
! 9133 l
Sim 6-8 1 JUDGE KELLEY: Mr. Cole, any response?
I j
() 2 MR. COLE: Well, if Your Honor please, I realize I
1 3 that Ms. Miriello, the two specific instnaces, if they are i 4 specific, talk about the parking lot and the boilers. But 5 her last question is a broad question with a very broad 6 answer wherein she says that drug abuse is widespread. <
7 I just want to inquire into what she means by 8 widespread. If you would like to to rephrase the question,
( 9 then she can answer it any way she wants.
t i
10 JUDGE KELLEY: I understand the question, but don't 11 you understand the objection? .
12 MR. COLE: Yes, sir, I understand the objection. !
() 13 JUDGE KELLEY: It is a situation where on the one i 14 hand the Board wants to get the facts, and on the other hand 15 we do have some fairness considerations obtaining here and 16 whatever people had to say was supposed to be said on the 17 filing date.
I 18 So to open this up in some wide-open fashion ---
19 MR. COLE: I fully understand that, Your Honor.
20 JUDGE KELLEY: Escuse me a moment.
21 (Board conferring.)
22 JUDGE KELLEY: Let me just paraphrase the question 23 and the objection.
24 The question goes to whether Ms. Miriello knows nee F Reporten, Inc.
25 of other matters underlying her conclusory sentence that l
_ . . _ . . _ . . _ , , , . . _ _ _ . . . _ _ . - . _ . __ _ _ . . _ .__ .. _ _. _ _ _ , - _ _ _ _ _ _. _ _ ___._,_..__,.. _ a
l 9134 Sim 6-9 1 drug use is widespread at the site other than those referred
() 2 to in her testimony, and the objection is that such matters 3 should have been brought out in the prefiled and we are now 4 focusing on the prefiled and inferences from that and not 5 on new matters.
6 Strictly speaking, the objection is well founded 7 in law and we could very well sustain it. On the other hand, 8 we have been trying with all of our witnesses to find out 9 what they know about drug use at the site, and we also think 10 that if eliciting an answer to this question or this kind of 11 question gets us into procedural difficulties and it raises 12 fairness problems, we can deal with that when the time comes.
13 It may not.
14 So we are going to with some reluctance overrule 15 the objection and allow the question.
16 Maybe you ought to restate it, Mr. Cole.
17 BY MR. COLE:
18 Q Let's see if I can, Your Honor.
19 Ms. Miriello, other than matters that have been 20 previously withdraw from testimony or matters to which you 21 have already testified, are there other instances which you 22 have personal knowledge of which go to make up your observation 23 that drug abuse is widespread?
(~} 24 A Yes, there are.
Ac;E_ il Reporters, Inc.
25 0 What are they, please, ma'am?
9135 Sim 6-10 i A It involves myself being offered cocaine by another
() 2 contractor employee, and the offer was made on site.
3 Q I don't know if it would do any good to mention 4 the name, but do you recall about when that was, Ms. Mirriello?
5 A Yes. That was the month of October 1984.
6 Q In fairness to everyone, Ms. Miriello, and state if 7 you know, was that a CP&L omployee?
8 A He was a contractor employee to CP&L.
l 9 0 To your knowledge, has CP&L dealt with that 10 problem and has that omployee been terminatod?
11 A Ho has been removed from the site or rolossed from 12 the site, as they term, but I don't know if the reasons woro
() 13 for drug use. I don't know what the reasons wore.
14 0 But, to your knowledge, he is no longer on the IS CP&L Shearon Harris plant sito?
16 A No. He was only thoro from October 1st until the 17 very and of Octobor.
18 0 All right. Are thoro any other incidencou that 19 you rocall?
20 A In the NES group, which I had worked in, some of 21 thoso employocn indicated that they had dono drugs.
22 JUDGE KELLEY: Excuso mo. Lot mo just mako an 23 inquiry.
^
24 MR. COLE: Yos, sir.
en.{w)ns n oe.n, Inc.
25 JUDGE KELLEY: Wo had tho stipulation yostorday
9136 31m 6-11 j which withdrew certain portions of your testimony, as you
(~] 2 know, and then in exchange the applicants agreed to certain v
3 things and that was that as to those matters.
4 My question was, and I don't know, but my question 5
is whether the incidences that are you beginning to describe 6 is not essentially a part of what was withdrawn.
7 T!!E WITNESS: No, it is not. Those wero ultra-8 sonic inspectors. They woro not part of the Conam 9 organi::ation .
10l JUDGE KELLEY: It had nothing to do with the jj Conam organi::ation?
12 T!!E WITNESS ' No, sir.
('] 13, JUDGE KELLEY: All right, fino.
v l
jai MR. !!OLLAR: Judga Kolloy?
15 JUDGE KELLEY: Yos.
I 161 MR. !!oLLAR: I am going to have to renow my
7l objection to this material. Ms. Mirriollo had an opportunity 18 to profilo any allegations of drug une in the writton 39 tantimony on September the 23ru. If cho choso not to do 20' that with those particular allegations, and now in acoking 21 to raine a whole now not of allegations, it croaton a vory 22 fundamental quantion of fairnons to the applicanta.
23 JUDGE KELLEY: Wo undorntand that, Mr. !(ollar.
& 24 I think you have a standing objection to thin lino of A .Mia %,m,.... w 25 questionn. Wo thought about it. Wo haven't decided yot what l
9137 Sim 6-12 g l
we are going to do about it, but we did decide we would o
) 2 hearing the answer to the question.
3 So I don't think you are making really a now 4 objection, are you?
5 MR. !!OLLAR: No, it is not a now objection.
6! JUDGE KELLEY: It should have boon profiled, right?
I 7 MR. !!OLLAR: That is absolutely corroct.
8i JUDGE KELLEY: You are right. I agroo with you.
9 But wo still have somo discrotion to go ahead and liston 10 to the answer we believo, and that la what wo are doing.
11 Co ahoad.
12 MR. COLE: Co ahead, Ma. Mirriollo.
im (j 13 Tl!E WITNESS: The people who had said they had 14 unod drugn in the NES organization woro working on inopoction-15 of piping at llarris. When they told mo tho timo perioda 16 that they had uned the drugs, it involved their inapoetiona 17l at the V. C. Summor nuclear plant in South Carolina previously.
18 JUDGE KELLEY: Excuno me. Ms. Miriollo, I am 19 not auro if you followod this. Tho Doard han boon rathor 20 intorventioniat in t.hu laat few minutos. I am concerned about 21 como boundarion hora, 22 I don't undorntand why you didn't bring thono 23 mattara up in your profiled tontimony. Would you givo un 24
~~4. 4 9 i n.p , ., . in. an expanation of that, ploano?~~
25 Tile WITNESS: Yon. Wo woro pushed for timo. Tho
9138 l
Sim 6-13 1 timing of the Atomic Safety and Licensing Board hearings Il 2; was a close to the timo that I was fired, we woro rushed to V ;
3' gt those allegations all put into writing, into an affidavit.
I 4 MR. IIOLLAR: Yottr !!onor, I would point out that 5
Ms. Mirioll 's testimony was filed on September the 23rd and 6 she was termianted on October the 30th.
7i T!!E WITNESS: You aro wrong.
l 8; MR. IIOLLAR: August the 30th.
9 JUDGE KELLEY: Lot mc pursuo this a little bit.
10 i Your answer is that you didn't have timo to got it writton I
~~. up to put it in the testimony?~~
T!IE WITNESS: And plus wo woro concentrating on 12l
~^ 13l the major drug issues hora, not the periphoral ones liko (G
34 thia. I mean it is not really periphoral, but comparod to the 15 magnitudo of the oddy current problom.
16! JUDGE KELLEY: All right..
I
~~7 Mr. Runklo, do you have anything to add?~~
ig MR. RUNKLE: No, sir, I really don't.
s 39 MR. COLE: Your lionor, might I ---
20 JUDGE KELLEY: Wo will como back to you, Mr. Colo 21 in just a minuto.
22 My quantion now is why this matorial wasn't in 23 profilod. Do you have anything to add to what Mo. Miriollo 24 naid, Mr. Runklo?
~~w. # h,# s.rme.n. W.~~
l 25 MR. RUNKLE: No, sir, I don't. l
9139 9-1-Su;W MR. RUNKLE: No, sir, I don't.
(^') JUDGE KELLEY: Did you know at the time you filed v 2 her prefiled she had these other matters to raise, and that 3
she intended to raise them, or whether she intended to raise them at the hearing?
MR. RUNKLE: No, sir. I did not know these other allegations or observations, and I did not know that she was planning to raise them at t.his proceeding.
JUDGE KELLEY: If you had known, couldn't you 10
~~Y " "# " * "' "~~
~~l jj If you were really in that much of a crunch to g got your testimony written up, couldn't --~~
C') MR. RUNKLE: Oh, if I had known when we prefiled 13 l j,
the testimony, surely, yes, I could have done that.
" "" 8"Y' "#*
15 l I
g MR. COLE: In all honesty, Your Honor, Mr. j Runkle may not have known. I can't say that I did not l
g know. The time factor was very close, j9 And just in open candor, I cannot say that I knew I !
A ls on the 21st, I know this on the 24th, or any time l l
i g other than those. The time factor was there. l g I again was operating under the assumption --
g it may prove faulty -- that inasmuch as Mr. Runkle was submitting filed testimony on behalf of Ms. Miriello that 24 u.4 c.oorn,. ene.
25 the State and its interests therein would be allowed to l l
l f
9140
~~7-2-SueW I cross-examine.~~
( 2 I didn't realize that we also had to prefile 3 specific testimony on behalf of Ms. Miriello. So, if any 4 fault lies it really I suppose lies with us more than it 5 does with Mr. Runkle, because I have no idea of knowing 6 what Mr. Runkle knew, of course.
7 JUDGE KELLEY: Let me make sure I understand.
8 Are you saying that you knew of these instances before 9 the deadline?
10 MR. COLE: I cannot say that, Your Honor. I 11 don't know.
12 Ms. Miriello has talked to us, has come in and
) 13 talked to us. And maybe Ms. Miriello can recall the dates.
14 I do not.
15 JUDGE KELLEY: You didn't take transcripts 16 and so on, you just sat down and talked?
17 MR. COLE: Yes, sir.
18 JUDGE KELLEY: And then you thought that these 19 matters would be in the Intervenor's prefiled so then 20 you could cross en it later; is that what I'm hearing?
21 MR. COLE: Yes, sir.
22 MR. HOLLAR: Judge Kelley --
23 JUDGE KELLEY: Just a minute.
()
,c 24
... ~.
MR. COLE: Judge, could I -- maybe we can --
25 again, in trying to offer a solution, I think we are almost
9141 T-3-SueW 1 to the end of what we were about to say anyway. Could I m
( J 2 rephrase my question to just inquire of Ms. Miriello 3 whether there were other instances that went into her 4 conclusion?
5 JUDGE KELLEY: That was your question in the 6 first place I thought, and that then produced so far two 7 intances.
g MR. COLE: Well, I was not -- I'm going to let 9 the question and answer stand when she says yes, there 10 were other instances other than those that she has previously I
11 testified to.
12 JUDGE KELLEY: Well, part of the question of 7
() 13 fairness here -- and we will hear from the Applicants --
14 is extremely awkward. I must say the idea this couldn't 15 have been written up before I find completely unpersuasive.
16 This is something you can put in a couple of 17 paragraphs. Prepared testimony does not reflect a lot of l 18 time and e f fort. It's something put together rather 19 quickly. Why there couldn't have been another paragraph ,
1 20 for each of these two is something that has not been explain- l l
21 ed. l 22 But we are trying to grapple with this. We've had reference now to two things. Are there more matters, 23 (o) 24 Ms. Miriello, that you would say in response to this?
ks-Federal Reporters, fnc.
25 WITNESS MIRIELLO: One of the CP&L employees -- j I
9142 07-4-SueW 1 JUDGE KELLEY: I don't want the description, p) t
I want to know if there are more matters, yes or no?
2 3 WITNESS MIRIELLO: Yes.
4 JUDGE KELLEY: IIow many?
5 WITNESS MIRIELLO: One that I can think of at 6 the moment.
7 JUDGE KELLEY: So, there are three altogether?
8 WITNESS MIRIELLO: Yes.
9 JUDGE KELLEY: When you say at the moment, have 10 you got another group? We would like to get to the bottom 11 of this.
12 It should have been in your testimony in the (3
's J 13 firs t place.
14 WITNESS MIRIELLO: No.
I 15 JUDGE KELLEY: So, there are three matters.
l 16 One you told us about, at least in part. The second one I
17 you were in the middle of when we started debating. And 18 now there is another one after that if you were allowed 19 to finish the statement.
l 20 Is that correct? i 21 WITNESS MIRIELLO: Yes.
22 JUDGE KELLEY: Mr. IIollar, any comment?
23 MR. !!OLLAR: Your lionor, my only comment is that
(^)
(_, 24 I agree with your observation that I don't see any excuse l
w F.o.ra r.. port ,,, inc.
25 for this having not been put in the profiled direct testimony.
9143
~~7-5-SueW I If the parties nooded an additional period of g~~
(_) 2 timo they could have filed any time betwoon the 23rd and 3 up to this morning. I think it's extremely unfair for 4 the Applicants to hear about this for the first timo in 5 oral cross-oxamination of Ms. Miriollo.
6 I also wonder if Ms. Miriallo isn't going to 7 find some additional mattors next wook that sho will raiso.
8 JUDGE KELLEY: Excuso no a minuto.
9 (The Board members aro conforring.)
l0 JUDGE KELLEY: Gontlomon, the Dosrd has previously i l
l 11 discussed the prosent situation which scomo to us a sort l
l 12 l of competing balanco betwoon fairness to tho litigants, l
,, I i
) 13 particularly the Applicants horo who don't hava any advanco l 14 notico of thoso matters, and simply putting tho facts out 13 as viewod by any witnous and mako suro that wo got tho 16 . safoty .4 Nformation that wo need to know.
l 17 Wo are going to put to you now what wo think 18 is a fairly simplo proposition, which wo would liko to l
19 ; hoar your views on, pro and con, and than we could hoar 20 ' a motion from anybody who wants to mako a motion. ,
This isn't now a motion from tho Daard. This 21 f 22 is just somothing that wo think might be an appropriato 1
23 approach.
& 24 And it's as follows: Wo go ahoad and Ms. j j u . , .7. . c...,,.. .. ma !
25 ' Mirtollo will finish the answor to this statomont. And wo '
1
9144 47-6-SueW 1 will finish the description of I think tho second incident.
,o C 2 And then uho indicated there was a third, and aho can 3 doacribe that also.
4 In that way, the information will be out. It 5 will bo public. And sinco wa've had a public hoaring on 6 this, it's well that be finished out.
7 Dut then that har -- the portion of her toatimony !
I g comprising tho answor to fir. Colo's question bo troated as !
9 a limitad appearanco and turned over to the Staf f for i i 10 inventigation and strikon from tho ovidontiary rocord, i i
11 in view of tho fact that thoro in no roaaon that wo havo 12 , hoard why thoso mattara could not havo boon put in the pro-()
n 13 filed toutimony and that, tho ro fo ro , it would bo unfair l l
14 to the other partion to troat it an ovidon:o in thia procood- I is ; ing.
That'a a proponition. No alo not auro whother 16 l i
17! it in a good and the boat ant. wor, but wo would liko to haar l
10 your roactionn.
19 tir. Ilolla r.
20 MR. Il0LLAR: Could I havo a momont, Your lionor?
f f
2] ! JUDGC KCLLCY: Yon. Do you want a broak?
i 22 i
MR. Il0LLAR Yon. rivo minuton? <
i 23l Jundt KnLLnY: rivo minuton. Not a long ono, i
w.g 24 '
... c .....,... ,
rivo minuton.
25 ' (Whoroupon, tho hoarin<1 in roconnod at Ll:16 a.m., i l
l l !
I
9145 47-7-SuoW 1 to reconveno at 11:26 a.m., this samo dato.)
O 2 JUoce xttLev Baca on the record. Mr. Cote.
3 MR. COLE: Mr. Chairman, another solution to 4 this problem has boon arrived at by me.
5 I am going to withdraw my last quantion, or 6 maybo the last throo because I think I repostod it maybo l
7 twice, and just lot the record and testimony stand an is.
8 JUDGC KELLEY: That would tako caro of --
9 all right. Let's movo around the tablo.
10 Wo had a -- the Chair had a proposition ponding.
1I Mr. Colo has withdrawn his quostion, as ho just statod.
12 And that has tho offect of our not procoading now at least th 13 with furthor tontimony on thoso points.
14 I would just modify the Board's proposal that l 15 Ma. Miriollo and tho Staff got togother and haar the !
l 16 re maindor of har concorna and tho Staf f look into thom, ,
17 an they normally do with tho exproscion of auch concorna. I 16 Dut than the proposition would stand an stated 19 for what's airoady on the record.
20 Mr. Ilo11ar.
21 MR. !!OLLAR: Your lionor, wo undoratood that tho 22 proponal would also includo that Ms. Miriollo's annworn 23 to Mr. Colo'n quostions would be strikon from the rocord.
O 24 w t d c ...... %
JUDGC KELLEY: I don't want to nit-pick. I l
25 think -- Mr. Colo can withdraw hin quantion. Mr. Colo I
9146 5
47-8-SuoW ; can't striko pagos of the transcript. The Board has to do U, 2 that.
3 When ho withdrawa his question, it means his 4 question in of f, ho doesn't want to ask it anymoro. But 5
what in already in tho record, wo havo to control. I 6 don't know that it's a torribly practical or important 7 distinction. I think it has aono siignificanco.
I 8
Wo undoratand it as Mr. Colo waying: I'm no l t
9 longor inturoutod in this -- in pursuing this quantion, i
l 10 Aro you contont to lot the record rost or not? l l
11 MR. Il0LLAR : Wo would movo to havo the rooponson 12 i' strikon. Wo would alao ask that Mn. Miriollo inform un !
m I L) 33 of any namon and additional information that cho han for !
i .: our own invontigation of f the rocord, i
15 l JUDGC KELLCY: Can wo bo clear, just no ovary-1 16 ! ono undorntanda, movo to atriko moans to movo to atriko i
17 tho portionn o f the laat few pagon of tontimony on thin 18 anawor. Thoy would phynically romain in tho transcript, 19 but thoy would not bo a part technically of the ovidentiary rocord, and thin Daard upon dociding the cano would not 20 l connidor them.
21 l 22 That'a what you aro moving for, right?
23 MR. IlOLLAR: You, Your lionor.
f b 24 un res .e cow,ere w JUDGC KCLLCY: Okay. Mr. Barth?
l 25 MR. DARTil Your llonor, may I havo anothor thirty i
! {
9147 47-9-SueW y seconds with my co-counsol for a moment?
) 2 JUDGE KELLEY: Okay. We will go to Mr. Runkle.
3 MR. rut!KLE: I may have misspoko on the record 4
previously. I did know about the first incident. And it 3
was my understanding that that had already boon resolved an n f tho 201, 6
7 The way she stated it, I wasn't sure and I chocked my n too, and asked har at the break.
8 9f JUDGE KELLEY: Okay.
I 10 MR. RUNKLC: The motion to striko, I havo no j;l objoction to that, and I'm suro Ms. Miriollo would bo -- l 12 , I moan, thoro aro othor avonuou bosidos this hoaring to ,
m !
I
{')
r
,3 } invostigato thoso allogations. And I'm not suro what they !
ja aro and, you know, what kind of commitmont Ms. Miriollo l
\
l 15 _
can make to thono. ,
16 JUDGC KELLCY I would liko to undorlino that 1
97 point. And wo would liko to ank Mn. Miriollo spocifically '
16 l to trannmit your concornri to tho Staf f no that thov can i
j9 l look into them.
l
\
20 ' I think our point today, an wo hoard partn of f
! your c neornn, wo docidod to atop -- woll, wo havon't 21 I i 22 docidod it yot but thorn in a motion to ntop bocauso of i
23 tho timing of tho oxpronsion of the concorna banically. '
) !
l l
~~4 l Dut, Mr. Runklo, you havo no objoction to tho~~
~~u. e.g1.ni, ... ., i ,,, l~~
. l 25 ' motion if I hoard you corroctly? i I '
l i
9148 47-10-SuwW j MR. RUNKLE: Yeah, I have no objection.
, 2 JUDGE KELLEY: All right. Mr. Cole, it's 3 okay with you?
4 MR. COLE: Yes, sir.
5 JUDGE KELLEY: Mr. Barth?
6 MR. DAR?JII: Your Honor, we will treat this as i
7 we treat any other allegation of drug use on the site, 8 although it comes up in the context of this hearing. And, 9 wo will treat it as we have any other allegation for any to other plant or for this plant.
11 JUDGE KELLEY: So, you support Mr. Hollar's i 12 l motion? !
,m I l
~~3 MR. D ART!!! Yes, Your lionor.~~
l ja JUDGE KELLEY: Supported or accepted by all 15 ccunsol, the motion is granted.
I 16 And we will go back to Mr. Cole. '
I 17' MR. COLE: I have no further questions, Your ;
i jg liono r .
19 JUDGE KELLEY: Okay. Mr. Darth, questions?
20 CROSS EXAMINATION 21 DY MR. DART!!!
22 Q Ms. Miriollo, may I direct you to Page 2 of 23 your profiled written tastimony?
lll 24 '
e.,...a........,.
A I have it, 25 ; O I refer you to Lino 16, the last savoral words, I
l n
d
9149
~~7-11-SueW i "I have an MS." Has the University conferred a Master's~~
() 2 degree in Science upon you at this time?
3 MR. RUNKLE: I'n going to object to that.
4 That has been asked and answered.
5 JUDGE KELLEY: The question is whether Ms.
6 Miriello had a diploma. Is that the same thing?
7 I sustain the objection; it was asked and 8 answered.
9 BY MR. BARTE: (Continuing) 10 Q Ms. Miriello, a're you currently today enrolled i
11 in a nuclear engineering course at North Carolina State 1
12 University?
() 13 MR. RUNKLE: I will object to that as asked 14 and answered. .
15 JUDGE KELLEY: Yes, sustained.
16 BY MR. BARTH: (Continuing) 17 Q Ms. Miriello, I refer you to Page 4 of your 18 prefiled testimony. And you state on one occasion last 19 October 1984 you arrived at work and observed construction i 20 workers obviously smoking marijuana.
21 Do you find this in your testimony, ma'am?
22 A Yes.
23 Q About how far away from these workers were you?
24 A I was walking right next to the blowers practically, w9:s r;anm, inc.
25 I would say within twenty feet. Like from here -- I mean,
9150 07-12-SueW 1 one may have been within the same distance you are from 2 me now.
3 Q And at this distance, you could recognize that 4 these were marijuana cigarettes rather than Lucky Strikes 5 or --
6 A I could smell it.
7 Q And could you see the -- were these people wearing 8 helmets?
9 A Yes. They were wearing Daniel's helmets.
10 Q And could you tell, or do you recall the color 11 of the helmet?
12 A I think they were tan.
13 Q Do you recall any of the numbers of the work 14 crews on the helmets?
15 A No. When there are that many people that are 16 smoking pot, and I had to work on that site, I didn't want 17 to stop and stare and take down names, because they knew 18 who I was, too. !
1 19 Q Oh, you knew who they were? Did you report 20 any of those individuals to Carolina Power and Light ,
21 officials or the Daniel officials at the time?
22 A No, I didn't.
23 Q Did you report them to any of the local County (o) 24 police at the time, the Sherif f I believe in this case, W-Fede'ral Reporters, Inc.
25 or the local law enforcement agencies?
9151
~~7-13-SueW i A No, I didn't.~~
) 2 MR. BARTH: I have no further questions, Your 3 Honor.
4 JUDGE KELLEY: Okay. Thank you.
5 BOARD EXAMINATION .
l l
6 BY JUDGE KELLEY:
INDEXXXX 7 Q Ms. Miriello, I would just like to -- it's the 8 Board's turn on questions, and I would like to just pursue 9 with you a little further this on Page 4 towards the bottom, 10 the paragraph beginning, " Additionally, when I walked i
11 through the Daniel parking lot. . ." and you say you could 12 smell marijuana.
13 Are you familiar with the marijuana smell?
14 A Yes, I am.
15 Q What does it smell like?
16 A It's sort of a sweet odor. I shouldn't say 17 sweet. It's striking.
18 I really can' t say what it smells like. I've 19 seen people light up and been in their presence and smelled 20 it.
21 Q I'm trying to get some notion of time interval 22 here. You say three or four days a week, especially at 23 lunch time.
() 24 e-reswa neoorms eoc.
Does this mean on your average week at the site, 25 you would go through the lot -- would you go through-
i 9152 l
~~7-14-SueW 1 the lot everyday?~~
O(> 2 A When I worked for NES, I had to park in that 3 parking lot. And I would have to walk through that lot 4 everyday.
5 Q So, you drive there yourself in the morning and 6 you park?
7 A Yes.
8 Q Okay. So, five days a week with NES anyway, 9 you would be in the lot and walking in and out?
10 A Six and seven days a week most of the time.
11 The In-Service Inspection Group was working a lot of over-12 time.
( 13 0 Okay. Why would you be in the lot -- what 14 occasion did you have to be in the lot at lunch time?
15 A The incidence I was thinking about in the 16 affidavit, I had come in to work late that morning and 17 as I walked through the parking lot the smell was obvious, 18 people were in cars, and you could see the roaches.
19 Q But if you single out one incidence that 20 you recall specifically, the preceding part of this same i 21 sentence you say, "I could smell marijuana at least three 22 or four days a week," reading that literally I would take 23 that to mean that most of the time when you walked through
() 24
>FederW Roponen, Inc.
the lot you could smell marijuana.
25 Is that what that means?
i l
9153 l
l
~~7-15-SueW 1 A Yes. Yes, definitely.~~
) 2 Q Then, if it was just an ordinary, everyday 3 occurrence why does that one incident you just referred 4 to stand out in your mind?
5 A Because it was really close to the construction 6 building and the entrance. And I thought security could 7 have done a better job in eliminating the problem that 8 close to the building.
9 I mean, it was typical to see it and smell it 10 out in the parking lot. But when you smell -- it's right 11 by the darn door.
12 Q Was this -- now, typically when you would be
() 13 walking through the lot and you would smell marijuana, 14 were there people there smoking or was this just a residual 15 odor from cars, did you think?
16 A No. When you would look towards the smell, 17 there would be people in the cars or people outside of 18 the cars. Sometimes the joints were obvious.
19 Q Okay. But your -- I guess I'm thinking of 20 yesterday when people with more acute olfactory senses 21 than you and me could smell residue and so on, but this 22 is people smoking at the time you are talking about, right?
23 A Yes.
() 24 W-Feded Coporters, Inc.
Q All right. Could you give us any notion, when 25 you offered this description of smelling marijuana and then
9154
~~7-16-SueW 1 seeing people there, would this be a car and a couple of~~
'~' people or twenty cars or fif ty cars with people in it?
2 3 A Usually one or two cars, or maybe a few guys 4 standing around together, or maybe three or four guys at 5 the back of a pickup truck drinking beer and smoking 6 marijuana.
7 Q I'm not getting then from you a notion -- on 8 the one hand, I can sort of visualize in my mind, you know, 9 the old fashioned smoking lounge when smoking was more in 10 favor and people all go in there and smoke cigarettes, 11 and that was sort of the purpose of the place.
12 I'm not getting that impression about the CP&L I
parking lot. I mean, there might be a group of people, 13 14 but it wasn't as if the lot was full of marijuana smokers.
15 Or, was it?
16 A Not every car. But, I mean, you could walk from j 17 one end of the lot and see it at one end, and to the other 18 end of the lot and see it there also.
19 Q But if you were walking through a lot -- is this 20 the big main lot?
21 A This is the Daniel parking lot.
22 Q It's Daniel's lot?
23 A Righ t .
\_) 24 Q Okay. And this would have several thousand cars Wederal Reporters, Inc.
25 in it, I take it, on a typical day?
9155
~~7-17-SueW 1 A Yes, it would.~~
I 't
' / 2 Q And it's half a mile long. I don't know. How 3 big is it?
4 A A quarter to half a mile.
5 Q Long and then so many rows deep?
6 A Yeah.
7 Q It's a long rectangular --
8 A It's odd shaped. It's not completely rectangular.
9 Q Okay. But it's a big rectangle with some rough 10 edges,; is that fair?
11 A Yeah.
12 Q Okay. With maybe three or four thousand cars kJ 13 in it as a rough guess.
14 Now, if you were walking through there at this 15 time and you were typically seeing what you thought was l
16 marijuana, how many cars, groups of people would you see? j 17 A In the small area that I would cover as I would i 18 walk through the lot, I would see maybe three or four cars, 19 smell it maybe once or twice.
l 20 Q When you say small area, do you mean if you I 21 parked way out at the end of the lot you would probably 22 have to walk the whole lot.
23 Would you park kind of close to the gate and get r,
')
24 out and walk in? Is that what you mean by small area?
a-Federal Reporters, Inc.
25 A A lot of times I would walk through the periphery
9156
}7-18-SueW j of the lot, because I didn't want to walk up between the (G,/ '2 cars. I didn' t think it was that safe half the time.
END #7 3 Joe flws 4
5 6
7 8
9 10 11 12 O's/ 13 14 15 16 17 18 19 20 21 22 23 O 24 DFederal Reporters, Inc.
25
l 8-1-Jo:Wal 9157 '
1 JUDGE KELLEY: Okay. That is all I have, k' 2 Mr. Runkle, Redirect?
3 MR. RUNKLE: Yes.
XX INDEX 4 REDIRECT EXAMINATION 5 BY MR. RUNKLE:
6 Q Ms. Miriello, you turn to what has been introduced 7 -- entered as Applicants' Exhibit No. 41, the employee exit 8 questionnaire?
9 A Yes, I have it here.
10 Q At the time you filled this out, were you an 11 employee that was exiting from the Harris site?
12 A No, sir; I wasn't.
/
E_) 13 Q Why did you fill this questionnaire out?
14 A I had no choice.
15 Q Who gave you no choice?
i 16 A I was told to report to the quality check trailer i l
17 and go through the exic interview, and if you are smart f 18 and you work for a contractor at CP&L and if you want to 19 be employed by CP&L, you don' t argue with those people .
20 You go do it, and I didn't want to raise any l 21 suspicion when I answered these questions, because the 22 matter was already given to the FBI.
23 Q Now, what matter.' was that?
() 24 m-Federd Reporters, Inc.
A That was the drug allegations against ConAm.
25 Q All right. And if you will look at Line 5 of :
l l
1
4-2-JosWal 9158
) this questionnaire, it states, does it not, your reason for
() 2 leaving the Harris plant?
3 A It was to come back to work for CP&L, so I wasn't 4 really leaving the Harris plant. I was going from one trailer 5 to a building, which was close by.
6 Q Now, if I can had you the Applicants' third panel's 7 testimony, which was the joint testimony of Hindman, King, 8 Joyner, Bensinger, on the assessment of employee drug 9 activity, page 15, 10 If we could have a minute to find a clean copy 11 of this.
12 (Pause.)
() 13 Do you have in front of you Applicants' testimony 14 from the third panel?
15 A Yes, I do.
16 Q Can you turn to page 15 of that?
17 A Yes. I am there.
18 Q Do you see a sentence right before Question 15 19 ti.a t starts with the line, According to another co-worker.
20 Do you see that senrence? It is right before 21 that paragraph that is indented, or right after that 22 paragraph that has been indented.
23 A Yes, I do.
() 24 m4= seres r: poners, Inc.
Q Can you take the time and just read that to yourself? ,
25 A Yes, I have read it. ,
l l
l
i 8-3-JosWal 9159 l
1 Q Did you make that statement?
2 A No, I did not.
l 3 Q I have no other questions on redirect.
l 4 JUDGE KELLEY: Thank you, Mr. Runkle. Any 5 further questions from anybody.
l l 6 MR. HOLLAR: I have two questions on Recross.
7 JUDGE KELLEY: Okay.
XX INDEX 8 RECROSS-EXAMINATION l
l 9 BY MR. HOLLAR:
l 10 Q Ms. Miriello, was your resume attached to your
! 11 testimony, or to the September 6th affidavit that you filed?
l 12 A Mr. Runkle had it, Mr. Cole had it.
13 Q That was not the question. Was it attached 14 to the testimony or the affidavit?
15 A No, I don't think.
, 16 MR. RUNKLE: We will be glad to stipulate it was l
17 not attached to either one.
I l 18 JUDGE KELLEY: All right.
19 BY MR. HOLLAR: (Continuing) 20 Q Ms. Miriello, do you know whether Daniel construction 21 workers are permitted to go to the employee parking lot at 22 lunch time?
23 A I have seen them out there.
l () 24
.F ews :: conwi, Inc.
Q Do you know whether there is a Daniel policy 25 against their being in the parking lot at lunch without
l 9160 l 8-4-JoeWal l i special permission?
2 A That is for all Daniel employees?
3 Q Construction workers.
4 A I have seen Daniel employees out there. Not all 5 Daniel employees are construction workers.
6 Q Are you familiar with the policy as it pertains 7 to Daniel construction workers?
8 A No.
9 MR. HOLLAR: That is all the questions I have.
10 JUDGE KELLEY: Okay. Ms. Miriello, that takes 11 us through the process then. We appreciate your coming.
12 Thank you very much. You are excused.
13 (WITNESS STANDS ASIDE.)
14 MR. RUNKLE: At,this time, I would like to move 15 to strike that sentence on page 15 of the third panel's 16 testimony as hearsay.
17 JUDGE KELLEY: This is the statment in the bar?
18 The alleged statement in the bar?
19 MR. RUNKLE: Yes, sir.
20 JUDGE KELLEY: Comment from the Applicants?
21 MR. HOLLAR: Your Honor, I believe the Board 22 has already ruled on the admissibility of the statement, 23 the statement is one that is made by a trained law enforcement
( 24 security official.
m-Federj Reporters, Inc.
25 JUDGE KELLEY: Excuse me. We are looking at
8-5-Jo;Wal 9161 1 page 15, beginning with: According to another co-worker; i ;
VJ 2 is that what your reference is?
3 MR. HOLLAR: Yes. The testimony is that of 4 Mr. Joyner, and the Board has already ruled on its 5 admissibility.
6 It is included merely to corroborate the 7 information -- the statement that Ms. Miriello made in her 8 August 12th letter to Mr. McDuffie.
9 JUDGE KELLEY: Why wasn't it just attributed to 10 Mr. Joyner? Why this vague reference to another co-worker?
11 MR. HOLLAR: Mr. Joyner was not the co-worker.
12 JUDGE KELLEY: Oh.
'- 13 MR. HOLLAR: Mr. Joyner was reporting a statement 14 of a co-worker.
15 JUDGE KELLEY: Oh. I am glad to have that ,
16 clarified. I thought you were saying Mr. Joyner was the i l
17 person in the bar who heard the statement.
i 18 MR. HOLLAR: No, sir.
19 JUDGE KELLEY: Well. Mr. Barth? l 20 MR. BARTH: Your Honor, this is Mr. Runkle's 21 second motion on the same words. He has provided the same 22 grounds as he did before. It is hearsay, and you denied 23 it. I think there is nothing changed that would change n
qj 24 your previous ruling.
--%.rw t ponen, inc.
25 l If we literally stuck to the hearsay rule, l
8-6-Jo:Wal 9162 1 we wouldn't have much here at the hearing at all.
~
2 When I got this testimony in Washington and 3 read this paragraph, we knew Ms. Miriello would appear and 4 deny it. There is nothing new, nothing surprising.
5 All this goes is to weight for denial, it does 6 not go to admissibility.
7 You have already ruled this admissible over Mr.
8 Runkle 's objection of hearsay, and there is nothing-changed.
9 There is nothing new. We knew she would deny it.
10 JUDGE KELLEY: All right. Any comments, Mr.
11 Cole?
12 MR. COLE: It was, in fact allowed in by the
~'
13 Board. The fact that it is hearsay it is obvious. on its 14 face it was hearsay, and I thought that was the argument at 15 the time.
i 16 I would have a hard time arguing against hearsay 1 i
17 in this hearing, inasmuch as -- l l
l 18 JUDGE KELLEY: You would, yes. I i
l 19 (Laughter.)
20 JUDGE KELLEY: All right. Hold on a minute.
l i
21 (Board confers.) l 22 JUDGE KELLEY: The Board denied the motion to 23 strike this particular sentence earlier, and in part the p
kJ 24 objection was hearsay, and we knew at the time that it was !
a-FawW Recturs, lm:.
l 25 indeed hearsay, but that since the person making the statementi
l 8-7-JoeWal 9163 I was going to be here who could testify; affirm, deny, or
)
2 modify, that we would not strike it out.
3 And we don't understand the appropriate practice 4 today that a statement or points being denied is automatically 5 out. It is our view that when a statement is made in 6 testimony, a hearsay statement made in testimony by an 7 unnamed worker, and then the person to whom it is attributed 8 comes in and says I didn't say that, that the statement is 9 entitled to very little weight.
10 But we don't think that striking is appropriate.
Il I think that conveys our view of what it is worth, on the 12 record as now developed in light of the denial.
i,
)
13 MR. RUNKLE: Yes. Thank you, sir.
14 JUDGE KELLEY: Right. Okay. Are the Sheriff's 15 Department people here with us this morning, is that the ,
16 next step?
17 MR. RUNKLE: And before I call them, I would 18 like to make -- I would like to let the Board understand f l9 the request that cameras and TV cameras not be used. A j i
20 couple of them still are involved -- l i
21 JUDGE KELLEY: Can't we go off the record.for a !
I 22 second on this point. I l
23 Let's do. I r^s 24 A.Fewa twomn. ine.
(Off the record discussion ensues.) .
I 25 MR. RUNKLE: Let me call them. They are out in l, l l
8-8-JosWal 9164 1 the hallway. :
O 2 JUDGE KELLEY: Do you want to introduce them, Mr.
3 Runkle, and then I will swear them in. r 4 MR. RUNKLE: At this time I would like to call l t
5 a panel from the Wake County Sheriff's Department; Agent I 6 Hensley, Lt. Self, and Major Lanier.
7 Whereupon, 8 T. W. LANIER, 9 R. J. SELF, 10 - and - i 11 KENNETH G. HENSLEY, f f
12 were called as witnesses on behalf of the Interveners, and I O 13 being first duly sworn by Judge Kelley, testified as follows:
l XXX I4 DIRECT EXAMINATION !
15 BY MR. RUNKLE:
16 Q I would like the record to reflect that although I7 these witnesses were subpoenaed, they have been very cooperative.
i 18 JUDGE KELLEY: I understand. And we appreciate f l
I9 that gentlemen, very much. l l
20 BY MR. RUNKLE: (Continuing) 21 Q May we start from my right. Major Lanier, can 22 you give us your name, address and position?
23 A (Witness Lanier) Major T. W. Lanier.
Q Excuse me, sir. You will have to speak into the m c. corms, inc.
25 microphone. That is part of the transcription.
l 8-9-Jo Wal 9165 1 A Major T. W. Lanier, I live in Zebulon. I am
,s t i K>-
2 employed with the Wake County Sheriff's Department.
3 Q And what is your position there at the Sheriff's 4 Department.
5 A I charge of the Criminal Investigations Division.
6 0 All right. And your rank at the Sheriff's 7 Department is Major, is that correct?
8 A That is correct.
9 Q Lt. Self, can you give us your name, address and 10 position?
11 A (Witness Self) Lieutenant R. J. Self. I live 12 in Garner. I work with the Investigations Division, Drugs V 13 and Vice.
14 Q And what is your position with the Wake County ,
15 Sheriff's Division? l l
16 A Lieutenant. !
i !
17 Q All right. And Agent Hensley, can you also give 18 us your name, 2ddress, and position?
l 19 A Kenneth G. Kensley. I live in Garner, and employed i i
20 with the Wake County Sheriff's Department as an investigator, '
21 presently assigned to the Crime Analysis Unit. I 22 Q And what is your r3nk with the Wake County 23 Sheriff's Department?
,a
(_) 24 A Investigator Deputy.
Am-Faserd Ceporters, Inc.
25 Q Gentlemen, let me ask each of you about your i
9166
,8-10-JoeWal 1 law enforement experience.
O kJ 2 Major Lanier, what other -- how long have you 3 been in law enforcement, and what kind of experience do 4 you have?
5 A (Witness Lanier) I have been in law enforcement 6 ten years as of October the 1st of this year. That ten years 1
! 7 with the Wake County Sheriff's Department.
8 Approximately two years as a uniformed officer.
9 Seven years involved in investigation, from investigator 10 up until -- I was promoted to night duty captain, and l
11 then from night duty captain to captain of the investigative 12 division.
s 13 Q And in that position, do you have experience 14 with undercover drug investigations?
15 A Yes, sir. I have had some experience off and 16 on over the last five years.
17 Q How many undercover drug investigations have I
18 you been involved in?
19 A You mean -- how involved in the operation?
20 Q Well, either as an agent or as a supervisor 21 or in your present capacity as overall supervisor?
22 An approximation would be fine.
23 A Five or six.
24 Lieutenant Self, what law enforcement experience Q
a Federd Coporters, Inc.
25 do you have?
9167 8-ll-Jo;Wal 1 A (Lieutenant Self) Well, I have been in law j 2 enforcement thirteen and a half years, and out of that 3 thirteen and a half years, about eight years of it being 4 involved in drugs.
5 Either purchasing drugs, doing undercover-type 6 campaigns, or either being just basic type drug work.
7 I have been to several seminars, schools, 8 involving drugs. The identification of drugs, and just 9 basically new techniques and stuff on how to do drug work.
10 Q So, would you say your law enforcement speciality 11 would be drug investigations?
12 A It has been, yes.
i :
(_) 13 Q Can you give us an approximation of how many 14 undercover drug investigations you have been involved in?
I 15 A Approximately ten or twelve.
l 16 Q Okay. Agent Hensley, what law enforcement j l
17 experience do you have?
l i.
18 A (Witness Hensley) I have been employed by the I 19 Wake County Sheriff's Department for fourteen years in j l
20 different positions, from patrol deputy to an investigator :
i i
21 for the last six years. !
22 Q And what experience have you had with undercover 23 drug investigations? l
,a
(_) 24 A I have assisted on undercover operations relating WFederst Ceoorters, Inc.
25 to drugs. This was the first time that I have participated i
8-12-JosWal 9168 1 as an undercover agent in a drug operation.
p)
\- 2 Q And that would be the undercover drug investigation 3 at the Harris plant in November and December of last year?
4 A That is correct. l l
5 Q All right. And Major Lanier and Lieutenant Self, 6 you also were involved in that drug investigation out at 7 Harris, were you not?
8 A (Witness Lanier) That is correct.
9 A (Witness Self) That is correct.
10 Q Major Lanier, what was your role in the Harris 11 investigation?
12 A (Witness Lanier) Just as head of the Criminal 13 Investigation Division, Drug and Vice Unit that is housed 14 within that Division along with other specialized units.
15 Q And did you receive any regular reports from 16 Lt. Self or Agent Hensley?
17 A Yes, sir, I did.
18 Q How often did they report to you?
19 A Normally I was updated on pretty much of a daily 20 basis.
21 Q So you kept on time of the investigation pretty 22 much of the time?
23 A Pretty much so, yes.
) 24 he-Federd Rooorters, Inc.
Q Lt. Self, what was your role in the Harris 25 investigation?
8-13-JonWal 9169 1 investigation?
7--
-Y 2 A (Witness Self) My role was to receive information 3 from Deputy Hensley on reports', to take the drugs from 4 him, carry them to the FBI lab, carry them to the SBI lab, 5 the SBI lab to do an analysis on it, and to retain all 6 those reports with me.
7 Q So you were the offsite supervisor of the 8 investigation?
9 A Yes, sir.
10 Q And Agent Hensley , what was your role in the 11 investigation at the Harris plant?
12 A (Witness Hensley) I was the onsite undercover pm
('
l 13 operator.
14 Q And that was for the entire time that the 15 investigation took place?
16 A That is correct. !
17 Q Sir, how many -- how long did the investigation ,
i 18 take place from when you initially went onsite entil it was 19 terminated?
20 A It started around the first of November 1984, 21 and ended the first part of January, 1985.
22 Q And during daat time , how many days per week were 23 you onsite?
(j 24 A I was onsite five days a week, except for an(
Am-Federd Reporters, 'nc.
25 holidays. Most every weekday I was at the site.
8-14-Jo Wal 9170 1 Q Were you there for a full shift during that time?
2 A Yes.
3 Q So, while you were undercover, you were as if 4 you Were a Worker at the plant, is that correct?
5 A That is correct.
6 Q Major Lanier, when were you first contacted by 7 Carolina Power and Light about the necessity for a drug 8
investigation at Harris?
9 A (Witness Lanier) I don't recall the exact date I
10 offhand. It was some time in late September by letter.
11 Q And did they provide you -- who made the contact 12 with you from CP&L?
13 A I don't recall right offhand.
14 Q Would you accept, subject to check, that the 15 letter to you was from R. A. Watson, Vice President of the 16 Harris Nuclear Project? l l
17 A Yes, that sounds correct. l i
la Q And that that letter was sent on or about 19 August 30, 1984?
20 A That could be correct. It was '. ate August or 21 late September.
22 Q So, it was in early -- late summer or early 23 fall, that time of the year.
(_,) 24 MR. BAXTER: If you can find a copy of the WFeder:3 Ceporters, Inc.
End 8. 25 letter and show it to the witness.
MS fols-
9171 1
MR. RUNKLE: If that would be helpful, I have the Sim 9-1 letter in front of me.
(]) 2 3 (The letter was shown to the Board and parties.)
4 BY MR. RUNKLE:
5 Q Sir, I have just handed you a letter. Is that the 6 letter you received from Carolina Power and Light, or should 7 I say a copy of a letter that you received on this matter?
8 A (Witness Lanier) It appears to be, yes.
9 Q And in fact it is R. A. Watson that signed that 10 letter?
11 A Yes, it is.
12 0 And could you tell us what the date on that letter is?
(]) 13 14 A August 30th, 1984.
15 Q And to the best of your knowledge, that is the first 16 contact you had on the need for a drug investigation at 17 Harris?
18 A It seems there may have been some earlier conver-19 sation, not between myself and CP&L officials, but maybe 20 with one of the other officers within the investigative 21 division with some of the security personnel at CP&L.
22 0 At any time in those prior conversations or after 23 you receiving this letter, did CP&L ever tell you why they 24 thought an undercover drug investigation was needed at Aso- Reporters, leg.
25 Harris?
9172 Sim 9-2 j A I am not sure I understand the question.
2 Q Did they ever tell you why they thought they 3
needed a drug investigation there?
a A Just basically that they felt they had some drug 5
activity there at the plant and they requested our assistance 6 in that effort.
7 Q What kind of invsesigation did they initially 8 tell you they wanted?
9 A The discussion centered around an undercover 10 type of operation ther on site at the plant.
11 Q Lt. Self and Agent Hensley, the way we operate 12 panels here is if you have something that you would like to
^
Ih 13 contribute, either an addition, correction or, Major Lanier, V
14 if you would like to consult with them on the record before 15 you answer, that is fine also.
16 So, gentlemen, do you have a different understandinc j7 of why CP&L wanted a drug investigation?
18 A (Witness Self) I don't, no.
19 (The reporter asked for a repeat of the answer.)
20 (Witness Self) I do not.
21 MR. BAXTER: Deputy Hensley, was that no?
22 WITNESS HENSLEY: Yes. No, I do not. I 23 BY MR. RUNKLE:
24 0 Gentlemen, who would best be able to describe A<.4hai e, poet..., Inc.
25 the overall scope of the investigation?
9173 Sim 9-3 A (Witness Lanier) Probably Investigator Hensley.
1
~
(v t 2 Q All right.
l 3 Agent Hensley, can you briefly describe the overall 4 scopy, what you did and what the investigation entailed?
5 A (Witness Hensley) Are you talking about as far 6 as my participation in that site itself, or the planning 7 stages?
8 0 Well, the investigation itself onsite.
9 A Okay. I was informed by Major Lanier that I was 10 going to be sent to Shearon Harris and doing this undercover 11 drug operation. My cover was to be as an employee of the 12 plant site. I was to work a shift at the plant site and
~
l i 13 gather information and try to purchase drugs and provide this
'. J 14 information back to Lt Self and Major Lanier.
15 0 And during the time of your onsite incastigation, 16 did that result in the ascest of anybody?
17 A Yes, it did.
18 Q Of how many people?
19 A Eight I believe is the number.
20 0 During the * .me that you were doing the investigatio n 21 on site did you identify any other users of drugs?
22 A Besides the arrested individuals?
23 Q Besides the eight, yes.
,m\ 24 A Yes.
4e[j! Reporters, Inc.
25 0 And can you provide us with a number of how many
9174 Sim 9-4 ; that was?
2 A To the best of my recollection, it was 51 or 53, 3 somewhere in there.
4 0 It would be fair to say in the low 50's; would 5 that be fair?
6 A Yes, not counting ---
7 MR. BAXTER: Mr. Chairman. Excuse me. I just 8 need a clarification. The witness and the interrogator are 9 using the word " users of drugs" I think in a way which they 10 intend to mean any kind of drug activity or involvement, and 11 the record may be getting confused.
12 I think one way of considering the "use" is
"^*
O i3 c "="=i"9- a "'t *"i"x it *= ti=ited e '"*
ja wanted to make that clear.
15 JUDGE KELLEY: Can we ---
16 MR. RUNKLE: I had been using the term as 17 9 21vement, whether it was use, possession, sale or anything 18 else.
19 Is that how you understood those questions to be?
20 WITNESS HENSLEY: Yes.
21 JUDGE KELLEY: And that is consistent with the 53 22 or 61 number that has been used before. Okay, fine.
23 BY MR. RUNKLE:
l 24 0 During the undercover drug investigation at the Ac. hpa,m. inc.
25 Harris plant, did you see any additional people who were I
9175 Sim 9-5 j involved with drugs that you could not identify?
2 A (Witness Hensley) Yes.
3 Q Can you provide an approximation of how many people 4 you saw but did not identify?
A I believe, as I have said in the past, that the 5
6 total number that I saw either. using or being connected 7
with drugs would be somewhere around 100, but that includes 8
the ones we had previously talked about, the 50-some number 9
or 60-some number.
10 Q S there would be another 40 or so that you saw jj but did not identify?
12 A S mewhere around that, yes.
^"" ' "" "" '""** '" "*"' "" "" '"** ' "
O '3 14 arrested and those that you identified and those that you 15 saw but did not identify, what kind of drugs were they using 16 n site, or what kind of drugs were they involved in on site?
A Mostly cocaine, marijuana and what is known as 37 18 crystal, which is ---
I j9 A (Witness Self) Methamphetamine.
20 A (Witness Hensley) He can say it. I can't.
21 Q Sir, I w uld like to hand you Attachment 5 to the 22 second panel's testimony, and that would be the testimony of 23 Hindman, King, Joyner, Plueddemann and Bensigner on the p 24 54al n.por,.n. inc.
undercover drug investigation.
25 (The document was shown to the parties and the Board.)
9176 Sim 9-6 1 MR. RUNKLE: Sir, can you take a minute or two i
( ,)
g 2 and review that list.
xs 3 WITNESS HENSLEY: Yes. l l
4 MR. RUNKLE: Can you tell us what that list is?
5 WITNESS HENSLEY: This is a list of the drug 6 purchases that I made while I was at Shearon Harris.
7 BY MR. RUNKLE:
8 0 To the best of your knowledge, is that list 9 complete?
10 A (Witness Hensley) Yes, it appears to be.
11 Q And you have provided a list in some form containing 12 that same information to CP&L, have you not?
13 A Yes.
14 MR. RUNKLE: If I may hand the panel an affidavit 15 of S. L. Burch, which is part of her testimony and will be 16 part of her testimony for the next panel on page 4 of her 17 affidavit.
18 (The document was shown to the parties and the ,
1 19 Board.)
20 JUDGE KELLEY: Testimony of affidavit? It is the 21 same thing.
22 MR. RUNKLE: Testimony.
23 If the two of you can just read that last No. 8 24 to yourselves.
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Ace &~ il Ryonets, Inc. l 25 WITNESS HENSLEY: Lt. Self advised ---
i
9177 Sim 9-7 j MR. RUNKLE: No.
() 2 WITNESS HENSLEY: Do you want me to read it out 3 loud? -
4 MR. RUNKLE: Sir, if you will look at No. 8 there 5 and read it to yourself. It continues on to the next page.
6 (Pause while the witnesses read the document.)
7 BY MR. RUNKEL:
i 8 Q Gentlemen, have you looked at that paragraph?
9 A (Witness Hensley) Yes.
10 A (Witness Self) Yes.
11 Q The basic question I want to ask you is is that 12 a true statement?
() 13 MR. BARTH: For clarify, are you referring to all 14 paragraph 8, counsel?
15 MR. RUNKLE: Yes, sir.
16 JUDGE KELLEY: It is paragraph 8, pages 4 and 5 17 of the Burch, it is labeled affidavit, but it is really the 18 testimony, correct?
19 MR. RUNKLE: Yes, sir.
20 WITNESS HENSLEY: Yes, I would say it is basically 21 correct.
22 WITNESS SELF: I do, too.
23 BY MR. RUNKLE:
24 Q Do you have any corrections or additions or
(~}
Ace-FC il Reporters, Inc.
25 explanations of it?
(
l
__.j
9178 Sim 9-8 1 A (Witness Self) To what part are you talking about?
() 2 Q It would probably be more helpful just to go 3 sentence by sentence, if we could do that.
4 A Yes, because, you know, you have got a paragraph 5 there, and you are asking about the whole paragraph.
6 Q All right. Gentlemen, based on your investigation, 7 are there several clicks -- were there several clicks 8 dealing drugs at the Harris plant involving several hundred 9 people?
10 MR. BAXTER: That is not what the affidavit states.
11 If the question is whether they agree with the affidavit, 12 the affidavit says they began to develop intelligence which
() 13 indicated. It doesn't say that there were.
14 MR. RUNKLE: My question is were there.
15 JUDGE KELLEY: Well, various questions could be 16 asked. We just want to make sure of what is being asked.
17 I thought in general, Mr. Runkle, you were seeking 18 their agreement or disagreement with the affidavit, and if 19 that is the springboard, you might start with that.
l 20 I think I agree with the witnesses that just 21 swallowing the thing whole - they have indicated.. general 22 agreement; is that correct?
23 WITNESS HENSLEY: Yes.
f'} 24 Ose-FList Reporters, Inc.
WITNESS SELF: Yes.
25 JUDGE KELLEY: Okay. But some piece-by-piece
9179 Sim 9-9 j discussion may be worthwhile. I don't mean to tell you
(^'\ 2 how to run your examination, but I just want to make sure
%/
3 what we are doing.
4 MR. RUNKLE: I thought I had prefaced my question 5 with based on their investigation, and I would equate that 6 with developing intelligence.
7 JUDGE KELLEY: Well, I suggest to you that that 8 is going to be murkey. My view at least is begin by taking 9 this piece by piece and asking them what the affidavit says, 10 do they agree with it or not, and then you can follow up 11 with your own formulations.
12 MR. RUNKLE: Thank you.
BY MR. RUNKLE:
(~ ) 13 14 Q Gentlemen, if I can draw your attention to the 15 first sentence as it goes down to involving several hundred 16 Pe0Pl e-17 Did you in fact develop intelligence which 18 indicated there were several clicks dealing drugs at the 19 Harris plant involving several hundred people?
20 MR. BAXTER: We are leaving out the word " began" 21 purposely?
22 MR. RUNKLE: No, I am not leaving out the word 23 " began."
24 JUDGE KELLEY: All right. The word " began" is in Ace i Reporters, Inc.
25 too.
l i
9180 Sim 9-10 WITNESS HENSLEY: I would have to say yes based I
~~on my feelings at times what I was aware of, yes.~~
O 2 3
BY MR. RUNKEL:
4 Q So the first part of this statement would be a l true statement; is that correct?
5 l
6 A (Witness Hensley) Yes, I would think so. .
7 Q Now when you refer to several hundred people, 8
Ageny Hensley, can you give us an idea of how many people you 9 consider to be several hundred people?
10 A I am not really sure. Are you asking me for a l
i jj specific number?
12 Q Yes, can you give us a number range? Is that O is ja A I would say anywhere from 100 to 200.
15 0 All right. Now would this 100 to 200 be in
! 16 addition to those that we previously defined as arrested, I
j7 identified or seen, but arrested?
18 A No, that would be including them.
I i
j9 Q All right. Now if you will go the next part 20 of the sentence where it states which rang from supervisory 21 level to secretary level to actual work force. Do you agree 22 with that?
23 A Yes.
24 Q S this several hundred people would include all Ac d Reporters, Inc.
25 levels at the plant, all levels of employment at the plant?
9181 Sim 9-11 1 A Yes.
() 2 O In the actual work force, that would be the 3 workers out on site?
4 A Yes.
5 Q Construction workers and that kind of thing.
6 A Yes.
7 Q And the next sentence describes various drug 8 dealings taking place inside the plant, outside in the parking 9 lots and the nearby grocery store. Based on your investigation ,
10 were such drug dealings going on in those three places?
11 A Yes, there were.
12 Q And those would be drug dealings related -- that
() 13 would have workers from the Harris plant?
14 A That is correct.
15 Q Now the last part of the paragraph, do you agree 16 with this statement that Deputy Hensley was attaining 17 information that a supervisor was involved with pound quantities 18 of cocaine?
19 MR. BAXTER: It says allegedly.
i 20 JUDGE KELLEY: Maybe you can^just.-ask if.'they
)
~
21 agreecwith the sentence.
l 22 BY MR. RUNKLE:
i 23 Q Do you all agree with that sentence?
24 A (Witness Hensley) Yes.
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Ace-Aal Reporters, Inc.
25 A (Witness Self) Yes.
9182 Sim 9-12 . .
1 Q Now when we talk about allegations, if you can
() 2 without identifying any of your confidential sources, 'Who 3 made that allegation?
4 A (Witness Hensley) Well, that information was 5 obtained through my dealings with employees on the site from 6 just general conversation with them in just trying to obtain 7 information about different people and operation of any 8 drugs on the Shearon Harris plant itself.
9 Some of the converastions were with individuals 10 and some were with groups of individuals.
11 Q And through these various discussions with 12 employees how did you arrive at an allegation that a supervisor was involved with pound quantities of cocaine?
(]) 13 14 A I was told by one of the people that I was dealing 15 with that his source where he obtained some of his drugs 16 was supposedly a supervisor.
17 Q Did you attempt to make any purchases from the 18 supervisor who was alleged to be involved with pound quantities 19 of cocaine?
20 A Yes, I was trying to vork up to that.
l 21 MR. BAXTER: I am sorry, the answer is confusing. l 22 Did you try to make any purchases from him, and, yes, I 23 was trying to work up to it. Does that mean you did try or ---
24 WITNESS HENSLEY: I was trying to make the Ac I Reporters, Inc.
25 connection to get to him to make a purchase. It is kind of
9183 Sim 9-13 I of a structure thing. You have got to work through a structure O
V 2 to get to a certain point.
3 MR. BAXTER: Thank you.
4 JUDGE KELLEY: But you didn't get there?
5 WITNESS HENSLEY: No, I never made it tliat far.
6 JUDGE KELLEY: Mr. Runkle, I don't want to 7 interrupt, but I just want to note that the process we are 8 following is we are going to have to eat lunch at some 9 point, and it seems to me we are going to have to break in 10 on our interrogation at some point and do that and then come II back and resume.
I2 MR. BAXTER: Mr. Chairman, lunch is important, but 13 if Mr. Runkle's direct examination isn't going to be much I4 more than an hour, which was the indication yesterday, it 15 would be very efficient for.our cross-examination if we had 16 the lunch break after the direct, if it is not too long, I7 so that we could do what we do, eat and prepare for the 18 hearing as well.
I9 JUDGE KELLEY: Well, I suppose ---
0 I don't MR. BAXTER: It depends on the length.
21 mean to say we should wait until ---
2 Mr. Runkle, do you have a sense of JUDGE KELLEY:
how long? l MR. RUNKLE: I can finish up on the actual Ace-FMil Reporters, Inc.
25 I am about through with that.
investigation fairly quickly.
1 i
9184 Sim 9-14 j one of the parties needs to go down the list
() 2 of hearsay statements on the second panel, and I would be 3 glad to do that and ask these gentlemen whether those 4 statements wer.e made. That may take a while.
JUDGE KELLEY: Well, how long on the first piece 5
6 roughly?
7 MR. RUNKLE: I could probably do it within another g 10 minutes.
JUDGE KELLEY: Well, how about doing that and 9
10 breaking then and that facilitates you to some extent 11 anyway.
12 MR. BAXTER: Yes, thank you.
() 13 JUDGE KELLEY: All right. Go ahead.
and Sim ja Sue fois 15 16 17 18 19 20 21 22 23 24
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ke-Fcul Reporters, Inc.
25
1 9185 ,
l
~~10-1-SueW 1 BY MR. RUNKLE: (Continuing)~~
() 2 Q Okay. You had stated that you were not able to 3 make any purchases from the supervisor who is alleged to 4 be involved with the pound quantities of cocaine --
5 MR. BAXTER: I'm sorry. That's not what he 6 said. He said he wasn't able to attempt to make any i
L 7 purchases.
l 8 MR. RUNKLE: I will let the transcript stand 9 where it was before the --
10 JUDGE KELLEY: All right.
11 MR. RUNKLE: -- discussion.
12 BY MR. RUNKLE: (Continuing)
() 13 Q Sir, can you tell us why you were unable to make 14 any purchases or to make any attempts of purchases from 15 the identified suspect we have just been discussing?
16 A (Witness Hensley) Well, as I was saying, it's l
17 a structure process. You kind of start off in a ladder.
18 You start, and you try working your way up.
19 I never was able to work up to the point to find 20 out who this individual allegedly was or attempt to make 21 a buy from him.
22 For certain reasons, the operation closed down.
23 I just got to a point where I wasn't receiving anymore
() 24 DD-Federal Reportars, Inc.
really reliable information on him.
25 Q So, if the operation had not been terminated, do i
E '
9186
~~10-2-SueW j you think that you might have worked your way up to this~~
() 2 supervisor?
3 MR. BAXTER: Mr. Chairman, I'm sorry. I don't 4 mean to interrupt so often. But this is very important
'5 testimony.
6 And I don't want it to get confused. Mr. Runkle 7
is talking about an identified suspect and a supervisor as 8 if he were one person clearly identified.
9 And Deputy Hensley's last answer indicated that to he had not yet been able to determine who the individual 11 was, so it's not leaving the impression there were several 12 possibilities yet.
() 13 JUDGE KELLEY: Okay. I believe that's fair.
14 At the juncture at which you stopped these attempts, did 15 you then know who this supervisor was?
16 WITNESS HENSLEY: No, sir, I did not.
17 JUDGE KELLEY: Okay.
18 MR. RUNKLE: Okay.
19 BY MR. RUNKLE: (Continuing) 20 Q Do you think that you would have known who that 21 person was if the undercover operation had not been 22 te rminated?
23 A That's really hard to say. I would have kept 24 trying to get to this individual. I can't really say yea
.7 coon.n, Inc.
25 or nay to that, because I don't know.
I 9187
)l0-3-SueW j JUDGE KELLEY: I'm sorry. I'm going to interrupt v.
l
_f 2 this, since we are on this point. I just asked you, hoping 3 to clarify where we are, my impression was that the super-4 visor who had been referred to, you didn't know who that 5 person was, for that matter still don't; is that correct?
6 WITNESS HENSLEY: That's correct.
7 JUDGE KELLEY: And yet on Page 5 of the affidavit 8 from Ms. Burch, what we have been looking at, the last 9 sentence, first paragraph, next to the last sentence, 10 " Attempts to make a cocaine purchase from the identified 11 suspect were made."
12 That suggests that the suspect was an identified
,/m
() 13 person. Was that the case?
14 WITNESS HENSLEY: This sentence m'ay have been 15 referring to the individual who I was obtaining this informa- f 16 tion from, who I was purchasing drugs from. j l
17' JUDGE KELLEY: Okay. If that's so, that's one l 18 thing. But the supervisor making the alleged pound buys ;!
1 19 is somebody else?
t I
20 WITNESS HENSLEY: That's correct.
21 JUDGE KELLEY: Presumably. And at least you 22 didn't know who that was?
23 WITNESS HENSLEY: No, I did not.
lll 24
...,c._....~.
JUDGE KELLEY: All right. Thank you. I'm sorry.
25 Go ahead, Mr. Runkle.
l
,s e - --
9188 510-4-SueW I BY MR. RUNKLE: (Continuing)
() 2 Q So, let's clarify this for me. There is an 3 unknown -- there was an unidentified supervisor; is that 4 ' correct?
5 A Correct.
6 Q And distributing drugs for him was an identified 7 suspect?
8 A Correct.
9 Q And you were working your way up through the 10 identified suspect trying to get to the supervisor?
11 A That's what I was attempting to do, yes.
12 Q All right. Thank you.
() 13 JUDGE KELLEY: Okay.
14 BY MR. RUNKLE: (Continuing) 15 Q Gentlemen, if we can -- in the last couple of 16 days we have heard various reasons why the undercover l'7 operation was terminated. And I will ask you the question --
18 and any one of you can answer.
19 In your opinion, why was the investigation 20 terminated?
21 A (Witness Lanier) There was a meeting involving 22 myself, the SBI supervisors, the Sheriff and CP&L officials 23 concerning the possibility of extending the operation. There 24 was some -- had been some consideration given by CP&L w c.oorw,.. inc.
25 officials I think in the past, or prior to the operation,
9189 410-5-SueW j about bringing in drug dogs. We were of the opinion that
(/ 2 this -- the Sheriff was of the opinion this might in some 3 way impede the investigation or stand the possibility of 4 creating some safety problems for our agent with the 5 Sheriff's Department.
6 The decision was made at that meeting to terminate 7 our involvement in the operation.
8 Q And at any time during the operation, did you 9 feel that Agent Hensley's life was in danger?
10 A (Witness Lanier gestured towards himself.)
11 Q Yes, sir. '
12 A If I understand the question, did I feel at any I
13 time that Investigator Hensley's life was in danger?
14 No, sir, i
15 Q Now, is it your opinion that if drug dogs had !
i 16 been brought on site when Agent Hensley was undercover, ,
i 17 would then his life be in danger?
18 A That could depend on any number of things. I l
19 don't know that I can answer that question with a yes or ;
i 20 no.
21 Q Agent Hensley, did you ever consider your life 22 in danger while you were conducting the investigation on 23 site?
( ) 24 A (Witness Hensley) No, I would not say -- I would W-Federal Reporters, Inc.
25 say not in imminent danger, no.
9190 10-6-SueW j Q Would it be fair to say that it was a dangerous 2 situation?
3 A Yes, I think that would be a fair statement 4
involving any drug operation.
5 Q Gentlemen, in your opinions, was the investigation 6 terminated prematurely?
7 A Are you asking for separate opinions?
8 Q Yeah, either one of you or all of you? Okay, 9 Major Lanier, did you consider the investigation to be 10 terminated prematurely?
11 A (Witness Lanier) I think we felt that more 12 could have been accomplished in this operation, as in any i 13 operation, with an extension on the length of time that we 14 might be involved.
15 Q Lieutenant Self and Agent Hensley, do you agree !
i I
16 with that? I 17 A (Witness Self) I do.
l 18 (Witness Hensley) Yes. l l
19 Q Agent Hensley, in your opinion, was the investiga-20 tion terminated prematurely?
21 MR. BAXTER: I'm sorry. That sounds like the j i
22 same question unless I'm missing something.
23 JUDGE KELLEY: It's close, but we will allow it.
n
() 24 W Federd Eeporters, Inc.
Yes or no? I 25 WITNESS HENSLEY: Yes.
I
l 9191
~~10-7-SueW 1 MR. RUNKLE: I am finished with the questions~~
, 4
's /
2 on the investigation. I would like to clear up those hearsay 3 matters, and we can do that af ter lunch.
4 JUDGE KELLEY: Can you gentlemen come back after 5 lunch for a bit?
6 WITNESS HENSLEY: Yes.
7 WITNESS SELF: Yes, sir.
8 WITNESS LANIER: Yes. l 9
JUDGE KELLEY: It shouldn't take too long. Let's 10 break for lunch until quarter of two.
II (Whereupon, the hearing is recessed at 12:34 p.m.,
12 to reconvene at 1:52 p.m., this same date.) , l s_ 13 14 15 16 i
17l 18 l 19 20 l
21 22 23 I
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\
9192 I
S0 _8-SueW A F T E R,N O_ O N S,E S,S I, O_ N 2 (1:52 p.m.)
3 JUDGE KELLEY: We will get right back to question-4 ing of the panol, but just one point with regard to Mr.
5 Eddleman's pending motion that was distributed earlier today.
0 Would it be satisfactory with counsel to argue 7 that motion af ter we finish with this panel, assuming there 0 I'm assuming we can finish questioning will be a break?
9 hero, tako a break, come back and hopefully finish question-10 ing, be through with this panel and argue the motion after l II a break, and then go on with other business?
12 MR. BAXTER: Mr. Chairman, we could do that.
'- I3 We would be willing to givo deference to the Attornoy Id Gonoral's witnessos though and finish them as well, 15 If by chance the Board decided to recall any of 16 our people, they will be here. But we could -- we have a I
I7 l chance I think maybe of being able to excuse those witnessos 0
as well, so I wouldn't make them sit through it.
JUDGE KELLEY: Wo don' t have strong foolings l 0
on the subject. Do all counsel agroo with Mr. Baxtor's 21 suggestion that wo arguo the motion when the witnessos are through?
MR. RUNKLE: Yes, sir.
24 WFederal Caporters, Inc, 25 JUDGE KELLEY: Fino. Okay, let's go back, thon.
l
l l
l 9193 l
l010-9-SueW j Mr. Runkle, you had finished one part of your questioning, 1 <m k-) 2 and you had some further questions in mind?
l 3 MR. RUNKLE: Yes, sir.
l 4 Whereupon, 5 KENNETH G. HENSLEY, 6 RAYNARD J. SELF 7 - and - ,
8 TIMOT!!Y W. LANIER 9 woro recalled as witnessos and, having previously been duly 10 sworn, woro further examined and testified as follows:
11 Q Gentlemon, during lunch timo I handed you testimony 12 from the Applicants' second panol, and that would be testi-13 mony of !!indman, King, Joynor, Pluoddomann and Bensinger 14 on the undercover drug investigation.
15 Do you have that before you?
16 A (Witnoss lionsloy) Yes.
17 (Witnoss Solf) Yes.
18 (Witnoss Lanior) Yes.
19 Q Thoro are a serios of statomonts in hora, and 20 I will draw your attontion to each statomont, havo you road 21 it and you can toll us whether you agroo with it, or that 22 in was your understanding that it was differont.
23 If I could draw your attention to Pago 11, if
.,m.,,,,,.~.
() 24 I draw your attention from the oighth lino up from the 25 bottom that starts, "At the July 16, 19 8 5 moo ting . . . "
. __ _m. _ =. _ _ __.. _ . .. _ _ _ _ . _ - _ _ _ . _ _ _ _ _ _ _ _ _ _ - _ _ _ _
9194
10-10-SueW1 MR. BAXTER: Mr. Chairman, I would like to help
!() 2 the witnesses since that reference is very brief.
l l 3 Major Lanier, that was the meeting in Sheriff 1
4 Baker's office which you were in attendance as well as l
5 myself. Lieutenant Self and Deputy Hensley were not there.
l 6 MR. RUNKLE: I would like to thank counsel. I 1
i 7 was going to lay that groundwork.
8 JUDGE KELLEY: All right, fine.
9 BY MR. RUNKLE: (Continuing) 10 Q Major Lanier, did you attend a July 16th meeting 11 that is roferred to in this sentence?
t l
12 A (Witness Lanier) Yes, sir, I did.
() 13 Q Was it described by -- was it the same as that 14 described by counsel for CP&L?
15 A Yes, sir, it was.
16 Q Have you -- you have read this sentence, have l 17 you not?
18 A Yes, sir, I have.
19 Q Is that what Sheriff Baker said at that meeting?
20 A That's correct.
21 Q Let me draw your attention -- if I can draw your 22 attention to -- on Page 19 of this same testimony, do --
l 23 MR. BAXTER: Are you going to skip 16?
24 MR. RUNKLE: That's what I was looking for.
has reserwes inc.
25 BY MR. RUNKLE: (Continuing)
I i
9195
10-ll-SueWI Q Let me draw your attention to Page 16, if I l 2 co uld. And on the second paragraph down on that page, 3 starting, "During our meeting of August 12, 1985..."
4 MR. BAXTER: Again, just to assist the witnesses 5 further, those initials there stand for the witnesses, 6 Hindman, King and Joyner.
7 BY MR. RUNKLE: (Continuing) 8 Q Deputy Hensley, did you attend a meeting with l 9 Carolina Power and Light on August 12th, 1995?
i 10 A (Witness Hensley) Yes, I did.
11 Q And that would be the meeting referred to in 12 this sentence?
13 A That's correct.
14 Q Did -- did you make a statement reported in 15 that sentence?
16 A Yes, I did.
17 0 Did you make any other statements that might 18 have otherwise explained or modified the statement contained l9 in that sentence?
20 A I believe the statement I made was that I was 21 satisfied with the support I received while I was at the 22 site.
23 Q And that would be during the undercover investiga-( 24 tion?
we-Fews n==nm. ine. ;
25 A That's correct. l l
)
9196 010-12-SueW 1 Q And this statement does not refer to any discus-( 2 sions that might have occurred whether the investigation 3 was terminated; is that correct?
4 A No, it does not.
5 0 If I can draw your attention to the Page 19 of 6 this testimony, the second full paragraph that starts, A.22, 7 can you review that answer -- that first paragraph of that 8 answer?
9 (The witnesses are looking at the document.)
10 Lieutenant Self, did you also attend a meeting 11 on August 12th with CP&L?
12 A (Witness Self) I did.
13 0 And you have read the paragraph on Page 19?
14 A I have.
15 Q. Does that basically sum up the statements you 16 made at that meeting?
17 A It is.
18 Q Did you make any other statements at that meet-19 ing that might have otherwise altered or changed or other- ;
20 wise modify these statements?
l 21 A No. I 22 MR. RUNKLE: I have no other questions for this l 23 panel on direct.
) 24 JUDGE KELLEY: Thank you, Mr. Runkle. Mr. Baxter?
ks Factoral Reporters, Inc.
25 MR. BAXTER: Yes. Let's just continue.
l
9197
~~10-13-SueW j CROSS EXAMINATION j BY MR. BAXTER:~~
2 INDEXXXX 3 Q Deputy Hensley, do you have any -- is that 4
Answer 22 fairly -- does that Answer 22 fairly reflect your 5
statement at the meeting?
A (Witness Hensley) Yes.
6 7
Q Deputy Hensley, would you turn to Page 20, the 8
last full paragraph? And feel free to take your time to 9
read any preceding statements that you want to put in 10 context.
ij In fact, maybe you should read the question at 12 the top of the page and then read the paragraph at the 13 bottom.
ja (The witnesses are looking at the document. )
i 15 Did you state at the meeting that you had not l
16 advised Mr. Joyner or Mr. King of any stash areas and that j 17 stash areas anyway were constantly changing? l l
18 A That's correct.
19 Q Would you turn to Page 23, please? Answer 25.
20 Answer 25 is about -- referring back to previous testimony 21 about an incident discussed in Ms. Burch's affidavit about 22 stopping at the gate of -- early morning of December 21, 23 two employees who the informant had advised you were probably
/\
( ,) 24 bringing in marijuana the next day.
w-Federd Reporters, Inc.
25 And this is Mr. Joyner's recollection of the
i 9198
~~10-14-SueW 1 discussion you had at that August 12 meeting.~~
i O' 2 Is that a fair report, Deputy Hensley, of what 3 was stated?
4 A Yes. !
5 0 Lieutenant self, do you feel it is a fair i
6 report? I I
f 7 A (Witness Self) I'm still reading. Hold on a f 8 minute.
9 Q Sure. Take your time, please.
10 A That's correct.
11 Q Okay. The next reference is on Page 26. The I
12 answer at the top of the page is discussing statements in ,
O i
13 the Burch affidavit about rumors of a snitch or possible 14 leak, and the last sentence of that top paragraph refers 15 to something we report that you said, Deputy Hensley, at 16 the August 12 meeting. i 17 Did you make that statement?
1 18 A (Witness Hensley) Yes.
19 The next reference is on Page 27 at the very top, Q
20 the first full sentence, Deputy Hensley, I think you've 21 probably already testified to this today.
22 Is that -- did you state that at the meeting?
23 A yes,
() 24 m-Fasso c imnw . inc.
0 If you read the answer at the bottom of Page 27 25 and the Answer 32, please read that.
1 I
l
9199
~~10-15-SueW j And at the top of 33, Deputy Hensley, we report~~
.s i
2 that you confirmed that description of Agent Williams' 3 attendance.
4 Is that correct?
5 A Yes. To the best of my knowledge, yes.
END #10 6 Joo flws 7
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Ilkl-Jo Wnl 9200 1 Q Over on page 30, Deputy Hensley, at the top of r3 j 2 the page, this is discussing the same intelligence that you 3 were asked about this morning about the supervisor who 4 allegedly was making trips to Florida. Is that testimony 5 correct?
6 A (Witness Hensley) I have some question about 7 statement: Information on these two employees, however, 8 had been provided to CP&L by the Wake County Sheriff's 9 Department, and they were no longer employed.
10 0 I agree. That sentence -- that is Mr. Joyner, i
11 Mr. King, and Mr. Hindman's testimony. It was not discussed l
i 12 at the meeting.
13 But everything in the answer except that sentence.
14 A Yes, it appears to be.
15 Q Thank you. On page 31, please. Yes, the top 16 of page 31. This is a discussion of a buy that was made ;
t 17 within an hour and a half af ter you were on the site. l l
18 A Yes.
l 19 0 on page 32, the second answer -- the second l
20 paragraph of Answer 37, Lt. Self, is a report on our i
21 discussion at the August 12 meeting about a conversation l
22 you and Mr. Joyner had earlier. I am only asking you about i
23 the second sentence.
() 24 WFaserJ Reporters, Inc.
A (Witness Self) You are talking about the review 25 of what was going on? Is that what you are talking about?
l 1
11-2-JotWol 9201-02 r
1 Page 32?
() 2 Q The sentence that says: In our meeting of 3 August 12, Lt. Self agreed that he made the statement that 4 the operation was planned to be over by January 2, but 5 added that he intended the operation would also be reviewed 6 and its status reassessed at that time.
7 Do you see where I am reading?
8 A As far as ended on January 2nd, no. I that is 9 when I said we were going to review it at the end of January 10 the 2nd, not end it. j 11 Q You don't recall agreeing at our meeting of 12 August 12th that you had told Mr. Joyner that it was going
( 13 to end on January 2, but that you meant it was going to be 14 reviewed and reassessed then.
15 A I don't remember making that statement, if that 16 is what you are asking, that it was going to end on January 17 the 2nd.
I 18 Q Deputy Hensley, do you recall that conversation ,
19 at the August 12 . meeting?
20 A (Witness Hensley) Yes, but I can't recall the 21 specific date. I remember January being mentioned as a 22 time for reassessing it and cutting it off, but I don't 23 recall specifically January 2nd.
() 24 mwomen noemn. Inc.
Q Do you have a recollection of that conversation j 25 in the August 12 meeting, Major Lanier? l l
l
ll-3-Jo Wal 9203 I A (Witness Lanier) I recall the discussion.
- 2 Specifically what Lt. Self's response to that question was, 3 I don't recall. I know there was some conversation concern-4 ing the possible commication problem concerning whether the 5 operation was to be limited to two months, or whether the 6 operation was to be evaluated within 60 days, which is 7 normal procedure for the way we get into undercover operations.
8 We make an assessment normally every thirty to 9 sixty days to see whether we want to extent it or shut 10 it down.
II Q Thank you. Let's turn to page 38, please?
12 In the paragraph that begins at the top of the
( )
I3 page, Mr. King is first discussing the meeting that was Id held prior to the operation being over, and then he continues 15 by talking about the August 12 meeting.
16 I am asking youn about whether the report of I7 the August 12th meeting is accurate, through the end of that 18 paragraph. I I
19 A You are talking about where it says, 'However.' l l
20 Yes, from there to the end of the paragraph. I Q
21 (Pause.)
22 Major Lanier, is that a fair report of the 23 conversation at the August 12 meeting?
n
( ) 24 a.r.s. ei Fi.oo,teri, inc.
A D' E U*
25 Q Deputy Hensley or Lt. Self, do you have a different
l l
11-4-JonWal 9204 t
I recollection?
2 A (Witness Hensley) I don't.
3 A (Witness Self) No, that is correct.
4 0 Thank you. I think that covers them all, Mr.
5 Chairman. I have one other question based on this morning's 6 examination.
1 7 Deputy Hensley, Mr. Runkle was asking you 8 about the statement in Ms. Burch's affidavit that you had 9 begun to develop intelligence about cliches. Did you 10 provide -- as a general proposition, did you -- I know you 11 provided names to CP&L during the investigation and at 12 its termination.
1
( 13 Did you provide CP&L though in addition with 14 any intelligence that you had that was far enough along 15 that CP&L could follow it up after the investigation was t
16 over?
l 17 A (Witness Hensley) I provided CP&L with all the 18 information I had when the investigation was terminated.
I 19 Now, to whether there was anthing that they could follow up l 20 later or not, I couldn't answer.
21 MR. BAXTER: Thank you. I have no further '
22 questions.
l l 23 JUDGE KELLEY: Okay. Mr. Cole, questions?
() 24 eFeder:$ Reporters, Inc.
MR. COLE: Mr. Bryant --
25 MR. EDDLEMAN: I have some, sir.
ll-5-Jo:Wal 9205 1 JUDGE KELLEY: What is the nature of this 2 questioning, Mr. Eddleman?
3 MR. EDDLEMAN: Judge, I had inquired of the CP&L 4 panel earlier about the amounts of drug buys by Deputy 5 Hensley, and they said they didn' t have any direct knowledge, 6
so I wanted to ask him that, and I also have -- let's see, 7 a question about a statement that I am not sure that Mr.
8 Baxter did inquire about in the Panel 2, and about the 9 meetings they had with CP&L, a couple of questions.
10 That is about it.
11 l
JUDGE KELLEY: Well, I am only asking because 12 once again this is cross-examination which is what you
} 13 are entitled to under the Commission's decision; if it is 14 in the nature of further direct, which I take it it is, 15 it is not entirely clear that you are entitled to do it.
16 But you describe it as a fairly brief line 17 of questioning, is that correct?
18 MR. EDDLEMAN: Yes, sir.
19 JUDGE KELLEY: Any objection to a brief line 20 by Mr. Eddleman?
21 (No response.)
22 JUDGE KELLEY: Go ahead.
23, CROSS-EXAMINATION
() 24
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BY MR. EDDLEMAN:
25 Q Deputy Hensley, do you have before you
ll-6-Jo:Wal - 9206 1
Attachment 5 to CP&L's Panel 2 document, entitled: Hensley 7s
\~ 2 Drug Buys, as of 12/28/847 3 MR. BAXTER: Last page.
4 MR. EDDLEMEN: It is the last page of that 5 document.
6 WITNESS HENSLEY: Yes.
7 BY MR. EDDLEMAN: (Continuing) 8 Q Now, could you tell us the amounts of drugs 9
that were involved in these buys without compromising any 10 confidentiality or causing any problems like that?
11 A (Witness Hensley) Yes, I could go back to my 12 records and tell you. I can't from this, but I could go ks 13 back through my records and tell you.
14 I can't from this, but I could go back through 15 my records and tell you how much was purchased.
i 16 Q Okay. Well -- but you don' t know off the top !
17 of your head because you haven' t reviewed this, is that l
18 what you are saying?
19 A No, it is different amounts. Almost all the 20 concaine purchases were for gram.
21 ' REPORTER: For what, sir?
22 WITNESS HENSLEY: A gram.
23 BY MR. EDDLEMAN: (Continuing)
(~\
(. ) 24 Q A gram, g-r-a-m.
--F.d.rai neooners, Inc.
25 A Gram, yeah.
l s
ll-7-JosWal 9207 1 Q And were the marijuana purchases like in ounces, O 2 one or more ounces?
3 A Yes. Half and ounces; half ounces and ounces, I 4 believe.
5 Like I say, I would have to go back to my records 6 to give you particulars about this buy.
7 Q Well, I don't know what the Board's rule is on 8 late filed exhibits. I think the information would be useful 9 in light of the Applicant's statements about the small amounts 10 that have been found.
11 JUDGE KELLEY: Aren't we pretty close -- if for l 12 purposes of your question, they don't have to be precise to O 13 gram or the half ounce, I wouldn' t have thought.
14 The thrust of the Applicants' testimony that 15 was elicited was sort of a total amount found , as I recall.
16 It is reflected in these transactions.
17 Based on what we have already heard from Deputy 18 Hensley, can't you give us a sort of decent estimate if you 19 look down the page.
20 WITNESS HENSLEY: Are you talking about total?
21 JUDGE KELLEY: Yeah. For one thing -- I don ' t 22 mean to ask Mr. Eddleman s question, but that is one thing 23 we got to. Can you give us a rough estimate, a decent 24 WFeder::$ Reporters, Inc.
estimate of total volume represented by those transactions?
25 WITNESS HENSLEY: The cocaine would be about
ll-8-JonNa1 9208 1 seven grams.
/ ~.
As 2 The marijuana, I would say four, four and a half 3 ounces. The crystals -- all the crystal buys were in 4
grams, so that is about five grams of crystals.
5 Hashish was 16 ounces.
6 JUDGE KELLEY: Do you have any reason to think 7 that if you did go back to review your notes the answers 8 that that would produce would be greatly different from 9 what you just said?
10 WITNESS HENSLEY: No, sir; that would be 11 approximately what it would be, 12 JUDGE KELLEY: Won't that do it, Mr. Eddleman.
-p i K/ 13 MR. EDDLEMAN: Yes, sir, Judge, thank you.
14 JUDGE KELLEY: All right.
15 BY MR. EDDLEMAN: (Continuing) 16 Q Deputy Hensley, I would also like to ask you --
17 I may actually have to go to the -- let me ask you to refer !
18 to page 29 of this panel's testimony, which is just all !
l9 typed, there is no Q and A on that page, to my knowledge.
20 Do you have that?
21 A (Witness Hensley) Yes.
22 Q This is about the individual who was making trips 23 to Florida and picking up large quantities of drugs. That (7_/ 24 W-Federal Reporters, Inc.
is the cocaine man, isn' t it?
25 A Yes.
l .
ll-9-Jo Wal 9 09 l
1 Q Now, was your information that this individual I ;
LA 2 was a supervisor with CP&L or Daniel?
3 A I never got to the point where I could say yes 4 or no to that.
5 The only information I had was from people that 6 I was making buys from, and they referred to him as a 7 supervisor high up on the hill. Whether with CP&L or with 8 Daniels, or some other contractor out there, I couldn't 9 answer.
10 JUDGE KELLEY: Let me interrupt a moment, please, II I am sorry. It is really difficult for the reporter, if 12 nobody else.
' ')
'> 13 Are you okay?
14 REPORTER: I am fine.
15 JUDGE KELLEY: Sure. Okay. All right gentlemen.
16 Sorry we don't have a better facility, but we just don't.
I 17 Okay, go ahead. ,
l 18 BY MR. EDDLEMAN: (Continuing)
I9 Deputy Hensley, the hill there , does that have Q l 20 CP&L as well as Daniel or Davis?
21 A Yes, it does.
(Witness Hensley) 22 Q And the statement that is attributed to you there 23 that the supervisor was supposedly working somewhere on the 24 hill is the statement you made, is that true?
W-Feder;j Reporters, Inc.
25 A That is correct.
i ll-10-Jo Wal 9210 l 1 Q All right. Now, gentlemen, other than CP&L, have u> 2 you had any meetings with any of the other parties to this 3 case before the hearing started? I mean after the operation l 4 terminated, the drug operation terminated -- well, let me l
5 say after the contention was filed and before the hearing i 6 began .
7 MR. BAXTER: Objection. Irrelevant.
1 8 JUDGE KELLEY: What is the thrust of the question?
9 MR. EDDLEMAN: Judge, I have some information that 10 has been made available to me as to the Sheriff's Department 11 refusing to, or declining to provide information to some of 12 the other parties, and yet there is widespread reports they 13 met with CP&L, and I want to know why they would meet with ,
14 CP&L and not the other parties, i
15 MR. BAXTER: Mr. Eddleman isn't the party. He l 16 clearly doesn't have any standing to complain about that. l 17 He isn' t saying that he requested any meetings with the l l
18 Sheriff's Department.
19 If somebody else feels injured, I am not saying 20 I won't object to that, too, but it certainly isn't his 21 place to go pursuing it here.
22 MR. EDDLEMAN: Judge, I think any party can 23 inquire as to credibility, and I think if they are more
! )_
24 cooperative to one party than the other, that might affect WFederd Reporters, Inc.
25 their credibility.
9211 ll-ll-JonWal 1 JUDGE KELLEY: Well, I see some merits in Mr.
2 Baxter's point, but we will let you ask the questions 3 anyway.
4 BY MR. EDDLEMAN: (Continuing) 5 Q Do you recall the question, gentlemen?
6 A (Witness Hensley) That we met with anyone other 7 than CP&L?
8 Q Any other party to this case.
9 A The SBI. Had a meeting with the SBI, yes.
10 Q But not with any other parties?
11 JUDGE KELLEY: By parties, he is using a technical 12 term, gentlemen.
13 MR. EDDLEMAN: I can name them, if that would 14 help.
15 JUDGE KELLEY: If you could name the parties.
l 16 And the State is a party also. l 17 Just name them.
18 BY MR. EDDLEMAN: (Continuing) 19 Q Have you met with the NRC Staff?
20 A (Simultaneously) No.
21 Q Have you met with the Conservation Council or 22 any of their representatives.
23 A (Simultaneously) No.
() 24 W-Federd Reporters, Inc.
Q And you haven't' met with me.
25 A (Simuntaneously) No.
11-12-Jo Wal 9212 1 Q Okay.
2 MR. BARTH: You forgot Dr. Wilson, and you forgot 3 the other party.
4 MR. EDDLEMAN: I will be glad to ask.
5 BY MR. EDDLEMAN: (Continuing) 6 Q Have you met with Dr. Richard Wilson, who is 7 a party to this proceeding, but not here.
8 A (Witness Hensley) No, sir.
9 MR. BRYANT: How about Change?
10 MR. EDDLEMAN: I will be glad to ask them, Mr.
11 Barth.
12 BY MR. EDDLEMAN: (Continuing) 13 A Have you met with representatives of a group 14 called Change that .is involved in this NRC proceeding?
15 A (Simultaneously) No.
16 Q All right. Was there any reason stated by you, 17 for example, to CCNC about not being able to meet or 18 provide information to them until the trials of the 19 accused who were captured or caught on account of this 20 operation, arrested on account of this operation were l
1 21 completed? '
22 A (Witness Hensley) Are you asking me particularly?
23 Q Let me ask Major Lanier first.
()
eFederd Reporters, Inc.
24 A (Witness Lanier) Would you repeat the question.
25 I am not sure I understand what you are asking.
ll-13-Jo:Wal 9213 1 Q Was there any reason for not being able to meet 2 with the party, or provide information to a party, such 3 as CCNC for example that you gave that had to do with 4 not being willing to provide this information, or talk 5 about the cases until the trials of those arrested due to 6 this undercover operation had all been completed?
7 JUDGE KELLEY: Can we establish the antecedent 8 Point, whether CCNC asked for a meeting, yes or no. Did 9 CCNC ask for a meeting with the Sheriff's Department on 10 this matter.
11 MR. BAXTER: And when.
12 A (Witness Hensley) I talked to Major Lanier 13 a couple of times as we were developing answers to 14 discovery.
15 JUDGE KELLEY: When?
16 WITNESS HENSLEY: Well, whenever discovery was 17 made.
18 MR. BAXTER: May.
19 JUDGE KELLEY: Last May.
20 WITNESS HENSLEY: Right.
21 JUDGE KELLEY: Did you ask for a meeting or 22 some kin.d of information, and get turned down?
23 WITNESS HENSLEY: Major Lanier stated something
( 24 like --
m-Federal Reporters, Inc.
25 MR. RUNKLE: I think I have to object. Do I
ll-14-Jo Wal 9214 1 need to testify to this.
')
2 JUDGE KELLEY: Well, Mr. Eddleman, if you want 3 to drop it, we will drop it, but you can't play both sides 4 of the street, gentlemen.
5 If you want to go down this road and find out 6 about whether the Sheriff's Department cooperated with 7 everybody or not, then you have to answer relevant 8 information.
9 If you don't, we will just drop it. Do you 10 want to pursue it Mr. Eddleman?
11 MR. EDDLEMAN: Yes, sir, and --
12 JUDGE KELLEY: Fine. Then Mr. Runkle has to tell
'g
-) 13 us all about it -- not all about it, but something about it, 14 enough so that we can make a judgment.
15 Because I feel there is a certain amount of game f i
16 playing going on here, and we don't have enough time for i 17 that. !
18 MR. EDDLEMAN: I haven't made any agreement with 19 Mr. Runkle about asking this. I never even told him I was
~
20 going to ask it.
21 JUDGE KELLEY: Well, your questions are being 22 given by the grace of the Board. I thought you might go 23 after some relevant information, but you are off on something
'j 24 very marginal.
WFederd Reporters, Inc.
25 If you really want to pursue this, well, make it
ll-15-JouWal 9215 quick.
1
)
Mr. Runkle, do you object to answering the
~~- 2 question?~~
3 MR. RUNKLE : I will be glad to give you my 4
understanding of what happened. I called up --
5 JUDGE KELLEY: Bearing in mind where we are 6
going, right?
7 We are going to find out whether the Sheriff's 8
Department had -- didn't cooperate with you; they did or 9
they didn't, and why, and that is where we are going.
10 Do you want to go that way. You are the 11 counsel for the party that has got the contention.
12 g 1 Is that your claim?
V 13 MR. RUNKLE: No, it is not my claim at all.
14 JUDGE KELLEY: You don't have any problem with 15 what the Wake County Sheriff's Department did as far as j 16 l
cooperating with you or do you? l 17 l MR. RUNKLE: No, sir, I don't. l 18 I JUDGE KELLEY: Fine. Let's go on. Mr. Eddleman, l 19 ;
go on to another topic.
20 MR. EDDLEMAN: Judge, that is all the questions 21 I have got.
22 JUDGE KELLEY: Fine. Mr. Cole.
23
,e3 MR. COLE: Mr. Bryant.
L.) 24 W-Federal Reporters, Inc. MR. EDDLEMAN: Judge, I don't know how to do this, i 25 i but I guess I would like to enter an offer of proof in the l l
11-16-JoeWal 9216 1 record the answer is yes, CCNC asked for information, and 0)
(- 2 yes, they declined to provide it because they wanted to wait 3 until the trial of the people accused were over.
4 JUDGE KELLEY: You just put it in as an offer.
5 We terminated the line of questioning for the reason also 6 stated in the record.
7 Mr. Bryant?
8 CROSS-EXAMINATION 9 BY MR. BRYANT:
10 Q Deputy Hensley, why did you work only the first Il shift out at the Harris site?
12 A (Witness Hensley) That is where I was assigned.
() 13 That is where the -- where I was put the operation started.
14 Q There has been testimony in this case from Mr.
15 Glenn Joyner that you were told you had acces's to any shift, 16 if that correct?
17 A Yes.
18 Q At the time you were still assigned to the 19 Harris site, was there any discussion as to moving 20 operation to the second shift?
21 A Yes, we discussed it. I don't know, three or 22 four times probably.
23 Q But at the time the undercover operation was
() 24 h Reporters, Inc.
terminated, you had not gone to the second shift, had 25 you?
11-17-JoeWal 9217 l l
1 1 A No. It was doing this period it had come up two 2
or three times, and they were discussing it.
3 Q And when you speak of they, you are talking 4 about --
5 A I am talking about my Major, Lt. Self and the 6 people at Shearon Harris.
End 11. 7 MS fois.
8 9
10 11 12
"\J 13 14 15 l
16 17 18 19 20 21 22 23 i
t/ 24 e-Federal Reporters, Inc.
25
9218 12-1 I Q Deputy Hensley, you were asked by Mr. Baxter i 2 some questions concerning the gate searches using the metal 3 detectors.
4 A (Witness Hensley) Yes.
5 Q Did these metal detectors affect the undercover 6 operation?
7 A Well, that is a hard question to answer because 8 there is no way to really know. They could have, and then 9 they may not have because the metal detectors were basically 10 to pick up metal. But it could have made people who were II bringing in drugs less likely to bring them through the 12 So you could say either way.
gate, m
V 13 0 How long were you on the site before the metal I# detectors were used, if you recall, or approximately?
15 A I would say approximately a week and a half or 16 two weeks or maybe longer. I am not sure.
I7 Q Do you recall hearing any employees at the site I8 discuss the use of the metal detectors?
I9 A Yes. At the first time they were used it was a 20 topic of conversation the next day.
21 Do you recall what was said?
Q 22 A Just general conversation about what they were 23 trying to do or just because it was a change of procedure.
Q 24 Ace-F-. mal Reporters, Inc.
Q And was this in the context of speaking about 25 drug activity?
9219 im_12-2 j A No. I think it was just in the context of it
() 2 was something new that was going on that hadn't been done 3 before. I don't know if they were specifically talking about I a it related to drugs.
0 Okay. Again to Deputy Hensley. At the August 5
6 12th meeting that you attended with the Hindman, King and 7 Mr. Joyner, did you agree there that the metal detectors did 8
not diminish the drug activity?
9 MR. BAXTER: I think that question has already 10 been asked and answered, Counsel.
11 MR. BRYANT: It has?
12 MR. BAXTER: Yes. That was one of the statements
() 13 in our testimony that we just went over. It was page 19.
14 BY MR. BRYANT:
15 0 Deputy Hensley, let me just rephrase that question 16 and ask it this way then.
j7 Do you recall discussing with them at that meeting 18 that the metal detectors did not affect your safety?
19 A (Witness Hensley) Yes, I believe I recall what 20 you are talking about. Yes.
21 0 And it is still your testimony from that conversa-22 tion that you didn't discuss whether or not the metal 23 detectors led to diminished drug activity?
24 A I am sure we probably discussed that, but there Ace-F i Reporters, Inc.
25 again that would be, you know, an opinion, and I really
9220 Sim 12-3 couldn't say -- I really couldn't say in my opinion it 1
) 2 could have affected the drug availability on the site.
3 Q But there is just no way to measure ---
4 A There is no way that I know of that you could 5 tell.
6 0 Okay, thank you.
7 Lt. Self, without mentioning the informant's 8 name, did you ever have contact with the informant during 9 the operation?
10 A (Witness Self) I did.
Il Q Do you recall the informant telling you that 12 someone was searching the stash areas?
',+
13 A He did.
v 14 Q And as a result of the conversation, did you have 15 contact with Deputy Hensley?
16 A I did.
17 Q Do you recall what you told Deputy Hensley?
18 A I told Deputy Hensely not to notify anybody out 19 at the nuclear plant in reference to any more stash areas 20 of the type of information that they were being searched.
21 Q Do you recall if the informant mentioned the 22 names- of any CP&L security employees that were searching 23 or do you recall who he said was searching the stash areas?
I 24 A I can't -- he just said CP&L people were doing j Ace-F al P.eporters, Inc.
25 the searching. j l
l 1
i
9221 l sim 12-4 1 Q He just said CP&L people, and he didn't mention l
/ if they were security or not?
) 2 l v
3 A I don't remember if he did or not. I couldn't 4 swear to it. I 5 Q Deputy Hensley, I think you have already been 6 asked some questions concerning this circumstance, but 7 do you recall receiving the information concerning the 8 two employees who were to enter the gate with a large l
l 9 amount of marijuana? j
. 10 A (Witness Hensley) Yes.
11 Q Could you explained what happened when you 12 received this information? l l
13 A Well, I received the information from an informer i 14 that two individuals were bringing a quantity of marijuana 15 onto the plant site the next day I believe it was or it may 16 have been the' day before, I am not really sure.
17 And we were discussing ways to try to get the 18 drugs and the people. I had not been able to make a buy 19 from these individuals. They would not sell to me directly.
20 Q So you did know them?
21 A I knew who they were, yes.
22 Q That is what I mean.
23 A But I couldn't make a buy from them personally.
24 I could have bought it through a third person of course Ace-FAol Reporters, Inc.
25 which would not have done us any good. And we discussed
9222 Sim 12-5 1 different methods of trying to keep the drugs out and also
() 2 getting individuals. l f
3 Q When you say we discussed, do you recall who you i 4 discussed this with?
5 A Myself and Glenn Joyner at the plant site, and ther 6 later I believe Mr. Joyner and Lt. Self discussed,it on the i
7 phone.
8 0 Was one of the plans discussed the plan to allow 9 the two employees to come through the plant and let you 10 attempt to make a drug purchase from them?
11 A I am sure that was brought up, but I can't recall 12 specifically. Like I have said earlier, too, they would not
(]) 13 sell to me directly. That is what I would have liked to have 14 done, but the way the circumstances were another plan was 15 decided upon, another course of action.
16 Q And when you say another plan, were you involved 17 in that plan?
18 A No. I discussed it with Mr. Joyner and then 19 Mr. Joyner and Lt. Self formulated the plan by phone l t
20 conversation that same day while we were still discussing 21 it. l 22 0 And, Lt. Self, was the final outcome of that plan 23 that you would, as Mr. Joyner testified, you would try to 24 have someone there to arrest the people at the site?
(~
wa} nei. inc.
25 A Well, there were several options on what we were
9223 Sim 12-6 1 going to do, but I had a 60 pound buy / bust deal set up
() 2 that I was working on, and all that determined on whether 3 someone was going to be there to make'the arrest or not.
4 I think we got through something like 3 or 4 o' clock the 5 next morning arresting two subjects for trafficking in 6 marijuana. So the time allotted from that and finishing 7 up the paperwork and booking slips and everything, I could g not make it out there to the CP&L site to do this type of 9 operation.
10 It was discussed on letting them come into the 11 job site and seeing Detective Hensley could make a buy off 12 of them or stopping them at the gate, or whatever. I told
() 13 them if I could get there, we would do it, however it needed 14 to be done, but, unfortunately, I couldn't make it due to 15 the previous drug buy.
16 0 Okay. Thank you.
17 Deputy Hensley, did you ever identify any site 18 employees doing safety work as either using or selling drugs?
19 A (Witness Hensley) Yes.
20 Q How do you know they were involved in safety 21 related work?
22 A Well, the structure of CP&L, people wear different:
23 colored hard hats to represent different fields of expertise 24 I guess. And white hard hats, it was my understanding they Reporters, Inc.
25 were quality control or inspectors. Nea what they inspected
9224 Sim 12-7 j or if it was safety related or not, I couldn't tell you. All 2 I could tell you is I saw individuals with white hard hats 3 and some with red hard hats, which I understand are safety 4 inspectors inasmuch as fire and safety hazards and stuff 5 like this.
6 Q D y u recall whether these people that you 7 observed were using drugs on site or whether they were 8 involved in selling?
9 A The most I saw were involved in the purchase of 10 drugs. I did not see any that I can recall using. Most of 11 those were involved with the purchase or sale of drugs.
12 O You have previously testified that you felt no j 13 imminent danger to your safety, and I think that was in 14 response to a question by Mr. Runkle.
15 My question to you, Deputy Hensley is had the 16 drug dogs been brought on site during the undercover operation 17 would that have created a risk to your personal safety?
18 A It could have, depending on how they were used.
19 Q Can you elaborate?
20 A Well, if the dogs had been used in a situation 21 where a certain group of people, including myself, knew a 22 stash area or a quantity of drugs would be or who would have 23 them, and if the dog picked up on that, it could cause some 24 fault as to an informer or something being into the plant Ace-F9al Reporters, Inc.
25 which could have pointed back towards me.
9225 Sim 12-8 j Q Since you have brought up this subject, could you 2 describe for us what a stash area would be?
3 A A stash area is just a place where drugs are 4 kept, a secret place where nobody knows where they are at 5
and where they can be readily accessed to either sell or use.
6 Q Can you give me an example of a stash area?
7 A Where, at the plant?
8 0 Yes, at the site.
9 A Cable trays were used as stash areas at the site, 10 P i Pes, fittings on pipes where a cover was taken off and drugs jj placed in the pipe and then the cover put back on.
12 Q And you did observe drugs in these stash areas?
[, 13 A Yes.
s-ja Q Okay. In the example you gave me of the cable 15 trays, where were they cable trays located?
16 A They are throughout the entire building.
j7 Q Okay. The one you say, where was it or the ones 18 y u saw?
j9 A on one occasion on what is called the srpead room, 20 which is a large room where it has a large number of cable 21 trays and cables running through it.
22 Q And are these above the floor?
23 A Yes, they are above the floor, anywhere from --
/~; 24 some of them are way up in the ceiling and some of them five
(
AceJ__j Reporters, Inc.
25 or six feet off the floor.
9226 Sim 12-9 j Q If you recall, the stash area you observed that was in a able tray, how far off the ground was that?
O v
2 A one of them was about 20 feet and the other one 3
is about six or seven feet.
4 0 And the person that had the drug, they would climb 5
up and put the drug in the cable tray?
6 A Well, they climbed up and got the drugs to make 7
g sales to me. Evidently they had brought the drugs in and hid them in the cable tray, and then when I went to them to 9
10 make a purchase, they climbed up and retrived the drugs in
~~j order to sell them to me.~~
12 Q Were these drugs also in a container?
A es.
13 j4 Q What type?
A one one occasion a large grocery bag, a brown bag, 15 16 and on another occasion a small plastic medicine type bottle.
j7 Q Where these both marijuana and cocaine?
A One of them was hashish and one of them was cocaine.
18 39 Q What was the amount of the hashish?
20 A Sixteen ounces.
21 Q And that was what was in the garbage bag or the 22 paper bag?
23 A No. That is what I purchased, (Witnesses conferring.)
p 24 Ace FJ Reporters, Inc.
25 Okay, I have just been informed that that was l
9227 12-10 1 16 grams.
4
() 2 MR. BRYANT: Okay.
3 MR. BAXTER: Is that what you bought earlier 4 for $120, Deputy Hensley? I am sorry to interrupt, because 5 I think you misspoke earlier, too. The $120 of hashish, was 6 that 16 grams instead of 16 ounces?
7 WITNESS HENSLEY: Yes, that would be correct.
3 MR. BAXTER: Thank you.
, 9 WITNESS HENSLEY: Yes, it makes a little difference.
1 j 10 (Laughter .-)
11 BY MR. BRYANT:
i 12 Q And there was more in this bag than what you 13 purchased then?
(}
14 A (Witness Hensley) Yes.
15 Q Do you recall the amount?
3 16 A -There was approxiamtely 15 plastic bags inside the 17 brown paper bag.
18 0 Do you have an estimate of the total amount that 19 was in there?
20 A Supposedly a pound.
21 0 A Pound of hashish?
22 A Yes.
23 JUDGE KELLEY: Did we just establish that that was 24 likely grams rather than ounces?
Ace- l Reporters, Inc.
25 WITNESS HENSLEY: Yes, sir.
> 9228 Sim 12-11 j JUDGE KELLEY: If that is so, and I can understand
() 2 hour2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> 16 ouncese maxe a pound, but I am not sure how 16 grams get you to a pound. But'I don't understand perhaps.
3 i
4 WITNESS SELF: Sixteen grams is an ounce.
f . JUDGE KELLEY: Well, I was just concerned whether 5
4 1
6 the testimony is contradictory of whether it all hangs 7 together, and I just don't understand.
MR. BAXTER: I thought I heard him testify that 8
4 9
he bought 16 grams, but that the person he had bought it 10 from had another 15 ounces.
JUDGE KELLEY: All right. Excuse me. I think 11 12 I just didn't follow it.
l () 13 BY MR. BRYANT:
14 0 Deputy Hensley, you have also been asked some 15 questions concerning the unidentified supervisor that was 16 making the trips to Florida, and Mr. Plueddemann from Daniels 17 has testified that he assisted you in attempting to help 4
18 locate this person.
19 Can you explain what he did to assist you?
20 A (Witness Hensley) Yes. I received information 21 that the supervisor on the hill was supposedly going to 22 Florida and bringing back large quantities of cocaine, and 23 a lot of times he would leave the plant site early or take 24 a day off to make his trips.
Ac Reporters, Inc.
25 I went to Mr. Plueddemann and asked is there any
)
i
~~l 1~~
9229 Sim12-12 j any way that we can trace back through individuals at the plant site to see who had taken off, takes off early or 2
3 takes a day off to try to narrow the possible suspects down.
Q And was he able to determine anything from this 4
investigation?
5 A No, I do not believe so. He was still trying 6
the last time I talked with him, but you are talking about 7
8 a large number of people and a large number of records to 9
try to have to run down.
10 Q You have also testified that the informant made jj the buy that the Burch affidavit stated that you made after being on the site one and a half hours. Is that correct?
12
/
A Yes.
) 13 a
74 0 Were you with the informant when he made this 15 buy?
A Yes. It was a controlled buy, and myself and 16 j7 the informant were together.
18 Q And so you gave the informant the money to make j9 the purchase, correct?
20 A Correct.
Q Do you recall what that drug was?
21 22 A Cocai~ne.
0 And where were you when you made that?
23 A The first one was made in the spread room.
p 24 Ace-FmJ Reporters, Inc.
( Q I am sorry, but I don't know what the spread room 25
9230 Sim 12-13 1 is.
() 2 A Okay. That is that area with all the cable trays 3 and cables running through it.
4 0 As far as you know, this person that you or the 5 informant made the buy from, CP&L security knew about him, 6 or he was identified in some way to them?
7 A Yes. He was identified after I made the buy, 8 or after the informant made the buy in my presence.
9 Q Mr. Joyner has stated that you made no purchases 10 in the parking lot. Do you agree with his testimony?
11 A No, that is not correct.
12 Q When did you make a purchase in the parking 13 lot?
14 'A The last buy I made at Shearon Harris was 15 marijuana that aws purchased in the parking lot.
16 0 Would this have been the Daniel's parking lot, 17 if you know?
18 A All I can tell you about the parking lot is what 19 was known as left field. I don't think they have any 20 particular parking lot for Daniels.
21 Q And you did state that was marijuana?
22 A Yes.
23 0 And what was the amount, if you recall?
24 A I believe that one was an ounce.
5M'~gil Reporters, Inc.
25 0 And this person was one of the eight arrested,
9231 sim 12-14 correct?
1 A He was.
2 Q W re any other people present at the transaction?
3 A Yes.
Q How many?
A Approximately six.
Q Did they also make purchases?
7 A Yes.
8 Q Do you recall the quantity that this person that 9
g you purchased from, the total amount of marijuana that he had?
))
A As best as I can recollect, we all made ounce r s purchases, and he had probably two or three bags left.
>. 13 Q And when you are speaking of the term "all" ---
A Everybody there.
Q Were the rest of the people also employees at the plant site?
18 Q Do you recall what classification of employee?
9 I don't want any names.
g A As best I can recall, they were electricians and I believe a pipefitter.
Q lir. Hindman has testified that he viewed the undercover operation as trending down in December. Do you
.A' '
agree with that testimony?
I J
9232 Sim 12-15 j A Yes, I would have to agree with it from where
(~) 2 we were right then.
%/
3 Q And could you explain what you mean by where 4 we were at right then?
A Well, I had been in this group on the day shift, 5
and it would be kind of foolish to keep staying in that 6
7 group and keep making purchases from the same individual.
This at the time we were talking about maybe moving to 8
9 another shift.
Q And would this also mean moving to another group?
10 11 A Yes.
12 Q In other words, you could have made purchases
(' 13 from this same group of people?
14 A Oh, yes.
15 Q So there was nothing hindering you from making 16 purchases? I mean the drugs were plentiful among this 17 group anyway?
18 A Yes.
19' Q Why did you feel you ought not to keep making 20 the purchases?
21 A Well, we had already made purchases from this 22 group, like I say, and it would be just defeating our i
1 23 purposes to keep buying from the same individuals. The l 24 scope was to try to determine as many individuals as there
(~}
heL_ J Reporters, Inc. l 25 were invovled in drugs at the plant as we could, and in l l
i 1
l
I 9233 sim 12-16 1 order to do that we had to move elsewhere out of this little i
() 2 group.
l 3 Q Included in this little group were there the l 4 eight people that were arrested as a result of the operation?
5 A Yes.
6 Q How many others were in the group that weren't 7 arrested, if you recall?
8 A There again, we would probalby have to go back 9 to the total number, which I think was 60, including the 10 eight that were arrested, that were associated with this 11 group.
12 O Were they arrested because they were the sellers
() 13 or primarily because they were the sellers or the dealers?
14 A They were arrested because they sold to me.
15 Q I am just trying to pin down why you weren't able 16 to make arrests from the other people in the group.
17 A All the ther individuals?
18 Q Yes.
19 A Well, I couldn't keep going to different people 20 that were associated with each other wanting buys.
21 Q And why is that?
22 A Well, it would bring suspicion on me. If you got 23 a supply of drugs and it was readily available, you just 24 can't ask people to associate all the time with each other
(~}
Ace Fuol Reportws, Inc.
! 25 for more drugs. It is-just going to throw suspicion on you.
i .
9234 Sim 12-17 j Q I see. So you are testifying that you just
() 2 weren't free to move around from, you know, one little l 3
to another to make the drug buys?
4 A Well, it had come to a point where I needed to 5
work out of the group I was in and to go somewhere else 6 so there wouldn't be any association back to this group 7 all the time.
8 JUDGE KELLEY: Could we get some clarification, I
9 and it seems to me that this came up initially a few minutes 10 ag when there was a reference made to the possibility of jj you going to the other shift. And then you began using this 12 term " group," this little group that you were in.
() 13. And my first question was was the little group 14 the entire first shift, which is 5,000 people, and I assume 15 that is not what it is, if that is correct. Then what 16 group are you talking about, because it is my understanding j7 you had a job that gave you the run of the site.
18 So who is this small cidup that you are talking 19 about?
20 WITNESS HENSLEY: Okay. The group that I am 21 referring to is probably the wrong term to use. The 22 informant we were using was associated with these people.
23 JUDGE KELLEY: What kind of people do you mean?
24 WITNESS HENSLEY: Most were electricians, some i Reporem, Inc.
25 pipefitters, people that he had been purchasing drugs off
9235 gim 12-18 1 of, and he was introducing me to them.
() 2 JUDGE KELLEY: Do you mean the informant's group, 3 his ---
4 MR. BRY ANT: Say circle of friends?
5 JUDGE KELLEY: --- circle of friends, all right.
6 WITNESS HENSLEY: The people he was working with 7 at the the site that were dealing in drugs.
8 JUDGE KELLEY: But in this context then you were 9 talking, perhaps among other things, about going to the 10 second shift. I mean that is a pretty big first shift -that 11 you haven't gotten to yet, right?
12 If you had an informant that had another circle
() 13 of friends, you could have gone to another circle; is that 14 right?
15 (Witnesses conferring.)
16 JUDGE KELLEY: Are we getting this on the record?
f 17 I think we should. It is perfectly fine to confer, but 18 could you just speak up and make your suggestion on the 19 record?
20 WITNESS LANIER: As best I understood him, and 21 maybe this will help the situation here, if I understood 22 Investigator Hensley correctly, back during the operation 23 there were several groups within the first shift that the 1
24 informant associated with either through work or off the l N911 Reporters. Inc.
25 site.
9236 Sim 12-19 j There were certain suppliers or dealers within f'} 2 each of these groups, but it would only throw suspicion on him if he developed one supplier in one group. There was 3
4 a closeness between the dealers on site sufficient to the 5
point where if'he went to one supplier and placed an order, 6
and then in the same day or in the same work period went to another supplier that it would draw suspicion. They were 7
that close knit a group. I don't know if that helps.
8 9 JUDGE KELLEY: Can he give a little clearer 10 definition of what these groups are? I think it is beginning 11 Po emerge, but other than circle of friends. They aren't 12 necessarily all in the same craft, or are they?
bl 13 WITNESS HENSLEY: No, they were not all in the
- j 14 same craft. But there was a connection at the plant site 15 with the people that were dealing drugs so much so that if 16 one supplier was short or he was out, he could go to some 17 other individual and borrow drugs to sell until he paid 18 him back.
19 JUDGE KELLEY: A wholesale transaction.
20 WITNESS HENSLEY: Kind of. They ran specials 21 once in a while, too.
22 (Laughter.)
23 JUDGE KELLEY: Go on. I interrupted you, but 24 I just wasn't able to follow where things were going. I ,
Me-F al Reporters. Inc.
25 turn it back to you.
9237 sim 12-20 j BY MR. BRYANT:
When you speak of these specials, are you saying
() 2 Q that between the different groups the price was pretty 3
4 much the same?
A (Witness Hensley) The price was basically the 5
6 same for everything because everybody knew what everybody 7
else was selling it for.
0 In ther words, if you left the group you were in 8
and went over to another group, because there was no price 9
10 difference, that would arouse suspicion?
A Yes. I think that is what I am trying to get 11 12 across.
Q Deputy Hensley, you weren't here when Mr. Bensinge.:
(]) 13 14 testified, but in his prefiled testimony and what he offered 15 at the hearing, he did not believe that the dogs, the drug 16 detection dogs would be a danger to you, but in fact would j7 have helped you to bind the contacts that you already had 18 knew using drugs. Do you agree with that testimony?
end Sim 19 Sue fois 20 21 l I
22 23
(~ 24 22e-F-)l Reporters, Inc.
25
9238
~~13-1-SueW l MR. BARTH: Objection, Your Honor. It mis-~~
,f w
,a 2 characterizes the testimony of Mr. Bensinger.
3 In regard to the second part, he testified that 4 the use of the dogs could, if carefully used, work to their 5 advantage.
6 There are subtle distinctions in words, but 7 they are important.
8 JUDGE KELLEY: Well, I wonder -- can you restate 9 it, please?
10 MR. BRYANT: Yes, sir, I will be glad to.
11 JUDGE KELLEY: Maybe you can avoid Mr. Barth's 12 problem. I don't know. Go ahead.
p i ) 13 BY MR. BRYANT: (Continuing) 14 Q Deputy Hensley, I'm referring to that panel i
15 you have on -- I believe it's on Page 39. l 16 JUDGE KELLEY: All right. Let's look at that. l l
17 MR. BRYANT: At the top of the page. And, Your j 18 Honor, I apologize. I was just trying to save time .
19 JUDGE KELLEY: That's all right, sir.
20 BY MR. BRYANT: (Continuing) 21 Q But in the answer Mr. Bensinger gives, he says, 22 "Rather, the initiation o f. . . "
23 JUDGE KELLEY: Where are we on the page? I'm t's
( ,! 24 sorry. l
..re-a c..n.,,. ioc. ;
25 MR. BRYANT: At the very top of the page, on
9239 513-2-SueW I Page 39.
2 JUDGE KELLEY: Okay. Sure.
3 BY MR. BRYANT: (Continuing) 4 Q Deputy Hensley, he says, "Rather, the initiation 5 of such searches could well have served as an instrument 6 to bind the agent's contacts with their suspects through 7 open discussions about how to mutually cope with the in-8 trusion."
9 My question is, do you agree with his testimony?
10 A (Witness Hensley) No.
II Q And can you tell me why? Or, what does that mean 12 to you? Maybe that's a better question.
13 A Well, I'm not sure what it means to me. I 14 don't see how we could have used the dog to assist in me 15 making drug buys.
16 (Laughter.)
I7 JUDGE KELLEY: I don't think it's -- well, 18 excuse me. Go ahead.
I9 I believe I will just let that stay.
MR. BRYANT:
20 JUDGE KELLEY: All right, sir.
~~2I BY MR. BRYANT: (Continuing) 22 Deputy Hensley, had you stayed on site doing the Q~~
23 undercover operation and had it extended, could you have 24 made more drug buys?
neporters, Inc.
25 A I think so, yes.
l
1 9240
~~13-3-SueW j Q Major Lanier or Lieutenant Self, either one of b~~
s- 2 you that know, were there discussions to replace Deputy 3 Hensley and at the same time the discussions. were going on 4 to move the operation to the second shift?
5 A (Witness Self) It was no discussion of removing 6 Deputy Hensley from the operation.
7 Q Okay. I think I'm just confused on this. Were 8 you discussing just to move him to the second shift; is 9 that it?
10 A We were to move him and another agent with the 11 SBI was to come in, and he was also to work with Deputy 12 Hensley as an undercover agent -- or, as an agent coming
( 13 into him on to the job site to assist him on his type of 14 work or take over the other SBI agent's job, to work a 15 joint operation.
16 Q Okay. Thank you, Lieutenant Self.
17 Deputy Hensley, I want to just try to clarify 18 some of the numbers because -- and these are from some of 19 the answers you gave Mr. Runkle earlier today.
20 You stated that there were eight people arrested; 21 is that correct?
22 A (Witness Hensley) Yes.
23 0 Do you know the results of their pending criminal (A) 24 m-Feder1 Reporters, Inc.
cases?
25 A It's my understanding that all have plead guilty.
9241 l I
I
~~13-4-SueW 1 Q Okay. And you also told Mr. Runkle that there~~
> 2 were another fifty-three people which you -- you estimated
-3 fifty-three that you identified and turned over to CP&L 4 security?
5 A Yes, somewhere in that area.
6 Q And then there were some other people that you 7 saw but you weren't able to identify; is that correct?
8 A That's correct.
9 Q And so this total number would be about a hundred 10 people, you estimated?
11 A In my opinion, yes.
12 O So that would, say, be another forty people or 13 so that you weren't able to identify but that you saw using 14 drugs?
15 A Somewhere in that neighborhood.
16 Q And then when you were asked about the number 17 several hundred that came from the affidavit of SBI Agent 18 Burch, did you state that there were maybe another hundred 19 people that you suspected, and this was based on your intel-20 ligence?
21 A Yeah, that was just a rough estimate. That's 22 what I felt like at that point when I was asked that ques-23 tion.
() .
24 Q Okay. Were there any other people that you had i 25 any knowledge of that were involved in some sort of drug f
______________]_
9242 013-5-SueW l activity?
2 MR. BAXTER: I don't understand the question, 3 Mr. Chairman.
4 MR. BRYANT: I think I've almost got to two 5 hundred as sort of his estimate. I just want to know if 6 there's anymore that he knew about, he said that were based 7 on intelligence and then he gave the other three that he 8 had identified or saw firsthand.
9 MR. BAXTER: I think the testimony was one 10 hundred tc two hundred was the definition of several given 11 earlier.
12 JUDGE KELLEY: I will allow the question.
13 BY MR. BRYANT: (Continuing) 14 Q Now, were there any others that you knew about?
15 A I think there may have been a few that the 16 informant had mentioned that he had heard talk about, but 17 I can't recall specifically.
18 Q Okay. That's what I needed to know.
19 Deputy Hensley, why weren't you able to identify 20 that other forty or so so that you could tell the CP&L 21 security people about them?
22 A Well, some cases -- on one occasion I saw a 23 group of individuals behind a piece of equipment while I
()
e-Federf.3 Esporters, Inc.
24 was talking to a man I was buying drugs from. You can't 25 just run up and look at everybody to see who they are.
9243
~~13-6-SueW I JUDGE KELLEY: Excuse me. Are we -- it's 2 really pretty bad next door. Are you about done, or --~~
3 MR. BRYANT: I'm pretty close, Your Honor.
4 JUDGE KELLEY: Why don't you finish up? We 5 will take a break and see if we can't negotiate a reduction 6 in volume. Go ahead.
7 BY MR. BRYANT: (Continuing) 8 Q Deputy Hensley, based on your work in the under-9 cover operation do you have an opinion satisfactory to 10 yourself as to whether drug use at the Harris site was 11 widespread?
12 A Yes, in my opinion.
( 13 Q Yes, in your opinion it was?
14 A Uh-huh.
15 MR. BRYANT: Your Honor, if I could have just 16 a moment I think I'm almost finished. I think rost of 17 the rest of these questions have been answered.
18 JUDGE KELLEY: Okay.
19 (Pause.)
20 BY MR. BRYANT: (Continuing) 21 Q Deputy Hensley, did anyone ever -- any employee 22 ever express any concern to you over the drug use, and I'm 23 speaking of, say, an employee that you knew did not use or
() 24 w een s Reportws,Inc.
sell drugs?
25 A No, not that I recall.
l 9244
~~13-7-SueW 1 Q Did any of the employees not involved in drug~~
( 2 activity ever express any safety concerns over the plant 3 to you?
4 MR. BAXTER: Objection, Mr. Chairman. I don't 5 see the relevance to the contention.
6 JUDGE KELLEY: How do you bring this within 7 the scope of whether there is widespread drug use on the 8 plant, at the site?
9 MR. BAXTER: It hasn' t been -- I'm sorry.
10 MR. BRYANT: I was really asking that in reference 11 to some of the questions about Applicant as to whether an 12 employee would be free to bring forth or to share any in-(} 13 formation about something they observed.
14 I didn' t know if any of the employees that he 15 had contact with were not drug users. That's_the purpose 16 of that.
17 But I will withdraw it if you don't want to hear 18 it.
19 JUDGE KELLEY: It appears to be outside the 20 scope.
21 MR. BRYANT: Okay. I withdraw that. -
22 JUDGE KELLEY: I think the Applicants' evidence 23 to that effect basically had to do with quality check and
() 24 het Reporters, Inc.
whether people turned in drug users.
25 MR. BRYANT: Okay. I withdraw that. i
9245
~~13-8-SueW 1 JUDGE KELLEY: All right.~~
2 MR. BRYANT: That's all, Your Honor. Thank you.
3 JUDGE KELLEY: A ten minute break.
4 (Whereupon, the hearing is recessed at 3:06 p.m. ,
5 to reconvene at 3:22 p.m., this same date.)
6 JUDGE KELLEY: All right. We can go back on the 7 record. I believe this brings us to Mr. Barth.
8 Mr. Barth, do you have questions for the Staff?
9 MR. BARTH: We have no questions of the panel, 10 Your Honor.
11 JUDGE KELLEY: Okay.
12 BOARD EXAMINATION
/"
13 BY JUDGE CARPENTER:
INDEXXX 14 Q Deputy Hensley, you should be aware of the fact 15 that my ignorance of drug abuse is enormous. And this 16 Board is trying to comprehend the situation for which we 17 have no previous training.
18 You just testified --
19 MR. RUNKLE: Excuse me, sir. I am -- I really 20 have a hard time hearing you of everybody in this room.
21 BY JUDGE CARPENTER: (Continuing) 22 Q You testified that it's your opinion that drug 23 use at the Harris site is widespread. And that's, in my l
() 24 OFederet Reporters, Inc.
mind, a qualitative statement. !
25 Mr. Bensinger has testified that the drug use in l
1 9246 l
1
~~13-9-SueW 1 the U.S. society is estimated to range from five to twelve~~
/ 2 percent of the population. Would you, in your thinking 3 and using the term " widespread " compare that to the five 4 to twelve percent number?
5 A (Witness Hensley) As far as coming up with a 6 percentage that I thought might be used at Shearon Harris?
7 Q I can somewhat understand what you mean when you 8 say widespread. And I try to put it in the context of the 9 national drug abuse problem, which we have some notion of 10 the scope of that as being five to twelve percent.
11 A That's probably going to be difficult for me to 12 do myself, because I've never tried to look at it in that --
(' 13 I was basing my opinions on what I saw and what I found 14 out based on that day shift that I was on.
l 15 As far as overall at Shearon Harris, probably i i
16 five to twelve percent, somewhere in that area, would be i
17 an accurate statement. I don't know. i l
18 I'm not an expert on it either by any means. }
19 Q Well, would you say drug use in Wake County is l l
20 widespread? !
f 1 21 A Yes, I would. i l l
l 22 Q Well, I think that -- I realize that in asking l l
23 these questions the existence of the problem is not very lll 24 WFederal Reporters, Inc.
pleasure to acknowledge. But in your opinion you would not I
25 point to the Harris site and the activities there as being 1
l
9247 013-10-SueW 1 greatly different than the general problem that we face as
(~)
V 2 a nation?
l 3 A I'm not really sure I can answer that question 4 either.
5 No, but I think you have things at the Shearon 6 Harris site that you don't have a lot in the general popula-7 tion. Most of the people out there are well paid. They 8 are -- a lot of them are what you might say a transient; 9 they come in from job to job, from different areas, which I 10 think would probably tend to make that group maybe a little 11 bit more susceptible to drug use.
12 Now, that's not a qualified statement. Because, n
k-) 13 like I say, I'm no expert. But that's just my feeling.
14 0 In your mind, in your evaluation of the CP&L 15 program with its several elements designed to try to control 16 this problem, is that an effective program?
17 A I really don't feel qualified to answer yes or 18 no to that.
19 JUDGE CARPENTER: Thank you very much.
20 BOARD EXAMINATION 21 BY JUDGE KELLEY:
22 Q Mr. Hensley, I would like to go back to a point l
23 that I interrupted to talk to you on a little while ago.
(~\ }
(,) 24 You were using the term group. And looking again 1 e-Federd Reporters, Inc.
I 25 at Ms. Burch's affidavit, you and the other members of the
9248
~~13-ll-SueW i panel were asked to agree or disagree on this Page 4 and 5,~~
() 2 Answer 8. And I see at the bottom of Page 4 a reference l
i 3 to several cliches that deal in drugs.
4 Is a cliche in your mind about the same thing as 5 a group? Would you equate those two terms?
6 A ' Yes, I would.
7 0 okay. And you did -- I don' t want to go back ,
8 completely back over the old ground that we already covered, 9 but can you give me an idea -- a range would be okay, of 10 how many people might be involved in this single cliche or 11 group?
12 A Well, about the only way that I could break that
() 13 dcwn for you is based on again the total number of names 14 that I provided after this operation was over.
15 Most of those names on that list were connected 16 with each other in some way or another. Some of them were 17 names that were supplied to me from the security people at 18 Shearon Harris that they had received information on.
I 19 But the biggest majority of them were all people ,
20 that were in some way either by association or exchanging 21 drugs, so to speak, with each other.
22 I don't know if that really answers you or helps 23 You. !
() 24 kmFewd Kgemm. pnc, Q Let me press on a bit. I'm still not as clear ;
j 25 as I would like to be. I had the impression from our brief :
9249 013-12-SueW 1 exchanges earlier that you were involved, plugged into, a
_j 2 particular group by virtue, at least in part, of your 3 informant's connections. And my mental picture was a group 4 of -- I don't know -- ten, twenty people who spoke to each 5 other, knew each other, traded with the same seller, almost 6 a little self-contained ring.
7 Now, is that not accurate? Was it nothing like g that?
9 A Yes, I -- the make of it, when I went in Shearon 10 Harris, acted on the informant's information. The people 11 he originally started introducing me to that were dealing 12 in drugs, or using drugs, were people that were on his work m
13 crew and people that they partied with off the site, and 14 associates by some means or another with other folks.
15 Q An interrelated group of people?
16 A Yes, I would say that is correct.
17 Q Now, did you function while you were there ,
primarily with that particular group of people?
18 t
l I
19 A While I was on site, yes.
20 Q Okay. And this is a group -- just very roughly, ,
i 21 how many people are we talking about?
22 A I would say in that little group of dealers, 23 of course, the eight that were charged and probably four to lll 24 w=ma n. con.,.. inc.
five more that I was never able to bring charges against 25 due to not being able to buy from them.
I
9250
~~13-13-SueW t Q When I think of that cliche or the group, I~~
'v j 2 thought it was a -- I think of it as a total number of 3 people involving a bunch of users and some smaller number 4 of dealers that might also use.
5 Is that realistic? When you say group, do 6 you just mean dealers? Or, do you mean a sort of family 7
that deals and uses, too?
8 A I was using the term as just an association of 9 these people together. Most of the --
10 Q Doing what? Within that group, within that 11 association of people, who is doing what? Dealing, using, 12 bo th?
y--
13 A Most of the ones that I had dealings with used i
14 and sold.
15 0 All right. But, still we are talking about a l
16 group of people on a first name, rather friendly basis, l l'
17 it would seem, and a fairly small group of people, correct?
18 A Correct. l l
19 0 And you were in this one group while you were 20 the re?
21 A Correct.
22 Q You indicated though your belief, I think, that 23 there were a number of groups or cliches like this and
) 24 the word "several cliches" is the phrase at the bottom of ac s.,.i ceno,t.,,, inc.
25 Page 4. What is the basis of your knowledge for these other l I
I i
i t
l ,
1 l 9251 l
l D13-14-SueW j groups?
) 2 A Conversations with the people that I was dealing i
3 with on the site, just af ter getting to know them a little l 4 bit, striking up a conversation such as -- well, you can l
l
~~5 get anything you want out here about any time you want it.~~
l l
l 6 Has it always been like this? Or, is this just an unusual --
i l
l 7 and from general conversation with them, most of them that 8
had been there any length of time said that as long as they 9 had been there they had already -- they had access to drugs l
l 10 in this manner.
11 Q Did they mean, as you understood it, from other 12 groups on site?
e'
'()s 13 A I understood it to mean from the general work 14 force, that it had always been that way out there. And 15 that it hadn't changed, is the impression I got just from 16 general conversation. i i
17 0 Were these conversations of yours confined to j I
18 members of the group or cliche that you yourself were 19 involved with?
20 A Like I say, they were just general -- I didn't 21 say, you know, in your group has it always been this available.
22 Q I don' t mean you put it that way to them. I'm 23 just trying to see whether you ever had personal transactions, (m) 24 personal knowledge, personal dealings with an entirely
==-Forseres tem,ters, Inc.
25 different group, away from the work site that you were on --
9252
13-15-SueW 1 if you were on a particular work site -- or whether your ms 2 belief that other groups existed were based entirely on 3 conversations with members of that immediate group.
4 A I would have to say most of it was based on 5 conversations that I had with these people that I was 6 dealing with.
7 Q Say, they are electricians, some of them. did --
8 was there any time when you broke away from that group 9 entirely and had some transactions with people in a 10 completely different craft, people who were not as far as 11 you know plugged in with your first group at all?
12 A Yes.
p) 13 Q There were?
14 A Uh-huh.
15 Q What was involved in that?
l 16 A From information that was received, the informant l 17 I was working with knew some people that were in the other i
18 crafts that were not associated with, say, the ones he j i
19 used to work in. And we were trying to set up deals from I
20 these individuals.
21 Q Give me that again. I'm sorry.
22 A The infortaant, of course, had been on the site 23 a lot longer than I had.
lll 24 W Faleral Ceporters, Inc.
0 Yeah.
25 A And he had received information from other people
9253
~~13-16-SueW j of other people in different crafts, in different places I) 2 on the site dealing in drugs.~~
3 And he had made contact with at least two other 4 people that I know of to try to set up buys from. One 5 of them we had met with twice trying to set up a buy.
6 Q But, did you succeed?
7 A No.
END #13 8 Joe flws 9
10 11 12
/m I
..) 13 14 15 16 17 18 19 l l
l 20 21 j 22 23
$ 24 25
14-1-JocWal 9254 1 Q But did you succeed?
( 2 A No. The drugs never arrived. It supposedly was 3 set up twice, but through fault in delivery they never 4 arrived.
5 Q So, all your buys were actually confined 6 this group, or cliche that you were in basically all the 7 time you were there?
8 A Right.
9 Q Okay. I think I understand. I would like to 10 just go back to the ammbers once more.to make sure 'I 11 understand.
12 We began Mr. Runkle's questioning right on that
( 13 same sentence, on 4 and 5. When you get over to the phrase:
14 Involving several hundred people, now you later, I believe, 15 said that that meant to you one to two hundred people, 16 correct?
17 A Yes, sir, somewhere in that area.
18 Q Okay. Now, you have also, I believe, testified 19 that you knew drug activity -- and I am using that to 20 include buying, selling, possessing, at the site is 21 widespread, is that correct?
22 A Yes, sir.
23 Q Okay. If is your estimate of people involved
(~)
so-Federal Reporters, Inc.
24 in drugs is one to two hundred at this time, would you 25 accept that at the site now there are some six thousands
l 14-2-Jo Wal 9255 1 employees?
s
) A Yes, sir.
2 3 Q Sound about right? We have heard that in 4 testimony. It is a decent ballpark number I think.
5 If that number is about right for total site 6 employees, could you explain why you would consider one 7 to two hundred being involved as representing widespread 8 drug activity?
9 A Well, the one to two hundred figure that we 10 keep talking about is my estimate of people I saw either 11 dealing, buying, or using drugs.
12 Some of these individuals were not involved in
) 13 that group we have been talking about. I 14 And the feeling that I have about it being 15 widespread is based on the number of people at that plant ,
i 16 site, and based on conversation with these other people that 17 it has been readily available.
18 Q That is very different then, I think. I just I l
19 want to understand this. ;
l 20 You see, when you said that the phrase quoted l i
21 in the Burch affidavit at the top of 5, the phrase about t 22 involving several hundred people, when I read this whole 23 sentence -- let's go back to it.
I ') 24 It says: Lt. Self adviced that during this same wr.o.r.i n.oon.n. inc.
25 time period Deputy Hensley began to develop intelligence ,
l
14-3-JosWal 9256 I which indicated that there were several cliches dealing 2 drugs at the Harris plant involving several hundred people, 3 which ranged -- and so on.
4 I thought that meant your belief that the total 5 number of people involved in drugs at Harris were several 6 hundred, which you then defined as one to two hundred, and 7 now I understand that is not what you are saying, is that 8 right?
9 A No, sir. The figure from one to two hundred 10 is based on the number of people, and a lot of them I 11 couldn' t identify, and could n' t get identification on 12 for reasons, that I saw, or have knowledge, or bought from.
13 Q Oh. So you are just saying: I myself saw one 14 to two hundred, and since I can't see or catch everybody, 15 the total number must be some higher number? Is that right.
16 A That is basically what we are saying, yes.
17 Q Okay. I understand. And then Judge Carpenter 18 was asking you about some national percentage figures that 19 we have heard, I think five to twelve percent in the work 20 force, it is the population at large, within the work force, 21 and I just wondered when he tried that statistic on you 22 and asked you questions about it, and I believe you 23 responded five to twelve might be about right, was that O 24
> Federal Reporters, Inc.
ree117 e coneidered sudemene on voor gere, or do you heve 25 an estimate for what you think the percentage out there might l
14-4-JonWal 9257 1 be at this site?
2 A No, sir, I do not. ,
3 Q But in any event, it is not the one to two hundred; 4 it is some higher number?
5 A Yes, sir. Are you talking about actual --
6 Q People involved. People that you will never see, 7 you will never catch, the people actually involved.
8 A Oh, yes, sir. I feel there is more out there 9 than I saw, yes, sir.
10 Q Okay. Finally, I have a dog question. Let 11 me ask you this . You said, if I recall correctly, the 12 presence of the dogs might have had a detrimental effect 13 had you continued your undercover operation, because if the 14 dog turned something up, then people on the inside of the 15 gro 3 might come to suspect you, is that b'asically what 16 you said?
17 You can change it if that isn't it.
18 Q I believe the best that I can remember I 19 said that it would depend on how the dog was used.
20 y I don't know if we can sit here and say 'es, 21 it would have been detrimental or not, because it would 22 depend on how the dog was used, and I believe I used the 23 illustration that if the dog was used, say, on a stash !
() 24 yens c==n.n ire.
area or something that a few people had knowledge of, myself '
25 being one of them.
14-5-Jo:Wal 9258 1 Q Yes.
()__
2 A And the dog was brought in and went to that stash 3 area, most drug dealers are pernoid anyway, and they are 4 going to say: Well, somebody snitched.
5 Q Now, I thought about that, and maybe I am just 6 being too sort of analytical or not commonsensical enough, 7 but my reaction to your point was, well, why would that be, 8 because if somebody snitched he would snitch to the security 9 people I would assume, and if the snitch is that there is a 10 stash at such and such place you just go and get it, you 11 don't need a dog.
I 12 If people understand how dogs work, and how they J 13 smell -- you know how they work, they smell it.
14 Why blame you if the dog found it. You didn't 15 tell the dog, I assume? f 16 A That would have been more of a direct point at !
l 17 a snitch -- do it that way better than using a dog. f 18 Q I don't follow, I am sorry. '
l 19 A Based on what you are saying, if you had an '
20 individual that had a stash, and three or four, or how many 21 people knew the stash was there, and you just told security 22 or whoever, and they went directly to that stash area and 23 got those drugs, that would be more of a direct point that n
( ) 24 there was a snitch.
w-Federal Reporters, Inc.
25 Q Yeah, I agree. But with dogs -- why is the dog
14-6-Jo:Wal 9259 1 finding it any problem at all to you?
() 2 Because the owner, very disappointed that his 3 stuff got found, won't the owner know, oh, too bad the 4 dog smelled it, and my loss, and it is not Hensley's fault.
5 A Well, that could be the case, but here again 6 you are dealing with people that are paronoid to begin with.
7 Q You are just saying in a broad sense --
8 A Yes. I can't sit here and say it would be 9 pointing a finger at someone or not.
10 I mean if the dog just walked through the gate 11 and went straight to that stash area, and started sniffing 12 and found it.
() 13 Q All right. You spoke- briefly, and I have forgotten 14 with whom, about QA people and wearing white hats, and your 15 observation that they were involved. Some of them were 16 involved in drugs, and -- some ot the 201 I know are QA 17 people. They are identified as such.
18 Do you know whether --
19 MR. BAXTER: He doesn't know what that is, 201.
20 BY JUDGE KELLEY: (Continuing) 21 Q Okay. We have had prior testimony that from the 22 beginning of construction up until mid-September, a total 23 of 201 people have been terminated for drug activity of
(~) 24 one kind or another. )
m FLJ Reporters, Inc.
25 Some people have been convicted, and some just
14-7-Jo:Wal 9260 i suspected, and some wouldn't take urinalysis test and so on, (o_) 2 and we have a listing of those people by number, not by 3 name, which includes if they were craft, or they were QA, 4 and I am just saying that we are aware that some QA people 5 were involved in drugs and caught and terminated.
6 I don't know, then, if you would know whether 7 the people you are referring to are among that number, or 8 if these QA people by and large, did you identify them by 9 name do you know, and whether they were arrested or somehow 10 dealt with.
11 So far as you know, might they be QA people on 12 the job right now who were not identified and may have been
() 13 involved in drugs?
14 (pause.)
15 It is a very long question. I am sorry.
16 A I was trying to work it through in my mind.
17 Q My concern is QA people on drugs, and I think 18 that is more sensitive than a lot of the craftsmen, frankly.
19 A Well, maybe this will help. When I went to the 20 site, Mr. Joyner explained to me how this system works out 21 there. That certain colored hard hats perform certain 22 tasks, and that is all the knowledge I had of who does what, 23 what field is this person working in.
() 24 ham-Federal Reporten, Inc.
So, a lot of times I would see a certain colored 25 hat, and it was my understanding I thought all QA wore white
9261
[4-8-Jo:Wal I
hats, and I believe that I was told later that not only
,G kJ- 2 QA people, but some consultants and stuff that came in wore 3 white hats, too.
4 So, it was difficult for me unless it was somebody 5
that I could really get some information on knowing was 6 this a QA person or not.
7 Q Okay. So that is one qualification. You are 8 referring in part to people that you may have seen, but 9 never identified, is that true?
10 A Yes, sir.
Il Q Would you say that the white hats you did see 12 but did not identify represented what kind of proportion of k- 13 your total?
14 A You mean of the total group arrested, or the 15 total --
l 16 Q Those that have been arrested and so on, I guess !
I I
17 they have pretty well been terminated, but people who were !
18 not arrested or terminated, but just those that you suspect, 19 are some large proportion if you recall, or do you recall 20 whether a large portion of them were QA or wearing white 2I hats?
22 A As best as I can recollect, I believe probably 23 we are talking four or five white hats.
/~ 24 '
(. )T
> Federal T.eporters, Inc.
Q Cut of?
25 A The sixty some names that were turned in. Also
14-9-JoeWal 9262 1 counting the ones that were arrested.
2 Q That is helpful. Thank you. Redirect, Mr.
3 Runkle?
XX INDEX 4 REDIRECT EXAMINATION 5 BY MR. RUNKLE:
6 Q Yes, sir. Just a couple of questions. What 7 color hard hat did you wear while you were out there?
8 A (Witness Hensley) Blue.
9 Q Carolina blue?
10 A It was a little darker.
11 Q CP&L blue?
12 A Well, yeah, I guess it was CP&L blue.
T"T (J 13 Q And also you testified earlier in your search for 14 the supervisor who is allegedly making trips down to Miami 15 with pound quantities of concaine, do you recall testifying ,
16 about that person? '
17l A Yes.
l 18 l '
Q You stated that you asked Mr. Plueddemann of 19 Daniel construction to go back through his records to try .
20 to find out people that left early or took days off, is that 21 correct?
22 A Yes.
23 Q Did he ever supply you with a list of names from
(,) 24 that search?
WFederal Ceporters, Inc.
25 A No, he never supplied me with a list of names.
I
9263 14-10-JocWal i He was trying to gather a list of names, and 2 he came back to me I believe on two occasions after I asked 3 him to check those records and told me he was still checking 4 but he hadn't been able to come up with anything yet.
5 0 And to date he has not come up with anything 6 for you on that?
7 A No.
8 MR. RUNKLE: I have no other questions.
9 JUDGE KELLEY: Mr. Baxter?
XX INDEX 10 RE'CROS'S-EXAMINATION 11 BY MR. BAXTER:
12 Q Deputy Hensley, we have thrown a lot of numbers 13 around, but they are important numbers potentially.
14 I wrote down very carefully during Mr. Runkle's 15 examination of you, and I want to make sure I have got it i
i 16 right. It was established I believe that there were eight l 17 arrests, and that there were 53 others that you were able 18 to identify of CP&L as a result of the operation?
19 A That is correct.
20 Q And when you were asked how many people you had 21 observed involved in drug activity, I think you said a total 22 of around 100, including those 61?
23 A Somewhere, yes.
l () 24 ma non.n. inc.
Q And that when you were asked about Paragraph 8 25 of Ms. Burch's affidavit about the cliches involving several
14-ll-JonWal l l
1 hundred, that you define that to be from 100 to 200 people.
2 A Yes.
3 Q I found that I overlooked one passage in our 4 testimony that I should have asked you about.
5 Would you turn to page 25, please.
6 (Witness peruses document.)
7 In Answer 29, on page 25, -- as background, 8 Deputy Hensley, -- at our meeting I was explaining to you 9 that for instance when -- an electrician would have a 10 certain color hat.
11 MR. RUNKLE: Excuse me. Is counsel testifying 12 at this point, or just trying to lay a little groundwork
() 13 for this question.
14 MR. BAXTER: I am not testifying. I am getting 15 background for my question.
i 16 JUDGE KELLEY: All right, go ahead.
17 MR. BAXTER: Nothing I say is evidentiary, Mr.
l 18 Runkle.
19 BY MR. BAXTER: (Continuing) l l
20 Q I recall explaining at the meeting that an 21 electrician, for example, has a certain color hard hat on 22 whether he is working on a nuclear safety system, or a non- l 23 nuclear safety system. He doesn't change his hat.
,- m 24
) And you confirmed -- and this sentence is meant a4eder3 Reporters, Inc.
25 to be your reaction to that statement, is that correct?
14-12-JoeWal 9265 1 A You are talking about the ones that I did not
\-) 2 distinguish between?
3 Q Right.
4 A Yes, that is correct. All I could tell you about 5 them is the color of the hard hat what they were doing.
6 Q I think I might have confused the record a 7 little bit when attempted to repeat what you were saying 8 about the quantities of hash that we were discussing earlier.
9 You testified that you purchased 16 grams, I 10 believe.
11 A Correct.
12 Q And that the person you made the buy from had n
- 13 another 15 bags.
14 A Yes.
15 Q Were they of the same quantity?
16 A Yes. All of them were supposedly equally divided.
17 MR. BAXTER: Could I have just a moment, Mr.
18 Chairman?
19 BY MR. BAXTER: (Continuing) 20 Q Again Deputy Hinsley, I think this was testified 21 to before, but in talking to someone in response to Judge 22 Kelley's ques.tioning about the types of people who actually 23 sold and dealt, of the 61 people that you were successful
() 24
>Federd Reporters, Inc.
in identifyng, I believe you said earlier cut across all 25 different kinds of crafts, is that correct?
l J
D7 14-b6-JosWal 9266 i I
l 1 A Yes.
() 2 Q And when you were undercover and working at the 3 P l ant site, did you limit yourself in any way geographically 4 to one small area?
5 A No, I tried to go throughout the whole plant.
6 A lot initially I was restricted to the area of where the 7 PeoP l e the informant knew were doing drugs.
8 The longer the operation went on, I started moving 9 through the plant more.
10 MR. BAXTER: That is all I'have. Thank you.
11 JUDGE KELLEY: Okay. Mr. Cole?
12 MR. COLE: (Nods head negatively.)
13 JUDGE KELLEY: Mr. Barth, anything?
14 MR. BARTH: We have no questions, Your Honor, of 15 this panel.
16 JUDGE KELLEY: Anything else, Mr. Runkle.
17 MR. RUNKLE: No.
18 JUDGE KELLEY: Okay. Gentlemen, that brings us 19 to the conclusion of our process. We appreciate very much 20 your coming, and your answers, and your attendance, and we 21 thank you very much.
22 You are excused.
23 (PANEL STANDS ASIDE.)
() 24 monoms amo,ws. ine.
JUDGE KELLEY: Do we have a panel coming right ;
j 25 up?
l'1 9267 14-16-JonWal 1 MR. COLE: Yes, sir, we have one ready.
l 2 JUDGE KELLEY: Okay. Let's proceed right to the 3 next panel.
4 Whereupon, 5 DONALD WILLIAMS, 6 CHARLIE OVERTON, III.,
7 - and -
8 SHIRLEY BURCH, 9 were called as witnesses by and for the Office of the 10 Attorney General, State of North Carolina, and testified 11 as follows:
XX INDEX 12 DIRECT EXAMINATION
(-
'v' 13 BY MR. COLE:
j 14 Q For the record and the court reporter, starting 15 closest to the bench up there, we have Mr. Don Williams, 16 then Mr. Charlie Overton, and them Ms. Shirley Burch.
I 17 Mr. Williams, do you have in front of you a '
i 18 paper marked: Statement of Don Williams?
{
19 A (Witness Williams) Yes, I do.
20 Q All right, sir. State your name and address, i 21 please sir.
22 A My name is Donald Williams, Jr. I am at 1063 23 Finley Drive, and that is Pittsburgh, Pennsylvania.
,\
24
( _) Q All right. The statement you have in front of un-FWmt Cecomn Inc.
25 you is your prefiled statement in this matter, Mr. Williams? i i
I
IC 14-b4-Jo:Wal 9268 1 A Yes, it is.
( )
"' 2 Q Are there any changes or corrections you would 3
like to make to that document?
4 JUDGE KELLEY: I think I had better step in and 5 swear the witnesses.
6 MR. COLE: That would be helpful, Judge.
7 JUDGE KELLEY: It is late in the af ternoon.
8 I am sorry.
9 (Witnesses are sworn by Judge Kelley.)
10 JUDGE KELLEY: Back to you.
II MR. COLE: I am assuming I don't have to repeat 12 the questions that were not under oath?
' ~/I 13 JUDGE KELLEY

No.
Id BY MR. COLE: (Continuing) 15 I Q Mr. Williams, are there any changes or corrections!
16 you would like to make to that document? !
I7 A (Witness Williams) No, I would not .
IO Q Are the statements made therein true and correct l l
I9 to the best of your knowledge and belief? l 20 l
A Yes, they are. '
21 MR. COLE: Your Honor, I will go on through all 22 of them, but may I make an inquiry here. Inasmuch as this 23 testimony has been hashed, ;is there any need to make a
' 24
-' small presentation. I would like to just make a motion as-Federal Reporters, Inc.
25 as if it was read into it, and ask that it be bound into it.
/6 4-i4-Jo Wal 9269 l
1 JUDGE KELLEY: And just dispense with the j l !
s_J 2' preliminary statement?
l l
3 MR. COLE: Yes.
4 JUDGE KELLEY: And go right into cross?
5 MR. COLE: Yes.
6 JUDGE KELLEY: Any objection from any counsel l 7 to dispensing with preliminary statements? .
i 8 MR. BAXTER: No.
9 MR. BARTH: No, Your Honor.
10 JUDGE KELLEY: All right.
11 BY MR. COLE: (Continuing) 12 Q Mr. Overton, do you have a document in front of
_ 13 you marked: Direct Testimony of C. J. Overton, III?
I 14 A (Witness Overton) Yes, I do. I 15 Q All right, sir. Will you state your name and 16 address please?
17 A My name is Charles J. Overton the Third. I live 18 here in Wake County.
19 Q And the document we are referring to is your 20 prefiled testimony, Mr. Overton?
I 21 A Yes, sir; it is, i i
22 Q Are there any changes or corrections that you f
i 23 would like to make to that document? i i
( ,) 24 A No, there are not.
f u-Fwast Rmorters,1N. ;
25 Q Are the statements made therein true and correct l l
I7 9270 14-t9-JonWal 1 to the best of your knowledge and belief?
/
s 2 A Yes, sir, they are.
3 Q All right. Ms. Burch, do you have in front of 4 you two documents that may be combined as one, but one is 5 marked Second Affidavit of S. L. Burch, and the other 6 Affidavit of S. L. Burch?
7 A (Witness Burch) I have just the affidavit of !
l i'
8 S.L. Burch.
9 Q You don't have the one marked Second?
10 (Mr. Cole hands Ms. Burch document.)
II Do you now have one marked Second Affidavit 12 of S. L. Burch.
/~5 l
\ 13 A I do. :
i 14 Q Okay. Would you state your name and address, pleasd, 15 ma'am?
16 A My name is Shirley Burch, and I live in Raleigh, i
17 North Carolina. I i :
18 All right.
Q Ms. Burch, those documents you have l l 19 in front of you, are they your prefiled statements in this l 1
20 matter?
21 A They are.'
22 Q Are there any changes or corrections you would 23 like to make to those documents?
24 A There are perhaps two modifications I would like WFeder.1 Reporters, Inc.
25 to make.
It' 14-04-JoeWal 9271 1 Q Please. Go right ahead.
.,) 2 A Page 2, paragraph --
l 3 Q This is the multi-page affidavit. l, 4 A Fourth paragraph.
l 5 Q You mean paragraph numbered four? I 6 A Paragraph numbered four. If you will go down 7 towards the second-third of that paragraph, where I stated:
8 He further advised -- referring to Mr. King -- that the ;
l 9 Nuclear Regulatory Commission is putting pressure on CP&L !
i I
10 to look into the problem; I would like to modify that 11 statement.
12 Q Yes, ma'am. ;
(_) 13 A I would like to modify it with the statement 14 that the -- my understanding was that they were receiving l 15 pressure internally to look into the problem because the 16 NRC was going to license them, and they needed to take a i
17 look at this problem to see what extent it was.
End 14. 18 b$ fois.
19 20 i
21 l l
22 i
e i
23
() 24 ,
==#idair.morms.tm. 1 25 i l l
9272 3im 15-1 1 JUDGE KELLEY: What we need to do is get the l 2 exact wording than that you would make the changes, and 3 I understand the concept.
we can take a minute.
WITNESS BURCH: Okay.
5 MR. COLE: Ms. Burch, was that the exact wording 6 It sounded pretty good to me.
you wanted?
7 I just wasn't sure that it was.
JUDGE KELLEY:
O If it is, let's write it in.
9 WITNESS BURCH: It is, if you can write it in.
10 MR. BARTH: If we could have it slowly enough 11 so I could write it in.
I2 (The reporter left the to type a copy of what 7m 13
(_) was just referred to.)
JUDGE KELLEY: If the reporter can bring it back 15 in 10 minutes, we will look at the words and we will just go 16 back and fix that up.
l7 Isn't that satisfactory, ladies and gentlemen?
18 They will bring it back in 10 minutes or so and then we will 19 look at it. Fine.
20 BY MR. COLE:
21 Q Were there any other corrections or amendments 22 you wanted to make to that?
23 A (Witness Burch) Page 8, the paragraph numbered 3 24 Ace-F _,,), Reporters. Inc.
15.
25 Q Yes, ma'am.
l l
9273 sim 15-2 A The second sentence. "It was terminated far 1
too early because actions by CP&L endangerd the lives of the 2
Os undercover officers." I would like to modify that to state it was terminated far too early because actions by CP&L potentially endangered the lives of the undercover officers.
JUDGE KELLEY: So insert the word "potentially" before endangered?
WITNESS BURCH: Yes, sir.
JUDGE KELLEY: Okay.
MR. COLE: Is that the only change, just adding that word?
WITNESS BURCH: That is correct.
12 BY MR. COLE:
O Are there any other changes or corrections you would like to make to this statement, Ms. Burch?
A (Witness Burch) No, sir.
Q These statements, including these changes and corrections you have made are they now true and correct to the best of your knowledge and belief?
Y
~~20 MR. COLE: If your Honor please, I would move that the testimony be bound into the record as if the testi-mony had been read into the record by each of these witnesses.~~
~~JUDGE KELLEY: Objection? i~~
* * * " " (No response.) .
25 l l
9274 Sim 15-3 j JUDGE KELLEY: The motion is granted.
(The testimony of Donald Williams, C. J.
[^'
u, 2
3 overton, III, and S. L. Burch follows:)
4 5 .
6 7
8 9
10 11 12
(
~
'3 13 LJ 14 15 16 17 18 19 20 21 22 23 Ace- 1 Reporters, n.
25 l
l
O UNITED STATES OF AMERICA NUCLEAR REGULAIORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD a
In the Matter of CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear )
Power Plant) )
STATEMENT OF DONALD WILLIAMS O'
1 I
1 I
i I
i
)O
o Q. Would you state your full name?
- A. Donald (no middle name) Williams, Jr.
Q. And you presently work for whom?
A. The United States Justice Department Drug Enforcement Administration.
Q. You're working in Pittsburg, Pennsylvania? -
A. Yes.
Q. How long have you been employed by them?
A. Since February 2, 1985 of this year.
Q. And is your work assignment undercover drug work to some extent?
A. Ah, possibly one half.
Q. Prior to your employment with the federal government and DEA, you were employed by the SBI?
A. Yes.
Q. When were you hired by them?
A. I was hired by the State Bureau of Investigation, January 1,1977.
Q. What did you do when you first became employed by them?
A. I was state drug agent.
Q. During your whole period of employment with them, were you employed as a drug agent?
4 A. Yes I was.
Q. And did part of that job contain undercover work?
A. Yes it did.
Q. Half of it? Two thirds of it? or what?
A. Possibly a half of it at times. It varied.
Q. Did you have to have any specific training for doing drug work and
~~undercover drug work?~~
l A. Yes I did.
O '
r
(~T Q. What was that?
V A. That consisted of the 1977 State Bureau of Investigation Academy, sixteen weeks and, also, it contained a two-week drug school by the United States Justice Department consisting of DEA training.
Q. And that was sponsored by the U.S. DEA?
A. Yes.
Q. Put on under them?
A. Right.
Q. Any other formal training in that line?
A. Ok and also even before I was working the project which we are talking about, I went to a eight-week state and local DEA school. That was eight weeks of training in specialized advanced drugs undercover and everything.
Q. This was in addition to che Academy and the two week drug school?
A. Right, in addition to that.
Q. What is your your educational background prior to employment?
A. I had a BS in physical education and education from Livingstone College.
Q. Did you have any employment after graducation other than the SBI and the DEA?
A. Yes, I worked for the Department of Correction.
Q. North Carolina Department of Correction?
A. It was switched over in 1976 to Department of Human Resources.
Q. When did you graduate from Livingstone?
A. I graduated from Livingstone College in December 1974 and March of 1975 so I would say what, May 1975.
Q. Ok. And so did you go straight with the Department of Correction then?
A. Yes, I did.
Q. And then from there into the SBI?
A. Correct.
C:)
Q. When did you first learn that you were going to be irvolved in undercover O work at Shearon Harris?
A. I was contacted sometime within the month of (ctober 1984 by the coordinator Shirley Burch and was told to come over for the undercover operation.
Q. What meetings did you have to discuss this?
A. I can't remember the exact dates, but I was told to come to Raleigh and at that time I went to the Wake County Sheriff's Department there in Raleigh, North Carolina and met with Sheriff Baker, a Sergeant or Lieutenant Self, along with the District Attorney, I can't remember his name Q. Randolph Riley?
A. Randolph, and at that point things were formulated to go undercover at Shearon Harris and also at the meetings were Glen, I'm trying to think--
Q. Self? Glen Joyner?
A. Glen Joyner, correct and also Michael, I can't remember his last name Q. Now Detective Hensley wasn't there, was he?
A. No.
Q. What were you told at that meeting?
A. Well briefly we were just told that they did have an informant and that they wanted myself along with a Wake County Sheriff Department's Deputy to go in undercover and attempt to make buys off the employees that were selling drugs there at the location.
Q. Who was doing most of the talking at that meeting?
A. This was handled mostly by Lieutenant Self.
Q. Did you learn at that time who the Deputy Sheriff was going to be that was going to work undercover with you?
A. No, I did not.
Q. When did you learn that?
A. This was told to me approximately three or four days later that the original guy could not go, and that Deputy Hensley would be the one to go with me undercover there.
Q. Do you remember about when that meeting was? How many days would it have
, been prior to actually going undercover?
A. I think it-it wasn't any more than five days, three or four days.
Q. Now at that meeting was any conversation held about how long the investigation might run?
A. It wasn't an exact date or anything like that. I think it was said to run to the end of the year which would be the end of 1984 and January would be what they call an update month, where we would update and see if we need-to go on with it or...
Q. It was intended to last about two months and you'd take a look at it, right?
A. Right.
Q. Was any other conversation held at that time? Did they say any thing more about the informant other than they would have you an informant out there?
A. No. They just said that the person they had was ready to go or ready to start the operation-that was about all.
Q. All right. Now after that meeting what transpired?
A. Well, after the meeting there, I went back to my Greensboro Office at which time I was contacted by Shirley Burch , I forget what date she told me to come on over and meet with Glen Joyner and the people out at Shearon i Harris-just go out there and take a loor around and get oriented to the area.
Q. And you subsequently did that?
A. Yes I did.
Q. Did you meet in Shirley's Office or did you meet on the site or, at the CP&L place, or...?
A. On the site of CP&L. I drove out there.
Q. Was your cover already made at that point as to who you were going to be and so forth?
A. Yes. It was in the final process.
Q. Is that the first time you met Hensley?
A. Yes. l Q. Had you known that Hensley was going to be working with you before then?
O I
i
' l A. No. I think it was sort a like one day they had a person that would work !
g with me from the Sheriff's Department and that was it--nothing else was {
discussed.
Q. I seem to recall that you mentioned something about you were concerned about Hensley's selection because he was a computer man, hadn't been undercover before, and so forth. When did you voice that concern?
A. This was when I met with Shirley Burch. It was a phone conversation at first and also I met with her in the office at the SBI Headquarters there in Raleigh or Garner, North Carolina and she told me what type of person they had.
Q. This is prior to going on the site, right?
A. No, I was already on the site. I was there by myself.
Q. When did you learn who your informant was? That day you went on the site?
A. Yes.
Q. Did you meet with him at that time too?
A. I don't think it was that day, it was the following day.
Q. Do you remember his name?
A. I can't remember his name. I'm trying to remember his name; I can't remember it.
Q. Was he a white guy or black guy.
A. A white male. I had it wrote down here some where but I don't have it now.
Q. Prior to your being given this assignment, was your supervisor in Greensboro?
A. Yes.
Q. And his name was?
A. Tom Childrey.
Q. Now when you undertook this assignment at Shearon Harris , who was your supervisor?
A. My immediate supervisor was to be Shirley Burch.
Q. And you were to report to her?
A. Yes.
O
Q. And did you report to her?
n A. Yes , I did.
Q. How often?
A. Every day or she advised me to contact her every other day each time I was.
there on the site.
Q. Did you do that?
A. Yes, I did.
Q. How did you make those reports to her? Were they in writing or were they ora' reports?
A. I was to hand her reports--we have a format-what we call an initiations report--and I would give a copy of that to her and also a copy of my investigative reports which consisted of a format of all the particulars of the buys, the identifications, and all the other persons that I bought from, so she got two reports.
Q. How many reports would you estimate you gave her?
A. A guess a total of about five.
Q. You said that you reported to her every day, or every other day?
O)
A. By phone.
Q. So there would be some oral reports as well as the written reports?
A. Yes, right, definitely.
Q. And those reports would be out at the SBI, in Shirley's possession I assume?
A. Yes, they would.
l Q. Did you have any initial concerns about the undercover operation at Shearon Harris? At any point?
l A. Yes, I did.
Q. When is the first time you had any concern?
A. My first immediate concern was about the safety and what we were doing. 1 The damage of the operation was at the point when the continuing process !
that the Shearon Harris security was performing, the searches at the gate and also the detectors that they were using, metal detectors.
O l
Q. Would it be a fair statement to say in answering that question about the concerns you had, your first concern would have been, maybe, Hensley?
A. Yes.
Q. What were your concerns about him? ,
A. Just the mere fact that would he be able to offer protection or assistance in the event of some type of emergency or some point where I would be subjected to danger?
4 Q. Were you also concerned at one time because his background was not in drugs? And undercover work?
A. Yes, definitely.
Q. Were they doing gate searches when you started?
A. Yes. Joyner, Glen Joyner, my contact there at the office came by periodically and told me which persons they caught at the gate.
Q. Did you voice any concerns about the gate searches?
A. I was told by my supervisor / coordinator, first, to report only to her.
i Q. Now, the metal detectors. Were they in place when you arrived?
A. No they was not. They came on afterwards.
Q. How long had you been there when they put those there?
A. I guess it was about a week or seven days-it was within ten days.
Q. Did you voice any concerns about that?
A. I talked with Hensley about it, and also I talked to Shirley about it.
Q. You told them you had some concerns about it?
A. It was my impression that we were going to handle the total operation ourselves and no involvement from the security people reference the drug operation. But my first concern was why is the process-why are they still doing the process when we're trying to work undercover. That was my concern there.
Q. What did you understand the reasons were for the metal detectors being on the premise or at the gate? i A. It was not anything said directly what they was being used for. It wasn't lika-it wasn' t like Tuesday night they came and said we're using the O metal detectors at the gate and that should net us some people and that was it. There wasn' t anything about any specific item or material they were looking for.
Q. Did the metal detectors stay up the whole time you were working undercover V,o there?
A. My understanding, they did.
Q. Now, who did you hear this from? -
A. This was told to me by Detective Hensley.
Q. A snitch was mentioned a couple of times in the affidavit; what can you tell us about that?
A. The informant told me when he was getting ready to go out one day in late or middle December, some where in that time and he said that everything was hot now and that he was approached by a white female who had worked previously, or was on some type of leave there at the plant and advised him that she knew what he was doing and he had better stop it and everybody knew that he was a nare, to that effect.
Q. Everyone knew he was a nare. Now you got this information from your informant?
A. From the informant.
Q. Now, lets talk a minute about the parking lot and the grocery store. Was pa drug usage prevelant in those two areas?
A. Yes it was.
Q. Both using and buying?
A. I was informed that one of the hot spots was the parking lot to buy the drugs and also the grocery store off the premises.
Q. Were you ever told any thing about the grocery store?
A. Yes, by the informant that we had , and by the way, I remember his first name as being g Q. You don't remember his last name?
A. No. And also by Detective Hensley, he had went by there a couple of times.
Q. Ther'e was usage and purchases there.
O
A. Right, and also by Glen Joyner, you know, he was telling me about a lot of action going on.
Q. Would you characterize your informant, as cooperative?
A. I couldn't absolutely--I couldn't swear to it. But you never know an informant, I don't trust them at all, but I would characterize him--he -
gave us half the information and I think he could have done half-he did' half what he should done. -
Q. He could have done a whole lot more?
A. Right, he could have done a lot more.
Q. Couldn't CP&L have given you another informant?
A. Yes, this is what I voiced to my coordinator, Shirley, that they could get me another informant because, you know, they had people that they were searching periodically and, also, there was one person on second shif t that they had searched that I think could have possibly have been used as an informant and I voiced this to Joyner and to Shirley that possiblity, that they could get an informant.
Q. Your investigation gets limited by the people your informant knows and it doesn't go outside that does it?
A. Right. Actually-the way we were there I was there working as an employee O- and I'm there all day and I just work with three or four people, you know-go in one area and then go in another area.
Q. Did you have the opportunity to talk to Detective Hensley about the undercover operation?
A. Oh yes. We talked all the time. We voiced opinions about the suspects that we were working on; we voiced opinions about things CP&L was doing also we voiced opinions about the drug problem itself and the type of people that were involved.
Q. Did Hensley ever complain to you about the way CP&L was handling or doing things?
A. I think it was one time about the metal detectors and information about searches that were going on.
1 Q. Did you ever voice any concerns to him other than those two? '
A. That's it. I told him that I thought the informant was shucking and jiving and what I meant by that was that he was not doing an adequate job of introduction and setting up more deals.
O
Q. Did you ever talk to Hensley about why CP&L doesn't give you another
('~N informant.
V A. Yes, I think I talked to him about that one or two times. That way he could work one area and I could work one area.
Q. What response did he make to that? -
A. I guess it was a general notion that he agreed with it; I can't remember his exact words but I think it was agreement.
Q. Lets talk a minute about the sniff dogs, that is the drug dogs. When did you first learn they were going to be brought on the premises?
A. I learned this from my coordinator , Mrs . Burch.
Q. From Shirley?
A. Yes, Shirley told me about it.
Q. Do you know when that was?
A. Late December I'm going to say. After the middle part, some where in there.
Q. Did you voice any concern?
o A. I told them they were doing too much now with the metal detectors and everching at the point they were at and also the other searches that they was performing Q. So you voiced your concern to Shirley; to anybody else?
A. No, I think Hensley and I may have one-had one conversation, I think he learned from Lieutenant Self who was his coordinator Q. Did Hensley also share your feeling that they wouldn't help in the undercover operation?
A. Yes. Definitely.
Q. Did he tell you that?
A. Yea, I think his words we re "hinderEundercover ," I mean the informant from getting to other areas because everybody would be uptight.
l Q. Was Hensley's informant the same informant you had?
A. Yes.
Q. So there was just one informant total?
O
l A. That's all we had, one informant.
Q. Were there--well do you know whether or not anyone , yourself, Hensley, Shirley or anyone objected to-told CP&L they objected to the use of the dogs.
A. My understanding from Shirley that she was going to voice an objection. .
Q. You don't know whether she did or not?
l A. No, I do not.
4 Q. Were the dogs ever brought out while you were there?
~~A. No, I did not see any dogs at all.~~
Q. What in your opinion--well I know you have said this several times, but why in your opinion would the bringing in of the sniff dogs have hampered or hindered the investigation.?
A. Well, no specific things you can point to. Just by the fact that it would discourage people from really selling to you and also bringing anything on site means we have to go off site to make all our deals and everything and, you know, that would just scare them and also the other thing if you were to take the dogs in a certain areas that we were working in we j wouldn' t-you know, we don't know how people would react because they, because everybody was uptight.
O Q. Did you ever have any information that higher leveled employees were 'l involved in the use and sale of drugs at the plant. l
] A. Yes, other than what we were working, people from the electricians that type crowd, but I had information that supervisors, safety officers and also some engineers were also users and selling drugs.
Q. Where did that information come?
A. This came from my confidential informant.
! Q. From M A. Yes.
i Q. Could, in your opinion, more have been accom lished p at the Shearon Harris plant?
i A. Yes.
t Q. How could more have been accomplished?
4 4
O 4
1 A. I think if we had gone back as we planned in January and reassessed where we were and what we had at that point and got a new informant that was
.O$ capable of getting into the areas and also keep the same informantM but also let him, you know put the-re-evaluate him and tell him whatelse we needed and also we could have still worked with him and also if Shearon i Harris would have cut down on their procedures they were performing,the gate searches and the metal detectors, I think a lot more could have been -
accomplished. Just let it be a mild atmosphere where people could feel-like they were getting away with something and we could have made more buys readily.
Q. So CP&L security should cut back on their stuff, the detectors, etc?
A. Yes, tell them you're doing undercover and let the undercover operation be the main operation at the plant.
Q. Was there a leak?
A. From information from the informant there was a leak from what he gathered l because he was getting the cold shoulder, people wouldn't talk to him, l questioning why he was back at work in a short period of time and why no charges, why wasn' t he in jail, things like that. Also the fact thar'he was approached by his ex-supervisor and was asked why was he back there and the supervisor was going to do something about it and things like this. Also, a woman came up to my informant and told him she knew who he j was.
Q. Do you think the undercover operation was terminated prematurely?
A. Yes, it was.
i Q. Well, even if everything kept up, I mean if the gate searches kept up, the
' metal detectors were used and say even the snif f dogs were brought in, 8 4
would i t have been any use to continue the operation under those circumstances?
A. Yes, it was from my intelligence and from talking with an informant, there were a lot more drugs there and a lot more could be caught with drugs.
I Q. You think you could have been effective even with the snif f dogs and the metal detectors and the gate searches?
A. It's hard to say but I think it could have gone on. But it wouldn't have been as effeetive.
Q. But those things did in fact-would hinder the investigation?
A. Right, definitely. The only thing that they would do, we probably would have to make our buys out in the parking lot somewhere or either of f the site. That would be a change or something like that.
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Q. Did anything occur during the investigation that you felt endangered your k life?
A. Not really, nothing I can think of just the mere the fact, you know, your general undercover fear, that was all. i Q. In covering some other things, how many times were you out on the job site? -.
Would ten to fif teen be in the neighborhood?
A. Yes. Right. Maybe more.
Q. What prevented you or why didn't you-if the investigation went two months lets just say that's 40 working days --did you operate--do they j us t operate during the week or do they operate on weekends too?
A. Well, we were just told to be there during the week.
Q. OK. Why didn't you go all 40 days?
A. Well, at the time that--we were still trying to get setup with, you know with my schedule , I was doing other things and that too. I was doing other inves tigations back in Greensboro that required my time back there and I was just doing this on the times when I didn't have--they said like two or cl'ree days a week you come down there and do this so that's what I was doing under I could get squared away here and come down there permanently.
Q. How many warrants did your work generate?
A. I think it was persons-three people.
Q. That was Hap, a guy named Dennis and a guy named Bulldog?
A. Right, correct. I was only going after the cocaine. Shirley told me to go after the cocaine, that's all; I was not interested in the marijuana or the PCP or other little drugs like that, I was trying to go directly after cocaine which was the main problem.
Q. I believe you said your cover there was as a production analyst.
A. Yes. g Q. And I think someone asked that once you were introduced to someone by the informant did you establish a relationship with that person and you said something about well it just didn't get to that point.
A. No it didn't.
Q. What did you mean by that?
O
F A. Well, it was first t ime--I ' ve go t--it was the first time meeting the j person and the informant made an introduction, you know but I did not go back I was trying to get as many people as I could on the first round I
because what happened. I didn' t want to get stuck on one person making buys off of just one person that way you every time see him you have to make a buy, you know give him your money if you--you know, I was just..
hopping around. I wanted to meet everybody I could on the first try.
Q. Now, I think they asked the question was the scope of the investigation limited by the small group of people that you knew through your informant.
Do you remember how you answered that?
A. I think he said the small scope of people the informant knew. The informant knew a lot of people but only in but he could only work certain areas because of the fact that--he was allowed to go all over the plant but he said he knew other people but it took time for him to talk to them about bringing somebody to purchase drugs from them because he had only made purchases himself from them but he needed time to tell them to bring someone in to make a buy.
Q. But the scope of the investigation would be limited by-just by the number of people he knew though, would it not or would it?
A. Yes, in a certain sense.
% And I believe you said fou really only concerned yourself with coke Q.
because it was number five on the list and so forth.
A. Right. And also the dealers and not your users.
Q. Did the informant do all he could or could he have done more?
A. Yea, definitely. He could have done more.
Q. Well, was eight weeks enough for the investigation?
A. No way. Not with that many people that we had on the list. I had worked undercover in cities and schools and everwhere else with the--we had what we called a projected list of twenty people and it takes at least two or three months, at least three months to get them.
Q. Do you feel like the undercover operation was unsuccessful out there and if so, why?
A. Yes , I feel like it was very unsuccessful Q. Why?
A. Number one it all goes back to the informant, I hate to keep drawing on -
that point, also the fact that if we had had at least two more undercover people there and could go in certain areas if they wanted the, you know,- a
good job done and also a little bit more intelligence could have been p
V gathered reference the people who were dealing and identify those people a little bit more but, you know, we come up with a name and they would tell us what area he was in and that was it. It was up to the informant to make an introduction and I think if we could have had two or three more informants working or either two, you now, not too many but two more informants could adequately introduced us to a lot more people. .
Q. Anything else that made it unsuccessful in your opinion?
A. It would be also the involvement-I don' t want to say non-law enforcement but the CP&L people that were not law enforcement oriented or trained were conducting drug investigations Q. Are you talking about the CP&L security people?
A. Yes, you know, it was like policy type investigation rather than law enforcement. Its a big difference because the way we get our evidence, you know, they gather just going in searching with no probable cause and I think that would, you know, it scared a lot of people. Somebody walks up to them and take something and searches them and takes it off of them, that would hinder them from dealing with you because they would think everybody was snitching on them.
Q. Well, do you think that the reason it was unsuccessful was primarily because of CP&L or just a combination?
A. It was just a combination of things, I wouldn't put it directly on them.
Q. Approximately how many undercover operations have you been involved in?
Drug operations that is?
A. Ok, total I would say in the estimate of 300 to 325.
Q. Are these all undercover?
A. Yes.
Q. When did you make your first drug buy at the Shearon Harris plant?
Approximat ely what date was it or how lor.g after you got there if you can't recall an exact date?
A. Lets see. I think I have the date.here. Let me look through my notes. I got here, its somewhere in the neighborhood of the middle of November of 1984.
Q. That was approximately how long after you first came on the premises?
A. It was approximately three days to a week.
Q. Was that a buy that you made youself?
A. That was a buy--I can remember the day it was on a Friday I made the buy and this was when I clamped down on the informant because everyday he would come to me and say there's nothing out there, people were uptight about the CP&L searches and all and sent out with him, it was about two o' clock that afternoon and he wet over to what they called the reactor building and met up with Hap Jordan and I told him that I needed to buy today and I don't give a durn where--who he got or who it wa s bu t we -
needed to make a buy and that was the buy that was made. -
Q. What do you consider to be the minimum amout of time to conduct a successful undercover operation at the Shearon Harris plant?
A. Well, I can go only by the list we were given. We were given approximately 50 to 75 names and in order to get that many people it would-I would say a minimum time of four months.
Q. Did you ever communicate your feelings about that particular issue to CP&L7 A. No. I was told anything to do with the way the operation was run or any voice or.any opinion to voice those directly to Shirley, that was told to me by my supervisor or directly to Charlie Overton.
Q. Why did you conclude that the use of metal detectors interferred in your work?
i A. Because from the informant--informant was coming back daily-everytime CP&L would perform a procedure to detect drugs or something at the gate or through the gate, the suspects would change their operation. They would change, you know, put the drugs in something else or, you know, they would have other ways to get the drugs in evertime they would come up with j something they would change the CP&L operations. So their latest thing j was to put the drugs in thermos. Thermos bottles and that way they could '
get them into the gate without anybody seeing them because they wouldn't open the thermos bottles.
Q. How many shifts did they have going out at the job site?
A. From my understanding they had two.
Q. And your work was confined to what?
A. The first shift.
Q. Was anybody working any of the other shifts to your knowledge?
A. No there wasn't. Informant--the people he knew were all on the first shift.
A. No, that's about it, nothing that I can remember.
O A-
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C)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter o f CAROLINA POWER & LIGHT COMPANY )
~~and NORTH CAROLINA EASTERN )~~
MUNICIPAL POWER AGENCY ) Do c ke t No . 50-400 OL
)
(Shearon Harris Nuclear )
Power Plant) )
DIRECT TESTIMONY OF C. J. OVERTON, III.
1 0 Please state your name and business address.
2 A. My name is C. J. Overton, III.and my 3 business address is 3320 Old Garner 4 Road, Post Of fice Box 29500, Raleigh 5 North Carolina, 27626-0500.
6 0 What is your present po sition?
7 A. I am employed by the North Carolina 8 State Bureau of Investigation, De par tmen t 9 of Justice (SBI) as a Supervising Agent.
10 0 How long have you been in that position?
O I l
1 A. Approximately eight years.
, es -
(_) 2 0 Would you brie fly summarize your law 3- en forcement experience?
4 A. I have been with the SBI approximately 5 fif teen years, almost all of which has 6 been in drug investigations. In my 7 capacity as an SBI agent, I have 8 supervised two state-wide task forces 9 aimed at drug smugglers and clandestine 10 lab opera tors. I have personally been 11 in charge of two inter-agency narco tic 12 squads. I have worked extensively as 13 an undercover agent and have directed
() 14 numerous undercover operations.
15 Currently, I supervise for the SBI 16 sixty drug agents throughout the state.
17 Q. Turning your attention to the undercover 18 drug operation at Carolina Power & Light 19 Compan y's (CP&L) Shearon Harris nuclear 20 power plant conducted by tne SBI and the 21 Wake County Sheriff's Department (WCSD);
22 did you attend a meeting on October 17, 23 1984 at the request o f the WCSD?
24 A. Yes. Also attending the meeting were Agent 25 S. L. Burch of the SBI, Sherif f John Baker 26 and Major T. Lanier of the WCSD, 27 and Mike King and Glen Joyner of CP&L.
( 1 0 What took place at this meeting?
2 .A. Mike King sta ted that CP&L had discovered 3 a substantial drug problem at the Hbrris 4 plant. It was my understanding that 5 CP&L was getting pressure from the ,
6 NRC to remedy the situation.
7 King stated that they needed to look 8 into the problem and to do something.
9 King further requested assistance from the 10 WCSD by the placement of an undercover 11 agent inside the plant.
12 Sherif f Baker had requested that
() 13 I attend the meeting. He stated that 14 he did not have an experienced 15 undercover agent available and he 16 recuested that the SBI also assign 17 an undercover agent to the operation. I 18 informed Sherif f Baker that I would 19 comply with his request.
20 During the meeting, there was 21 discussion concerning drug purchases 22 and the identity o f drug users. King 23 stated that any employee identified as 24 using drugs would be fired at the 25 end of the operation.
1 O. Did yo u a t te nd a second meeting O 2 during the undercover operation at the 3' request o f the Sherif f's Department?
4 A. Yes. Also attending this meeting were 5 Sheriff Baker, Major Lanier and 6 Lieutenant Self of the WCSD; and 7 Mike King of CP&L.
8 Q. Wha t took place at this meeting?
9 A. There was discussion concerning the 10 movement of the undercover operation 11 to the second shif t'. Also, I in formed 12 King that I was making arrangements to 13 replace the SBI undercover agent with
. 14 another agent in an attempt to make some 15 more drug buys.
16 Sheriff Baker stated that he had been 17 informed that CP&L was going to bring drug 18 dogs into the plant and that CP&L planned 'a 19 major lay-o f f o f employees. These two factors 20 could cause problems with the operation. King 21 stated tha t he had no choice with the drug 22 dogs because CP&L was under a contract to use 23 them. Both Sherif f Baker and I expressed
]
24 concern over the use of the drug dogs to 25 King. We believed that the operation
(} 26 could be more successful by changing
~
r~%
V 1 shif ts and by bringing in a second agent.
2- Ho we ve r , bringing drug dogs into the 3 plant would severely hamper the undercover 4 o pera t ion . Again King responded that there 5 was nothing that he could do.
6 Sherif f Baker sta ted tha t he wa s no t go ing 7 to leave his agent inside the plant if the 8 drug dogs were used by CP&L. Sheriff Baker 9 asked me what the SBI would do and I agreed 10 that the use of ths drug dogs was an unnecessary 11 risk to the undercover agents that I wa s no t 12 willing to take. Therefore , we began talking (O
.) 13 to King about the plan to make arrests at 14 the plant.
15 O. Who made the decision to termina te the 16 undercover operation?
17 A. I did and Sherif f Baker did.
18 0 Why was it terminated?
19 A. The operation ended because of CP&L's 20 insistence on the use of the drug dogs 21 over the objections of the SBI and the WCSD.
22 O. In your opinion , had CP&L brought drug dogs 23 on site during the undercover operation, would 24 it have endangered the undercover agents?
{} 25 A. Yes. There wa,s a distinct possibility and
I the r is k wa s too grea t . In addition , CP&L 2- gave no valid reason for the use of the drug 3 dogs at this stage of the operation.
4 O. In your opinion was the termination of the 5 undercover operation premature?
6 A. Yes. It never got a chance to get started.
7 It would not be unusual for an operation of 8 this nature to have lasted for six months.
9 Q. In your opinion, was the operation a success?
10 A. No , no t from the SBI's standpoint.
11 O. Does this complete your direct testimony?
12 A. Yes.
O i
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m_ - - - - _ _ - - _ _
4 __ -- .- - - - . _ . . - ._
1 O UNITED STATES OF AMERICA V
NUCLEAR REGULATORY COMMISSION i
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CAROLINA POWER & LIGHT COMPANY )
i and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL l MUNICIPAL POWER AGENCY )
)
. (Shearon Harris Nuclear )
Power Plant) )
SECOND AFFIDAVIT OF S. L. BURCH County of Wake )
)
~~State of North Carolina )~~
My name is S. L. Burch and I am employed by the North Carolina State i Bureau of Investigation as an Assistant Supervisor of Drug Investigations.
During the undercover operation which began in November, 1984 at the Shearon Harris Nuclear Power Plant, I was the imsediate supervisor of undercover agent Don Williams. As such, he reported directly to me as to the progress of the operation.
1 My earlier af fidavit, which I filed in this proceeding, is attached i to this statement, and I reaf firm the statements I made therein. That affidavit was based on personal knowledge and information received by me el mugh Agent Williams, intelligence received thru the SBI, and numerous conversations with Lt. Self of the Wake County Sheriff's Department.
L/ Y h/AI i S. L. Burch
,O
~~Sworn andj ubscribed to before me~~
/'fv day of Sep,temb r.1985.
thi}
\
, s2/z@c a L b -- 1# - ---
( ')
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICE" SING SOARD In the Matter of CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Do c ke t No . 50-4 0 0 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear )
Power Plant) )
AFFIDAVIT OF S. L. BURCH Co un ty o f Wa ke )
)
Sta te o f North Carolina )
S. L. BURCH, being duly sworn according to law, deposes and says as follows :
t
1. My name is S. L. Burch. My business address is 3320 Old Garner Road . , Post Of fice Box 29500, Raleigh, North Carolina, 27626-0500. I am employed by the North Carolina State Bureau of Inve s t iga tio n , Department of Justice (SBI) as an Assistant Supervisor of Drug Investigations, Capital District. I worked as an undercover agent for the SBI approximately eight years througho ut the state o f North Carolina. I have attended several drug investigations schools. I am now responsible for drug investigations involving the SBI within the Capital District which !
(~T consists o f nine counties. I have been emplo yed by the SBI since k.)
No vembe r , 197 5.
p .l V *
2. I have read the 9 July 1985 af fidavit of Michael W. King on behalf o f the Applicant , Carolina Po we r & Light Company (CP&L) which was filed in this matter 12 July 1985 in response to Con te n-t io n WB-3 . In addition, I have reviewed Mr. King's af fidavit with Lieutenant Ray Self and Deputy K. G. Hensley o f the Wa ke County Sherif f's Department (WCSD).
~~3. The purpose of my affidavit is to respond to the asser-tions made by Mr. King in his affidavit and to explain in greater detail the undercover operation at the Shearon Harris Nuclear~~
~~() Power Plant conducted by the WCSD and the SBI in October ,1984.~~
4. On 17 October 1984 I attended a meeting at the request of the Wake County Sherif f's Department. Also attending this meeting were Supervisor C. J. Overton, III of the SBI; Sheriff John Baker and Major T. Lanier of the WCSD; Mike King, head of CP&L security and Glenn Joyner, CP&L security officer. During this meeting, Mr. King advised that it had been brought to CP&L's attention that there was a drug problem at the Harris plant. He further advised tha t the Nuclear Regulatory Commission was putting pressure on CP&L to look into the problem. Ultimately, Mr. King requested that the WCSD aid in this investigation by placing an undercover o pera tive inside the Harris plant. Sheriff Baker indicated tha t
() he was limited in manpower , speci fically , experienced manpower.
( -
However , he agreed to assign an individual to act as an undercover person. Simultaneously, Sheriff Baker requested tha t the SBI assist them by furnishing an experienced undercover operative to (ork jointly with the WCSD. Drug Investigations Supervisor Overton assured Sheriff Baker that the SBI would assist in wha tever way possible. ,
5. The undercover operation began in November ,1984. The undercover operatives were Wake County Deputy K. G. Hensley and Special Agent D. Williams (Williams is no longer employed by the
() SBI but is now employed as an agent with the Drug Enforcement Administration of the United States) . Using a confidential source provided by CP&L, undercover purchases were made almost immedia tel y. The undercover purchases were monitored by Wake County Decuty Lieutenant Self, the head of the Sherif f's Department drug unit. It should be noted that the undercover of fi:ers and the confidential source were also reouested by CP&L to xovide their security with the names or identification numbers
( found on each employee's hard hat) of anyone seen with or using a l controlled substance. The officers comolied with this request.
~~6. The operation was not without problems. Aoprox ima tely two to three weeks into the undercover operation CP&L initiated a~~
() ga te search using metal detectors. This procedure slo wed the progress o f the undercover operation. Deputy Hensley reported l l
1
() -
tha t this procedure had never been done be fore and that the employees from whom he had been purchasing drugs began to repo rt tha t there was a " snitch" on the site. He further sta ted that
'CP&L could have stopped this procedure but did not.
7. Furthermore, Lieutenant Self reported that he was advised by the confidential source that Mr. King and Mr. Joyner were searching stash areas on-site af ter they were informed o f the stash areas by Deputy Hensley. Lieutenant Self stated that he instructed Hensley to cease reporting stash area locations
() to CP&L security in order to insure Deputy Hensley's safety. On another occasion Deputy Hensley received information that two employees were to bring a large amount of marijuana inside the plant. Deputy Hensley recuested that CP&L security allow the two individuals to pass through the gate. However, CP&L officials did not allow the two individuals to enter the plant; but instead stopped them at the gate , searched them, and obtained over an ounce of marijuana from each individual. This event caused further talk of a " snitch" operating inside the plant.
~~8. Lieutenant self advised tha t during this same time period Deputy Hensley began to develop intelligence which indicated that there were several cliques dealing drugs at the Harris clant~~
l- !
l
( -
! involving several hundred people which ranged from the supervisory
level; to the secretarial level; to the actual work force. Drug dealings were taking place primarily inside the Harris plant, ;
outside in the parking lots and in a nearby grocery store.
i j Lieutenant Self stated that Deputy Hensley was obtaining infor- !
i mation that a supervisor with either Daniels or CP&L was allegedly making trips to Florida and picking up pound quantities of pure cocaine which was being distributed by an identified suspect.
l This supervisor allegedly worked in the main construction
() building. Attempts to make a cocaine purchase from the identified .
suspect were made. However, the termination of the undercover 4
operation precluded any possible results.
~~9. Deputy Hensley reported that he made his first drug~~
. purchase after being on-site only one and a half hours. As a conservative estimate, he stated that he observed at least one hundred employees using drugs while on the job. These drugs :
included cocaine and marijuana. The employees included welders i and electricians. Employees dealing in drugs included safety personnel and a quality assurance person. The OA person's duties
] included inspecting electric pulls. Deputy Hensley reported that i
this person was dismissed af ter he identified the person to CP&L ;
() security.
}
4 1
i
p j U -
~~10. Towards the middle of December,1984, a plan was.~~
formulated in furtherance of the undercover operation to move the two undercover operatives to the second shif t. At tha t time ithe two officers had only worked on the first shift. Supervisor Overton and ! made arrangements to withdraw Special Agent Williams and to replace him with another agent. Lieutenant Self contacted Mr. King in re ference to this plan. Mr. King advised Self that CP&L was planning to bring drug dogs into the Harris plant. King further advised that they were planning a lay-of f of some of the O)
(, employees . King could not guarantee that the people from whom undercover purchases had already been made were going to stay. At this time Self contacted Sheriff Baker.
11. Another meeting was called at the request of Sheriff Baker. Attending this meeting were Sheriff Baker, Major Lanier, Lieutenant Self, Supervisor Overton and Mike King. Sheriff Baker advised King that the undercover operation needed to float to the second shif t. Sheriff Baker then inquired as to the proposed use of drug dogs. King responded tha t he thought that everything was being misunderstood. Sherif f Baker asked King if Cp&L was going to delay the use o f the drug dogs. King stated that they were no t because they had already entered a contract. Sheriff Baker and
() Supervisor overton made the decision to cease the undercover operation so as not to endanger the undercover of ficers.
4
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\
_7_
12. On 10 January 1985, eight individuals employed at the Harris site were arrested. Presently, seven of the eight have pled guilty. In addition to these eight individuals from whom purchases of drugs were made by Deputy Hensley, he reported to CP&L the names of fifty-one (51) employees as having been seen with or using drugs. Lieutenant Self reported that all of these individuals were dismissed from the Harris plant.
13. On 25 June 1985, I discussed the drug situation at the Harris plant with the other undercover of ficer, former Special O Agent Williams. He stated that during the undercover operation the intelligence being received indicated that there were employees in higher levels than those with which he was dealing that were involved in drug trafficking. Williams stated that in his opinion there was more work that could have been -
accomplished. He also noted that due to information received from a confidential source he felt that there was a leak at the Harris plant regarding the fact that there were undercover officers being utilized in the plant.
~~14. The termination o f the undercover operation was premature. The termination was not made because the undercover :~~
1 l
operation was complete; or because the law enforcement agencies O
1
()
conducting it recommended termination; or because of any lack i
o f suspects. The sole and exclusive reason for the termination by the SBI was CP&L's insistance on bringing in drug dogs prema-turely; thus, creating a substantial and too high a risk to the personal safety of the law enforcement of ficers if they remained in the undercover operation with drug dogs on-site. CP& L wa s informed of this risk and was requested to defer bringing the dogs
_ on-site until the investigation was substantially complete . When CP&L insisted on the immediate use of the drug dogs, CP&L was advised that the undercover operation would be terminated. At CP&L's insistence, the drug dogs were to be brought on-site and the undercover operation was immediately te rmina te d .
15. Based on my evaluation , it is my opinion tha t the undercover operation was not a success. It was terminated far too early because actions by CP&L endangered the lives of the under-cover officers. Personal observations and intelligence gathered by the of ficers indicated that drug dealings and drug use were widespread at the Harris plant. Had the undercover operation been allowed to safely continue , to expand to other shif ts , and to have been terminated by the law enforcement agencies; any appraisal O
O I
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of the extent of the drug problem at the Harris plant would have been more accurate and subsequently more arrests would have been effected.
/ /' /?p tr S. L. Burch O Sworn and subscribed to before me this - da y o f' .< , 1985.
.' a t
- . t '- L . .
Notary Public
~
My Commission expires .
O
9275 Sim 15-4 j MR. COLE: Your witnesses?
CN JUDGE KELLEY: Thank you. I am trying to ---
2 v
3 MR. BARTH: Your Honor, may I have a point of 4
order ---
MR. BAXTER: He is looking at all the hopeful 5
aces?
6 I
(Laughter.)
7 JUDGE KELLEY: Right. I don't know if we have a 8
rule for this.
9 Well, Mr. Baxter, would you like to go first?
10 jj MR. BARTH: Your Honor, I have a point of order.
12 JUDGE KELLEY: Okay.
13 MR. BARTH: I would like to make certain that.
34 the copy given to the reporter has had the informant's name r indication excised as previously agreed upon.
15-16 JUDGE KELLEY: There is a reference in Ms. Burch's j7 affidavit; is that right, or where?
MR. BAXTER: Mr. Williams' statement, 18 j9 MR. BARTH: Mr. Williams, Your Honor.
20 JUDGE KELLEY: Mr. Williams.
MR. BARTH: I don't know what the Attorney General 21 22 gave the reporter.
MR. COLE: I haven't given the reporter anything.
23 24 MR. BARTH: If the reporter can't bind this de4#rol Reporters, Inc.
25 into the record, we are back to base one.
l
. . _ - .. . = . _ __._. . . _ _ _ _ . _ . _ - _
i j 9276 I Sim 15-5 JUDGE KELLEY: When you supply the reporter with I
copies of the testimony, Mr. Cole, could you just be certain that that deletion is made?
s 3 i MR. COLE: We will excise that.
JUDGE KELLEY: Well, Mr. Baxter, are you willing to go first? I am not sure what the priorities here ought I to be.
1 7
f Isoes anybody else want to go first?
i 8 (Laughter.)
9 (No response. )
10 j)
JUDGE KELLEY: Okay. The applicants will go first. ,
CROSS-EXAMINATION 12 j
IN 7 BY MR. BAXTER:
V 13 j4 Q Agent Williams, is it correct that you attended, j ng with your counsel, a meeting with Mr. Plueddemann and 15 g Mr. Joyner and some CP&L lawyers in Raleigh on September 11, j7 1985? Do you recall that, at Mr. Cole's office?
jg (Witnesses. Conferring) j9 JUDGE KELLEY: Gentlemen and lady, let me make 20 a pr cedural point. It is perfectly okay to confer, but we w uld like you to confer on the record so thectranscript 21 22 will reflect that also.
with that understanding, go ahead.
23 24 WITNESS WILLIAMS: Mr. Baxter, I will try to hfLAl Repeate,s, Inc.
25 get a close date to that meeting that I attended.
4
l 9277 !
B 15-6 Do you remember the date that I came to Raleigh?
1 l A JUDGE.KELLEY: I don't know that the reporter 2
v an hear you?
3 MR. BAXTER: Well, Mr. Williams, it is the 4
testimony of Mr. Joyner and Mr. Plueddemann that it occurred on that date. Would you accept that subject to check?
MR. COLE: We will stipulate that such a meeting 7
w s held. I am not sure of the date either, and the 8
participants, that is correct, Mr. Williams.
9 WITNESS WILLIAMS: All right, yes.
O
)j BY MR. BAXTER:
O If your statement a transcription of a conversa- .
tion that you had with counsel following that meeting at some point?
A (Witness Williams) Yes, it is.
g Q Was it your intent to atempt to duplicate essentially the discussion that had taken place at the
"" "9 18 A Yes, it was.
g Q Have you previously seen a copy of the applicants' 20 testimony that you were just provided with?
g A No, this is the first time.
g Q By way of explanation, Agent Williams, we tried g in a couple of places in there to do the same thing that NFLJ Reporters. gg g g g g
9278 Sim 15-7 1 the meeting. And I am not going to go through them all
() 2 because I think by and large they are consistent. There 3 are only two places where I think I want to get clarification.
4 If you could turn to page 38 of that applicants' 5 testimony for the moment.
6 The second full paragraph, which has the initials 7 of D. Glenn Joyner and Michael L. Plueddemann and beginning 8 "During our meeting of September 11 . . . " would you read 9 that please to yourself.
10 (Pause.)
11 Now on page 12 of your statement today you indicatet 12 that the operation could have gone ahead with the drug dogs m
(v ) 13 searches, although it would have been less effective. Do I 14 take it then that you are confirming our recollection of 15 your statement that you don't think your personal safety 16 would have been endangered by the dogs?
17 A I would say that my statement on the record today, 18 if I may explain it a little bit further, if I might, is I 19 have never seen drug dogs used in that type of setting. So 20 I would not know what type of danger it might impose upon 21 myself.
22 0 Well, about two-thirds down the page on page 12 23 of your statement, and actually the next to the last question 24 and answer, "Do you think you could have been effective even A<w 9at
.. a. port.ri, inc.
25 with the sniff dogs and the metal detectors and the gate
i 9279 t !
sim 15-8 "It is hard to say, but I think l 1 searches?" And you say, l
() 2 it could have gone on."
3 I just assumed that you wouldn't have proposed I 4 going on if you had been worried about your safety as a 5 result of the dog searches. Is that incorrect?
6 A If I was worried about my safety, I think I would 7 have conferred with my supervisor and then probably would 8 have went on if we had come to a consensus that it was okay.
9 If he said drop it off, I would have dropped it off, but 10 it wouldn't have been my decision. It would have been the 11 decision that the supervisor would have made.
12 0 Would you have a concern for your personal safety f) 13 if the drug dogs had been brought onto the sight for random v
14 searches while you were there?
15 A I would have had a concern, yes.
16 0 What would that be?
l 17 A I wouldn't go as far as say it was an endangerment l
18 or the likelihood of death or something, but there is always 19 a general concern about in- type of intervening, in any 20 type of undercover operation that you are in that you are l
21 playing a different role model whereas you are not known to l 22 be law enforcement. That is about the only concern I would 23 have had.
(~) 24 0 How might the dogs doing random searches about A<.4_llR. pore.ri,Inc.
25 the site have identified you as involved in law enforcement?
l i - _ - - _ - _ - __- _____--- _ ___ - __ _ _ _ - _
9280 sim 15-9 j A : would go back to my original statement. I have 1
never seen dogs used in that type of situation. So I would
("')
2 3l not know. And I would not like to offec an opinion on that 4l because I have never seen it performed in that manner.
5 O S y ur testimony now is that you don't have an 6
pini n as to whether or not your safety might have been 7 endangered?
A No, I don't think I had better.
8l 9
A .(Witness Overton) Excuse me, Judge. What is the 10 format here? Am I able to speak after Agent Williams 11 finishes?
12 JUDGE KELLEY: Yes. The questioner can pick
^
() 13 the person to whom he wishes to put the question. Once that x_ -
14 Person has finished answering or has said they don't know, 15 then anybody else on the panel who feels they can contribute 16 to that particular answer can come and then do so.
17 MR. BAXTER: Although in this case, Mr. Chairman, 18 the question was uniquely aimed at what Agent Williams 19 own self-perception was about the dogs and not about 20 technology ---
21 MR. COLE: Well, Your Honor, it will' stave off 22 sone redirect later if you will go on and let Mr. Overton 23 say it, because you know we will be coming back at that.
24 JUDGE KELLEY: Excuse me?
(~]
Ace-CJ Reporters, Inc.
25 MR. COLE: I said it would stave off some redirect
.__________-_-_--__1
9281 Sim 15-10 1 later because you know we are coming back at that.
2 JUDGE KELLEY: But there is no terribly bright 3 line on a lot of these points. The general principle is 4 that people can contribute. I suppose a question that 5 says did yo't say such and such on such and such a day, the 6 cntwer is yes or no, and maybe it is uniquely directed.
7 Do you want to repeat the question here and we 8 can make a judgment on that, or are you willing to allow 9 the answer to proceed from Mr. Overton?
10 Do you want a repeat of the question?
11 MR. BAXTER: Well, the direct question boiled 12 down to its assence was did Agent Williams feel that if drug 13 dog searches had been initiated while he was at the Shearon 14 Harris site that he himself felt it would have been a danger 15 to his safety or a threat to his safety.
16 JUDGE KELLEY: Wel, yes, but then once he answers 17 that, if Mr. Overton has an opinion on the question, can't 18 he volunteer that? I would think so.
19 MR. BARTH: Your Honor, the staff ---
20 MR. BAXTER: Fine. I mean that is nou my question, 21 but he wants to we can d., it now.
22 MR. COLE: Your Honor, I might point out 23 Mr. Densinger would have never been able to open his mouth 24 had we adhered to that rule.
Ace-F er.-; l Reporters, Inc.
25 JUDGE KELLEY: Well ---
~~9282 Sim 15-11 MR. BAXTER: That is different, Mr. Cole.~~
'~'
JUDGE KELLEY: Gentlemen, I think this is
' ._;) 2 unraveling a little bit and the whole matter is not that 3l important. In this particular instance, Mr. Overton, if you want to add something, go ahead.
WITNESS OVERTON: I was only going to add the fact that with undercover agents that they are not as 7
concerned about their personal safety as their supervisors are concerned about their personal safety. And very often 9
3n undercover agent will continue in an operation, whereas jy a judgment has to be made by the supervisory to terminate that operation.
12
"'s 13 JUDGE KELLEY: On another subject, I have been t/
g handed some words from the reporter that goes to your Correction, and maybe We Can just wait until the break to deal with that.
16 Go ahead, Mr. Baxter.
j7
. ER:
18 Q Mr. Williams, would you turn to page 41 of the 39 pplicants' testimony, please. You have testified in your 20 profil d today that one of the things that could have 21 en bled the operation to have gone on out there would be to 22 get a n w inf rmant; is that correct?
23 24 A (Witness Williams) Yes, I did.
Ace F9eral Reporters, Inc.
Q Now here in the middle of the page we are 25
9283 N" ~
indicating that during our meeting with you, Mr. Plueddemann 1
() 2 and Mr. Joyner have testified that you expressed the view 3 that an extended operation with Deputy Hensley, a new SBI 4 agent replacing you, but no inside informant would not have 5 been successful. Is that what you stated to us? Is that 6 a correct report of what you stated?
7 A I will say to my knowledge at this point, no.
8 To my knowledge at this point -- I always said that a new 9 informant would make the operation more successful.
10 0 But do you think the operation could have gone on 11 successfully with no informant?
12 A I wouldn't think so because of the short amount
() 13' of time we was out there.
~
14 0 would you turn to page 14 of your statement, 15 Mr. Williams. The third answer up from the bottom, and 16 I want to make sure we are talking about the same thing. We 17 have had testimony from CP&L people, security people that 18 you and Deputy Hensley were given a list going into the 19 operation of about 20 employees who were suspected. Is that 20 what you are referring to in this answer?
21 A Let me read the answer. "Yes, I feel like it 22 was very unsuccessful. . . " is that the same that you have 23 got?
O b r u n.p.
~~i. Inc.~~
24 0 No. It is on page 14 at your testimony. It starts 25 "No way . . ."
9284 Sim 15-13 i It is the third answer up.
() 2 A Okay. I have got the wrong one. I am sorry.
3 Just give me a minute her to read this.
4 Q Sure, take your time.
5 (Pause.)
6 A Now would you ask your question again, please?
7 Q Are you discussing the same thing that our 8 witnesses were that you had a list from CP&L security going 9 into the operation of about 20 suspected employees?
10 A No. I am talking about a list of 50 to 75.
11 Q Well, what does the list of 20 people indicate 12 in your answer?
() 13 A This is referring not to the CP&L setting, but 14 a different setting. I think I mention here cities, schools 15 and elsewhere of 20 people. It takes that long to get that 16 many people within cities without this setting, if you 17 understand that.
18 Q It is your memory that you had 50 to 75 - .do-.you 19 think the CP&L security people have just got their records 20 incorrect and you don't think there is any possibility that 21 your memory is in error and that you weren't given 50 to 22 75 names? Their testimony has been that you got 20 going in.
23 A Well, see, I didn't know that. I didn't know
(~) 24 what you were referring to. Going into the operation I be-FLJ Reporters, Inc.
25 can't remember exactly how many names that CP&L gave me, but
9285 S m 15-14 l 1 at the first day of the operation at the plant, within the
() 2 first week, our total was 50 people. Now I don't recall 3 them giving me 20 people.
4 Q Your total of what was 50?
5 A This was the list of people that we had comprised 6 of. Deputy Hensley sit down and made up a list of all the 7 people that we were supposed to look into involved in drug 8 operation, and that was a total of 50 on that list there, 9 but I can't remember a list previous to that list of being 10 20.
11 Q Deputy Hensley's testimony I believe is that 12 at the end of the operation there were eight arrests and
() 13 a list developed of 53. So you don't mean to say that there 14 were 50, that you had a list of 50 the first week, do you?
15 A It was approximately 50 or something on the 16 list. I can't exactly be sure of the number, but I would 17 say in that neighborhood.
1 18 0 That would mean you only got three more on the l l
19 list in that following seven weeks? l I
20 A This is the list that I saw. I was not there 21 every day, and I was not at all the meetings. I am just 22 saying the list that I saw.
23 Q Ms. Burch, Agent Williams indicated in his 24 testimony that he spoke with you about the metal detectors el Reporters, Inc.
25 instead of talking to CP&L. Is that correct as far as you
9286 Sim 15-15 1 know?
2 A (Witness Burch) I believe he did say something 3
to me about the metal detectors.
4 Q The CP&L witnesses have testified that they 5 were not contacted by anybody in the SBI about the metal 6
detectors at the time. Did you contact them?
7 A No, sir.
8 0 You state in your second affidavit that during 9
the operation you were the immediate supervisor of Agent 10 Williams. Why wasn't that stated in your first affidavit?
II A It was not directly stated in my first affidavit, 12 but I think I stated fairly clearly that I am responsibl6.
O ia for the drue inveeeiseeione inve1 vine ehe SeI within the I
Capital District, which consists of nine counties.
15 Obviously I live here in Raleigh and that would 16 include Wake County, and obviously this was an investigation.
I7 This would not only pertain to Mr. Williams, but would 18 pertain to any agent doing undercover work in this district.
I' Q Mr. Joyner testified that he telephoned you some-20 time in December of 1984 to discuss Agent Williams' 21 attendance. Do you recall that phone conversation?
22 A I certainly do.
23 O
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25
~~ond Sim Sus fois~~
~~l 9287~~
~~16-1-SueW 1 Q Were you aware prior to Mr. Joyner calling you r i~~
2 that Agent Williams had not been on the site five days a 3 week?
4 A (Witness Burch) I was.
5 Q Did you say -- do you recall saying to Mr.
6 Joyner during the conversation that you would have to contact 7 Mr. Williams' supervisor in Greensboro?
8 A No, sir. I recall saying that I would be 9 contacting his supervisor in Greensboro.
10 Q Okay. How were you aware of Agent Williams' i'
11 attendance prior to Mr. Joyner telephoning?
12 A I was aware of it in several ways. From talking k 'l 13 to Mr. Williams myself and realizing he was not on site as 14 much as we wanted. Also, in talking to Lieutenant Self, 15 and a conversation or two with Investigator Hensley.
16 I might add that we had also made preparations l
17 to correct this problem. And we did perceive it as a 18 problem. l i.
19 0 Would you refer to Paragraph 7, Ms. Durch, of ;
l 20 your affidavit? !
l 21 About six lines down into that, you begin a l l
22 discussion, "On another occasion, Deputy Hensley received 23 information. . . " et cetera. These are about two employees
(_) 24 who reportedly were going to bring marijuana on to the wa-FMw;j Rmorurs, im, 25 site.
9288
~~16-2-SueW 1 There has been testimony from the Applicants'~~
\j-2 witnesses that the SBI was not involved in this particular 3 incident in any way. And there is nothing in Agent Williams' 4 testimony about it.
5 Is that correct? Do you have any firsthand 6 knowledge about these events?
7 A We were not involved in that decision.
8 MR. BAXTER: Mr. Chairman, this is nothing 9 personal against the witness, but we have had testimony 10 today by the people who were actually involved in these 11 events and I think it contradicts the testimony here.
12 MR. COLE: We will so stipulate that it contra-( ,
\_) 13 dicts it. We weren't involved. She reported it as it was, 14 as it was told to her, Judge.
15 MR. BAXTER: I would respectfully move that it l
16 be striken, and it's unreliable at this point, then . It's ;
1 17 hearsay which has been contradicted by the declarant, as j 18 counsel just admitted. j 19 MR. COLE: You are talking about the particular 20 part about the gate search?
21 MR. BAXTER: That's correct.
22 JUDGE KELLEY: Hold on just a moment. Let me re-23 read the paragraph.
I 24 MR.BAXTER: Only the part that starts about seven
[)
WFeder) Reporters. Inc.
25 lines down.
1
9289 '
~~16-3-SueW 1 JUDGE KELLEY: "On another occasion, Deputy~~
, ).
-' 2 Hensley. . . " and so forth?
3 MR. BAXTER: Yes, through the remainder of the 4 paragraph.
5 (Pause.)
6 JUDGE KELLEY: And your point is that other 7 witnesses have testified to a different effect?
g MR. BAXTER: Everyone involved.
9 JUDGE KELLEY: All right. And that this is 10 hearsay, so then you are arguing it should be striken?
i 11 MR. BAXTER: Yes, sir. l 12 JUDGE KELLEY: Okay. Mr. Cole.
~~13 MR. COLE: Well, Judge, I didn't stipulate that 14 we would agree to strike it. I thought I stipulated --~~
15 JUDGE KELLEY: I understand that. I didn't 16 say you did. j 17 MR. COLE: Yes, sir. We will stipulate that j It's a !
18 there is a discrepancy. We weren't involved.
I discrepancy. I still don't think -- as other matters have 19 1
i We I 20 gone in the record, I think they ought to go in. I i
21 will show it as a discrepancy. l l
22 There is whatever testimony there was today 23 from Mr. Hensley and others.
/
(m) 24 JUDGE KELLEY: Well, we have heard from both Aca-Federd Reporters, Inc.
25 sides. We will be taking a break shortly, and we will rule l l
9290
~~16-4-SueW 1 thereafter. Okay.~~
() 2 We may be up to about a break time. It's 4:30. Let's take a ten minute break. Is it okay?
3 4
MR. BAXTER: Yes.
JUDGE KELLEY: All right, ten minutes.
5 6
(Whereupon, a recess is taken at 4:29 p.m.,
7 to reconvene at 4:42 p.m., this same date.)
JUDGE KELLEY: All right. We can go back on 8
the record. Two things. First, the change that was made 9
10 by Ms. Burch in her statement, we had the concept and we 11 left it to work out the exact words.
12 And Ms. Burch and I and Mr. Cole talked about
() 13 this briefly at the break. And if you turn to Page 2, we 14 have some wording.
15 Looking .at the sentence beginning, "He further 16 advised that. . . " at the bottom of Page 2. And beginning j7 after the word "that," beginning with the phrase, "The 18 Nuclear Regulatory Commission..." down to the end of 19 the sentence, "...look into the problem." Strike those 20 words out on the fifth and fourth lines from the bottom.
And substitute the following words: "CP&L 21 22 was receiving pressure internally to look into the problem 23 because they would be applying for an NRC license to
() 24 hee-Federd Reporters, Inc.
operate the plant." That's the end of the substituted 25 language.
i 9291
~~16-5-Suew 1 So that I will read it through. "He further~~
-J 2 advised that CP&L was receiving pressure internally to 3 look into the problem because they would be applying for 4 an NRC license to operate the plant."
5 Is that satisfactory, Ms. Burch?
6 WITNESS BURCH: Yes, sir.
7 JUDGE KELLEY: We had just before the break a 8 motion to strike language on Page 4 of Ms. Burch's testimony, 9 beginning halfway through the first full paragraph, begin-10 ning with the words , "On another occasion, Deputy Hensley..."
11 and so forth, to the end of the paragraph, concluding with 12 the words "... operating inside the plant," on the basis
.(./ 13 that it was inconsistent with prior testimony and the 14 stipulation that that was the case.
15 We are going to deny the motion. The testimony 16 sought to be striken and the earlier testimony is inconsistent.l i
l 17 It may be under the circumstances that the prior testimony is i
18 more weighty.
19 Be that as it may, it goes to weight and not to j i
20 admissibility. We will just note in the interest of con-21 sistency we had a ruling earlier today. The Appliccants 22 had a hearsay statement attributed to Ms. Miriello which 23 was denied by Ms. Miriello.
e's
() 24 a-Federif Reporters, Inc.
We had a motion to strike, and we denied that l
25 motion for much the same reason. It's evidence that.
9292
~~16-6-SueW l is in the record. And the circumstances and contrary 2 evidence will go to weight and will be weighed, so the 3 motion to strike is denied.~~
4 MR. BARTH: Your Honor --
5 JUDGE KELLEY: Yes.
6 MR. BARTH: With regard to your prior ru ' .mg, 7 it appeared upon Page 15 of the testimony of Hindman, King, 8 Joyner and Bensinger. In that situation, we did not have 9 the primary declarant contradict the statements of the 10 hearsay, 11 The co-worker is primary declarant. He never 12 appeared. The situations are not similar, Your Honor.
t .1
\~/ 13 JUDGE KELLEY: Well, Mr. Barth, beyond re-14 arguing the point, the declarant that I was thinking about 15 was Ms. Miriello who supposedly said that she was going 16 to -- I can't even quote it again, but it was her statement l 17 that was in contest. l 18 Ms. Miriello was here; Ms. Miriello said she 19 didn't say that. ;
I 20 MR. BARTH: The hearsay was by the co-worker, '
i 21 not by Ms. Miriello, Your Honor. On Page 15.
I 22 JUDGE KELLEY: The statement that I thought was 23 pertinent, the statement that we were concerned about, was
(.,) 24 Ms. Miriello's statement. She denied it.
W-Feded Reporters, Inc.
25 At the time it was pointed out as hearsay, it I
l 9293
~~16 SueW j was pointed out on the basis of Ms. Miriello's statement.~~
/
) The ruling stands. I don't think the point is 2
Crucial anyWay.
3 The main point is, Mr. Barth, that we have got 4
conflicting testimony in the record. And, of course, that's why you have hearings. If you didn't have any conflicting testimony, we should have stipulated then 7
before we came down here. We expect to have conflicting 8
testimony.
9 g We will rule on it; we will weigh it, and then
)j we will make findings.
Let's proceed.
12 I 'l BY MR. BAXTER: (Continuing) v 13 g Q Ms. Burch, I believe it's clear from the context f that Paragraph 7 we have just been discussing, but 15 g those sentences that the Board has just retained, that information is all based on conversations you had with l
Lieutenant Self or with Deputy Hensley?
18 A It is, j9 g Q The sentence in Paragraph 4 that was just amended, g Ms. Burch, this is your recollection of a meeting of October 17, 1984?
22 A Yes, sir.
23 Q And what -- I can't help but ask what caused your
/~') 24 eFederN Reporters, Inc.
recollection since you signed the affidavit on July 31 of 25 l
1
9294
~~16-8-SueW1 this year to change in such a precise fashion about a~~
'x 2 statement made almost a year ago?
3 A My first recollection was as I put it, but it 4 didn't seem quite right to me. And the reason I remembered 5 it was because it was the first time that I had ever heard 6 the initials NRC, and they were referred to many times 7 during the meeting.
8 And I finally had to ask someone what NRC stood 9 fo r . When I realized what they stood for, and giving it 10 some thought, after I had made the statement I was able 11 to put it together in what I consider the proper fashion, 12 as the Judge has read to you.
13 Q Uh-huh. Mr. Joyner -- I don't think you were 14 here, but I don' t know whether your counsel related to you, 15 but Mr. Joyner testified several days ago when asked: Do 16 you recall anybody mentioning the initials NRC at that 17 meeting? ,
i 18 And he said yes, he thought he did in the context 19 that there were some anonymous complaints coming in from i 20 workers about drug use, and that he wanted to make sure the 21 Company closed those out because you could never know, l
22 someday the NRC might want to come in and audit those records 23 and look to see what CP&L had done about it.
f j 24 Does that fit with your recollection of the meet-W-Feder: Reporters, Inc.
25 ing?
9295
~~16-9-SueW 1 MR. RUNKLE: Excuse me. May I object to that~~
~
xj 2 question? If counsel could point us to some transcript l
l 3 reference, his memory is a lot dif ferent as to that question 4 and answer than my own.
5 JUDGE KELLEY: Well, it's -- can you point to 6 a transcript reference?
7 MR. BAXTER: No.
8 MR. RUNKLE: Is that a verbatim from the 9 transcript, sir?
10 MR. BAXTER: No, it's not, Mr. Runkle. The 11 witness is here if you would like to ask him again.
12 I'm very confident that's what he said.
/~ ;
i_J 13 JUDGE KELLEY: Well, it becomes awfully laborious i 14 if we have to go dig back.
15 In some important way, do you have a different 16 recollection? l.
I 17 MR. RUNKLE: I think that if the question is l l
18 going, whether that's exactly what he said -- l l
19 JUDGE KELLEY: No, no. He is not holding that -
l 20 out as a quote. It's a paraphrase.
21 MR. RUNKLE: Well, as a paraphrase, yes, I 22 would --
23 JUDGE KELLEY: All right. I think that's all it
,m i
( j 24 is, right?
W-Federal Reporters, Inc.
25 MR. BAXTER: Oh, of course.
I l
9296 l l
l l
~~16-10-SueW 1 JUDGE KELLEY: It's a paraphrase, right?~~
<' 2 MR. BAXTER: Yes.
3 JUDGE KELLEY: That's all it is. Can you 4 respond?
5 (Pause.)
6 After all of that discussion, do you need it 7 repeated?
8 WITNESS BURCH: I believe you really ought to.
9 JUDGE KELLEY: That always happens. Go ahead.
10 MR. BAXTER: Sure.
11 BY MR. BAXTER: (Continuing) 12 Q What Mr. Joyner recollects, using the initials I
) NRC, was to comment that under a program we have whereby
- 13 14 employees can anonymously submit information, they had been 15 getting some allegations of drug activity. And he wanted 16 to make sure that the Company could close out those complaints.
17 And one of the things he said was that some day l
18 the NRC might come and audit to see if these complaints f I
19 had been properly investigated and closed out.
20 A I don't recall it as you are putting it. I 21 do recall -- I mean, what you are saying sounds -- I recall 22 some about the complaints. I recall that part. I don't 23 recall it being used in the context of closing out the
() 24 W-Feder;! Reporters, Inc.
complaints before the NRC audits.
25 We were talking about a drug problem at Shearon
9297
~~16-ll-SueW l Harris, not addressing specific complaints. It's not my fx O 2 recollection.~~
3 Q Okay. Well, the complaints were about drug 4 activity. But, okay. Let's let that go. It's not that 5 important.
6 Would you turn to Paragraph 9 please, Ms. Burch?
7 The first sentence there which states that Deputy Hensley 8 reported he made his first drug purchase after being on 9 site only one and a half hours.
10 Earlier today, Deputy Hensley testified that 11 that first purchase was made by the confidential informant.
12 Do you wish to withdraw this testimony, or do I'T ,
'/
~- 13 you have some independent basis for maintaining that that's 14 the truth?
15 A No, sir. I don' t really have any reason to 16 withdraw that.
17 Mr. Hensley was present during that purchase. I 18 That was an investigation.
19 Q Oh, yes, ma'am. But the informant made the 20 purchase, did he not?'
21 A Well, that is correct. But at the direction of 22 Mr. Hensley and also under the supervision. It's what we 23 consider a controlled purchase so it would, in fact, be 24 Hensley's buy, so to speak, because he is in charge of the wFesww neconm, Inc.
25 informant.
l
9298
~~16-12-SueW1 Q Did you draft this affidavit, Ms. Burch? Or, 2 did someone draft it, you read it and then signed it?~~
3 A I did it with the assistance of Mr. Bryant.
4 Q Isn't it possible that someone could read this 5 sentence here and conclude that you were trying to get 6 across the message that a stranger to the site could walk 7 on to the site not knowing anyone and purchase a controlled 8 cubstance in an hour and a half?
9 And, in fact, that's not what happened, is it?
10 MR. COLE: Objection, Your Honor. I guess if I
11 we could fifty people to read anything, they would come 12 up with fifty different conclusions.
- 13 I don't know that she is qualified to say what 14 any of those might conclude.
15 JUDGE KELLEY: This strikes me as a fair ,
i 16 question. ;
i 17 MR. COLE: All right, sir. !
18 JUDGE KELLEY: Objection overruled.
19 WITNESS BURCH: Would you repeat the question? ;
20 MR. BAXTER: Yes.
21 BY MR. BAXTER: (Continuing) 22 Q Isn't it possible that by not specifying that 23 the informant bought it but rather leaving it this way that
) 24 Deputy Hensley bought it, someone could conclude that a m-Federal Geoorters, Inc.
25 total stranger to that plant work force could arrive on the
9299
~~16-13-SueW I job and within an hour and a half on his own purchase a~~
( )
U 2 controlled substance?
3 A It's possible.
4 Q That that could be read that way?
5 A It's possible it could be read that way.
6 Q Don't you think it's very likely it could be 7 read that way?
8 A It depends on who is reading it.
9 Q Would you turn to Paragraph 15, please?
10 In the second sentence there which you amended today to ,
II !
add the word "potentially," is this still talking about 12 the termination -- well, you say earlier that the exclusive i
13 reason for terminating the operation was CP&L's insistence j I4 upon bringing drug dogs.
15 Is this sentence, the second sentence of 16 Paragraph 15, still talking about drug dogs? l l
I7 A It is. l 18 Now you have added the word "potentially." I Q
19 Wouldn' t it be more accurate to say it was terminated far i 20 too early because actions by CP&L potentially would have '
21 endangered the lives of the undercover officers?
22 Isn't it true those dogs were never brought on 23 the site while the officers were there?
24 A That is true.
Asm-FaswW Reponen, Inc.
25 Q Would.you be willing to amend your testimony
I 9300 i i
~~16-14-SueW 1 accordingly and add the words "would have?" !~~
I )
V' A Certainly. !
2 i
3 Q Are you aware that this sentence as it previously i 4 was written has been widely reported in the press in the ,
i 5 area since you filed your affidavit on July 31st, and 6 interpreted that in your opinion CP&L actually did endanger 7 the lives of these agents?
8 A I'm not reading the news accounts.
i 9 MR. BAXTER: I have no further questions. ;
10 JUDGE KELLEY: Okay.
11 MR. COLE: Your Honor, before we move on, have 12 we in fact amended again Paragraph 15? ;
It's in the transcript. I don't I
/ 13 JUDGE KELLEY:
i 14 think we have to physically amend. !
15 MR. COLE: All right, sir. i 16 JUDGE KELLEY: It reads that way. The testimony 17 has that legal effect, I would say that.
18 But is your question whether we all have to write 19 it in?
20 MR. COLE: Well, I want to write it in. That 21 was my next question. What -- where does it go and what 22 were the two words that were added?
'23 JUDGE KELLEY: I thought it was "would have" !
,~ ,
, _) 24 after "potentially." Is that right? l Am-FMwW Reorters, inc.
25 MR ., BAXTER: That's correct.
9301
~~16-15-SueW l MR. COLE: All right. Thank you.~~
O 2 JUDGE KELLEY: Okay. I guess Mr. Runkle would 3 be next.
4 CROSS EXAMINATION 5 BY MR. RUNKLE:
6 Q Mr. Williams, you have been involved with under-7 cover drug investigations in quite a number of areas, 8 have you not? f l
9 A (Witness Williams) Yes, I have. l l
10 In fact, most of your experience in law enforce- l Q
t 11 ment has been in undercover drug investigations? !
12 A Half the time. i
() 13 Q At least half the time. Have you ever done any !
14 undercover work at large construction sites or anything 15 closely similar to the Shearon Harris site? !
i 16 A Yes, I have. I've done work in a close proximity l 17 similar to Harris, Shearon Harris, as a college setting !
i 18 type operation. !
I 19 Q Based on your undercover operation at the 20 Shearon Harris site, would you say that drug use at the 21 Harris site was widespread?
22 A I could say only the people that I've come in 23 contact with, that I've purchased drugs from, and the
) 24 data that I gathered fro:n the informant --
wesers Reportm, Inc.
25 Q Yeah.
9302
~~16-16-SueW l A -- it was drug uses was there. I couldn't say ,~~
I I l
2 widespread. My objection -- my analysis would be that l 3 it was a problem, a major problem.
4 MR. RUNKLE: I have no other questions.
5 JUDGE KELLEY: Mr. Barth?
6 MR. BARTH: The Staff has no questions, Your !
7 Honor. ,
8 JUDGE KELLEY: All right.
9 BOARD EXAMINATION 10 BY JUDGE CARPENTER: l INDEXXX II Q Ms. Burch, I would like to back away fror all 12 the details that we have been going through for the last i
(-
(~' I 13 four days and be sure I -- I have some trouble perceiving i
14 the forest for the trees. l 15 As I read your affidavit, I then ask myself the 16 ques tion, what do you think is in the public interest for 17 this Board to find?
18 What is the essential thrust of your affidavit?
I9 We have heard testimony that the Wake County Sheriff's 20 Department feels that some difficulties developed during --
21 at the conclusion of this undercover operation, because of ;
I 22 an unavoidable conflict between the objectives of the Wake 1
23 County Sheriff's Department and CP&L. !
fs
'- 24 And I would like to get your views as to whether koFMwJ Rgmnm, Inc. i 25 you would agree with that, that there was some conflict I
9303 l
016-17-SueW 1 because of the differences in objectives between the (D
s/ 2 Pcwer Company and your agency?
3 A Could I relay that question to Mr. Overton, 4 since he attended that meeting and I did not?
5 Q Yes.
6 A (Witness Overton) As I understand your question, 7 and if I'm off on the wrong vein please stop me --
i 8 Q Yeah. I 9 A I went to the second meeting prepared to intro- !
l 10 duce a second SBI agent and to commit full time to this l
l 11 undercover operation, because we as a Bureau were interested ;
12 in it, we felt like the Sheriff's Department was interested n
k-) 13 in it, and we hoped that CP&L was interested in it.
14 Agent Williams had admittedly only been able I
15 to attend on irregular hours on this job. He had other i 16 commitments as an SBI agent, and he also at that time l
17 realized that he was going to go with the Federal Drug i 18 Enforcement Administration and I think was tied up, you i l
19 know, making arrangements for that.
20 I went to the meeting, as I said, prepared --
21 I had already committed an agent. We had talked to the 22 agent in the eastern part of the State, made arrangements 23 for him to come up here, and we were going to be able to
() 24 Am-Feder:J Reporters, Inc.
free up some more money to pursue this undercover operation.
25 When we got to the meeting, we -- I found out m: =-e---u ,rw
9304
~~16-18-SueW i about the dogs. I felt like that there was a potential~~
/ i i
/
2 that this introduction of the dogs would pose problems, j 3 could cause potential danger to the agents. And I saw, 4 first, no hurry or no valid reason to start doing so.
5 Mr. King -- I asked Mr. King about it, 'and he 6 said that they were under contract and that they had to ,
7 go on with bringing the dogs in there. And this was the l
8 objection -- over the objection of Sheriff Baker and myself, i
9 It was my opinion that Mr. King really didn't i 1
10 have any choice. I don't think he was speaking for himself.
11 I think he was speaking for someone over him. ;
12 And we just felt like, you know, with that (J 13 attitude of us continuing in an operation that we really 14 weren't wanted in, if that was in fact the case, that it .
15 was too much of a danger for us to keep our undercover !
16 agents in there.
i END #16 1-7 Joe flws 18 19 20 21 !
I 22 23 !
i
^~
/ '\ b
( 24
\ ,
) l Am-Feder;. f;eporters, Inc.
25 t
17-1-JoeWal u 9305 1 Q I take it you didn't get any sense of the O 2 underlying -- apprent underlying objectives of bringing 3 the dog in, of trying to reduce the abundance of drugs on 4 the site as much as possible.
5 A (Witness Overton) No, sir. I didn't feel like 6 -- I felt like we had just begun an undercover operation i
7 that we had been asked to come in, and all undercover 8 operations that I have been associated with have highs and 9 lows.
10 The are going strong for a while, and then they l
11 slack up, and you have to -- when they finally give out, l l
12 then someone has to decide to stop them. l
) 13 !
The two agencies that had the undercover agents 14 in there, the two representatives being Sheriff Baker and 15 myself, felt like that this one should continue, whereas 16 in my opinion CP&L thought it should end. !
17 Q The reason for my pause is we have alluded to l
18 earlier in the week that there has been no NRC regulations l 19 which is the principal focus of this Board that relate to ,
i 20 drug use. !
21 There isn't a framework of law here or regulatory 22 compliance that I can put this situation against, to see 23 where it leads this Board.
24 Well, in my wandering question to you, Ms. Burch, nse-Federal Reporters, Inc.
25 I was trying to get some sense of where you think your
17-2-JoeWal 1 affidavit leaves this Board.
-' l 2 A (Witness Burch) The statement that I suppose -
3 that I would like, the outcome of my affidavit to the Board, l 4 would be to tell you that because of the circumstances that 5 have been described in my affidavit, and discussion here 6 now, that on behalf of the Attorney General's Office and the i
7 SBI, we do not believe that this undercover campaign was 8 indicative as it was used in Mike King's affidavit, of !
9 there not being a drug problem at the Shearon Harris plant.
10 We felt that it had inadequate time. There was 11 an inadequate time period. We did not have an agent who was 12 there full time.
)'
13 We were receiving a significant amount of I
i 14 intelligence, but due to all the factors that seemed to be 15 going against the operation, for whatever reason, we do not 16 feel that it can be used as a show that there is no drug 17 problem at Shearon Harris.
18 Q Even in view of the fact that we have had 19 testimony that a number of employees have been terminated 20 for suspected drug activity in 1985. Would you think that :
21 that is indicative that CP&L is taking the posture that there f 22 is no drug problem?
I 23 A No, I couldn't say that, because I don't know {
em i 24 the circumstances surrounding that. !
Amfewj Rumners, inc. l 25 Finally, I would like to ask -- I have asked I Q
17-3-JonWal 9307 ;
I other witnesses, do you find during 1985 that there is still 2 an acceptable spirit of cooperation between CP&L security l 3 officers and the State Bureau of Investigation?
4 A I have had no contact with them until today. I 5 But yes, I would say that there certainly is on our behalf ,
6 and their behalf, with conversations we have had today of 7 cooperation amongst us . ;
8 JUDGE CARPENTER: Thank you very much.
I 9 BOARD EXAMINATION 10 BY JUDGE KELLEY: :
II Q I have just a few questions. Mr. Overton, just 12 a question about the use of dogs.
1 ,
'- 13 You refer in your testimony, at several places, I I
I4 think, that in your view bringing dogs on the site would pose !
15 a risk to the agents if the undercover operation were 16 continued.
17 Could you just kind of in concrete terms spell out 18 what that risk would be?
19 A (Witness Overton) Well, it would be very much 20 like Deputy Hensley described, in that for no good reason, 21 in my opinion anyway at that time, may cause some attention i f
22 to be shown on both Agent Williams and Deputy Hensley in l l
23 that they were the newest people in that group of people that i
-,) 24 were buying drugs.
Am-Federal Reporters, Inc.
25 0 You mean endangering in the sense of expose their l I
17-4-Jo:Wal 9308 l
1 cover or endanger them physically?
I i'
'-- 2 A Both. If their cover was exposed, then they 3 could very -- there could very well have been retaliation 4 physically.
5 Q Okay. You did hear Agent Hensley's testimony l
6 earlier, and I believe you generally agree on what he had 7 to say? .
r l
8 A Yes, I would agree with that. l l
9 Q And you would repeat -- you did happen to be 10 here -- I 11 A Yes.
12 Q Mr. Williams, just to get a little better grip J 13 on your role in the operation . We have had testimony that 14 Agent Hensley was there I guess mest of November-December, ,
15 until early January when it was terminated.
16 You were there for some lesser period of time, 17 and I believe there is testimony to the effect that you nade 18 one buy and I would just like to get a feel for whether -- I 19 gather you weren't what you would call an equal partner 20 with Hensley in the whole enterprise, is that fair? ;
21 A (Witness Williams) Yes, we were equal partners. j i
22 I made three buys . l 23 Q Okay. So you made three buys in the course of l i
-s
(_j 24 it. l 4.swmi nwomn. ine. !
25 A Yes.
I i
17-5-Jo:Wal 9309 1 Q I don't know if you said, or if you say in your 2 testimony here; I don't remember frankly, how many days you 3 were onsite?
i l
4 A Approximately -- 15 or 20, and I think it might 5 be a little more. But it wouldn't go over 26 times at the ,
l 6 site. !
7 Q I don't remember asking Hensley, but was he there i
i 8 full time so to speak, or in comparison termi, was Hensley i
9 there more than you, or what?
l l
10 A Yes. Deputy Hensley was there I would think a j f
11 third more than I was. ;
i 12 Q Maybe a third more than you? Okay. You say 1
13 there are various ways to measure, I guess, participation. ,
l 14 Buys would be one. The sort of box score in the whole thing, l 15 as I recall, eight arrests, fifty-three more people 16 identified?
17 That is what we have heard. Is that corsistent 18 with your recollection?
19 A Yes, I think arrested. After them, it consisted 20 of about fif ty-three more.
I 21 Q I am not trying to be precise. Give or take a j 22 {
couple, I don' t think it matters for my purpose, but of l 23 l the fif ty or so identified that were not arrested, how many :
/x_j')
24 roughly would you estimate you were responsible for, and how I Am rewa nmomn. ix.
25 l many might Hensley have been responsible for? l l
l
17-6-JonWal 9310 l l
1 A Well, we work together. l t
l
) I 2 Q It might have been both of you, is that right?
3 A Yes, we got the same people.
4 Q All in all, would you say you were -- although 5 he spent some more time there, you were if not exactly l
6 equal partners -- you were substantially involved. Can '
7 I use that term?
8 A Yes, I was. ,
9 Q Okay. Ms. Burch, I would like to ask you about l
10 -- toward the conclusion of your statement the sentence, 11 toward the bottom of page 8, starting five lines up from 12 the bottom, which says: Personal observations -- I will g
\ )
13 quote it: Personal observations and intelligence gathered '
14 by the officers indicated that drug dealings and Crug use !
15 were widespread at the Harris plant.
16 Can you give us some further idea of what, 17 ' widespread' means in that context?
18 A (Witness Burch) The information that was being 19 fed back to me indicated that there were drugs in several 20 areas of the plant. '
21 Perhaps they would meet one individual. It may 22 be only one individual saying something about another i
23 individual at another part. The agent may not even get to !
k/. 24 that part. l Am-Federst Reporters, Inc.
25 There were several indications of intelligence l
17-7-JonWal 9311 I
._ 1 along that line.
~'
2 Q If I could just stop you so I get it a piece at 3 a time.
4 Are you suggesting then that widespread in one i 5 sense might mean geographic, it is in various buildings, 6 and various parts of this rather large site?
7 A Not exclusive to, but inclusive to the potentiality ; -
8 of people in that area that would also be exposed to this 9 individual.
10 0 Okay. Maybe I shouldn't have interrupted you, 11 but before you went on to another point I heard you saying 12 geography is one meaning of widespread.
7, )
~
13 Okay, go ahead.
14 A Well, to get back along the same line of what I !
15 just said, it would not be in my expertise or opinion in 16 trying to project what might be in some area, wouldn't 17 be necessitated into numbers, but it would occur to me that 18 if one individual in that area was reported back as being 19 a dealier of cocaine or a dealer or marijuana, that it would 20 be hard for me to buy that he was the sonly one in that area 21 that was involved in that.
22 Q This is based really on your experience and 23 judgment?
p s.
--' 24 From what you just said, I gather it is a j Am-rewa nmonen. ine, i
25 professional judgment more than --
l l t
17-3-Jo Wal 9312 l
1 A In making an analysis of the intelligence
(~T k/ 2 information being received.
3 Q So, is it that you get this information back 4 from Mr. Williams and Mr. Hensley, and then you analyze that 5 and you make in your own mind a sort of projection that 6 it is maybe widespread. Is that the process that is 7 involved here? l i
8 To put it another way, the Company concedes that 9
they have identified 201 people involved in drugs or suspected {
l 10 of being involved in drugs over the course of construction.
l 11 Certain numbers have been put forward here, and I
12 we do have the numbers that we have been using that were '
f}
\
13 the fruit of the investigation; made eight arrests, 53 more :
I 14 identifications. l 1
i 15 I would gather that -- well, let me put it into '
i 16 a question: Are you saying that those numbers that we have i
17 been talking about, the 201 over the course of the !
18 construction period, and the results of this particular 19 undercover investigation, in and of themselves represent i
20 widespread drug use?
l 21 A No.
22 Q You are not saying that.
23 A No.
bs_/ 24 Q Okay. So, you must -- I gather you then are taking Am4ederd Reporters, Inc.
25 numbers -- perhaps other indications, you are extrapolating
17-9-JonWal 9313 1 to some other judgment, and that is the process that I am 2 interested in, if you could expand on that a bit.
3 (Pause.)
4 A The process that I would be making that kind of 5 assessment of widespread would, of course, stem from the 6 officer and the agent who were there.
7 The weight of it would stem on the agent and the 8 officer there.
9 Having been in undercover operations many, many, 10 many times before, it is my job, as it is Supervisor Overton i
11
-- and we in fact had a conversation about this, to gauge l i
12 the potentiality of this investigation.
13 Taking the facts that we were getting from the 14 undercover operative as well as other intelligence, derived i
15 from other places. {
16 Q When you say other intelligence from other places, 17 is this other intelligence about Shearon Harris, or about l 18 drug problems generally, or what are you referring to? l l
19 A Of intelligence directly related to Shearon ,
)
20 Harris.
21 Q Were you getting current intelligence about 22 Shearon Harris other than from the undercover operation?
23 A Yes, sir.
() 24 ham-Federd Reporters, Inc.
Q Of what nature?
25 A Of drugs. Just the availability of drugs.
17-10-JosWal 9314 1 Q But, -- could you give us a little better sense of what these other sources consisted of?
2 3 A Basically, the information consisted of 4 information --
5 Q Maybe I should just pause to note one fact.
6 You are here -- since you filed your testimony, we had 7 a problem we had to deal with earlier in the day. We had ,
8 a witness come in and a question elicited a lot of new 9 information, and we finally decided to cut off the
-10 testimony because it was just unfair to the parties. !
11 Do you follow me?
12 I don't know if you were here earlier or not.
13 And now I am asking you a similar question: Why do you 14 say widespread? And you are starting to tell me some things 15 that we have not heard about before. ,
16 And I am not sure -- I am going to at least !
l 17 pause before we get into that. Does counsel have any 18 comment?
19 Mr. Cole?
20 MR. COLE: Your Honor, without a doubt it is 21 something new that we haven't talked about before, and I 22 would assume and don't know how. far you are going with that 23 and don't know how far Ms. Burch is going with that. Don't 24 m Repo,im, Inc.
know how much she would want to tell you, but I would say 25 that if you continue on, I am sure that CP&L would feel
17-ll-JoeWal 9315 1 compelled to have to come back in some way to respond to an O
\/ 2 entirely different contention than we have understood over 3 the last what, three or four days.
4 JUDGE KELLEY: Well, that is why I stopped. Mr.
5 Baxter, any comment?
6 MR. BAXTER: I think it is analogous, Mr. Chairman.
7 I have read this testimony as being based -- I think I heard l l
8 Ms. Burch say about the personal observations and intelligence !
I 9 gathered by the officers during the operation.
10 I thought that is what we are talking about here. l 11 JUDGE KELLEY: And you thought that meant the i 12 particular undercover operation? :
I)
13 MR. BAXTER: Yes, sir. I thought if the SBI had 14 any other information they thought was relevant to the 15 Contention thct it would have been in here. !
16 JUDGE KELLEY: All right.
I 17 MR. COLE: If Your Honor, please. But hardly 18 a week goes by that my office gets a crank -- or anonymous {
19 phone calls -- not about CP&L always. j i
20 Get anonymous phone calls about, you know, Joe 21 is doing this, and you ought to check on gas prices down 22 the hill, or whatever it might be, and of course, we just 23 file it away. And I guess that would be entitled and filed 24 under Intelligence.
hce-Federd Reporters, Inc.
25 JUDGE KELLEY: And I suppose we could pursue
17-12-Jo;Wal 9316 1
distinctions between what has come to the surface between i )
2 September 23rd and before then and all the rest.
3 May I make a suggestion, and I am happy to have 4 Counsels response, if I were to try to pursue this with 5 Ms. Burch in terms'of particulars that would come up, ;
6 it would appear as a fairness problem.
7 l The fact that you have -- you have other sources :
8 of information about a lot of things, and that is probably ,
t 9 not a surprise. I really intended to get at the question f 10 of whether and how you conclude there is a widespread problem !
Il based on this undercover investigation, and then I broadened j 12 the question and we got headed down the road that we did.
m
, t
'> 13 I am perfectly happy to withdraw the question or i 14 just stop at this point .if that is satisfactory.
15 MR. BAXTER : It is all right with the Applicants.
16 JUDGE KELLEY: Is it all right, Mr. Cole?
17 MR. COLE: Yes, Your Honor.
18 JUDGE KELLEY: Mr. Runkle?
19 MR. RUNKLE: Of course, we feel that any basis 20 Ms. Burch may have to form the conclusion that drug abuse {
l 21 is widespread at the plant, if you look at her second
}
l 22 affidavit where she reaffirms a statement she made in the 23 original affidavit, and she also says that it is also based 7,
( 24 hFederal Reporters, Inc.
on intelligence received through the SBI.
25 I Granted, that does not give us a lot of room to
17-13-JoaWal 9317 i 1 investigate all the information the SBI may have ever developed I
( ) !
2 on this area, but I think it does at least gather what l I
3 kinds of information they have outside of this investigation.
4 JUDGE KELLEY: Okay. I was asking a question l
5 and Ms. Burch was giving an answer, and for the reasons 6 already stated I decided to stop. And we will come back, 7 and if you want to raise a question, there may or may not 8 be an objection, but let's treat it that way.
I 9 MR. RUNKLE: Fine. j 10 JUDGE KELLEY: I don't have anything further, j 11 So, it is redirect to Mr. Baxter. j i
12 MR. BAXTER: They are Mr. Cole's witnesses?
, i 13 JUDGE KELLEY: They are Mr. Cole's witnesses.
14 It is late in the afternoon. Redirect for Mr. Cole. l 15 MR. COLE: No, Your Honor.
16 JUDGE KELLEY: All right. There being no redirect, 17 is there further cross arising from other peoples' cross?
18 MR. BAXTER: Yes, sir.
19 JUDGE KELLEY: All right, Mr. Baxter.
20 FURTHER CROSS EXAMINATION 21 BY MR. BAXTER:
22 Q Mr. Williams, will you turn to page 13 of your l
23 statement, please? j
/ "N
) 24 A Yes. l Am-Feder:2 Reporters, Inc.
25 Q Mr. Hensley, Mr. Plueddemann, ----Deputy Hensley
17-14-Jonwal 9318 1 Mr. Joyner, and Mr. Plueddemann have each estimated that 2 you attended the site approximately ten to fifteen times, t
3 and that is what you testified to in Question and Answer --
4 the second one on that page, isn't that correct?
5 A (Witness Williams) That is correct.
6 Q Mr. Overton, you testified just a moment ago 7 that your impression at the December '84 meeting about ;
8 extending the operation was that Mr. King had no choice 9 because someone higher than him -- if you felt strongly ;
10 about it, why didn't you go to someone higher in Carolina 11 Power and Light Company then?
i 12 A (Witness Overton) I didn't really feel like ;
~
13 that was my obligation to go to anyone higher. I was 14 willing to conduct an undercover operation. I didn't feel ;
15 like it was my obligation to go to anyone else.
End 17. 16 MS fois.
17 18 19 20 l l
l 21 i l
22 23 l
/~N l
) 24 l W-Federal Reporters, Inc.
25 i
Sim 18-1 9319 I Q Isn't it the SBI's obligation to enforce the 7,
( ) 2 law?
3 A (Witness Overton) Yes, sir, it is, and that 4 is what I was trying to do.
5 Q But not just when CP&L requests it, is it?
6 A No, not just when CP&L requests it. As a 7 matter of fact, we woudn't have done it just on a CP&L 8 request.
9 Q Do you need CP&L's cooperation to investigate 10 narcotics violations at nearby grocery stores or in the Il parking lots or potential cocaine being flown in from 12 Florida?
']; 13 A Do I need their assistance? No, sir.
14 MR. BAXTER: Thank you. No further questions.
15 JUDGE KELLEY: Mr. Runkel.
16 CROSS-EXAMINATION 17 BY MR. RUNKLE:
18 Q Ms. Burch, does the SBI have other intelligence 19 about drug use at the Harris site other than that received 20 through the underccver investigation?
2l MR. BAXTER: I will object, Mr. Chairman. The i
22 testimony in the second affidavit is that the first 23 affidavit is based in part on intelligence received. So 24 I assume we have gotten it. l AceF9al Reporters, Inc. --
25 My second problem with the word " intelligence,"
9320 Sim 18-2 and this is just the nature of law enforcement, and it is
)
n ne's fault, but I have discovered from working on 2
3 these things that intelligence is something that your 4 information and you are in the process of pursuing to determine whether it can be corroborated, substantiated 5
6 and can in fact be the basis for any legal action. So I 7
don't think, in addition to the unfairness to the applicants, 8
that any information that has not been finalized and pursued 9
to some legal conclusion should be discussed here.
10 But my principal one is the unfairness, the same jj basis upon which interrogation was stopped earlier today.
12 This is just a mere reference to the ---
MR. RUNKLE: I would withdraw the question.
]; 13 j4 JUDGE KELLEY: All right.
15 MR. RUNKLE: I have no further questions.
16 JUDGE KELLEY: Okay. Anybody else?
j7 (No response.)
18 JUDGE KELLEY: Very well.
j9 Lady and gentlemen, we very much appreciate 20 your coming, your attention and your responsiveness to 21 questions.
22 You are excused. Thank you.
23 (Panel excused.)
24 JUDGE KELLEY: I would raise a question ~with Ac.4 I Reporters Inc.
25 counsel. We have Mr. Eddleman's motion to discuss. We
9321 Sim 18-3 1 are now getting the letter dated October 3rd.
2 MR. BAXTER: Mr. Chairman, this is a letter 3 prepared by Mr. Jones. It has been discussed with Mr. Runkle 4 and Mr. Barth. It is sort of an adjunct of the stipulation 5 that was reached the other day, which essentially has the 6 procedure in it whereby we will report on the results of 7 the reinspection and the parties' agreement that the record 8 would not need to be held open for that inspection process 9 to be completed.
10 JUDGE KELLEY: Thank you.
11 MR. RUNKLE: This is satisfactory.
12 JUDGE KELLEY: Okay. It is satisfactory to
~
f 13 Mr. Runkel, the addressee.
14 MR. BAXTER: We are going to have just one 15 very brief rebuttal witness, Mr. Chairman.
16 JUDGS KELLEY: Oxay. Should we go directly 17 to the rebuttal witness?
18 MR. BAXTER: The direct will take under three 19 minutes.
20 JUDGE KELLEY: Why don't we go right ahead.
21 MR. BAXTER: We recall Mr. Plueddemann.
22 MR. COLE: Will we have surrebuttal in this, 23 or is this the end of the ---
r~N 24 JUDGE KELLEY: Well, you can always try.
Ace-F_ J Reporters, Inc.
25 (Laughter.)
l
9322 Sim 18-4 ) If there is something else you want to raise,
.[')
v 2 you can speak to counsel.
+
3 MR. BAXTER: Mr. Cole, it is not directed to 4 your witnesses' testimony.
5 JUDGE KELLEY: This letter that was distributed, '
6 it is not an exhibit or a transcript ---
7 MR. BAXTER: No, but we would like to have it 8 incorporated, if no counsel object to memoralize the 9 understanding.
10 JUDGE KELLEY: Right. Put it'in..the' transcript, 11 please.
12 (The dietter of 10/3/85 to J. D. Runkle just
() 13 raferred to follows:)
14 15 16 17 18 19 20 21 22 23 24 i ke I Repom, lnc. I 25
Carolina Power & Light Company
/%
(V ) P. O. Box 1551
Aale+gn. N. C. 27602 AICHARD E. JONES Vice President and Senior Counsel October 3, 1985 Mr. John D. Runkle Conservation Council of North Carolina 307 Granville Road Chapel Hill, North Carolina 27514
~~Dear Mr. Runkle:~~
This will confirm my understanding of our agreement about when the new eddy current data on the Harris steam generators will be acquired and h what will be done with it. We will acquire the new data at the earliest date possible consistent with the plant's construction schedule. hhile the new data may be available by the Novenber hearings, it may not be available until the spring, but in any event before fuel loading.
hhen the data has been acquired and analyzed, w will certify to you that the examinations have been ccupleted, and if the data reveal safety probleus will indicate that also. A copy of the analyst's surmlary report will be provided to you.
Because the purpose of the data is to provide a baseline for subsequent use and no safety allegation has been raised beyond that of whether the data previously acquired was gathered pursuant to proper procedure, the record on contention WB-3 will not be held open, nor will findings or a board order be delayed, for receipt of the new inspection results. You, of course, would not be precluded frcm raising a late-filed contention based on the results of the exanination.
Very truly your , -
/ i f ,-
9323 Sim 18-5 1 JUDGE KELLEY: No, seriously, rebuttal is
() 2 somewhat restricted under our NRC rules, but under proper 3 circumstances it can be done and counsel can at least make 4 a judgment about what they want to do in that regard.
5 MR. BAXTER: I do have the blessing of the burden 6 of Proof. So I guess it is also somewhat a different 7 standard from the ordinary.
8 Whereupon, 9 MICHAEL PLUEDDEMANN 10 was recalled as a witness by the applicants and, having i
! 11 been previously duly sworn, was examined and testified j 12 further as follows:
() 13 REBUTTAL DIRECT EXAMINATION 14 BY MR. BAXTER:
t INDEX 15 Q Mr. Plueddemann, Deputy Hensley this afternoon 16 talked about his observations about employees with white
17 hard hats, and his recollection was from the 15 colors he 18 was told about at the beginning of the operation that those 19 were quality assurance people.
20 Would you describe the employees who wear white 21 hats at the Shearon Harris site, please?
22 A Okay. The majority of the inspectors, they 23 are call construction inspectors, wear a blue hat, a dark 24 blue hat. The white hats are mainly supervisors.
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25 Q Supervisors just within quality assurance?
__ _ . -- - - -s-9324 Sim 18-6 1 A No, sir, throughout the job site.
() 2 Q Including craft supervisors?
3 A Yes, sir, that is correct.
4 (Pause.)
5 MR. BAXTER: I have no further questions.
6 JUDGE KELLEY: Any questions, Mr. Runkle?
7 MR. RUNKLE: No, sir.
8 JUDGE KELLEY: I am sorry?
9 MR. RUNKLE: We have no questions.
10 JUDGE KELLEY: Mr. Cole?
! 11 MR. COLE: No.
12 JUDGE KELLEY: Mr. Barth?
MR. BARTH: No questions, Your Honor.
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13 14 JUDGE KELLEY: Okay. Mr. Plueddemann, 15 thank you very much.
16 MR. EDDLEMAN: May I ask one?
17 JUDGE KELLEY: You are excused.
T 18 MR. RUNKLE: Excuse me, Mr. Eddleman has a 19 question.
20 REBUTTAL CROSS EXAMINATION INDEX 21 BY MR. EDDLEMAN:
22 Q Mr. Plueddemann, didn't you say that sometimes 23 these inspectors would wear white hats?
A Yes, sir.
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I 25 MR. EDDLEMAN: Thank you.
9325 Jim 18-7 ) (Witness Plueddemann excused.)
() 2 JUDGE KELLEY: Now we have Mr. Eddleman's motion 3 to address ---
4 Are there any other matters that are going to 5 require our attention this afternoon?
6 Mr. Cole, Mr. Runkle?
7 (No response.)
8 So that would be it?
9 (No response) 10 We would like just a short stretch before 11 we go into the motion. Five minutes or less.
12 (Recess taken.)
/)
v 13 JUDGE KELLEY: Let's go back on the record.
14 We are going to need to talk for a minute first 15 about procedure before we get into the merits for discussing 16 Mr. Eddleman's motion.
17 Now the motion itself, you will recall, was 18 distributed under a protective order to counsel essentially 19 because its contents might be sensitive from the standpoint 20 of exposing an informant's identity.
21 The Board has read the motion, and it would -
22 appear that it is possible that debating the merits of the i
23 motion might have the same effect unless it is somehow 24 possible to debate the motion without repeating all of its
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25 contents.
9326 Sim 18-8 j Mr. Eddleman, what is your sense, that we
() 2 should go into an In Camera session now and debate the 3 motion?
4 MR. EDDLEMAN: Judge, I think that would be the 5 safest thing. I have been trying to think, and I stress ,
6 that is a conservatism, but I think that conservatism is 7 appropriate in a case like this. I mean a person's life 8 Possibly.
9 But here is my other problem. I was trying to 10 think how I could discuss it without really referring to the 11 contents, and I think I could elliptically refer to some 12 things and make arguments, but it might be difficult for
() 13 the Board and parties to understand what I was referring 14 to, and I might have the same difficulty with the other 15 f iks.
16 I am not sure we could have a full discussion, 17 and in a spontaneous discussion somebody might say but and 18 say something that would be a key part of it perhaps. And 19 I don't see any way I could guarantee around that.
20 JUDGE KELLEY: I understand your point. I would 21 just add that passing of the day and the late evening hour 22 has almost put us In Camera already. But we still have 23 an audience of some interested people, (Laughter.)
p 24 be-Fal Reporters, Inc.
25 The real hard core observers.
9327
~~Sim 18-9 I Mr. Baxter, what do you say on this point?~~
2 MR. BAXTER: We have the motion in writing. I 3 can discuss for my part my arguments against the motion 4 without referring to anything that I think is really ---
5 JUDGE KELLEY: That is the real issue I guess.
6 Can you state your position without getting into this 7 sensitive or possibly sensive information.
8 MR. BAXTER: Yes. My argument is going to be 9 of the nature of if true.
10 JUDGE KELLEY: Mr. Barth, what say you?
II (No response.)
12 JUDGE KELLEY: Mr. Cole, can you comment?
13 MR. COLE: Your Honor, I don't mean this to I4 sound flip, but we will ride with the majority on this.
15 JUDGE KELLEY: Okay.
16 Mr. Runkle.
I7 MR. RUNKLE: I think the actual motion is the 18 last paragraph on page 3 and the three columns up the side 19 on page 3. The rest of it is various allegations which is 20 really the basis for the motion.
21 I think we can discuss the actual motion without 22 going into any of the basis for it. The basis is presented, 23 and the Conservation Council for one is convinced, and we p 24 hb11 Reporters, Inc.
would join this motion for an In Camera hearing. But we 25 feel that we could talk to it without going into In Camera
9328 Sim 18-10 I to discuss whether to go into In Camera.
. 2 JUDGE KELLEY: You feel we can argue the motion 3 without going into In Camera?
4 MR. RUNKLE: Yes, sir.
5 JUDGE KELLEY: Now the argument is going to 6 come jointly, or you support the motion I understand and 7 Mr. Eddleman is going to -- I don't know. The motion is 8 already written down and we have already read it. We don't 9 need very much more than a resume of the thrust of this 10 and what it is that you wish us to do. We certainly don't 11 need a restatement of the whole thing.
12 Why don't we try to address this without having
! ; 13 to exclude people and put things in brown wrappers and 14 all the rest. That would certainly be simpler.
15 There is no real objection to that from anyone; 16 is that correct?
17 MR. EDDLEMAN: Well, Judge, I just want to be 18 extremely careful. I am not objecting in this that I 19 think it is improper procedure.
20 JUDGE KELLEY: All right, I understand.
21 MR. EDDLEMAN: I just want to be real sure that 22 it is safe. One other consideration that applies to me 23 is that I surely have less experience in these matters than 24 the attorneys generally do, and thus I am the one who is Ace F9al Reporters, he.
25 most likely to goof I think.
9329 Sim 18-11 1 JUDGE KELLEY: Well, let's give it a shot without
() 2 In Camera procedures bearing in mind that let's stay away 3 from sensitive information. Everybody has read it and we 4 know what you are talking about. It doesn't need to be 5 repeated.'
6 MR. EDDLEMAN: Well, Judge, is that an okay to 7 try to start in?
8 JUDGE KELLEY: Yes. Go ahead, Mr. Eddleman.
9 MR. EDDLEMAN: All right. I am simply going to 10 state that there is written information placed in this 11 which lays out the basis. I am not going to try to describe 12 it at all.
() 13 JUDGE KELLEY: Right.
14 MR. EDDLEMAN: But when I get down to the meat 15 of the motion, I take it, would be in two main pieces, 16 and I will try to refer to them eliptically this way and 17 see if it is clear enough for people.
18 one is is the cat out of the bag, and if so, do 19 we have enough information to determine who let it out and 20 how or the extent to which they were aware they were letting 21 it out.
22 Now the second piece is other than accidental, 23 inadvertent, oversight in letting the cat out of the bag, 24 to what extent could there be an additional motive, which
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25 again is described in the motion, and I don't want to state
9330 Sim 18-12 on the record for letting the cat out of the bag. That is
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v 2 the way I would describe it.
And I am reluctant to really try to argue that 3
4 any further. I think, you know, if the facts are sufficient, I think it is a very important issue as to credibility, as 5
is stated in the motion, and I try to explain why.
6 Dut I don't want to try to explain that connection 7
here because I don't think I could do it and be sufficiently,
) 8 9
you know, obscure that somebody reading the transcript couldn.
i 10 figure out what I was saying.
jj JUDGE KELLEY: You attribute in your motion a 12 Possible motive, correct?
() 13 MR. EDDLEMAN: I raised the question, and what I
~~ja am saying is that is the second question that this motion 15 is about.~~
! JUDGE KELLEY: could you state that motive 16 j7 in abstract terms?
MR. EDDLEMAN: Well, it is clear enough for me 18 i j9 to say letting the cat out of the bag is the first part i
20 of this?
JUDGE KELLEY: I think so, yes.
21 22 MR. EDDLEMAN: Okay. So there are adverse effects f letter the cat out of the bag that are specifically 23 24 described, and let me see if I can just tell you where they I Repoon. Ine 25 are rather than actually say what they are, because I i
i I
I
1 9331 Sim 18-13 Want to be careful about that.
1 JUDGE KELLEY: Well, I just wanted to know. You 2
were referring to -- the purpose of this inquiry that you 3
4 would like to conduct would be to determine whether there was a certain kind of motive, correct?
MR. EDDLEMAN: Yes, sir.
JUDGE KELLEY: I just wanted you to say what 7
kind of motive that is.
8 MR. EDDLEMAN: A motive to frustrate the ability 9
to have future undercover operations at Shearon Harris.
10
-JUDGE KELLEY: Okay, that is helpful. I under-jj stand that.
12
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O is 34 on what has happened so far there is reason to believe that a m e e ase and therefore it should be inquhed 15
.sto?
16 MR. EDDLEMAN: Yes, sir. That is the second 37 part.
18 j9 JUDGE KELLEY: All right. Go ahead.
MR. EDDLEMAN: Well, I don't have much more to 20 add to that I think. You know, I am not asking for a great 21 extensive investigation. I am asking to try to establish 22 specific facts. I have explained in here how much time 23 24 I think it might take and the other counsel might disagree '
~~23. Fwal Reporten, Inc, 25 with me, but they know their own positions and minds better~~
9332 Sim 18-14 I do.
1 The only other thing I would state is that the first part, what I have called letting the cat out of the bag, I view as extremely serious and related directly to the credibility of a major party to this case in a direct way. That is, if we are talking about undercover drug operations, I think the connection to credibility is very 7
clear as the facts are stated here, and I don't think that really there is any question about that.
So I would stay on that as my, you know, on the record for transcript description of what I am arguing. I jj mean I will be glad to answer questions.
JUDGE KELLEY: Okay. I am sure you are aware, Mr. Eddleman, as we all are, that any time you are in a hearing context with parties representing different interests-cross-examining and involved somewhere in the facts is a confidential informant, that certain pieces of information about that person come out almost invariably.
MR. EDDLEMAN: Yes, sir.
g JUDGE KELLEY: It is inherent in the process.
Apart from that there is the possibility of g
people blurting out things that they don't realize they are saying in this very context.
I might say I have dono it myself. I blew a confidential person's conver in another case a couple of
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9333 Sim 18-15' i years ago. I just said it right on the record. I don't know
() 2 how many people noticed it, but I said it. I knew what his 3 name was, and it does happen is all I am saying.
4 MR. EDDLEMAN: Well, I understand that accidents 5 happen of that kind, too, Judge.
6 JUDGE KELLEY: I will just ask you one other 7 specific questions. There was a particular statement made 8 yesterday concerning activities carried on by an informant 9 in this case, which I believe were volunteered by one of the 10 witnesses, and you referred to it in your motion I know 11 specifically.
12 Do you know what I am referring to?
() 13 MR. EDDLEMAN: Yes, sir. It is a major piece, but 14 let try to again elliptically describe what I am getting at, 15 because ---
16 JUDGE KELLEY: Well, let me ask my question and 17 then you can make your point.
I 18 My question is this. I mean I was sitting here 19 and I heard that statement made. My impression, frankly, 20 was that it was a spontaneous utterance by the witness who 21 was just anxious to help, and maybe in retrospect it would 22 have been better not to say that, but that was the impression 23 that I had.
24 Did you see some other coloration on the hui hpo,,.n, Inc.
25 statement?
9334 Sim 18-16 Sir, I am not able to independently
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MR. EDDLEMAN:
2 assess the witness' state of mind. What I am saying is 3
that I think that piece was serious enough to inquire further 4 because if I may refer to the questions you asked me to start 5
ff here about pieces of information do come out and people 6
do say things that they might on sober reflection think better 7 not be said and so on.
8 Well, without trying to describe the motion in too 9
much detail, I think that there is a cumulative process going 10 on here, and I think it is particularly important for certain 1j 1inds of people who are described in the motion to be aware 12 of that, and I think they have a heavier responsibility in
~~13 some sense because of the nature of their can I say work?~~
14 JUDGE KELLEY: Sure.
15 MR. EDDLEMAN: I think that is it, and I may not 16 have been quite clear enough about that in the motion, but j7 I am not sure I can say it more strongly into the record here 18 without basically giving away what I am getting at, and that 19 would tend to tell somebody, you know, where to look for this 20 and that.
21 I think that there was an accumulation of pieces 22 f inf rmation, and it is like solving a puzzle, and people 23 certainly vary in their ability to solve a puzzles. But I l 24 do think the more inforamtion that you give out, the more 22e49al Reporters, 'nc.
25 likely it is that some person is going to be able to solve
9335 Sim 18-17 I the puzzle and in effect let the cat out of the bag.
() 2 And I also think here that there is a real strong 3 motive for at least some people to want to solve this puzzle 4 and we can't control that, Judge.
5 JUDGE KELLEY: I am not sure I know what you mean 6 by motive to solve the puzzle, the puzzle being the identity 7 of the informant?
8 MR. EDDLEMAN: Yes, sir.
9 JUDGE KELLEY: You mean there are people who are 10 trying to find out who the informant is?
l 11 MR. EDDLEMAN: Judge, I don't know anybody who 12 says I am trying to find out the identity. What I am saying
() 13 is what is said in the motion, it describes, you know, what 14 happened as the result of this person's activities, and 15 I think that is a pretty strong motive let's say for revenge 16 or retaliation.
17 JUDGE KELLEY: All right. I understand what you 18 mean. Okay.
19 MR. EDDLEMAN: Does that answer your question?
20 JUDGE KELLEY: Fine. We have read the motion 21 and we have heard some comments from you. .
22 Let's go to the other aprties and hear from them.
23 Mr. Baxter.
24 MR. RUNKLE: May I add just something to that, sir?
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25 JUDGE KELLEY: All right. Go ahead.
9336 Sim 18-18 MR. RUNKLE: I think a term that more of us are
-() 2 familair with of rather than letting the cat out of the bag, 3 was they either knew or should have known, and I think that' 4 may be a better way of putting it than letting the cat out 5 of the bag or whatever Mr. Eddleman was talking about earlier.
6 MR. EDDLEMAN: I would concur with that. I mean 7 it is a process.
8 JUDGE KELLEY: All right.
9 Mr. Baxter.
10 MR. BAXTER: First of all, Mr. Chairman, we need 11 to keep in mind what this hearing is about and what this 12 contention is about.
() 13 Ultimately the issue before the Board is whether 14 the plant in this contention, whether the plant has been 15 built properly so that it can operate safely, and in particular 16 here as to whether there is any reason not to make that 17 finding in light of some extent of drug activity.
18 That is the issue before the house ultimately.
19 The Board has the authority under the Rules of 20 Practice to regulate the proceeding, including the admission 21 of evidence, to eliminate evidence that is not material, and 22 that includes the regulation of cross-examination and in 23 particular by parties who are not the sponsors of the (T 24 contention.
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25 This is a request for additional cross-examination.
i 9337
-Sim18-19 It is no different than when the Board makes an oral inquiry j
during one of Mr. Eddleman's examinations to say what is the i (]) 2 3 Point here and what line are you heading toward and deciding 4 that it does or it doesn't merit the time and attention of 5 the Board because it is not material.
1 6 The fact that it is a written motion and has some 7 intriguing legal concepts of informants and others associated i
~~8 with it doesn't mean it should be decided under any different 9 kind of standard.~~
10 So with that in mind, I really think it is just '
11 not even a close question here that this has no bearing on l
12 the Board's deciding whether or not the construction of the 13 P l ant has been done appropriately or whether we have a greater i
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1 14 or a lesser extent of drug use out at the plant than what i
15 you have heard from all the testimony that has been before 16 you.
17 Without going into the detail, I don't think for s .
18 one thing that the cat is out of the bag. The spontaneous l 19 utterance you referred to yesterday was followed by testimony 4
~~20 that that particular situation did apply to other employees.~~
21 I don't think anybody with a great amount of 22 collateral information could do much by way of trying to j 23 identify this person without confidential employee data that i
j g- 24 only the employers at the Shearon Harris power plant have. [
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j 25 Secondly, you can also then go to the next i
9338 j EVENING SESSION
/ (6:00 p.m.)
2 (m-)
siml8-20 3 question of so what. If Mr. Eddleman were able to get some-4 where down this road, what would be the consequence? He 5
says it has something to do with the credibility of my 6 witnesses. He says it is obvious, and I don't find it 7 obvious at all.
First of all, as his own motion documents, some 8
9 of this information and some of the most significant informa-10 tion came out in the Attorney General's testimony. Now I am 11 not here to criticize their testimony, but certainly what they 12 did has no bearing upon my witnesses' credibility.
MR. EDDLEMAN: Excuse me, Mr. Baxter, I don't
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v 13 14 mean to object to anything you are saying, but I am just 15 a little nervous about even that much identification of where 16 the stuff comes from. It is in the motion anyway.
j7 MR. BAXTER: Well, the record is public that we 18 are discussing..
19 JUDGE KELLEY: The point is fair enough in 20 context.
21 G ahead, Mr. Baxter.
22 MR. BAXTER: So it is not just information from the applicants' witnesses in any case. And, as I say, I 23 24 think the most significant information came from the he4 il Reporters, Inc.
25 Attorney General's filing.
i 4
9339 Sim 18 1 Our witneses have only provided information that 1
() 2 they felt was necessary to assist the Board in evaluating 3 the contention. The testimony was filed responding to the 4 State's affidavit,and I think that is what they have done 4
5 here, and I don't think it is even a close question as to
~~o whether or not the informant's identity has been compromised.~~
~~i 7 These people are law enforcement officers who 8' know what that is about, and I think they were seriously~~
~~9 concerned about avoiding it. So I don't think it goes to 10 their credibility.~~
11 The argument that if they slipped and gave out 12 too much information, you shouldn't believe anything else
() 13 they said about their security programs or what they have 2
14 identified out there I just think is illogical. I just don't 15 think it follows.
16 The idea that they might have done this inten-i 17 tionally in order to thwart the viability of investigations 18 in the future I think is equally absurd, and I am not sure 19 it relates very well to whether or not the plant has been 20 constructed properly.
21 For one thing, the witnesses have testified 22 that they will have undercover investigations in the future.
23 They have had two in the past. The last one was at CP&L's 24 request. And in case, it doesn't require CP&L's permission Ace gI Reporters, Inc.
25 for law enforcement agencies to go in there and conduct j
9340 Sim 18-22 1 their own undercover operations.
O 2 su e cor ett eno e ree o==, =a r ao='e heve 3 to come close to getting into any of the details. I just 4 think the cross-examination could not elicit evidence 5 material to the matters before the Board and doesn't even 6 arguably go to the credibility of the witnesses.
7 JUDGE KELLEY: Mr. Cole.
and Sim 8 Sua fols 9
10 11 12 O '3 14 15 16 17 18 19 20 21 22 23 l l
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9341 3VENING SESS.
D19-1-SueW 1 MR. COLE: No comment, Judge.
2 JUDGE KELLEY: Mr. Barth.
3 MR. BARTH: Could we have Mr. Runkle before the 4 Staff goes so we could hear all of the arguments before 5 we --
6 JUDGE KELLEY: He did.
7 MR,BARTH: Sorry, Your Honor. I do ask your j i
8 indulgence. It is late. My comments are few.
9 We have before us Contention WB-3. One of 10 the issues is the widespreadness or unwidespreadness of
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l 11 drug abuse and the Applicants' program to remedy this or l l l
12 control this and the undercover operations.
i 13 The documents filed by Mr. Eddleman is, to say !
I 14 the least, a bit confusing and would serve no useful purpose l l
15 that I can discern to provide information to the Board to !
16 resolve these two issues before it. ;
i 17 !
I would like to point out that the major cat-out-18 of-the-bag lies with the Attorney General of North Carolina. l 19 It does not lie with the Applicant. And to attribute to 1
20 the Applicant actions taken by the Attorney General in this 21 case I think is improper and irrelevant to the Applicants 22 or the Applicants' motives.
23 The Attorney General obviously does not run 24 the Applicants.
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25 I would refer you, Your Honor, because I think
9342 Ol9-2-Suew 1 this verges on an absolutely outlandish motion. I refer O 2 you, Your Honor, to one of Mr. Eddleman's major gripes, 3 that the Applicant revealed two hundred and one persons 4 were released. It's a major gripe.
5 Your Honor, on September 5, 1985 in Washington, 6 D.C., at the request of Harold Denton, the Director of 7 Nuclear Reactor Regulation, a meeting was held with thirty- ;
8 five people present in which this demand by the NRC for a 9 list of all people released -- not by name but by some kind 10 of classification -- was made by Mr. Denton. That list f II is two hundred and one.
12 We have discussed it ad infinitim. I have discus-l 13 sed. Mr. Baxter has discussed it. The Board has discussed Id it. To put this two hundred and one list as impuning the 15 Applicants' entire case is just plain ludicrousness. It 16 just is outlandish, Your Honor. !
17 Following that, on September 19, 1985, Carolina f
18 Power and Light provided the Nuclear Regulatory Commission, l Mr. Denton, with information requested in a letter signed :
I 20 by Sherwood -- pardon me, S. R. Zimmerman, who is the 2I Manager of Nuclear License Section. That is a list of two 22 hundred and one people to whom they have made some analysis 23 as to what their jobs were and yha,t they did, and went 24 around and looked at that, looked at November.
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25 To attribute this two hundred and one list submitted
9343
~~19-3-SueW 1 by the Applicants as impuning their entire case as regarding l~~
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J 2 widespreadness, the program undercover, and as Mr. Eddleman j 3 stated, fingering an informant, a motive to frustrate future 4 undercover operations I think is absolutely outlandish.
5 I think you should deny the motion out of hand, 6 Your Honor. I have nothing more to say. Thank you kindly 7 for your indulgence.
8 JUDGE KELLEY: Okay. Any closing comment from !
9 Mr. Eddleman or Mr. Runkle?
i 10 MR. EDDLEMAN: He can go ahead and then I have 11 some things.
12 JUDGE KELLEY: Okay. '
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kJ 13 MR. RUNKLE: I fail to see any nexus between 14 Mr. Barth's argument and the motion at hand. There is 15 one thing both Mr. Barth and Mr. Baxter has said that one 16 of the largest pieces of our puzzle was put forward by the 17 Attorney General's Office.
18 Now, if the Applicants were serious about pro- ;
19 tecting an identity of their informer they could have made 20 such motion six months ago. And they could have had --
21 they could have made the motions that this be confidential. ,
l 22 All the parties would have understood that. l 23 Any of the testimony would have treated that as confidential. !
24 MR. BAXTER: I'm totally at a loss as to what
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25 that means. It wasn't our informant. It was the Wake
9344
~~19-4-SueW I County Sheriff's Department's informant. It was the~~
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'/ 2 operation's informant.
3 Why on earth should I have filed a motion with 4 the parties to this proceeding, none of whom knew that 5 inforrant or his identity, to keep it that way. That's 6 ridiculous.
7 JUDGE KELLEY: Mr. Eddleman.
i 8 MR. RUNKLE: I -- let me respond briefly to i
9 that. i 10 JUDGE KELLEY: Make it very brief. I think we l 11 are off on somewhat of a collateral point, but very briefly, 12 Mr. Runkle.
_) 13 MR. RUNKLE: I think that's just another point l r
I 14 of the Applicants' position on this. j 15 They didn't feel it was their duty to protect !
16 the identity of the informant.
17 JUDGE KELLEY: Apparently not. That's what 18 Mr. Baxter just said. I 19 MR. RUNKLE: Exactly. And that's what the motion 20 goes to.
21 JUDGE KELLEY: Move on. Mr. Eddleman. i I
22 MR. EDDLEMAN: Judge, I would adopt Mr. Runkle's I
i 23 arguments that he has just been making. But I would like l lll 24 Am-FMw3 Reporars, inc.
to -- let me try, without going into the 201 in any depth, l l
25 I can't even find it. I think I know the argument that was l
9345 l
~~19-5-SueW 1 made from it in there. I don't think it has the massive L)~~
- 2 significance that Mr. Barth is trying to attribute to it.
3 But, you know, I would just as soon leave 4 somebody who can' t see this thing somewhat confused. So, 5 I'm not going to explain it further if that's okay.
l 6 You've got the actual motion. You can see what's !
7 in there about it.
l 8 JUDGE KELLEY: Yes. l i
9 MR. EDDLEMAN: Okay. Now, the question of who l l
10 knew I think is the key to this.
l 11 l JUDGE KELLEY: Who knew what? ,
12 MR. EDDLEMAN: Who knew that the confidentiality i
K_ 13 extended beyond the operation. Now, I want to be very 14 careful here about going into this, okay, f 15 JUDGE KELLEY: I'm still not with you.
16 MR. EDDLEMAN: Well --
17 JUDGE KELLEY: Who knew that the confidentiality 18 extended beyond the operation? I don't understand that 19 sentence.
i 20 MR. EDDLEMAN: I believe that the record will l
21 show that the Attorney General's counsel or witnesses, I
22 somebody over here, spoke up and said: We didn't realize l
23 that this confidentiality went beyond the end of the opera- !
l (3 Whatever they did.
24 tion and that's why we did what we did. j
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I don't want to refer to it beyond what is in the motion, i 25 l
I 9346 319-6-SueW I okay.
I 2 But once they did that, the Applicants certainly 3 had access to it.
4 JUDGE KELLEY: Access to what?
5 MR. EDDLEMAN: The information supplied by any 6 party, including the Attorney General. I i
7 JUDGE KELLEY: So?
l 8 MR. EDDLEMAN: The pieces of this puzzle, if you l t,
9 will, okay. Knowing that that many pieces were on the loose, !
10 I think it puts an additional responsibility on them in two 11 senses.
12 One is that they say that they consistently knew i
- 13 that that confidentiality was supposed to be maintained; 14 and, secondly, because they are the ones who expressed the l 15 opinion that is referred to on Page 3 down here, not quite 16 at the bottom. I don't want to nail it down on the record i
17 more than that.
18 I mean, I can tell somebody off the record for 19 the Board or parties if anybody is confused. But there 20 is like, second paragraph or third paragraph from the 21 bottom.
l 22 I also would call attention again to the f I
23 information about inviting people to, you know, stop things
\
,/
(j 24 if they were going to breach confidentiality ,dat's in the Az-Federal Reporters, Inc.
25 context of this. I think it's identified in the motion.
i i
9347 519-7-SueW 1 I don't want to go into it in detail. But the 2 other thing is that I think a motive of interference with l
3 finding of drug activity at the Harris plant would be an 4 obvious sign that the plant shouldn't be licensed.
5 A person with that motive would have something 6 to hide. And that's the final point I would make.
7 JUDGE KELLEY: All right. Gentlemen, why don't 8 you just give us five minutes. Don' t go away very far.
9 We will discuss it and rule on it.
10 (Whe reupon, the hearing is recessed at 6:11 p.m., j 11 to reconvene at 6:26 p.m., this same date.) l l
12 JUDGE KELLEY: The Board has considered and will !
f~')
's 13 now rule on Mr. Eddleman's motion for an IN CAMERA hearing. I 14 The Board finds no merit in this motion. It ,
i i
15 is denied.
16 The motion and substance is a request for further i
17 cross-examination. Certainly in the present circumstances, ,
i 18 the Board would require a showing of good cause before we 19 would grant that request. .
l 20 Having considered the submission, the Board does i l
21 not believe that such a showing has been made. .
l
\
22 A number of facts about the informer involved i 23 in the undercover operation at Shearon Harris last November
() 24 W Reporters, Inc.
and December have come out in the course of the hearing.
25 The Board thinks it's possible, at least conceivable, that I
9348
~~19-8-SueW 1 the aggregate effect of these disclosures might be to com-1~~
2 promise the identity of the informant. We don't know that.
i 3 Nor do we think there is sufficient reason to try to find 4 out.
5 In the first place, the disclosure of some f acts 6 about an informant in a situation like this, it's simply l 7 essential to have a hearing on the subject. For example, I
8 where the informant was working in the plant. You can't '
9 talk about drug use in the plant unless we know where it !
l 10 is.
l I
11 Secondly, the motion here is, to some extent, ,
12 either misdirected or not broad enough, because one of the 1
( <
'x / 13 disclosures in question was made by the Attorney General l I
14 and not by the Applicants. l 15 Beyond that, as we pointed out earlier, some 16 disclosures about informants just do slip out when the 17 l witness is sincerely trying to answer a question, trying 18 to be helpful. We think this happened yesterday. Mr. l 19 Joyner made the statement that is referred to in Mr.
l 20 Eddleman's motion. ;
21 And the Board *was here and had been listening j l
22 to Mr. Joyner much of the day. And we thought it was a j i
23 spontaneous statement intended to be helpful. We have no l
<~
k_j 24 reason to doubt Mr. Joyner's integrity. l Am 8Mw3 Reporars, inc.
25 I would say the same of the State about their l
l
9349
~~19-9-SueW l disclosure.~~
2 The principal purpose of this motion is to 3 uncover some corrupt or wrongful motive on the part of the 4 Applicants. We have absolutely no basis to think that 5 such a motivw exists.
6 And so we deny the motion on that basis.
7 That concludes our consideration of that matter. j 8 MR. EDDLEMAN: Judge, may I inquire as -- I 9 would like this thing to stay under seal, you know, as --
l 10 JUDGE KELLEY: The original request was protective !
11 order pending hearing of the motion; is that correct?
12 MR. EDDLEMAN: Yes, sir, Judge. But what I'm !
( 13 saying is, I don't want it released now just because the l
14 motion is denied.
15 I would like it to remain under protective order 16 available basically only to the Appeal Board for the 17 And, you know, if the parties feel l purposes of appeal.
18 they have a need to retain it, fine. If they want to give :
1 19 it back to me, fine. I will destroy, you know, all but i 20 one copy I presume and hold that in confidence for purposes 21 of appeal.
22 But I want to have it held there, because other-23 wise I can't contest the ruling on the motion without 24 show .ng what you were ruling on. But I don't want to show Am- Reporters, Inc.
25 anybedy else.
9350
19-10-SueW l JUDGE KELLEY: Well, in general, I think you 2 are making a valid point. Let me just ask the other 3 counsel how they -- let's make a specific proposition and 4 then have them react to it.
5 One approach would be to -- for the Board just 6 now on the record to extend the protective order applicable 7 just to this particular motion. And the substance of that 8 would be that counsel keep their copies but keep them in 9 a protected fashion. I won't spell that out, but it's 10 not a public document. And you would keep it so that it i
11 would not be disclosed to other parties essentially. ;
I 12 And the same arrangement could apply to record l 13 copies. We could limit the number of record copies. So 14 that eventually if there is an appeal of the matter, it i
15 can be seen in the record by the Appeal Board or others j 16 that need to see it. i l
17 But it's not public. Is that approach acceptable, j 18 Mr. Baxter?
19 MR. BAXTER: It's fine with the Applicants.
l:
20 JUDGE KELLEY: Mr. Barth?
I 21 MR. BARTH: It is ninety percent, Your Honor.
22 I'm worried about being burned by FOIA. We've had fingers 23 tremble over that in the past.
A 24 And the largesse of the Federal government
()
Am-Fesso n.ponen, inc.
25 terrifies me at time. And I have no problem with what you
_ _ _ _ _ __. ~ - ~ _ _ -_ ___ _ - .
9351
~~19-ll-SueW 1 are suggesting. I thought myself I would put this in~~
' _J 2 the security safe at the office until -- but documents 3 filed with the Agency, with FOIA, may create problems.
4 I have been once told never to raise a problem I
5 unless you have a solution. I haven't got the solution I
6 to this. ,
i I
7 JUDGE KELLEY: Let me try. If a request under 8
the FOIA comes in,then it will be denied on some ground or l 9 o the r .
10 (Laughte r. ) i 11 The protective order ground. I can't conceive 12 that we have to let go of something like this. An in- l
/s l k_) 13 formant's name. That's just -- surely, we can hold on 14 to that.
15 One of the problems that -- this is a problem that 16 came up in this case, as a matter of fact. There was a 17 request for some other documents and one of the arguments 18 was, why don' t we just give the papers back so the govern-19 ment doesn't have it anymore? And we decided we wouldn't i
20 do that.
i 21 But on the other hand, we did deny it under an 22 exemption. I certainly would not contemplate -- speaking ,
i 23 for the Board -- that we would disclose this document !
i
() 24 Am-FMN: R eporurs, lm under an FOIA request. l l'
25 MR. BARTH: I feel comforted by the Board's I
l
9352
~~19-12-Sueh1 assurance, Your Honor. I think your suggestion is~~
' / 2 admirable.
3 JUDGE KELLEY: Mr. Cole.
4 MR. SOLE: Oh, I have no problems with that, 5 Your Honor. I don't mind giving my copies back to Mr.
6 Eddleman for that matter either. l 7 JUDGE KELLEY: Well, that could be an alternative 8 approach that the parties can elect to take if you want to l l
9 do that. l 10 MR. COLE: I don't mind keeping mine if every- f 11 body else is going to keep them. I don't want to be the i
12 only one outstanding. ,
m j
~j 13 JUDGE KELLEY: Mr. Baxter, do you want to keep I
i 14 yours? l 15 MR, BAXTER: Oh, yes, I do.
16 (L; ugh te r. )
17 JUDGE KELLEY: All right. The parties keep 18 their own, and keep it in a protected way. Don' t disclose 39 it to other parties. That's all.
20 MR. EDDLEMAN: Judge, do you mean other persons, 21 rather than -- I mean, I don't --
22 JUDGE KELLEY: Other persons. Persons. That's f 23 Other persons. l a proper correction.
l r {
24 We have counsel here. Is there any need to know Am-FbNJ Rmorars, lm, l 25 beyond counsel here, at least at this time?
l
9353
~~19-13-SueW l (No response.)~~
2 I wouldn't think so. And if something comes 3 up, you can check with the Board.
4 MR. EDDLEMAN: Judge, I don't want to complicate 5 things unnecessarily. But I know that certain FOIA denials 6 get appealed and they might get beyond the jurisdiction of l
7 this Board and out even into the Federal courts. ;
8 MR. BAXTER: You can withdraw the whole thing 9 if you want.
10 MR. EDDLEMAN: Well, what I'm asking is, is 11 there a solution short of that that's a little stronger I 12 than just denying the FOIA? f 7- !
k. 13 Is there a way to seal this document, given i 14 that nobody else has any need for it? i i
15 JUDGE KELLEY: That won' t matter. You can't -- -
16 once you have made a motion to this Board, the Board is l l
17 going to keep its copy. !
1 18 MR. EDDLEMAN: Right. j 19 JUDGE KELLEY: You can't have it back. Now, i l
20 whether we put it in a sealed envelope or not or a safe 21 isn't going to matter as far as the FOIA is concerned.
22 I mean, we could solemnly ~ say under seal and 23 get our whacks out and all that. That isn't going to keep A
(_) 24 it from anybody.
Am-Federd Reporters, Inc.
25 (Laughter.)
9354
9-14-SueW j MR. EDDLEMAN: Okay. So what you are saying 2 is that the FOIA problem, there is no'way to get a 3 stronger way around it than the one you just said?
4 JUDGE KELLEY: I'm saying that I have no doubt 5 there is an exemption that will cover this. I'm not 6 saying which one it is at the moment. I don't have my 7 book with me. l l
8 But I can't conceive that a law enforcement !
9 agency such as the NRC has to disclose the identity of ,
i 10 confidential informants. So, I think it's safe enough.
l
~
11 MR. EDDLEMAN: All right, sir. :
i 12 JUDGE KELLEY: Okay.
13 MR. EDDLEMAN: I will leave it in your hands.
I 14 JUDGE KELLEY: Other matters? There is one i 15 other matter of some importance and that is where we are l l
16 going to hold this hearing starting the 4th of Ncvember. ,
i 17 We are going -- j 18 MR. COLE: I don't have a place to go but I i 19 know a place I would say we don't go. l
{ i 1
20 (Laughter.) :
21 JUDGE KELLEY: That will be a confidential 22 location.
23 (Laughter.)
()
Ace-Federal Reporters, Inc.
24 Maybe we can go off the record for this rather 25 lose discussion that will undoubtedly follow. Okay.
I
1 9355 Ol9-15-SueW 1 (An off-the-record discussion ensued.)
) 2 JUDGE KELLEY: Okay. Anything further?
3 (No response.)
4 Okay. Thank you very much. We will adjourn.
5 (Whe reupon, the hearing is adjoured at 6:42 p.m.,
6 Thursday, October 3, 1985, to reconvene at 9:00 a.m.,
7 Monday, November 4, 1985.)
J g
ENDDDDD 9 l 10 11 l I
12 l
1 (I) n l l
14 l
i 15 ;
i 16 17 l 18 !
1 19 ;
20 l
I 21 22 23 24 Cl)
Wederal Reporters. Inc.
25
n NO PAGE NUMBER CERTIFICATE OF OFFICIAL REPORTER
(
) This is to certify that the attached proceedings before l
)
the UNITED STATES NUCLEAR REGULATORY COMMISSISON in the matter of:
NAME OF PROCEEDING: SHEARON HARRIS NUCLEAR POWER PLANT l
EVIDENTIARY HEARING 1 l
l DOCKET NO.:
PLACE: APEX, NORTH CAROLINA l
l l DATE: THURSDAY, OCTOBER 3, 1985 were held herein appears, and that this is the official h transcript thereof for the file of the United States Nuclear j Regulatory Commission.
l (sigt -
(TYPED) Garrett Jhalsh (sigt)
(TYPED) Sue Walsh -
(sigt) %, %
(TYPED) Mary @ mons Official Reporters Reporter's Affiliation G
_ - - - - - - - - -

ML20137Z515

Text

Dear Mr. Runkle:

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