ML20137Z344
| ML20137Z344 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 10/02/1985 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#485-755 OL, NUDOCS 8510080224 | |
| Download: ML20137Z344 (250) | |
Text
'OR/337t UN11ED STA1ES
. O NUCLEAR REGULATORY COIvEESSION IN TrIE MA1 A cx OFi D0CKc1 NO:
SHEARUN HARRIS 50-400-OL NUCLEAR POWER PLANT EVIDENTIARY HEARING -
- ~ _ .
t.OCATION: APEX,-NORTH CAROLINA PAGES: 8845-9071 DATE: WEDNESDAY, OCTOBER 2, 1985
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8845
@im 1-1 1 UNITED STATES OF AMERICA 2i NUCLEAR REGULATORY COMMISSION I
- c. 3i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD A
x 5
In the Matter of: :
6 CAROLINA POWER & LIGHT COMPANY :
7; and NORTH CAROLINA EASTERN : DOCKET NO. 50-400 OL MUNICIPAL POWER AGENCY :
0l' (Shearon Harris Nuclear Power :
9 Plant) :
X
- j, Ramada Inn Interstate 55 U. S. 1 South 2
-- Apex, North Carolina Wednesday, October 2, 1985 l
I 14 The hearing in the above-entitled matter reconvened,
' 15 pursuant to reces.s, at 9:08 a.m.
16
[ BEFORE:
i 17! JAMES L. KELLEY, ESO., Chairman Atomic Safety and Licensing Board 18 U. S. Nuclear Regulatory Commission j9 Washington, D. C. 20555 GLENN O. BRIGHT, Member 20 Atomic Safety and Licensing Board Nuclear Regulatory Commission 21 Washington, D. C. 20555
~1 22
- JAMES H. CARPENTER, Member At mic Safety Licensing Board 23 U. S. Nuclear Regulatory Commission
! . Washington, D. C. 20555 Y
epwm. ec.
25 .
N
8846 APPEARANCES:
1
, On Behalf of the Applicants:
2 j THOMAS A. BAXTER, ESQ.
es 3 Shaw Pittman, Potts & Trowbridge 1800 M Street, N.W.
4 Washington, D. C.
5 DALE HOLLAR, ESO.
RICHARD E. JONES, ESQ.
- 6. ANDREW H. McDANIEL, ESQ.
j Carolina Power and Light Company 7! P. O. Box 1551
! Raleigh, North Carolina 27602 8!
Appearing Pro Se:
9 WELLS EDDLEMAN 10j 806 Parker Street
- Durham, North Carolina 27701 11
On Behalf of the Conservation Council of North Carolina:
12
/O JOHN D. RUNKLE, ESO.
kab~} 13 307 Granville Road
\~/ Chapel Hill, North Carolina 27514 14l l On Behalf of the State of North Carolina:
15 i H. AL COLE, ESQ.
16, STEVE BRYANT, ESO.
! State of North Carolina 17' Department of Justice P. O. Box 629 18 Raleigh, North Carolina 27602 19 On Behalf of the Nuclear Regulatory Commission:
20 CHARLES A. BARTH, ESO.
JANICE E. MOORE, ESQ.
21 Office of the Executive Legal Director ge U. S. Nuclear Regulatory Commission
(/ 22 Washington, D. C. 20555 23' BRADLEY W. JONES, ESQ.
U. S. Nuclear Regulatory Commission, Region II
2d 101 Marrietta Street
' - """' Atlanta, Georgia 30303 25
\
l .- . . . - . . . - _ -
8847 SusWalsh j q q E T_ E E I 1
'O WITNESSES DIRECT CROSS REDIRECT RECROSS B_D,VOIR DIRE
(> 2 3
William J. Hindman,Jr.)
4 Michael W. king )
D. Glenn Joyner )
Peter B. Bensinger ) 8894 8972 8977 8957 5
6 4 Dana B. Mackonis )
7 - and - )
Kenneth A. Mathias) 8991 8996 9040 9043 9025 9051 8
9 10 Dog Demonstration Page 9060 11 12 O is 2 I-Ina 14 Revised Testimony of Messrs. Hindman, King, Joyner and Bensinger Following Page 8893 15 Testimony of Ms. Mackonis and '
16 Mr. Mathias Following Page 8993 f
17 18 19 20 21 i
j 22 i
! 23 24 l
Csow wn inc.
25 1
l i
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8848
@im 1-1 j P_ R O C_ E E_ D I N_ G S 2 JUDGE KELLEY: Good' morning.
3 We have first a few rulings, and then we are going 4 to ask counsel to address the question that we left with them 5 last night.
6 Let me go right to the rulings, and then we will 7 move ahead in that fashion.
8 We had a motion from Mr. Runkle and opposition from 9 Mr. Baxter pertaining to page 8, lines 7 through 11, as we 10 read it. It is the newspaper article objection.
II Mr. Runkle, I am uncertain what your exact line 12 designations were there. I say 7 through 11 uecause that is 13 the quote from the article.
I4 MR. RUNKLE: And it would also be the following 15 sentence.
16 JUDGE KELLEY: That, too, sure. That includes 11.
17 So it would begin ---
18 MR. RUNKLE: And I would strike the last two 19 sentences of that paragraph.
20 JUDGE KELLEY: All right, maybe for parsing. It 21 doesn't matter a lot, and if that is your motion, then we 22 can treat it that way.
23 So the motion is to strike the last two sentences 24 hporters, tae.
of the paragraph, the runover paragraph at the top of page 8.
25 We grant that motion on the ground that the evidence is i
L
8849 Sim 1-2 1 basically unreliable. It is a newspaper report of an unnamed I) 2 worker and workers.
3 And also, and this is important, that it is really 4 unnecessary to this record. If this were the only evidence 5 on some disputed point, we might well admit it, but it is not.
6 And on those two bases we exclude it.
7 We note that they do contain hearsay, but we have 8 been known to say many times that just because something is 9 hearsay, it doesn't mean it doesn't come in. So we simply 10 cite the fact that it is hearsay and, in our view, unreliable 11 hearsay, and we are rejecting it on those grounds.
12 Which brings us to the objections lodged to pages
(~N 13 14, all of page 14 and the little more than first half of N.;
14 page 15, down to the beginning of question 15.
15 Is that the proper demarcation?
16 MR. RUNKLE: Yes, sir.
17 JUDGE KELLEY: We heard some argument on this yester-18 day, and we are prepared to rule on portions of this objection, 19 and then leave for discussion by counsel the part that we think 20 really pertains to Rule 608 and the impeachment question we 21 left with you.
22 But we want to make clear at the outset the real 23 focus of the discussion to follow.
24 Page 14, the first paragraph, the objections heard Ace FS1 Reporters, Inc.
25 were relevancy, hearsay and to some extent the impeachment
l 8850 cim 1-3 1 considerations that the Board raised and counsel discussed to
() 2 some extent. We don't believe any of these objections obtain 3 to the first paragraph. Those matters relate to knowledge 4 presumably within the possession of witnesses. Relevance is 5 obvious and there is no apparent hearsay, if any hearsay in
! 6 the first paragraph and we think it is proper impeachment.
1
! 7 So the motion to strike paragraph 1 on page 14 is T
8 denied.
1 9 Turning to page 15, must the same considerations 10 apply to the top of the -- well beginning at tr.e top of page 11 15 and down through the end of the quote from the letter, much 12 of the same reasons apply. It seems to me that the relevance 4
13 of that material is obvious.
)
[ 14 The letter is hearsay in a very narrow technical l
t 15 sense, and we are going to ask the parties, the applicants i
16 in a moment to produce the latter anyway. The text of the 17 letter is available and Ms. Miriella will be available and then
- 18 the hearsay objection becomes a technicality with, as we see
- 19 it, no real substance.
20 We don't see any objection to it as impeachment, and i 21 it seems to us it is appropriate impeachment. Whether any of 22 it is true or not remains to be seen, but itwis'the kind'of..-
4 23 matters that the applicants are entitled to bring out.
24 Let me pause and ask the applicants. You quote hpwom, Inc.
25 a part of a letter and'that calls forth in our minds a desire I
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8851 Sim 1-4 1 to see the rest of the letter. Is there any problem with O 2 taet?
3 MR. BAXTER: No, Mr. Chairman. We had planned, 4 according to the ground rules set by the Board, that cross-5 examination documents should be distributed today and ahead 6 of time.
7 We were going to distribute that letter today as 8 a cross-examination document to be used tomorrow when 9 Ms. Miriello appears.
10 JUDGE KELLEY: Thank you. What about the second 11 letter, did you have in mind using that too? You referred 12 to two letters.
,} 13 MR. BAXTER: Yes, sir.
{
14 JUDGE KELLEY: Would that be part of it, too?
15 MR. BAXTER: Yes.
16 JUDGE KELLEY: Thank you. So that will be available 17 to the Board and parties.
18 Now the remaining portion under objection on page 19 15 are the three lines around the middle of the page right 20 after the quote beginning with -- well, I will just read 21 it. "According to another co-worker, Ms. Miriello stated 22 at a hotel bar in early August 1985 that she would ' shut 23 some nuclear plants down' if she were fired by CP&L."
I 24 The relevance of the statement going to credibility hpore.n, sac.
25 and an alleged desire to retaliate for her firing in that
. ~ - - -
8852 l
ntext we gather seems to us apparent. It is a hearsay gim 1-s i
, statement. Ms. Miriello again will be here and she is free
.- 2 to agree with, deny or modify that statement.
i Under the rule we are about to talk about, Rule 608, it seems clear to us to that it is proper cross. So to exclude something now only to allow it in a question form tomorrow or the next day seems to us to be sort of a futile 7
thing.
We get into this situation because we operate on prefiled testimony, and in the sort of common law court bases
! these evidence rules are written on don't usually contemplate that.
But we believe for the reasons I have indicated th't a 13 the motion to strike this quote should be denied, and it is 4 14 denied.
- 15 Which brings us to the portion of this motion to q . strike that does raise in our minds more difficult problems.
I We asked counsel last night to review Rule 608 of the Federal Rules of Evidence. I will say once more and not again that we are not bound by these rules strictly speaking, but they are after all a sorce of guidance for the Boards that 3 21 are frequently followed, and certainly in a difficult question like this it wouldn't be responsible of us we think not-to i at least consider them and ask whether the path they indicate,
" ' ' " whatever path that is, isn't the right one to take.
25 i
i i
8853 cim 1-6 i So we are going to ask you to speak to that with
() 2 reference to the second paragraph of page 14, and I would 3 just like to raise a couple of points to guide your comments 4 and suggest some things we would like you to take into account 5 specifically.
6 One obvious point is would this material in dispute 7 be allowable under Rule 608 or not. In that connection, just 8 take into account once more that we use prefiling here and 9 I don't believe that rule contemplates prefiling.
nnd Sim to cuo fols 11 12 C) 14 15 16 17 18 19
- T :*
21 22 23 24 ne.- n per,.c., Inc.
25
8854 i - #2-1-SueW 1 The second thing that we would like to ask you
, .( ) 2 to think about on this point -- I'm sure you are all students 3 of-these Federal Rules and you know that the availability l 4 of evidence pervades the rules, including the hearsav rule .
5 And the notion is that in general you can use hearsay in
~
i 6 a lot of situations if that's the best vou've got.
7 But that if you can oroduce a firsthand witness 8 you would have to do that. We note that the ultimate issue 9 here, factual issue, is whether or not Mr. Camburn used 10 cocaine or distributed it to other people, not whatever
- 11 personal relationship may have obtained between Mr. Camburn 12 and Ms. Miriello.
{} 13 The latter issue would only go to credibility.
14 So, it strikes us that it might be preferable if Mr.
, 15 Camburn is available, can come and testify. If we could 16 hear out Ms. Miriello on her allegations about Mr. Camburn's 17 activities and hear out Mr. Camburn and his version of his 18 activities, possibly sequester one from the other -- which 19 we haven't done so far but could -- we might be in a better 1
20 position to make a judgment on whether or not cocaine was
- 21 used as alleged and distributed as alleged than we would 22 be speculating on the impacts of people's personal lives.
i 23 And it, therefore, occurs to us that one ootion 24 here is to say that we would exclude this evidence, this h p a m , lac.
25 line of evidence that goes to personal relationships at
- - , -, . - - - , _ e- ,.--_,-__r,.
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8855 3-2-SusW I least until we've heard from Mr. Camburn and then we would
() 2 decide whether or not it's necessary to get into that at 3 all.
4 We know from the Acoliccants' distribution of 5 affidavits last night, we all have an affidavit from Mr.
6 Camburn -- and I won't ao into it; we have read it. It's 7 not in evidence and we won't consider it in the case at 8 this point, but it's distributed and available.
9 At least, if Mr. Camburn -- Mr. Camburn is aware 10 of what is being said here. He is apparently in Minnesota.
11 And for all we know, he is available.
12 And there is another factor here bearing on this 13 matter we think, and that is that although credibility of
[}
14 witnesses is obviously something we can inquire into, and 15 what you usually hear in these cases is expert witnesses 16 being questioned about where . they went to school and so 17 forth. It is a little unusual to get into personal lives.
, 18 I've never seen it in my experience. And there are some reasons not to if we don't have to.
I 19 I
20 The Federal Rules say, in Rule 611, which 21 incidently is cross-referenced in the Advisory Committee
! 22 notes to Rule 608, and it says: The Court shall exercise 23 reasonable control over the mode and order of interrogating ,
I l 24 witnesses and presenting evidence so as to (3) protect yf Reporters, Inc.
25 witnesses from harassment and undue embarrassment.
8856
- 2-3-SueN I And~I think it's a consideration at least that
) 2 we avoid people's personal lives in our trials if we have 3 some reasonable choice and we can prove thinas other ways.
4 And i f we don ' t , then maybe we do.have to get into such 5 matters.
6 But we are somewhat reluctant to do so. Or, 7 at least we think we should bear it in mind, and we would 8 like to hear from counsel on the point.
9 So, with that rather elaborate preamble, let's 10 see, Mr. Runkle, do vou want to trv first?
II MR. RUNKLE: I would like to read into the 12 record the Advisory Committee's note on this verv matter
(')
~
13 we are talking about and then sort of explain from there 14 where things are.
15 JUDGE KELLEY: Well, you mean the entire note?
16 MR. RUNKLE: No, iust on the one paragraph that 17 affects what we are talking about right here.
18 JUDGE KELLEY: Go ahead.
19 MR. RUNKLE: And I quote: " Effective cross-20 examination demands that some allowance be made for going 21 into matters of this kind..." -- and that is truthfulness 22 or untr$1thfulness of a witness.
23 JUDGE KELLEY: Let me make sure I'm with you, 24 Mr. Runkle. I'm sorry. I'm looking at the Advisory Ace-FSl Reporten, Inc.
25 Committee notes myself. Where is your sentence?
8857
- 2-4-SueW 1 Are you halfway through the note, or where?
("N MR. RUNKLE: I'm startina with " Effective l V 2 3 Cross-Examination."
i 4
I don't know if that's in your copy of the 5 Advisory Committee note or not.
6 JUDGE KELLEY: Well, we have to get straicht 7 just what we are using. Here is what I've got. I've 8 got Rule 608, Federal Rules of Evidence.
9 And underneath that, the caption reads, " Notes 10 of Advisory Committee on Proposed Rules. " That's what I 11 have. Is that how your note is captioned?
12 MR. RUNKLE: No. I'm reading from the North
(} 13 Carolina Rules of Evidence that quotes the Advisory 14 Committee's notes and also discusses that.
15 JUDGE KELLEY: How long is it?
16 MR. RUNKLE: It's just one paragraph.
17 JUDGE KELLEY: All right. And it will be in
.18 the record. Okay, just read it.
19 MR. RUNKLE: Okay.
20 MR. COLE: Your Honor, would you like -- I've 21 got it here. You are welcome to mine.
22 JUDGE KELLEY: That's all right. No, we will 23 just follow along. All right.
24 MR. RUNKLE: " Effective cross-examination demands Ac I a.pe,*n lac.
25 that some allowance be made for going into matters of this
8858
- 2-5-SueW I kind, that the possibilities of abuse are substantial.
() 2 Consequently, safeguards are erected in the form of specific 3 requirements that the instances inquired into be probative 4 of truthfulness or its opposite and not remote in time.
~5 Also the overriding protection of Rule 403 requires that 6 the probative value not be outweighed by danger of unfair 7 prejudice, confusion of issues, or misleading the jury.
8 And that Rule 611 bars harassment and undue embarrassment."
9 JUDGE KELLEY: I believe your c{uote does come --
10 yes, I see it now. It's--thelanguageyouiustreadis 11 in the Federal Rules, too.
12 MR. RUNKLE: Yes. Mine is from the North
(} 13 Carolina commentary on the Rule.
14 JUDGE KELLEY: Okay.
15 MR. RUNKLE: It quotes the --
16 JUDGE KELLEY: Right.
17 MR. RUNKLE: -- Advisorv Committee.
i 18 JUDGE KELLEY: Right.
19 MR. RUNKLE: And I think that if we look at 20 the language in Rule 608 where it talks that under 608 (b) 21 specific instances of the conduct of the witness for the 22 purpose of attacking or supporting his credibility may not 23 be proved by extrinsic evidence.
24 In this context, extrinsic evidence is that
- Ace- Reporters, lac.
25 from outside sources. And I think that extrinsic evidence
8859
- 2-6-SueW I in this case should be barred as being outside, really O outside, the ecoge of this hearine. ^ed 1ee me exg1ain 3 how this works.
4 JUDGE KELLEY: Would you slow down on extrinsic?
5 We've got a -- Mr. Cole has favored us with a xeroxed 6 copy of a page from Black's Law Dictionary. I don't know 7 if you saw that or not.
8 I think if we are going to throw this word 9 around, we ought to know what it means. You are saying 10 that evidence that is not relevant to the case?
II MR. RUNKLE: No. Well, according to the defini-12 tion of Black's, which I was working from, it would be 13 external evidence not legitimately before the tribunal 14 in which the determination is made.
15 JUDGE KELLEY: That's a question begging state-16 ment, though. It just says bad evidence is bad evidence.
17 It doesn't help us very much.
18 MR. RUNKLE: And that would be outside sources I9 to prove -- to prove that the witness -- to prove the 20 specific instances of the conduct of the witness. And 21 this last paragraph on 14 would be that very thing that 22 it's talking about, extrinsic evidence.
23 If you asked the witness this and the witness 24 said no, you could not prove otherwise.
I Reporters, Inc.
25 JUDGE KELLEY: But you can ask the witness, right?
l
8860 52-7-SueW l MR. RUNKLE: On --
'() 2 JUDGE KELLEY: Under this rule?
, 3 MR. RUNKLE: On cross-examination.
4 JUDGE KELLEY: Right, on cross.
5 MR. RUNKLE: All right.
6 JUDGE KELLEY: So, if you put Ms. Miriello on 7 the stand, you could ask her questions about this very l'
8 material?
9 MR. RUNKLE: Yeah.
10 JUDGE KELLEY: Under this Rule?
11 MR. RUNKLE: But you cannot put extrinsic 12 evidence saying statements by eight to ten co-workers
{} 13 which is like, if you will look at the last sentence of 4
14 this paragraph it has eight or ten co-workers said some-15 thing.
4 16 MR. BAXTER: I thought we were focusing on 17 Page-14, the last paragraph on Page 14.
18 MR. RUNKLE:- If you look at the last sentence 19 of the last paragraph on 14, it does say about eight or 20 ten co-workers.
J j 21 MR. BAXTER: Sorry.
End #2 22 i Joe flws I 23 i
hpor=s.
25 e
8861 3-1-JotWal 1 JUDGE KELLEY: So you are contending that on 2 cross this sort of thing, under this rule, could be inquired l 3 into but you couldn't proffer evidence in the first place, 4 is that --
5 MR. RUNKLE: Right. And if the witness says:
6 No, that is not true; you have to accept the answer of the 7 witness.
8 And now, if you allow it in at this point, and 9 then ask the witness and say no, then you say, well, it 10 is contraverted because testimony by Panel No. 3 reported 11 that hearsay of so many, eight to ten co-workers, -- the 12 way I was taught in school, that is equivalent of a car load O is of nuns.
14 I mean, the more people you have corroborating 15 your statement, the better it sounds.
l 16 JUDGE KELLEY: Okay. Can I ask you, Mr. Runkle, 17 the Board made a couple of suggestions before. But if I am 18 to understand that you would make no objection to these i
~
i 19 questions on cross, is that your position?
20 MR. RUNKLE: No. We would -- we may object to the
, 21 way the question if phrased. We can't say that all these 22 areas at this time may be outside of cross-examination.
23 JUDGE KELLEY: I will put it to you differently.
24 We are just trying to decide this morning really whether noo,wn.tx. '
25 we are going to get into the topic of, in this case Ms.
I i
3-2-JosWal 8862 1 Miriello's personal life. That is what has been raised.
() 2 or whether we are not. And you have raised the point by 3 saying strike this page, and we would rather not piecemeal 4 this thing too much.
5 MR. RUNKLE: If it goes to the truthfulness 6 of the witness , I don't think I would object to that question.
7 JUDGE KELLEY: Why don't we cross that bridge 8 right now?
9 According to the theory in this paragraph, this 10 was a person spurned and angered by another person, and is 11 seeking revenge. That is how I read the paragraph.
12 So, if somebody said that is irrelevant,I would
() 13 overrule it. So, we can clear that out of the way, I think, 14 from the Board's standpoint.
15 I will tell you in advance that the inquiry --
16 I can't say it is irrelevant. Do you think it is otherwise !
17 unobjectionable?
18 MR. RUNKLE: Otherwise being relevant, is that 19 what you are saying? l 20 JUDGE KELLEY: My question earlier was this:
21 I had some -- I am speaking for myself, I don't think I am 22 contradicting.the Board -- but I am just speaking for myself, 23 but I am not very anxious to get into this line of inquiry, 24 because I think that NRC witnesses when they come forward c omm, inc.
25 should not, generally speaking, have to worry about what they
. _ , _ , . , _ . _ _ ..___ . _,_____._m , . - . . . . , _ , , _
3-3-JonWal 1 do on their own time. Drug use excluded.
) 2 But in terms of what I call their personal lives, 3 that is not the kind of impeachment we normally expect to 4 get into.
5 Now, if you think that is just fine, and we 6 should get into that, you have no objection to it, I don't 7 know how paternalistic we ought to be. That is my question, 8 really.
9 MR. RUNKLE: You have the other constraints of 10 harassment and undue embarrassment, and that under Rule 6.11 11 is stronger than -- I personally don't see how this goes i 12 to truthfulness, but I think that, you know, the witness
() 13 was very concerned about her personal life being taken
- 14 through the ringer.
15 I think that it is harassment of any witness that 16 would want to come forward, and would cause people undue --
17 it would be embarrassing.
18 JUDGE KELLEY: So, would you object to that line 19 of questions on that ground?
20 MR. RUNKLE: Well --
21 JUDGE KELLEY: We might as well find out now, so 22 we know what to do.
23 MR. RUNKLE: Now, I am not sure -- you mean the 24 line of questions about her personal ^ relationship with --
n.po,wn, Inc.
l 25 _ JUDGE KELLEY: Exactly.
l
3-4-JotWol 8864 1 MR. RUNKLE: Yes.
2 JUDGE KELLEY: Okay. So, what do you think we 3 should do? Should we call Mr. Camburn?
4 MR. RUNKLE: I have already -- I have already 5 talked to his firm and see if he would be made available 6 to this proceeding, and they will not make him available 7 to me.
8 Until I found out yesterday that he was in 9 Minnesota, they would not tell me where he was, and that 10 goes into Ms. Miriello's testimony.
11 JUDGE KELLEY: Well, maybe the question is better 12 put to the Applicants', because after all, they are the O i3 enes ehet greffered the testimony.
14 Maybe the Board. ought to say if you want to get i 15 into this at all, bring Camburn in first, if you can't.
)
16 Maybe they can 't. Then we have to get back to this.
17 It is a question of necessity. If Mr. Baxter 18 argues last night, Ms. Biriello comes in here and makes 19 these charges, and there is not a thing we can do to counter 20 them except what we have done, and then my question is: Why 21 not bring in Camburn?
22 And maybe there is a good answer to that.
, 23 MR. RUNKLE: As far as we are concerned, he is 24 unavailable, neomn. ine.
i 25 JUDGE KELLEY: He is unavailable to you. You i
8865 3-5-Jo:Wal I tried and you couldn't get him.
2 MR. RUNKLE: Right.
3 JUDGE KELLEY: All right. Mr. Baxter?
4 MR. BAXTER: Several things, Mr. Chairman.
5 First, I would -- in looking at the last paragraph on page 14, 6 I hope we can exclude the second sentence from the argument
! 7 which is: CP&L's records indicate that Mr. Camburn was 8 last on the Harris site on November 1,3, 1984.
9 That doesn't go to Ms. Miriello's --
2 10 JUDGE KELLEY: Do you stipulate to that.
11 MR. RUNKLE: That is in testimony elsewhere, so
- 12 we have no problem.
i
() 13 JUDGE KELLEY: All right. Anything else? You
^
14 understand the thrust of what we are talking about, but I 15 think we should segregate out those parts that are affected
! -16 by it, and that seems to be one. Is there another one?
17 MR..BAXTER: No. Not in that paragraph.
18 Mr. Chairman, first let me say that we, too, are reluctant t
19 to be delving into the personal lives of witnesses.
20 ' However, in this case Ms. Miriello's testimony 1
21 about ConAm employees is not derived from any statements 22 by her that relate to her work environment.
l 23 She did not work for ConAm. She did not work with 1
i 24 Mr. Camburn. The only indication we have of firsthand naso,wn ene.
! 25 information by her, was that:.she observed allegedly Mr.
i
3-6-JosWel 8866 1 Camburn buy and use cocaine at a hotel room, s
2 Now, they weren't either one of them there on 3 Company business, and that is the only nexus we have.
4 otherwise, she is saying what Mr. Camburn told 5 her, and to some extent that is uncorroborated hearsay 6 as we discussed yesterday, but I have no way to just 7 explore her professional capacity in this regard, because 8 the information was derived by Ms. Miriello off the 9 premises of the job and in the context of her personal 10 life.
11 JUDGE KELLEY: Well, which way does that cut.
12 I mean, in the sense -- the very facts that you mention
() 13 undermine her position, do they not?
14 MR. BAXTER: Yes, but in terms of just exploring 15 personal lives, it would be very difficult to explore her 16 testimony without asking some questions, whether it is on 17 cross-examination or through our testinony about --
18 JUDGE KELLEY: Certainly the statement that 19 the witness observed Mr. Camburn taking cocaine in a hotel, 20 you can certainly inquire as to when and where, and why 21 were you there? Where to draw that line exactly, is a 22 little bit hard to tell, I grant you.
23 But if you -- you have at least that much latitude.
G 24 W [9 porters, tric.
We are focusing on background-type.
25 MR. BAXTER: I am going to go further, Mr.
8867 3-7-JonWal 1 Chairman.
(\/) I just wanted you to understand that in terms 2
3 of the ConAm testimony that she presents, she has no 4 firsthand knowledge of any use on the site by those 5 employees.
6 MR. RUNKLE: Well, we will be willing to 7 stipulate that.
8 JUDGE KELLEY: Okay.
9 MR. BAXTER: Now, let me go back to several of 10 the points you raised.
11 First of all, I do think you are right that to ,
I 12 some extent we have a mismatch between the Federal Rules l
/'
l l
(__)N 13 and our procedure here, because of the order in which l
14 events occur.
15 Ms. Miriello's affidavit came out during the l 16 summary disposition process which in this proceeding has l i
l'7 acted much like an extension of discovery. We addressed !
l 18 Ms. Burch's affidavit in our prefiled testimony in the same 19 way. ,
l 20 And in fact, in terms of considering whether 21 we should await the rebuttal opportunity as opposed to 22 presenting any credibility attack in our direct filed, I 23 think it is to the Interveners advantage that they have
/ j 24 seen it in advance, and had it prefiled, and there is even w.d rk n.oonm anc.
25 some precedent for the argument that we shouldn't have an
1 3-8-Jo;Wal 8868 1 opportunity for rebuttal for anything we could have anticipated 1 :
/ 2 and addressed in our simultaneous filing of direct testimony.
3 You have already stated, and I think it is 4 correct, that the Board is not bound by these Federal Rules.
5 Appendix A to Part II makes it clear that in ruling on 6 objections, you are not bound by these rules of evidence, 7 although they can be looked to for guidance.
8 In a general way an investigator's interviews of 9 other personnel and reporting on those is quite frequently 10 followed in NRC proceedings.
11 Mr. Joyner is a trained investigator. If this !
l 12 process were not allowed, inspection and enforcement witnesses l t
kj 13 from the NRC would be virtually unavailable to licensing !
14 boards.to testify in these proceedings.
l 15 But moving more directly then to Rule 608.b and l
16 your specific question, granted the rule on its face is not i l
17 terribly revealing about what it means by credibility, I l 18 argued last night, semi-intuititively, that what I felt it l l
19 was going to still was semi-unrelated instances of conduct j i
20 that beared on character and propensity to tell the truth, 21 whereas I believe our testimony is putting forth not an 22 opinion, but facts surrounding the very matters raised by End 3. 23 Ms. Miriello's testimony.
MS fois.
() 24 6-Federal Ee90fters, Irtc.
25
8869 Sim 4-1 j Whereas, I believe our testimony is putting forth,
(~) 2 not an opinion, but facts surrounding the very matters raised
%)
3 by Ms. Miriello's testimony, and that they go toward bias 4 and motivation. And I would like to just read very briefly 5 fr m a Court of Appeals case that construes the rule in that 6 way. It is the Second Circuit 1979 United States versus James, 7 609F 2nd 36, and I am reading from page 46.
g JUDGE KELLEY: Can you tell us who the judge was?
9 MR. BAXTER: Friendly, Smith and Mansfield.
10 JUDGE KELLEY: Okay.
11 MR. BAXTER: They were talking about Rule 608B.
12 "Although the language of the rule is unfortunately rather 13 awkward, the notes of the advisory committee show that it was O ja intended to regulate only the use of specific instances of 15 conduct to prove that the witness is a bad person or is a 16 generally untruthful person who shuld not be believed."
j7 And then it says citation to Weinstein.
18 "However, bias of a witness is not a collateral issue, 19 and extrinsic evidence is admissible to prove that a witness 20 has a motive to testify falsely." Citing to a Second Circuit 21 case and in another court by a Second Circuit case, and cert 22 denied by the Supreme Court.
23 So we think this supports the distinction I was 24 arguing about last night. We are not putting in unrelated Reporters, Inc.
25 testimony attempting to show that generally Ms. Miriello is i
8870 Sim 4-2 3
a bad person and therefore shouldn't be believed, but rathe'r 2
specific facts associated with the matters raised in her 3
testimony that shows that she has a bias and a motivation 4 which affects the reliability of that testimony. And, there-5 f re, we think that the rule does not apply here and that 6 extrinsic evidence is admissible to support the thesis 7 advanced in that paragraph of Mr. Joyner's testimony.
8 JUDGE KELLEY: Could I just ask you again which of 9 those three judges wrote the opinion?
10 MR. BAXTER: Smith.
jj JUDGE KELLEY: Thank you.
12 MR. BAXTER: Finally, Mr. Chairman, on your 13 inquiry about Mr. Camburn. First of all, I respectfully 34 need to correct your description of Ms. Miriello's testimony.
15 There is no allegation by her that Mr. Camburn was distributinc 16 cocaine to any Conam employees while working at Shearon Harris.
37 She has hearsay that says that Mr. Camburn told her 18 that at the V. C. Summer station Mr. Marlowe had shipped in j9 drugs and they were being distributed among the Conam.
20 employees there.
21 She does not make that allegation about Shearon 22 Harris, and the only allegation she has is that he bought 23 some cocaine from Mr. Matheson in the Mission Valley Inn and 24 she saw him consume it there.
Acof Reporters, Inc.
i 25 JUDGE KELLEY: Okay.
,(
__ 4 8871 gim 4-3 1 MR. BAXTER: And we don't feel, frankly, Mr.
/~'t 2 Chairman, that that is worth additional inquiry in this b
3 proceeding absent at least some initial showing by the inter-4 venors that there is some nexus to the construction of the.
5 Shearon Harris nuclear power plant.
6 JUDGE KELLEY: Let us pause a second while we 7 get the testimony out.
8 (Pause.)
9 JUDGE KELLEY: Okay. I want to stand corrected 10 by Mr. Baxter. On looking at page 3 of the testimony :with 11 resect.to Mr. Camburn there is the incident at the Mission 12 Valley Inn, I believe it is, and Mr. Camburn named some other 13 people, but it doesn't allege that he distributed, that is 14 true, nor does it indicate in the next paragraph with respect 15 to the Summer, South Carolina point, that he, Camburn, 16 distributed. He was just reporting what I gather he had seen 17 or heard.
18 Is that fair?
19 MR. BAXTER: Yes.
20 JUDGE KELLEY: Okay. Go ahead.
21 MR. RUNKLE: And you read that from the case 22 history of Ms. Miriello's testimony?
23 JUDGE KELLEY: Right.
24 MR. BAXTER: There should be no inference drawn from Reporters, Inc.
l 25 the fact that Conam has not made Mr. Camburn available to the i
l
l
. 8872 l
Sim 4-4 1 Conservation Council, presumably at their expense as opposed
'2
(]) to Mr. Runkle's or anybody else's to come out here.
3 Given the remote nature of the allegation here, I 4 simply don't think it calls for live testimony.- To some extent 5 if there is no further corroboration than what we see here 6 in this paper and no further nexus to Shearon Harris, I can't 7 see the need or desirability of hearing from Mr. Camburn.
8 Further, Mr. Chairman, and even going beyond some-9 what the bounds of this narrow debate, we are going to show 10 through Mr. Brombach's testimony's that the Conam inspection 11 activities have nothing to d- with the construction of the 12 Shearon Harris power plant. They are operational activities
, /~T 13 designed to derive some baseline data that is going to be used V
14 later as a benchmark for in-service inspection.
15 There are other inspections at Westinghouse and 16 elsewhere that are relied upon to confirm the quality of the 17 steam generators. And, therefore, this entire allegation as 18 to Conam inspection personnel is outside the scope of the 19 contention and irrelevant to the matters before the Board, and 20 we may not even get into the fracas of the Camburn and Conam 21 Miriello story.
22 JUDGE KELLEY: Well, we can reach that point in due 23 time, and I am sure we will have argument of counsel that we 24 won't need to do here this morning.
Ace- Reporters, Inc.
25 I would just give you a reaction that the fact that i
8873 Sim 4-5 1 the fact that they were doing baseline data gathering on
() 2 an operating system, in my mind it is not self-evident that 3 that takes it out of the case. l 4 What troubles me, Mr. Baxter is that I suppose one 5 could say well, what we are concerned about is a pattern of 6 drug use, and even assuming that somebody, Camburn or someone 7 else, once sniffed cocaine in a motel in Raleigh, you can
/
! 8 stipulate to that and say it is all irrelevant and the. Board 9 should ignore it.
10 But that is the one allegation that has surfaced in 11 this case about drug use from a live witness. And it is 12 troublesome to the Board, to me anyway, and, well, the Board 13
{ generally to say well, we are looking for patterns and we will 14 just let this one go..
15 If we are going to dispose of it by an attack on 16 the witness' character, then surely isn't there some room here 17 for weighing.
18 I think that getting into this personal character l 19 discussion carries a-substantial price, and far more than the 20 price of a plane ticket from Minneapolis. If we are going tof 21 look at the Camburn incident, if an incident there was, we 22 would at least rather do that first I think than go down the 23 road that gets us into sensitive personal matters.
24 WITNESS BENSINGER: Mr. Chairman ---
hpo,ews. Inc.
25 MR. BAXTER: Mr. Bensinger, please.
8874 Sim 4-6 WITNESS BENSINGER: I don't way to say anything.
1
. Could I talk with you just briefly for a second, sir?
(Mr. Bensinger confers with Mr. Baxter.)
MR. BAXTER: Mr. Chairman, I haven't asked Conam 4
explicitly would you make Mr. Camburn available. I don't think
- it is the price of a plane ticket that is at issue. But if he 6
came, it is not going to eliminate the fact that we are going to get into these very questions that the Board seems to be uncomfortable about inquiring.
And if there were an allegation of drug use at Shearon Harris that could impact safety related work, you still might doubt whether this is the proper forum to be calling in every conceivable live witness and instead of O
relying on investigative testimony, trying to explore it 14 yourself.
But we don't even have that connection here yet.
16 Granted, it is the only allegation, but I don't think that alone ought to be the gronds for putting it up. There is a more serious problem, and I am not a criminal lawyer, but I g would expect there is going to be substantial-difficulty with a man accused of violating federal law being sworn in an NRC administrative proceeding and asked questions about what he did.
I think we would be opening a very complicated 24
"" matter of his own exposure and criminal liability. I certainly
8875 Sim4-7 I would not be able to represent him as az witness. There
() 2 would be a clear conflict of interest between my client and 3 his own personal interests.
1 4 I haven't posed that question. I have never talked S to Mr. Camburn, and I have not posed that question to the 6 counsel for the company. But I would imagine that would be 7 a serious difficulty and I hope the Board is aware of it.
8' JUDGE KELLEY: Well, that~may be.
- 9 MR. BAXTER: And one that unless there is a clear 10 and convincing need. I am not saying we need to --- '
i II JUDGE KELLEY: Now what is the clear and convincing 12 need to get into these personal matters? I mean you seem-13 ready to do that, but you are very reluctant to call this
( ).
14 Mr. Camburn'. Why is.that such an easy tradeoff in your mind?
15 Is it not in mine.
i 16 MR. BAXTER: Well, we are talking about, first of l 17 all, whether or not Mr. Camburn's testimony is needed, and then 18 we are talking about potential criminal liability on his part.
19 JUDGE KELLEY: Okay.
20 MR. BAXTER: What you are calling personal ~ matters i 21 are what the case has referred to as evidence of bias and 22 motive. We have got an affidavit from Mr. Camburn that says 23 this doesn't happen, and she says it did. I mean what 24 evidence is the Board going to use, polygraphs or ---
r n, wn. ine.
! 25 JUDGE KELLEY: The affidavit suggests the man
8876 Sim 4-8n I would testify. If he would send an affidavit out here, why
'2 (n) wouldn't he come out here and talk?
3 MR. RUNKLE: Excuse me. This affidavit is not in 4 the record.
5 JUDGE KELLEY: I understand that it is not in 6 evidence.
7 MR. BAXTER: Neither is Ms. Miriello's testimony, 8 Mr. Runkle.
9 MR. RUNKLE: Then you certainly cannot cite ---
10 MR. BAXTER: I can talk about it.
II JUDGE KELLEY: Gentlemen, one at a time.
12 MR. RUNKLE: You certainly cannot --- '
S 13 JUDGE KELLEY: We are still on Mr. Baxter's time,
(~J 14 and you will get a little further chance here in a few 15 minutes.
16 MR. RUNKLE: Okay. I would like to put in an 17 objection about any mention of any Camburn affidavit and I8 any truth in the matter.
19 JUDGE KELLEY: The Board doesn't think it should be 20 discussed to any extent. We have all got it, it exists, it 21 is there and we have read it I assume. It does suggest that 22 the man is in Mineappolis, and beyond that -- and to me it 23 suggests that he is willing to state his side of the story.
24 I don't know why his lawyer wouldn't have come in and said Reporters, Inc.
25 I refuse to talk on the grounds of it may incriminate me.
l 8877 sim'4-9
. ~1 MR. BAXTER: Well, perhaps I might propose,
() 2 Mr. Chairman, and I think this may make some sense, that we 3 decouple whether or not the Board.needs to hear Mr. Camburn 2
4 from the arguement before us.
! 5 I am assuming that we are not doing this for f 6 academic purposes and that when Ms. Miriello. takes the stand 7 that we will find out. I mean it is going to be sort of
- 8 heart breaking if she gets up there and says yes, I had a l 9 personal relationship with Mr. Camburn.when asked on cross-10 examination.
11 If the only point here is whether we can do this j 12 through Mr. Joyner or through cross-examination, then I think ,
)
(} 13 we should just get on with it and then assess the need for 14 Mr..Camburn after Ms. Miriello's testimony has been heard.
- 15 JUDGE KELLEY
- ' Well, I am not suggesting, Mr. Baxter,
- 16 that that is the only point the Board is suggesting. We 17 haven't ruled, but we are asking.for your views, and one l - 18 option is to simply say that we will not go into the subject -
I j - 19 matter area discussed on page 14 in the second paragraph until t 20 after have heard from Mr. Camburn. And unless and until we have 21 heard from him, we will strike it, and we will not allow 22 cross either. That is one proposition, and I gather you are 23 opposed to that.
! 24 MR. BAXTER: Well, I don't see how you could admit Ace- Itepormes. Inc.
25 her' testimony about what occurred at the Mission Valley Inn y -_y , . . - . . - - . - - . , i,<~.--.. ,e, ,- --,-.,y-m -%.-- --.-- - c,r
8878 Sim 4-10 j and that she is relying on statements from John Camburn and
( ) 2 prevent me from asking questions about that relationship and a
3 why she was there and whether she has any motives or bias 4 that might lead her to distort the facts.
5 JUDGE KELLEY: Well, you are saying that you don't 6 think we could legally do that. .
7 MR. BAXTER: That is correct.
8 JUDGE KELLEY: Okay.
9 Mr. Barth.
10 MR. BARTH: Your Honor, first of all, I would like 11 to thank you for the opportunity to have a chance to look 12 this over overnight and to come to a more clear distinction
( , 13 and more clear focus on it. Mr. Cole was kind enough to
,1 14 extend to me the use of the Attorney General's library since 15 we don't have our own law books down here.
16 My reading of the rules in the text and more would 17 clearly indicate to me that in regard to the law the is applicants' statements by Mr. Baxter correctly represent the 19 law.
20 I would like to go on from Mr. Baxter's presentation 21 once slight step further. I do not judge his motives. I woulc.
22 only state the law as I see it.
23 Under Rule 403 a party is entitled to show unfair 24 Prejudice of such nature that evidence may be excluded. I Ace- I Reporters, Inc.
25 think that putting aside all other matters that if the
8879 Sim 4-11 j applicants from showing such prejudice of Ms. Miriello, that
(~
a
) 2 this is prejudicial error to exclude from them the right to 3
show that her testimony cannot be admitted or cannot be 4 relied upon due to personal prejudice.
5 I realize that you have said this is distasteful 6
to Your Honor, and it may be to all of us, but that is an 7f irrelevant consideration, this personal distaste for it.
end Sim 8 JUDGE KELLEY: Will embarrassing do?
Sue fois 9
10 11 12
(~', 13 v
14 15 16 17 18 19 20 21 22 23 Ace F i Reporters, 25
8880
- 5-1-SueW I MR. BARTH: I will get to that in a moment, e
2 Your Honor, i f I may .
3 JUDGE KELLEY: Okay.
4 MR. BARTH: I think that they have an absolute 4
5 right to show that her testimony is so tainted by oersonal 6 prejudice that it should not be admitted under Rule 403.
7 And the denial of that right and the denial of any cross 8 on that matter, in my view, would be prejudical error.
9 In regard to embarrassment, Your Honor, this 10 was raised by Mr. Runkle, that she should not be embarrassed.
11 I would like to point out for your consideration that on 12 Page 3, Lines 13 through 14 of Ms. Miriello's testimony 13 submitted by CCNC, there is a hearsay accusation that
(]}
14 John Funanich, Mr. Dugas, Mr. Dobson and Mark Matheson i
15 participated in the use or distribution of cocaine. That's 16 the accusation of a crime.
17 That's liable. No one could embarrass or 18 damage their reputation more than this. And it stands un-19 challenged. Sauce for the goose is sauce for the gander.
20 The personal embarrassment of people's character 21 was raised by Mr. Runkle first, not by the Power Company, 22 the Appliccants, or the NRC. This is not any of my doing; 23 this is not of Mr. Baxter's doing; this is not of the
, 24 Power Company's doing.
Reporters, Inc.
, 25 Ms. Miriello was a volunteer. And though I
8881
- 5-2-SueW I don't like old soliosisms, the law eateth not the volunteer. ;
() 2 She came forward first and impuned with accusations of 3 criminal conduct on the part e' a number of people, who 4 otherwise stand innocent, and nothing could embarrass them t
5 more.
6 Somehow, we've got to put aside some of the 7 nuances and look at this in practical terms, Your Honor.
8 You ard I could not go home with an accusation in an SEC 9 proceeding or a Federal Labor proceeding that you and I 10 partaked of cocaine without some kind of ability to defend j
II l against that.
I 12 That's the accusation of criminal conduct.
13 These people cannot even come into this State without the
(])
I4 fear that they may be arrested upon this basis, that tha --
15 JUDGE KELLEY: We are not suggesting that there I
16 is any limitation on cross with respect to Ms. Miriello's 17 allegations of criminal conduct in terms of how she knows 18 that and when she knows that and so on.
19 MR. BARTH: I think that you said that you 20 would have no -- one of the options was that you would not 21 permit cross-examination into these matters which might be 22 embarrassing or personal. This has already been done in 23 the affidavit by CCNC, damaging the reputation so far of 24 these people accused of criminal conduct.
Reporters, Inc.
25 JUDGE KELLEY: Okay.
,. . . . . . - . - ~ - . . - - . ..- ._. - - _ _ - --
8882 1-J #5-3-SueW I MR. BARTH: This is not --
- ( ).
2 JUDGE KELLEY: Would it do any good, assuming.
3 that the Board has some reservations about the line of i
4 questioning, which I think it's obvious we do, would it l'
5 do any good to have a hearing IN CAMERA?
6 MR. BARTH: I think not, Your Honor. This is
! 7 a publicly-filed document by CCNC which has been distributed i
.8 .to the Public Documents Room. The newspapers have it.
1 I 9 It's in the document room back home.
10 The accusations of criminal conduct, the personal ,
II embarrassment, the digging into personal lives of people I2 has already been done by.CCNC, not by the NRC Staff or by 13 the Applicants.
14 JUDGE KELLEY: So, you think it's too late?
]
i j 15 MR. BARTH: -I would like to wind this up, Your I :
16 Honor, very shortly by --
! 17 JUDGE KELLEY: It wouldn't do any' good unless we i 18 excluded the press, and that's kind of a big step to-take,
.. 19 isn't it? t I
20 MR. BARTH:' I would like to wind this up very
. 21 shortly by saying that I -- and I do this with great delibera-l 22 tion -- think the exclusion by the Board, if the Board would I
23 exclude the Power Company from showing undue prejudice on l
I 24 the part of Ms. Miriello because of her relationship to hp.nm. 1,ic.
25 nuclear power and her relationship to other persons here --
8883
- 5-4-SueW 1 JUDGE KELLEY: How far are we going to pursue
, 2 that, Mr. Barth?
3 MR. BARTH: I --
4 JUDGE KELLEY: You take -- let's stick with that 5 point a minute. We are going to get into cross-examination 6 about trips to Minneapolis and all that?
7 MR. BARTH: I have no idea what --
8 JUDGE KELLEY: How far down the road are we going 9 to go? You are urging us to say this is fine. Let's talk 10 about this. How far are you going to go?
II MR. BARTH': No, Your Honor. My only addressment 12 is to the objection by Mr. Runkle that you exclude parts
( ; 13 of Page 14.
</
14 And I'm saying that in my view to exclude those 15 is prejudicial error. Second of all, from the point of 16 view of equity, the matter of personal character and per-17 sonal embarrassment was raised by CCNC --
18 JUDGE KELLEY: Okay.
19 MR. BARTH: -- and not by the Applicants, not 20 by the Power Company, not by us. And I think that Mr.
21 Runkle is estopped from asserting such an objection at 22 this time.
23 I think that concludes my remarks, Your Honor.
24 JUDGE KELLEY: Okay.
AcM Reporters, Inc.
25 MR. BARTH: Thank you.
' 8884 i
- 5-5-SueW'l JUDGE KELLEY: Mr. Cole?
.()
2 MR. COLE: Your Honor, I don't know how much 3 enlightment I can shed on the situation. I am very ambivalent for the same reasons that other counsel have 4
1 5 already mentioned.
6 Two things that do bother me about it, of course, 7 obviously this would be but the Court's have always talked 8 about a side issue which ought not to be drug through the i
! 9 case, and I try to balance that when I think about motive 10 and bias of the witness. But, basically what really bothers 11 me I guess between the two. sides, between Ms. Miricllo's
- 12 affidavit and the one filed by the Applicants, at least
! 13 Ms. Miriello says that John Camburn told her this. We
(}
! have that kind of hearsay..
14 15 On the other hand, the Applicant says several j 16 people, other people, co-workers, or whatever, is -- you
- 17 know, that's they, them, you know. That sort of thing
! 18 always bothers me.
19 I really don't have a resolution --
20 JUDGE KELLEY: 'Well, what would happen if we 121 had a list of names? I assume we could get some such list.
22 What would that give us?
23 MR. COLE:. Well, it would at least give us a 24 ' starting point of finding someone to call in to. verify that.
Repo,ters, Inc.
- 25 -Here, that's not at all-possible.
8885 55-6-SueW I Again, you go back to, do we want to sit for
. 2 three days on side issues, which this could very easily 3 drag into. But again, showing my ambivalence, the matter
' 4 was first raised in the Miriello affidavit.
5 And that kind of bothers me that those assertions 6 - were made. And I guess unless you could have some kind 7 of screening process when you start talking about prefiled 8 testimony, it.'s just -- the nature of the beast just _ doesn' t 9 always lend itself to a possible solution.
10 And I guess that is what I am coming to. And, II of course, as far as the State is concerned we will be
- 12
. comfortable to live with whatever Your Honor rules in the i
1 O is metter.
I4 JUDGE KELLEY: Do you think, Mr. Cole -- now, 15 tihe Board is frankly struggling with this point, and it 16 does seem to be at least in part a balance between whether I7 we should allow witnesses in our cases to have their personal
! 18 lives opened up in these cases, on'the one hand, versus i
19 the right of a party to get at the truth and try their case.
20 How do you think this balance should be struck?-
i
! 21 If you were trying _ to decide this issue on those grounds, 22 how would you do it?
23 MR. COLE: That's a very difficult question to 24 answer. And I guess that's one-reason we have attorneys Repo,ters, Inc.
25 and we;have a judge. At some point, the balance has to be l
L
8886
- 5-7-SueW I struck. And I guess it's not our decision to strike that 2 balance.
3 And I wish I were Solomon and could give you 4 the answer to this one. I cannot.
5 JUDGE KELLEY: Okay. Mr. Runkle, a final 6 comment? Mr. Eddleman, briefly?
7 We have pretty well gotten across the spectrum 8 I think, but if you want to wrap up briefly go ahead.
9 MR. EDDLEMAN : Judge, I'm not a leaal expert 10 but it seems to me that the Appliccants have not alleced 11 in any of this that any of these co-workers or confidential i
12 sources wish their names withheld or anything like that.
() 13 I presume if they were co-workers when she was 14 working with CP&L that they work for CP&L and the Applicants 15 could have made them available as witnesses if they wanted 16 to. I don't see why they haven't done that if they want 17 to get at the facts.
18 JUDGE KELLEY: Mr. Runkle?
19 MR. RUNKLE: May we have a short recess and let 20 me discuss a matter with the other counsel? Maybe we 21 can cut some of this stuff out.
22 JUDGE KELLEY: All right. And would you think 23 to come back and -- maybe we will take a short recess.
24 I don't think the Board is really quite clear ReporMrs, Inc.
25 from you, I understand that you would object to this line-
8887
- 5-8-SueW 1 of questioning, T believe you said that, on the grounds
() 2 of invasion of personal concerns. But, one, have you 3 really talked to Ms. fiiriello?
4 We would like to know really, is she very 5 sensitive about this? Or, is she willing to answer 6 questions along the lines that are indicated in the 7 testimony?
8 We shouldn't have to protect somebody who 9 doesn't want it or need it. On the other hand, if she 10 feels very strongly about it, we would like to know that, 11 too.
12 And if you could, give us a further indication. .
13 Do you want five minutes?
4 O
14 MR. RUNKLE: Yes, if I could discuss this with 15 counsel.
16 JUDGE KELLEY: All right. Right.
17 (Whereupon, a recess is taken at 10:05 a.m.,
18 to reconvene at 10:54 a.m., this same date.)
END #5 19 Jon flws 20 21 22 23 24 Ace. Reporters, Inc.
25
6-1-JonWal 8888 1 JUDGE KELLEY: Let's go back on the record.
(.
O). 2 The record can reflect that we have been in a recess for 3 almost an hour to enable counsel to confer, and possibly_
4 reach a stipulation, and we understand that something has 5 been arrived at.
6 Let me ask Mr. Runkle.
7 MR. RUNKLE: Yes, sir. Based on discussion 8 with counsel, we have a way around several problems, and 9 if we can just present it to the Board for your consideration.
10 JUDGE KELLEY: Yes.
11 MR. RUNKLE: At this point, the Conservation 12 Council will withdraw certain areas of prefiled testimony
() 13 of Patty Miriello.
14 JUDGE KELLEY: All right. We can maybe get that 15 out then and go through it line by line? !
16 MR. RUNKLE: Yes, sir.
t 17 JUDGE KELLEY: All right. Hold op sa minute.
18 (Pause.)
19 Yes, I believe we do have it, if you want to give 20 us the references.
21 MR. RUNKLE: We will withdraw all of Page 3.
4 22 JUDGE KELLEY: Okay.
23 MR. RUNKLE: And the top paragraph on Page 4
[ 24 that overlaps from page 3.
64 Repormn, Inc.
j 25 JUDGE KELLEY: Okay.
l l
^
6-2-JonWal 8889 1 MR. RUNKLE: The word, 'other, ' and the next
! 2 question.
3 JUDGE KELLEY: You strike the word, 'other?'
4 MR. RUNKLE: Yes. Just strike that.
i 5 JUDGE KELLEY: All right, i
i 6 MR. RUNKLE: And then, on page 5, the complete 7 question and answer on that page near the bottom.
8 JUDGE KELLEY: Starting with: Have you raised 9 any safety-related?
10 MR. RUNKLE: Yes, sir.
11 JUDGE KELLEY: 'All right.
f I:
, 12 MR. RUNKLE: If you now would, Mr. Baxter.
{
i
() 13 JUDGE KELLEY: Mr. Baxter?
14 MR. BAXTER: We are going to make some withdrawals.
15 JUDGE KELLEY: All right.
16 MR. BAXTER: On the testimony of the present
- 17 panel, if you will turn to page 13, we would withdraw all 18 of page 13.
19 JUDGE KELLEY: All right.
j l 20 MR. BAXTER: And --
l 21 JUDGE KELLEY: And that is where the reference 22 begins to Ms. Miriello's testimony, I believe.
1 -23 MR. BAXTER: That is correct.
24 JUDGE KELLEY: Nothing prior to 13.
nepww , Inc.
( 25 MR. BAXTER: That is correct.
= - - - __-- -, - , - - . - . -- . - -
6-3-Jo Wal 8890 1 JUDGE KELLEY: Thank you.
I j 2 MR. RUNKLE: Excuse me. On page 3, on the last 3 sentence on Answer 4, tit does mention what is entailed 4 in this testimony. Can you strike that too, Mr. Baxter?
5 MR. BAXTER: Well, it should be amended to say: In-6 vestigations to date of the testimony of Patty Miriello, 7 dated September 23. We will no longer be addressing the 8 affidavit, but it will still be addressing portions of the 9 testimony.
10 MR. RUNKLE: Fine, thank you.
I 11 MR. BAXTER: In the concluding sentence to l l
12 Answer 4, it should state that included in the latter
(~')
v 13 assessment are the results of our investigation to date of l 14 the testimony of Patty Miriello, dated September 23, 1985.
15 JUDGE KELLEY: All right, i 1-6 MR. BAXTER: Okay. And we have striken page 13.
17 JUDGE KELLEY: Right.
18 MR. BAXTER: At the top of page 14, we would l I
l 19 have to add a new question. It says: Was Ms. Miriello 20 employed at Shearton Harris? j i
21 JUDGE KELLEY: All right.
22 MR. BAXTER: The last paragraph on page 14 is 23 striken.
g 24 JUDGE KELLEY: All right.
w M nepon m ,Inc.
25 MR. BAXTER: And that concludes the deletions.
6-4-Jo;Wal 8891 1 Applicants' then also stipulate that for purposes
(_) 2 of evaluating the safety significance of the allegations 3 that have been now withdrawn from the testimony, we would 4 add the five ConAm employees named in the affidavit to our 5 list of 201 employees, not conceding at all that they deserve 6 to be there, but treating them as if they are suspects, and 7 then we will evaluate the safety significance of their work 8 in the second phase of the hearing.
9 We would -- where we were going to evaluate 10 the safety significance of the other 201 people on our 11 list. This gets us, essentially, to where we would arrive 12 at if the allegations were proven to be correct in any
([ ) 13 case. f 14 And Mr. Brombach's testimony which is the fif th 15 piece to be offered here, we will withdraw, and any testimony I
16 we want to put on about the safety significance of the ConAm ;
17 inspections will be filed on October 25, with the other 18 testimony for the second phase, and heard then.
19 We have also agreed that that testimony will 20 commit to our describe the results of a new reinspection of 21 a three percent sample of the tubes.
22 JUDGE KELLEY: Of the twos, did you say?
23 MR. BAXTER: Tubes. Steam generator tubes.
24 JUDGE KELLEY: Tubes. Excuse me. Right.
Reporters, hc.
25 MR. BAXTER : We have so far just reexamined the 1 _ _ ._ . _ _ __ _ _ _ . _ _ _ - - _ - _ _ - - _ ---
- -)
6-5-Jo:Wal 8892 1 original tapes, and we have agreed to conduct new measurements 4
(O
_/ 2 on.a three percent sample.
i 3 And that concludes the stipulation.
4 JUDGE KELLEY: Okay. Mr. Barth, is the Staff 5 a party to this?
6 MR. BARTH: Yes, Your Honor. We have examined 7 all of the gives and takes, and we fully concur with the 8 statements both by Mr. Runkle and by Mr. Baxter, and we 9 agree, Your Honor.
10 JUDGE KELLEY: And I gather, gentlemen, that 11 the withdrawal of the second paragraph on page 14 moots 12 our argument at the beginning of the morning, is that O 13 aot correce2 14 MR. BAXTER: That is the intention, yes.
15 JUDGE KELLEY: Mr. Cole, that is also acceptable 16 to the State?
17 MR. COLE: Yes, Your Honor.
18 JUDGE KELLEY: All right. So, I gather it is i
19 all counsel. Mr. Runkle, it is acceptable to you?
20 MR. RUNKLE: Yes, sir.
21 JUDGE KELLEY: Okay. It sounds reasonable to 22 the Board. Some of the things that were told to us, we 23 would like to maybe see in print, but it sounds reasonable, 24 and I think you can assume that we will approve it, and that n oonm, Inc.
25 will then moot the earlier argument, and we can proceed, and
- _ _ _ ~
6-6-JoeWal 8893
'i 1 get back to the panel.
] () 2 Let me just add that it took a little bit of l 3 time, but it seems worthwhile under the circumstances, and 4 it probably is a net gain.
- 5 It seems clearly a net gain in terms of time 6 we would spend later, so we appreciate counsel getting 4
j 7 together and working this matter out.
8 MR. BAXTER : Mr. Chairman, we will provide 9 the reporter with an appropriately marked up copy. It has 10 not yet been bound into the transcript.
II JUDGE KELLEY: Right. Okay, thank you. That t
12 is one bit of dangling point. Do we have a proposition
(]) 13 pending about treatment of the transcript? The simplest 14 i way we would simply let the record reflect the stipulation, 15 but the testimony as submitted would go in the record. ,
, i 16 Is that what counsel had in mind? !
, 17 MR. BAXTER: Yes.
18 JUDGE KELLEY: Is that correct?
19 MR. RUNKLE: Yes.
20 JUDGE KELLEY: Okay. So, we will bind it in j
1 21 at this point, I would think, rather than trying to get k
i 22 it back into yesterday's.
- 23 MR. BAXTER
- That is fine, i
24 JUDGE KELLEY: Okay. Thank you.
. porters, Inc.
XXXXX INDERS (Prefiled testimony follows.)
h.v i ted September 23, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )
APPLICANTS' TESTIMONY OF WILLIAM J. HINDMAN, JR., MICHAEL W. KING, D. GLENN JOYNER AND PETER B. BENSINGER ON THE ASSESSMENT OF EMPLOYEE DRUG ACTIVITY (CCNC CONTENTION WB-3) 6 l
O l
1 Q.1 Please state your names.
() A.1 William J. Hindman, Jr., Michael W. King, D. Glenn Joyner and Peter B. Bensinger.
Q.2 Did each of you testify previously on the undercover drug investigation?
A.2 (WJH, MWK, DGJ, PBB): Yes.
(WJH, MWK, DGJ): Our professional qualifications and rel-evant job responsibilities are described in that testimony.
(PBB): My qualifications and experience are described in my previous testimony on drug abuse control policies and training at the Shearon Harris site.
Q.3 Nevertheless, for completeness would you each please identify your employer and your position?
A.3 (WJH): I am employed,by Carolina Power & Light Com-O pany as Manager, Harris Project Administration, at the Shearon Harris Nuclear Power Plant.
(MWK): I am employed by Carolina Power & Light Company as Senior Commissioned Construction Security Agent, in the Support Services Section of the Nuclear Plant Construction Department.
I am a commissioned law enforcement officer and serve as Su-pervisor of CP&L's Construction Security Unit.
(DGJ): I am employed by Carolina Power & Light Company as Commissioned Construction Security Agent at the Shearon Harris Nuclear Power Plant. I am also a commissioned law enforcement officer.
i
(PBB): I am President of Bensinger, Dupont and Associ-ates, Inc., a professional consulting firm providing services to private industry, national and community organizations and
- government, on the problems of drug and alcohol abuse, includ-ing its impact on the work place.
, Q.4 What is the purpose of this testimony?
j A.4 (WJH): The purpose of this testimony is to respond
- in part to the allegations in CCNC Contention WB-3 that " drug use at the Harris Plant is widespread" and that " Applicants' management has failed to control drug use during the construc-tion." In particular, this testimony describes the means em-ployed for identifying drug activity among Harris site
- employees, and provides our assessment of the extent of that activity. Included in the latter assessment are the results of wemog our investigation to date of the 7.ffidecio of Patty Miriello, 23 dated September -e, 1985.
l Q.5 What are the means employed to identify drug activity j among sica employees?
i A.5 (WJH): CP&L has employed numerous and diverse means i
for identifying violations of the drug abuse practices and pro-cedures on the Harris Project. Beyond the pre-employment i
screening described in previous testimony, these means include I
security measures, urinalysis drug screen testing, and the ob-servations of managers, supervisors and employees.
i
! Q.6 Please elaborate on the security measures employed to identify drug activity on the Harris Project.
O I
-- - . _ - - .. - . - = - -. -_ - .-
i 1
l' A.6 (MWK): Cooperation with responsible law enforcement I
agencies is one of the means utilized by CP&L to identify drug q
activity among the employees at the Harris site. . Undercover
- operations, such as the one which was conducted in late 1984, I not only serve to identify employees involved in drug activity, but also to deter others who 'are contemplating involvement with drugs. The undercover operation discussed above is not the first one conducted on site by law enforcement officers in co-operation with CP&L. Further, CP&L will use such investigative i techniques in the future whenever the situation warrants. '
(DCJ): In addition to these special efforts with law en-forcement personnel, the full-time security force at the con-struction site provides an on-going means for identifying and l
discouraging drug activity at the site. The contract construc-tion security guard service at the Harris site is provided by the Wackenhut Corporation. There are currently 849 man-hours I
- per week authorized for this security contractor. The mobile patrols (foot and vehicle) account for 3 of the 7 posts that !
are staffed on a daily basis to deter and detect any violations of site rules, regulations or policies. As of August 5, 1985,
[ operations Security has assumed responsibility for certain por-
! tions of the site and provides security to those areas with 1,740 man-hours per week authorized for its contractor, operat-ing 4 fixed and 5 mobile patrols. Any construction personnel l who violate site drug policies and are apprehended by opera-tions Security are turned over to me. These hours and the post s
1 i- )
! assignments allow around-the-clock patrol of the entire job I
( site by foot and vehicle patrols.
Through their contact with and observation of employees, the security personnel are able to provide management with in-telligence information on drug activity at the plant. In addi-tion, they pursue information received on possible drug activi-ty in an attempt to confirm the accuracy of the information and j to pursue additional sources of information.
Contract Security personnel are at the entrances to the site where they observe incoming and outgoing employees and
, watch for physical signs of incapacity such as staggering, i
l falling, weaving, lack of coordination and odors. These obser-vations of employees are also made by timekeeping and su-i 4
g pervisory personnel assigned to monitor the entrance and exit
! U 4 of workers. During every shift change, lunch boxes, briefcases and other containers are opened for inspection as the employees
! leave the site, and on a random basis as the employees enter
! the site. On a random basis exiting employees are selected for
! search using a hand-held metal detector. It should also be noted that construction personnel are rigidly controlled from the moment they access the site and until they leave. When on the job, they must remain in the job area; and when on break or i
i lunch, they must be in a designated area.
4 Beginning in February, 1985, under the direction of the Construction Security Unit, a narcotic detection dog is on the site twice per month, on an unannounced schedule, to search a i
1 4
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+mg resear-9%--pg+==--T=F~*yt*=vy9, era p ,e,e Twtv7 t een e-g-pggWgf g=WC yy9
random sampling of areas on the site. If specific requests are
() made or information is available relative to specific areas on
- site, those areas ate given priority for search by the narcotic detection dog. The dogs and the handlers are provided by Ca-nine Detection Services of Durham, North Carolina. CP&L Secu-rity personnel conduct periodic controlled tests to ensure the continued reliability of the dogs and handlers. This search program is described more fully in the separate testimony by 1
Ms. Mackonis and Mr. Mathias.
In addition to the exiting and random searches, and the use of the narcotic detection dog, identified employees may be directed to submit to a search because of information obtained 1
on potential or confirmed drug activity. Security, Employee Relations and Industrial Relations personnel conduct the
()
l searches. Searches of employees include a detailed inspection of the individual's clothing, work area, and any tools, equip-ment or personal property. Any vehicles within the construc-1
- tion security fence are also subject to search.
I :a Q.7 Mr. Ferguson described the drug screen urinalysis test previously in his testimony. What role does that test i
i play in identifying employees involved with drugs?
l A.7 (WJH): Urinalysis drug screen testing is used by CP&L
! and Daniel as one means of determining whether an employee sus-pected of drug activity is consuming drugs. When information becomes available which provides good cause for reasonable sus-picion that an employee is involved in drug activity, the l
l
i l
appropriate CP&L Security Agent, the appropriate section manag-er and I will confer to determine if a drug screen urinalysis test should be required. In the case of site employees in-volved in quality confirmation rcles (Quality Assurance, Quali-l ty Control, Construction Inspection), however, the drug screen i
test is administered to the employee even where there is no in-
- dependent evidence to confirm drug involvement (for example, on the basis of an anonymous allegation alone.)
(PBB): It is important to recognize, however, that while a positive drug screen test indicates that the employee has consumed a drug or drugs, it does not necessarily indicate that the drug was consumed on site, or that the employee was im-i paired while at work. Detectable traces of some drugs remain in the system for long periods of time.
j Q.8 What role does observation by managers, supervisors
- and other employees play in identifying those involved in drug
- activity?
A.8 (WJH): Employees at a construction site do not work l in isolation. Site management and Security personnel learn about drug activity from information reported by managers, su-I pervisors and co-workers of those involved. As described in previous testimony, supervisors have been trained to identify illegal drugs and the signs / symptoms of abuse, and to 1,mplement I
their responsibility to report such information. Daniel site i Industrial Relations representatives conduct active surveil-lance for visible drug activity, and receive reports from O - - . . - . - - - - - - - . .. -. . ._- - - - . -- --- - - - - --
i a employees on known or suspected drug activity. Anonymous re-5 ports of drug activity have been made directly to Security per- j sonnel and site management, and others willing to identify l
themselves and to assist have provided information on a confi-i dential basis. It should also be noted that the newspaper ar- ** *"
ArtHs, ticle filed by CCNC states that several construction workers 3< *a 4*d b1 AsLe interviewed by the reporter " indicated they would turn in their a s OS co-workers if they noticed them using alcohol, drugs or similar stimulates [ sic)." One worker was quoted expressing the threat he perceived to his own safety which would be created by a j -
co-worker using drugs.
CP&L and Daniel employees have been instructed on the use and availability of the Quality Check program as an avenue for reporting any alleged problem on a confidential, or even an i
i O anonymous, basis. This program has been a source of informa-i tion on alleged drug activity among site employee. CP&L imple-
. mented the Quality Check program at the Harris Plant in order i
to provide an additional opportunity for site personnel to ex-
! press concerns to management and to receive feedback on their j concerns. Under this program, numbered forms are available l throughout the site for completion by any employee having a l safety concern he or she wishes to bring to the attention of <
management. Each such concern is investigated by a group of QA specialists and engineers, and the results of the investigation i are then reported back to the employee. If the employee wishes
- to remain anonymous, he can determine the action taken on his O - _ . _ _ . - _ . _ . - _ . . _ . _. , _ _ _ _ _ . - . . . . , _ . , . _ _ _ _ . . _ . . . _ . . . . . . . _ , . _ . . . _ . _ _ _ _ _ _ _ .
. _. .~ .
d i '
concern by telephoning the Quality Check program office and i
/"%
(_) providing the form number of his concern. In addition, as part of the Quality Check program, each employee working in a safety area who leaves employment at the site (whether by resignation, termination or reassignment) is scheduled to be interviewed by the Quality Check group in order to identify potential safety concerns. The Quality Check group also conducts interviews of randomly selected site employees to uncover safety concerns.
j Any concern identified through these interviews are similarly 4
fully investigated by the Quality Check group. The most recent NRC Construction Appraisal Team inspection found the Quality Check program to be an effective and viable method of address-4 ing employee concerns.
Q.9 How is developing information on potential drug ac-i tivity by a suspected employee coordinated?
A.9 (WJH): In my capacity as project-level coordinator of all information pertaining to illegal drug use on the Harris l
Project, I am to be informed of all allegations of, or other
. information developed with respect to, potential drug use or other drug activity among project employees. In addition, CP&L i
Security and the section manager responsible for the suspected individual's work are notified. If Daniel employees are in-volved, the Daniel Industrial Relations organization is notified by CP&L Security. Conversely, Daniel provides any information it receives or develops on known or suspected drug i
activity to me. CP&L Security, Daniel Industrial Relations and O .
_, .- - - - - _s ._.a . -
I then plan, in consultation with the employee's supervisor, l O
\/ the appropriate a:tions to be taken to resolve the situation --
whether through further investigation or immediate personnel l action. If sufficient information is developed to confirm, or suspect on reasonable cause, a violation of site drug abuse policies, the employee either is required to submit to the urinalysis drug screen, or is terminated or removed from the site via CP&L's contractual right to direct contractors to re-move any of their employees at CP&L's discretion.
Finally, where an employee is terminated or removed in part because o. drug-related reasons, the relevant quality or-ganization has been informed so that any corrective action nec-
! essary with respect to the employee's previous work may be identified and undertaken.
Q.lO Mr. Bensinger, has your firm assessed these measures j to identify employees involved in drug activity?
1 j A.lO (PBB): Yes. Our assessment of security measures finds that the Company has taken initiatives, including canine 4
searches, liaison with local law enforcement, and utilization of undercover investigations in full cooperation with law en-forcement, to address the drug abuse and sale threat at the site. The CP&L Supervisor of the Construction Security Unit (Mr. King) and his on-site agent (Mr. Joyner) have professional
. backgrounds and experience in law enforcement and narcotics in-i
! vestigations. A review of confidential files, investigative data, search procedures and the Quality Check program reflects O i i
,...r ..-_-_4.,,-,.,-~-.----...-,,-,-,._,-,_...-,m
_.w w . e . , ,, , -e , w , - e % ~ - < -- * * * ~ - * -
i l
I professional and thorough documentation of incidents and alle-I ( gations, and appropriate investigative and preventative securi-1 ty actions.
My professional opinion is that these meast.res provide a reasonably effective capability to identify violators *of site i
i drug abuse policies. More steps could be taken to secure any l job site from controlled substances, but there is a legal limit to these steps based on court and arbitration decisions on these measures. CP&L's program reflects aggressiveness when compared to other utilities and substantial intervention capa-l
]
bility compared to typical business enterprises in the United States.
Q.11 What have you learned about the extent of drug ac-tivity among Shearon Harris employees as a result of these
[}
identification methods?
i A.11 (WJH): A review has been made of Security, CP&L and Daniel records to provide an assessment of the extent of drug
- activity among employees at the Shearon Harris site (CP&L, Daniel and/or other contractor employees) since February, 1978,
- and through September 15, 1985. More than 26,000 people have
- been employed at the site during this time period.
We have identified 201 employees as confirmed or suspected
- of some l'evel of involvement in controlled substances. None of i these 201 individuals are now employed at Shearon Harris. How-i ever, this total of 201 encompasses a variety of situations.
i Because of the nature of the project, CP&L has erred on the l !
t I
side of caution in personnel actions related to potential drug
() involvement. The bases for personnel actions on these employees are as follows:
Presence of drugs confirmed through urinalysis drug screening: 19 Found to be in possession of a controlled substance on site: 53 1
Arrested off site: 5 Arrested on site: 8 Refused to submit to a urinalysis test or a search of their person, property or vehicle: 41
! Suspicion, based on less than I search or testing: 75 201 4
Consequently, over one-half of the 201 incidents involved cir-
- () cumstantial information or inferences from the refusal to sub-ject to a search or test. Only 13 employees have been identi-fied for whom it was established that a controlled substance was being consumed on site.
Q.12 Do you have any estimate of the quantities of drugs J
in Ived in Harris site incidents to date?
A.12 (MWK): Yes. My estimate, based upon a review of our site security files, is that CP&L Security has confiscated mis-i
-demeanor amounts of approximately 282 grams of marijuana, 4.5 ~
{ grams of cocaine, 50 pills (controlled) and 450 pills i s l (non-schedule). Our estimate of drugs turned over to the WCSD
< in felony amounts is 16 ounces of marijuana and 3 grams of co-caine. These estimates do not include the drugs purchased l CE) during the undercover investigation.
i
. _ . _ . - . _ _ . - _ . _, - -..__.-. _ _ - _ _ . . . _ _ , _ _ . - _ _ _ . _ . ~ . , _ . . _ _ . - . . . . , . _
G.ok ee. pa.3e Mdem y to\1.} sS o 47 AO% -
Q.13 In an Affidavit of Patty Miriello, dated September
(~)\
\- 6, 1985 and attached to the Conservation Council's Response to Applicants' Motion for Summary Disposition of Contention WB-3, i j Ms. Miriello alleges that some employees of Conam Inspections, who worked at Shearon Harris, were dealing in or using cocaine.
Are these employees included in the data just discussed?
1 A.13 (DGJ): No.
1 Q.14 Please explain why they are not included?
4 A.14 (DGJ): I have investigated the allegations of Ms.
1 Miriello about drug involvement among a group of contractor 4
i personnel who worked at the Harris Plant. I have reviewed our records and interviewed a number of persons who worked with Ms.
Miriello and a number of other persons who worked with the individuals she named as being involved in drugs. According to CP&L records, John E. Camburn, Kenneth Dugas, Michael E.
Dobson, John Funanich, Mark Matheson and Melvin Matheson are I
employees of Conam Inspections who worked on the Harris site i
for various periods of time between December 1983 and April 1985. They were members of a group that conducted eddy current testing. None of these persons worked at Harris for more than 1
a few weeks at a given time, and most were only at the site for only a few weeks in total. According to the persons I inter-viewed who worked with this group, they saw no drug usage, signs of aberrant behavior, excessive absenteeism or any other indications of drug usage among the Conam employees. I was not able to substantiate any of Ms. Miriello's allegations.
a,t3. w a.s (YLs . fYl;dsllo emple3<M u.k ha.c.w R.re; s }
- ' M3. (DCrJ )
l Although Ms. Miriello's affidavit does not so state, she ;
i
{O was a CP&L employee from February 25, 1985 until August 30, .
1985. She worked for CP&L as a Radiation Control Technician II >
doing work that was not related to the safety of plant con-struction. Between April 1984 and February 1985, Ms. Miriello was employed by Nuclear Energy Services (NES) at Harris as a 4
data controller. She was not involved in the eddy current testing program at any time as a NES or CP&L employee. At the :
time Ms. Miriello transferred from NES to CP&L in February
, 1985, she went through the Quality Check Program and indicated l on the employee exit questionnaire that she did not have any i
l concerns or allegations about the design, fabrication, con-i i struction, testing, start-up or inspection of the Harris Plant.
) She did not raise any drug concerns at that time.
j .
According to co-workers at Harris, Ms. Miriello developed Y m AJMg j a close personal relationship with one of the individuals (Mr. g ,opl85 i Camburn) who she claims engaged in drug activity. CP&L records M* P
- l 1
l indicate that Mr. Camburn was last on the Harris site on i
j November 13, 1984. Consequently, I conclude that the incidents I
j discussed by Ms. Miriello refer to alleged events prior to that i'
time and prior to her Quality Check interview. According to 1 I l co-workers, Ms. Miriello's relationship with Mr. Camburn ended j when he was transferred to the Three Mile Island Nuclear Sta-tion after he left Harris. According to these co-workers, Ms. I
{ Miriello told a group of 8 to 10 co-workers that she later made !
i an unannounced visit to see Mr. Camburn and found out that he had another girlfriend a i :
I
' - . . - . - - , - - - , - _ _ . . - , _ - , , , , , - - - , . , - . , - , , . - . - , , - , - , - - - ~
- nn
.---.---,_,-....-,.--,n.-,_,,
r i l l
l l
Ms. Miriello's employment with CP&L was terminated on
(:) August 30, 1985. It is my understanding that the termination .
i
{ was based on her inability to function cooperatively with her 4 co-workers and supervisors. Ms. Miriello's affidavit is dated i
j September 6, 1985 and the Conservation Council's Supplement to
- Discovery Requests, dated September 6, 1985, states that she 1 !
contacted CCNC the previous weekend. Prior to her termination,
- Ms. Miriello sent two letters to M.A. McDuffie, CP&L Senior l a
Vice President. In a letter dated August 12, 1985, Ms.
1 Miriello stated:
l If forced to quit or fired; I have nothing to loose (sic]. Therefore, if I must leave commercial nuclear i power due to this type of discriminatory situation or a feeling that as a woman I am not being allowed to j participate as men do at Shearon Harris; then I will J put my intelligence to use stopping a male chauvinistic enterprise. I will use my knowledge as ;
a means of intervention, j According to another co-worker, Ms. Miriello stated at a hotel
\
l bar in early August 1985 that she would " shut some nuclear
{ plants down" if she were fired by CP&L.
i Q.15 Does the information you have compiled on site employees indicate that drug abuse at the Harris Plant is wide-
} spread?
I j A.15 (WJH, MWK, DCJ): No. First it must be recognized .
1
! .that this data does not prove that a single employee " abused" I i drugs at work in the sense asserted by the CCNC contention --
j that is, such that their job performance was impaired. We have i ,
j addressed any kind-of suspected drug-related activity, without !
i While we regard to actual consumption, or work impairment.
l i i
! 1
1 understand that the construction implications are the subject l 1 () of the next phase of the hearing, it is important that these l
numbers not be misinterpreted.
In sum, we do not have information which would support CCNC's assertion that drug abuse at the Harris Plant is wide-
]
spread. The results of the much discussed undercover investi-gation do not confirm this allegation. The quantities of drugs
, confiscated on site are not indicative of wholesale drug dis-l tribution operations. Even in the newspaper article filed by 4
l CCNC with its contention, workers reported that they saw little i
i evidence of drug use on the job. Finally, we are confident
!l that the numerous and diverse means employed to identify drug
- activity at the site would have provided corroboration by now l
if drug use at the site was in fact widespread.
(} .
- (DGJ)
- I would like to add that I am a law enforcement officer who has worked at the Harris site on a daily basis for 4
six years. I'have extensive previous investigative experience,
! and have investigated alleged drug activity at the site for six
- years. I am encouraged by my management to identify violators j i
, of site drug abuse policies. I am the one who proposed the un- t dercover operation. I investigate potential leads about sus-i pected drug activity, and I am well equipped to observe and to identify indications of drug activity. If drug abuse on that
{ site were widespread, I would know it. It is my firm profes-l i sional conclusion that drug use at the site has not been wide-spread.
! ()
I i (
i l_..______._ . . . , _____,.__~..-_.._,,_..,.._,,,_______...-____.____.m. . _ _ _ . _ _ _ . . . . _ , , , _ _ . .
Q.16 Mr. Bensinger, what is your assessment?
A.16 (PBB): As background for my assessment of drug ac-tivity at the Shearon Harris plant, some awareness training is in order first. One of my greatest challenges as Administrator of the U.S. Drug Enforcement Administration and now as a con-sultant is to achieve public awareness and recognition of this l society's problem with drugs. Acceptance of the existence of I
the threat is an important part of the cure. Turning your back to the problem is the greatest danger. As a consultant to CP&L over the years, I have the attention of the management of that
)
- company.
f The national problem of drugs in the workplace is exten-
~
sive. There were in 1982-1983, according to the National In-()
stitute of Drug Abuse, over 22 million users of marijuana on a
! once-a-month basis, over 4 million users of cocaine at least
) once a month, and perhaps as many as 10 million abusers of pre-scribed medication. The cocaine use probably has doubled today to a range of 8 to 10 million users on a once-a-month basis.
Drugs are in our schools and universities, in our jails, in our armed services, and in our athletic teams at all levels. Drugs have invaded all of the workplaces in the United States --
including government and law enforcement agencies. Yet, there is no automatic Quality Assurance program to identify and to protect our safety from the threat of an intoxicated driver or other impaired Americans who may harm us because of their abuse of drugs.
(}
I
r The Harris construction site reflects the problems of so- )
ciety and has required over 26,000 employees since the project
- began. As is and has been the case with other construction lo-
.1 cations in the United States, drugs and alcohol, and other con-traband represent a serious threat to this location. Arrests for drug.use and sale have been made at a number of nuclear power plant construction sites throughout the country. Some employees will bring controlled substances to their work as-signment regardless of the best efforts of the construction i site management and the owner utility company. Even if we sus-
- pended our civil rights, which I do not recommend, I cannot conceive of a security program which would guaransee the ab-sence of controlled substances on this or any'[other work site.
, The fact that drug activity has been identified among I,
Harris site employees by no means discountsf-the success of CP&L's control efforts. It would be of far more concern if no initiatives had been undertaken and someone was trying to con-i
{ vince you that there has been no drug activity among these employees.
This principle is important in evaluating the data I
presented by the CP&L witnesses. The word " widespread" used in i
the contention is both a relative and a subjective term. The .
rate of detection of violators of site drug abuse policies is a useful indicator of drug activity, but it is difficult to as-i sign a qualitative description of the level of activity (such s
! as " average," "high" or " low") without comparing it to the
( ,
f
- - + . _ - , -_ . , _ , . . . . 2.,.e_ . . - . - - -,, , - . _ ,3,_.y-%.%,, %_., w. ,q.,=#m,,..c-,.qy,,-,.%,, ,s.ga_ amv.e.,g,..g.,is.- ,p .
_s,r-q p ig m ,
l 1
I t
- activity level of other work places. A so-called high rate of i
() detection of drug activity itself can be caused by a high rate
{ of drug activity or by a high rate of enforcement of anti-drug i
policies, or both. Used in isolation this indicator (arrests or dismissal for drug activity) can be misleading because it
] can seem to show that the sites with the most effective drug i
abuse prevention efforts have the highest rate of drug activity
{
i (because they have the most arrests and dismissals, for exam-ple), when these indicators may actually reflect a relatively i
j low rate of drug activity at a particular site.
1 The drug activity at the Harris Plant that has been iden-tified by CP&L, its contractors and law enforcement represents, as a percentage of the site work force, less than one-eighth of I
the national work forces' percentage of drug abusers.
s'
(]) In mak-ing this comparison, I am assuming that each of the 201 identi-l
, fled employees was a drug abuser -- which may or may not be the I
j case. Consequently, this is not a high rate of ar- .
f rests / dismissals, and is not indicative of widespread drug
, abuse.
An assessment of drug activity should not be limited, how-l l ever, to a consideration of the number of arrests and dis-t missals. Other key indicators, such as accident rates, are ,[
valuable evidence of the rate of drug activity. A high rate of l arrests and dismissals with a low accident rate would strongly l l
! suggest a low relative rate of drug use and effective interven-
[
l tion. A high rate of arrests and dismissals, however, when !
- 19- [
ys , - - - - - , . ,y - - .- , - -----w,-, , - - . , - - - _ ,,ww+ m-
found with high accident rates would strongly suggest a higher
%-)- rate of drug abuse. A low rate of arrests and dismissals with i
a high accident rate would reflect ineffective intervention.
! Q.17 What is the industrial safety record for the Harris Project?
I A'.17 (WJH): The Daniel Construction Company and its sub-contractor (Davis Electric Company) have a 0.80 incidence of lost workday accident cases per 200,000 workhours for the peri-3 od November 1984 through July 1985. For the immediately pre-ceding year (November 1983 through October 1984), the figure was 0.30. By comparison, the North Carolina State Department of Labor, Injury Statistics (1983-Construction) show a 4.7 in-cidence of lost workday' accident cases per 200,000 workhours 1
for heavy construction in North Carolina. The national average l
- Construction 1984 Edition " Accident Facts National Safety j Council" - for heavy construction in this same category is 3.5.
During 1984, CP&L employees at Harris experienced 0.79 lost workdays from accidents per 200,000 workhours, compared to 1.23 lost workdays for the Company as a whole. Additionally, the i
i Harris project has experienced no fatal accidents.
l (PBB): This is an outstanding safety record and a strong i indication of a low rate of substance abuse. If drug use were t
widespread at the Harris Plant, we would see a higher accident 1
rate among the site work force.
l Q.18 In sum, what is your conclusion on the CCNC conten-i l, tion?
i I
l
9 r
A.18 (WJH, MWK, DGJ, PBB): We conclude that there is not j
a O widespread drug abuse among the employees at the Shearon Harris construction site, and that CP&L has implemented appropriate measures to control drug abuse and to identify those involved i 1
- in drug activity.
i 1
i i
l t
i O
l l
r l
4 l -
i E
[.
I I <
O
! 21-I
, - , , - , , , . - . . , . - - . - . . - - , - ,.. . - , - - - . , . - - _ - - . , . - . . . - . . ~ , , , . - - - . - _ . -
6-7 ,Jo;W21 8894 1 JUDGE KELLEY: Mr. Runkle finished his cross,
/~T as I recall yesterday afternoon, is that right?
( ,/ 2 3 MR. RUNKLE: I had Sir , but by changes that 4 we made here, I would like to resume it, specifically on 5 allegations made in Ms. Miriello's revised testimony.
6 JUDGE KELLEY: I am just trying to understand.
7 The changes are just deletions, how does that generate more 8 questions? Does it?
9 Oh, we set to one side, correct. Ms. Miriello's 10 testimony was going to be -- questions on it were going to 11 be deferred pending the rulings, and now we have a resolution 12 of that, and that is where you want to go insofar as their
(]) 13 testimony addresses Ms. Miriello's testimony.
14 What is remaining here you would have questions 15 on.
16 MR. RUNKLE: Yes, sir.
17 JUDGE KELLEY: Okay, I understand. Go ahead. i XXX INDEX 18 CROSS-EXAMINATION 19 BY MR. RUNKLE: !
20 0 Let me ask the panel here if they have been able 21 to follow the changes that were made in their own prefiled 22 testimony, and also with Ms. Miriello's testimony?
23 A (Witness King) Yes.
24 A (Witness Joyner) Yes.
An- neporwi, Inc.
25 Q I take it the panel understands the changes that i
I
6-8-Jo;Wnl 1 have been made.
_j 2 Gentlemen, when a CP&L -- when a worker at the 3 Harris site raises allegations of drug involvement, do you 4 do an investigation of that worker's background work -- do 5 you do an investigation of that worker's background?
6 A (Witness Joyner) I think if you would clarify 1
7 that, I would be happy to answer it.
8 Q When a worker raises a drug allegation at the 9 Harris site, do you do an investigation into the worker 10 who makes the allegation?
11 Do you do an investigation of that worker's 12 background?
()
13 A The one that made the allegation?
14 Q Yes.
15 A In most cases, we don' t know who made the l
16 allegation.
17 Q If you do know who makes the allegation, do i
18 you investigate that worker's background?
19 A No, not as a general rule. j 20 Q So, in your normal course of business, you do 21 not interview co-workers of that employee, do you?
22 A The individual that made the allegation you 23 are talking about?
24 Q Yes, sir.
c -Foo 9c porters, Inc.
25 A No, not necessarily.
6-9-Jo:Wal 8896 1 Q In fact, how many times have you done that?
() 2 A I couldn' t answer that. I don't know. ,
3 Q But you don't do it very frequently, is that 4 right?
5 A I can tell you that it has not been a zero 6 number.
7 Q In those times that you did, what was the 8 purpose of looking at dhat employee who made the allegations 9 background?
10 MR. BAXTER: Mr. Chairman, objection. I am 11 trying to restrain myself, but we have a hypothetical 12 that is being posed to the witness, and it is going on
() 13 for quite a long time without any linking up to the 14 testimony.
15 JUDGE KELLEY: Could you link it to the 16 testimony?
17 MR. RUNKLE: Yes, sir.
18 BY MR. RUNKLE: (Continuing) 19 Q You did an investigation of Ms. Miriello's 20 background,did you not?
21 A (Witness Joyner) I did an investigation because
~
22 the principals were not there. The ones that were being 23 alleged.
24 MR. BAXTER: The testimony -- excuse me, Mr.
l
. enorwes inc.
25 Chairman, the testimony reflects at this point an
6-10-JotWal 1 investigation into the time period in which she was working
() 2 for Shearon Harris, and what she did at Shearon Harris .
3 MR. RUNKLE: And'it also reflects, Your Honor, 4 talking to various co-workers and various letters that 5 she sent to other CPLL employees.
6 JUDGE KELLEY: Can you tie this to the testimony 7 by page.
8 MR. RUNKLE: Yes, sir. On page 15, the first 9 paragraph which includes quotes from letters, and a 10 conversation with a co-worker.
11 MR. BAXTER: I have no objection if he wants 12 to ask about Ms. Miriello in particular there, as long
(]) 13 as we are out of the hypothetical. ,
14 JUDGE KELLEY: All right. Go ahead.
15 BY MR. RUNKLE: (Continuing) 16 Q I would just like to sum this up. This is not 17 a common practice is it?
18 A (Witness Joyner) This is not a common instance.
19 Neither Ms. Miriello nor any of the people she alleged 20 to be using drugs were still on the job site.
21 I had to start somewhere, and the information I 22 have in my affidavit is what I gained by asking questions.
23 Q And when did you begin your investigation 24 of allegations in Ms. Miriello's affidavit?
n o rmes.Inc.
25 A Since I received her affidavit.
l t
6-ll-JosWal- 8898 1 MR. RUNKLE: Thank you. I have no other
. 2 questions.
3 JUDGE KELLEY: Okay. Now, should we go next to 4 Mr. Eddleman, or Mr. Cole. We have had some varying i
5 practice there, I think.
6 Mr. Cole, if you want to go next, go ahead.
End 6. 7 MR. COLE: Excuse the delay, Your Honor.
MS fols.
8 I wasn't anticipating going next, but I will be glad to 9 do so.
10 JUDGE KELLEY: You are willing to go though?
11 MR. COLE: Oh, yes, sir. Yes, sir.
12 JUDGE KELLEY: Okay.
() 13 14 15 16 17 18 19 20 21 22 23 24 nepone,3, Inc.
I 25
8899 Sim 7-1 1 CROSS-EXAMINATION
() 2 BY MR. COLE:
3 O Since we have had a little lapse of time since we 4 had earlier questions before the break, which member of the 5 panel brought the 201 figures out? Who talked about it?
6 Mr. Hindman, was that you?
7 A (Mr. Hindman) Yes, that is correct.
8 Q All right, sir. If I could direct a question or 9 two to you about that, sir.
10 In looking at your breakdown by years it appears 11 that the years '79 through '85 when these 201 employees, and 12 I think you styled those terminations, did you not, sir?
13 A Let me check to see what I called them. I believe 14 we called them terminations.
15 0 Inasmuch as the large majority of those terminations 16 occurred in the years '84 and '85 and in predominantly '85, 17 can you tell me why that is, sir, why they are so heavy 18 ended in those two years? Was it the undercover drug 19 operation?
20 A No, I think there might be several reasons for 21 that. In fact, there are probably fcur reasons we can point 22 out.
23 First, an increase in the society around us. That 24 would be one of my reasons. Secondly, the population on Rep =*rs, lac.
l- 25 the site did double in the time frame. Beginning in '83 it
8900 Sim 7-2 1 was a double figure and in '84 and '85 over what it had been
() 2 previously in earlier years. So we were working with twice 3 as many people.
4 Thirdly, I think there was a change in the nature 5 of the work environment on the site. For example, in the 6 earlier years on the site there was not very much cover and 7 concealment. Also, the type of work going on called for very 8 large work crews, which were very closely supervised. In the 1
9 latter portions of the job the work was more spread out and 10 supervision was spread thinner because of the fact that there 11 were buildings and rooms and corridors in which people had to l 12 spread out and do their work.
(} 13 And, fourthly, I would point out that there has 14 been a heightened awareness of the drug situation through the 15 various programs that have been brought'to bear at the 16 construction site.
17 Q You are not ruling out that the high incidence in 18 '84 and more notably in '85 had something to do with the 19 undercover drug operation though, are you?
20 A I am not ruling that out completely, no.
21 Q So would y,ou agree that it had a part in the 22 figures?
23 A I would say so because we did have that period of 24 emphasis where we not only had the-two undercover operatives, Aco-F Reporters, Inc.
l 25 but we had the informant, plus we had the additional support l
6
8901 Sim.7-3 1
to support them while they were there. So I would expect
() 2 that we would have had a little bit more finds during that 3 period of time, yes.
4 Q Well, would you characterize the undercover 5 operation as accounting for 50 percent of that or even greater 6 than that? -
7 A Fifty percent ---
8 Q You were giving a number of factors as to why '84 9 and '85 were weighted so heavily, and you gave as one of those 10 that the undercover drug operation attributed to it. I am f 11 just trying to find out what kind of weight you would give 12 to that. Would you say that 50 percent of those terminations 13 were as a result of the undercover drug operation?
14 MR. BAXTER: You are including '84?
15 MR. COLE: '84 and '85. Well, let's say '85. '84 16 is really kind of small in comparison to '85.
17 MR. BAXTER: The drug operation wasn't over until 18 '85.
19 MR. COLE: Right, it was over in early '85, was 20 it not, sir?
21 WITNESS HINDMAN: That is correct. I believe it 22 was January 10th.
23 BY MR. COLE:
4 24 Q Yes, sir.
Reporters, Inc.
l 25 A I am still not quite clear what you are asking me
8902 Sim 7-4 on this percentage.
1 Q Well, I will move off of it in a minute. I am 0' 2 just really trying to -- you gave several reasons as to why
'84 was a high figure and why '85 was even higher, and among those reasons you gave were the undercover drug operation as one; is that correct?
6 A Yes.
7 Q Well, was the undercover drug operation, did it 8
cause the majority of these employee terminations?
A Of the 201 figure?
O Yes, sir.
A No, it didn't I don't believe.
Q Well, and I am kind of sorry I got involved in 13 this because it is not coming out too clear, I realize that 14 we talk about a number of arrests and convictions and so 15 forth as a direct result of the undercover drug operation, but I am talking about the fact that there was an undercover operation and just the peripheral effect that that would have.
Did that heighten the number of terminations made other than through the direct arrests? Is that clear at all?
A I would say that I would think the fact that we had an undercover operation and that it received a lot of attention would have been a factor in heightening our awareness of drugs on the site.
Thank you.
Q r'w9r 9
8903 Sim 7-5 j Mr. King, how are you this morning, sir? And, again, I don't mean to pick on your, Mr. King. It just
(~) 2 3 seems to work out that way.
4 A (Witness King) That is fine. I don't object to 5
it.
6 Mr. King, on page 4 of the prefiled testimony 7 you listed a number of security matters that CP&L has implemented on site. Is that correct, sir?
8 l 9 A Could you be more specific? Are you referring 10 to my testimony at the top or in Mr. Joyner's in the middle 11 of the page?
12 O Well, I think you later reaffirm Mr. Joyner's. I 13 am talking about both. Would you not be aware of those
[}
ja security measures, all of them?
15 A If y u are referring to the number of man-hours 16 and so forth, yes, I am aware of all of that.
j7 Q All right, sir. Were those security matters 18 referred to on that page, where they in place prior to the 19 undercover operation in 1984?
20 A As it reflects on the Wackenhut Corporation and 21 the number of man-hours they were providing during the 1984
- ,2 operation,- those numbers were significantly higher. We had 23 more Wackenhut personnel during the course of the operation 24 than we presently have.
Iteponers, lac.
25 Q Well, I was reading the testimony that you and
8904 Sim 7-6 . !
j Mr. Joyner gave on that page and maybe on a succeeding <
page as trying to point out what CP&L has done on site to
[ 2 detect drug problems. Is that a fair characterization of it?
3 A The primary purpose of our contract security 4
force on the job site is not drug detection. They do, however ,
receive intelligence and information and provide that to myself or Mr. Joyner. Their primary purpose is for industrial 7
8 type security and the protection of personnel and property.
Q All right. Well, Mr. Joyner, your statement on 9
page 4, n line 4 you cite about for identifing and dis-10 jj couraging drug activity at the site. Do you disagree with Mr. King then that the primary purpose of those patrols is 12 n t drug detection?
13
(]
j4 A (Witness Joyner) As my testimony states, it says it is an ongoing means. It is one of several responsibilities 15 by the Wackenhut Corporation. One would be detection and 16 bservation.
17 Q So drug detection and use, or whatever problems 18 j9 might be related with that, is not the primary purpose for 20 the security measures that you refer to there?
A The reason that we have security at the job site 21 is not strictly for drug enforcement.
22 Q It is just an aid to that?
, 23 A It is an additional aid, correct.
24 AwF Repo,ters, Inc.
25 Q All right, sir.
.n,- _
I l
8905 Sim 7-7 1 Mr. Hindman, on page 9 of the prefiled, and I am j t
() 2 paraphrasing what you say, but you indicate that all informa-3 tion relative to illegal drug use is to be given to you; 4 is that correct, sir?
5 A (Mr. Hindman) That is correct.
6 Q Does that include all info received by Mr. King 7 and Mr. Joyner?
8 A That is correct.
9 Q All right, sir. Have you received any info from i
10 Mr. Joyner or Mr. King since the undercover operation 11 terminated?
12 A Yes, I have.
13 0 What do you typically do with the information you
[}
14 receive, sir, or with that information that you receive?
15 A Are you speaking of information pertaining to
- 16 drug ---
17 Q Drug activity, yes, sir.
18 A Normally we get the chain of supervision involved.
19 We find out if there is enough information to take action, 20 or if there is not, if there is a lack of information, we 21 try to determine what we have to do in order to gain more 22 information.
! 23 Q Would it be fair to say that you do a background l
24 or do an investigation of at least the information given A.4llbagma=6 lac ,
25 on the people involved?
8906 Sim 7-8 I MR. BAXTER: Mr. Hindman personally? Is that the 2 question, Mr. Cole?
3 MR. COLE: Well, I assume Mr. Hindman doesn't do 4 that, but I am asking is that what is done, to your 5 knowledge?
0 WITNESS HINDMAN: There is an investigation of 7 the information available to us, yes.
8 BY MR. COLE:
9 Q To your knowledge, Mr. Hindman, do your people 10 investigate all information as to drug activity, whether Il you believe it at the outset is true or not?
12 A (Mr. Hindman) To my knowledge, every time we 13 get a shread of information, we try to follow up on it and I4 determine if it has validity or not, yes, sir.
15 0 You try to identify the individual, the type of 16 work he does and things of that nature?
I7 A Whatever is required. If it pertains to an 18 individual, yes, we would do what.we could to identify it.
19 How much information, if you know, Mr. Hindman,
! Q I
i 20 concerning drug activity has been received by you since the 21 termination of the undercover drug operation?
.22 A I don't really know how to answer that in any j
23 reasonable fashion.
24 Has a considerable bit of information been turned Q
a.p ,,ws, Inc.
25 over to you?
8907 lSim 7-9 1 MR. BAXTER: Mr. Chairman, I am afraid we are I
( 2 going to get a rather unclear record here unless we can 3 be a little more precise.
4 I mean "information" is a very broad concept, 5 and asking the quantity of it is even broader yet.
6 JUDGE KELLEY: Sharpen the question a little, 7 Mr. Cole. I understand your general thrust, and that is 8 legitimate enough, and if you can sharpen it a bit.
9 MR. COLE: Well, actually, I am just moving to 10 another question, but I will try to sharpen that up a II little bit.
I2 BY MR. COLE:
l () 13 Q Not having a reference point to say well, it is 14 more than 10 or more than 50, would you say that in the 15 first six months of 1985 you were I assume given some 16 information through Mr. King and Mr. Joyner or others;-
17 is that correct?
18 A (Mr. Hindman) That is correct.
19 Q All right, sir.
20 Would you say that that was more information than 21 had been received in a period of say six months prior to 22 that?
l 23 A The six months prior to that would have 'includ~d e i
24 the time during the undercover operation.
Reporters, 84 25 Q Well, let me inquire as to the type of information 1
8908 Sim 7-10 1 that would be passed on to you, and again I keep talking from Mr. Joyner and Mr. King. I am assuming that it could be
(]) 2 3 gotten from other sources besides those two gentlemen; is 4 that correct?
5 A That is correct.
6 0 What type of information? Are they accusations 7 as to Joe Blough smoking pot or sniffing coke or as to work 8 performance or what kind of accusations do you receive?
9 A There could be a statement just like you said, l 10 someone smoking marijuana or it could be a statement about 11 someone's behavior that didn't appear normal.
12 Q Have you continued to receive such information
, 13 from Mr. King and Mr. Joyner up until the present date today?
14 A Yes.
15 Q Do you recall receiving any from him say in 16 August of this year?
17 A Yes.
18 0 What was the nature.of that inforamtion, if in 19 fact you can say?
20 A I would characterize it as being the same type 21 information we had received in the past, just allegations 22 about idividuals, and in each case we would follow up.
23 Q And so investigations were made into all of those i
24 allegations is your point; is that correct?
W Reporters, Inc.
25 A That is correct.
8909 l Sim 7-11 O Back to you, Mr. King.
Since the undercover.'
, 1 operation terminated in early '85, have you continued to
() 2 local law enforcement agencies?
3 cooperate with the ,
4 A (Witness King) That is .orrect. >
5 Q How many times have you contacted them concerning r l 6 drug related problems?
i i A The flow of information is a two-way incident, 7
8 and I don't have the total number of how many times they
) 9 have contacted myself or Mr. Joyner or we have proffered the 10 contact. Specifically we have dealt with the Wake County 11 Sheriff's Department, the Raleigh Police Department and i
12 the State Bureau of Investigation several times during the 13 course of 1985 since the termination of the operation.
i 14 Q And your procedure when you receive this informa- t 15 tion is immediately to report it to Mr. Hindman?
i 16 A Mr. Hindman has advised at the most opportune
! 17 time that once we receive inforamtion so that as the site 1
18 manger assigned this responsibilty he will be constantly 19 kept up to date on drug activity.
20 If it is something that we are working on ,
21 immediately and we don't have access to him, we continue 22 to work the investigation or the information and, as stated,
! 23 notify him as quickly as possible.
i i 24 Q Mr. King, were you contacted by an SBI agent n po,=,s,Inc.
25 in' August, early August of this year, on August 10 or maybe i
l
8910 Sim 7-12 12, somewhere in that nature?
3 A I am n t sure of the time. I have had a conver-
) 2 a
sation with one of the SBI agents that I recall.
3 Q Was his name Agent Turbeville, by chance?
4 A Yes, I have talked with Mr. Turboville.
5 Q All right, sir. Without at this time going into 6
the nature of that conversation or mentioning the names, 7
8 can you tell me basically what he told you, and you can, 9
if you feel like you don't want to use a name, I would not say Mr. "X" or "Y" or an employee or a foreman or whatever.
10 jj A As I recall the gist of the conversation I have had with Mr. Turboville recently, he was asking me what 12
(~; had been done on a particular employee, and he named the q,1 13l ja employee.
15 The employee had been discussed with Mr. Turbovill e 16 and Mr. Joyner earlier. I was not aware of the correct j7 answer to Mr. Turboville's question. I in turn contacted 18 Mr. Joyner and advised him that Mr. Turboville was looking for a resonse, and he got back in touch with Mr. Turboville 19 20 and gave him the answer to the question.
Q Well, maybe I should more rightly go to Mr.
21
- Joyner.
22 Mr. Joyner, were you the individual that Agent 23 Turboville initially contacted in early August of this year?
24 Ac 4 Reporters, Inc.
25 A (Witness Joyner) I don't know if I am the one
l 8911
- Sim 7-13 1 that was initially contacted, but Mr. Turboville did contact r)
(, 2 me.
3 Q All right. Was this when he was working the 4 airport detail out at RDU?
5 A Yes, it was.
6 Q All right, sir. What did he tell you, Mr. Joiner?
? A He gave me information on a subject that he had 8 arrested that was an ex-employee at the site. He also pro-9 vided me the name of an individual that was, according to 10 his information, was still employed at the site. The
, 11 individual that he named that he thought was still employed 12 at the site was a roommate of the individual that was 13 arrested. He only wanted to provide me with the information
]
(]}
14 so that we could take follow-up action on this subject.
15 0 Well, didn't he provide you with a little more l
16 information other than his roommate was arrested? What 17 made him call you at the site? Did he tell you?
, 18 A Well, I know him, Agent Turboville.
19 0 Well, what made him think that the guy worked 20 at the Shearon Harris plant?
21 A I assume he got the information from the individual
- 22 he arrested.
23 Q He didn't tell_you anything that he found in the 24 acartment when they executed a search warrant that caused b Repo,ters, Irc.
25 him to call you?
_ - . . . - . _ = -. - , . _ _ .
8912 l
J Sim 7-14 A He did tell me that what he found in the apartment, 1
but he also told me that he found nothing in the room of
[}
the individual that was his roommate.
- - 3
} 0 Well, what did he tell you that he found in the
- apartment that named the CP&L employee? t
, 5 A I don't ---
6
$ MR. BAXTER: It has not been established that there I
- is a CP&L employee involved.
8 lI MR. COLE: The gentleman that he referred to was 9
a CP&L employee, was he not? l
- jj WITNESS JOYNER
- That was not my understanding.
. MR. COLE: 1Your Honor, obviously these are arrests 2
- that have been made and of course no trial has been held on them.
4 I BY Mr. COLE:
- 15 l Q He called you about the arrested man's roommate,
)
i did he not? '
17 i A (Witness Joyner) Yes.
Q All right, sir. Was the man he called you about 39
- *"E Y**
20 A As I just' stated, not to my knowledge. I was only 21 told that he was possibly an engineer, and that could have 22 been from Daniel or-CP&L. I really don't remember. I did <
23 check the idividual out and, as I recall, he was a Daniel A.) w "*' employee and he was not on the job site any longer.
8913 Sim 7-15 I Q But wasn't the Daniel employee the arrested
) 2 individual?
3 A I believe both of them were.
4 0 All right. The arrests were two men at the 5 airport, correct?
6 A That is correct, and my information that he 7
gavbe me, the name that he gave me was a Daniel employee who 8 had already left the job site at the time that Mr. Turboville 9 called me. At that very moment I got Mr. Plueddemann with' 10 industrial relations of D'aniel involved in it immediately.
II We did a search of the files and we found that the subject 12 had not been on the job site and had also actually in fact 13 been terminated for absenteeism.
14 0 Is this the gentlemen >who.was;bne of the gentlemen 15 arrested or one that,was,not arrested?
16 A The one that was arrested had already left the 17 job site. I am talking about the guy that he said that he 18 thought still was on the job site.
19 Q All right. Is this the one that he called and 20 using his words, advised you to take him off and have his 21 whiz in a bottle?
22 A That is correct.
23 Q All right, sir.
24 JUDGE KELLEY: Could you repeat that? I didn't i Reporters, Inc.
l 25 get it.
e l
i
t 8914 Sim 7-16 j MR. BAXTER: I think that fits under your 2
distasteful rule, Mr. Chairman.
3 JUDGE KELLEY: Oh, that is what he is saying.
4 (Laughter.)
5 MR. COLE: It didn't sound like your typical 6
medical urinalysis, but okay.
7 BY MR. COLE:
8 Q Well, dropping back to the conversation with 9 Mr. Turboville, did he tell you why they were running the 10 airport detail?
11 A (Witness Joyner) They had been out there for some 12 time.
(v ) 13 Q Did he tell you why they had been working the 14 airport?
15 A Primarily looking for drugs.
16 O Do you know what kind of flights they were checking 37 on?
18 A No, I don't.
j9 0 You don't know if it was the Miami flights or 20 whatever?
21 A For this particular flight I do.
22 Q Was it a Miami flight?
23 A Yes, it was.
24 Q All right, sir.
Ace-FA1 Reporters, Inc.
25 Did he tell you they arrested two gentlemen out there?
8915 Sim 7-17 A He arrested one at the time, but the other subject
)
I understand ran. When they finally caught him, they did 2
n t charge him at the time. They obtained a search warrant :
3 4
and went back and searched the house and that was the individual who used to work at the Harris site. The subject 5
involved that you were talking about was never charged.
Q That is right. What did Agent Turboville tell you 7
they found on the two arrested individuals?
8 MR. BAXTER: Mr. Chairman, I am having trouble with 9
the relevance of this line of inquiry. Mr. Cole did have 10 gj the opportunity to file his own testimony. I understood the linkage to our testimony is as to whether or not we 12 13 cooperate with law enforcement. I think we have been through 34 that in terms of Mr. Joyner's follow up to the information 15 he was provided.
16 Now if he wants to put on Mr. Turboville for some 37 reason to talk about airport operations and ex-employees, 18 he can try that, but I don't see the relevance.
j9 JUDGE KELLEY: Mr. Cole.
20 MR. COLE: Your Honor, if you recall, if we could 21 back to the second panel testimony -- and let me get the 22 page numbers -- if my memory serves me correctly, Your Honor, 23 if y u will recall the testimony of the second panel ---
24 JUDGE KELLEY: Just a minute.
Repo,ters, Inc.
25 (Pause.)
8916 Sim 7 - 18 MR. COLE: The reference is page 29, the bottom f 28 and the top of 29. My recollection was, Judge, that 2
I re all s ying that inasmuch as the second panel consisted 3
of everybody but Mr. Plueddemann, that I asked the Court 4
would I -- I was stopping my cross-examination, but with the understanding that I could come back to, since it was the same panel less Mr. Plueddemann, and talk about these couple 7
of matters on these two pages.
MR. BAXTER: I can't see that we are there though.
9 This is in response to Ms. Burch's affidavit which states O
g that Lt. Self stated that Deputy Hensley stated that there g were allegedly trips from Florida being made back at the time of the undercover operation in 1984 I assume, and I (E) don't see what that has to do with this.
cnd Sim 15 Sue fois 16 17 18 19 20 21 22 23 24 Ace- Reporters, Inc.
25
8917
- 8-1-SueW I MR. COLE: He may be right, Judge. I'm not
() 2 there. But I'm going to be there in just a moment.
3 JUDGE KELLEY: Well, why don't you go ahead and 4 try --
5 MR. COLE: All right, sir.
6 JUDGE KELLEY: -- subject to further objeccction.
7 BY MR. COLE: (Continuing) 8 Q Mr. Hensley -- excuse me, Mr. Joyner, can you a
9 in your notebook flip back to the second panel's -- have 4
10 you got that?
11 A (Witness Joyner) Yes, I did that and I read i 12 that statement.
13 Q All right, sir. And you recall that that was i (~)T 14 some question about CP&L, . maybe Daniel's employees or l
15 subcontractors and flights to Florida and bringing in 16 drugs, cocaine; is that correct?
17 A I recall that, yes.
4 18 Q Now, going back again to Mr. Turboville --
19 and let me just get this straight, and T'm not trying to 20 be repetitious, Judge, but I'm not real sure we are talking
, 21 about the same person.
22 You are contending that Agent Tut 5oville asked 23 you to check on one of the men that was arrested or the i
24 roommate that was not' arrested?
[ Ace- 1 It po,,ers, Inc.
l 25 A The roommate that was not arrested.
1 8918
- 8-2-SueW l Q All right. Did your investigation reveal that --
/
2 you say he had terminated employment there; is that correct, 1 l
3 sir?
4 A That's correct.
5 Q Did your investigation reveal when his employ-6 ment was terminate'd?
7 A Yes, it did. I don't recall the date of that, 8 but he was already terminated when Mr. Turboville called 9 me, which was on the day or so after the search was made.
10 G Well, was --
11 A He hadn't been there in over a week, or a week 12 or two.
13 Q So, you would disaaree that he terminated the
[}
14 day after the arrest; is that correct?
15 A Yes, I would.
16 0 All right, sir. Did you see any similarities 17 to the scenario that,Mr. Turboville was revealing to you 18 to the testimony on Page 29 of the second panel's 19 testimony?
20 A It would be very difficult. Only that Miami 21 was mentioned.
22 Q All right, sir. But there we talked about 23 an electrical contractor, did we not? A subcontractor 24 to'Daniels?
a.por,.rs, Inc.
25 A It's my understanding we are talking about an l
r
- _ _ - . . . , . _ . . . . - . , - . , _ , , , . . _ . . .- , , . -.m, _ _ _ , _ . . . . . , . . . - - _ , . , ,
-8919
- 8-3-SueWl incident that occurred at least ten months prior to this.
() 2 Q Well, of course, it was all an allegation.
3 MR. BAXTER: There is some mischaracterization 4 of the testimony. It is alleged incidents that occurred 4
5 maybe ten months ago.
6 JUDGE KELLEY: You are focusing on 28 and 29.
7 I will just have to reread this. Can we take a minute?
I 8 MR. COLE: All right, sir.
9 (Pause.)
10 MR. COLE: I don't know where we were in that, 11 Your Honor. I'm through with asking him about the similarity
] 12 of the scenario.
I
() 13 I can move on to another matter if you want.
i 14 dUDGE KELLEY: There is no pending objection; a
15 is that correct?
16 MR. BAXTER: I was just trying to correct some 4
17 of the characterizations of the testimony.
18 I don't think there was a pending question.
19 JUDGE KELLEY: All right. Mr. Cole is willing to proceed, so why don't we do that?
20 21 MR. COLE: All riaht, sir.
.22 BY MR. COL'E: (Continuing) 23 0 What type of drug did Mr. Turboville tell you 24 was found?
Ace hporters, Inc.
25 A Cocaine.
8920
- 8-4-SueW 1 0 Did he tell you how much?
A 2 He did. I don't recall the amount.
3 Q Would five ounces be a reasonable figure that 4 you might recall?
5 A I honestly don't know.
6 MR. BAXTER: Objection. If he doesn't remember, 7 he doesn't remember.
8 JUDGE KELLEY: It has been answered.
9 BY MR. COLE: (Continuing) 10 Q Did you, in your investigation of the individual 11 that Mr. Turboville had called you about, did you determine 12 what kind of work 'ie did for CP&L or by whom he was
/ , 13 employed?
%J 14 A He was an engineering aid.
15 Q He had nothing to do with quality control?
16 A To my knowledge, no.
17 MR. COLE: Judge, we are kind of talking in 18 circles. I guess if I had talked to Mr. Joyner out in 19 the yard we wouldn' t have to have this discussion.
20 But the gentleman that I'm referring to was 21 not arrested. I again am a little reluctant to stick his 22 name in the record, but it certainly would be helpful to 23 know whether we are talking about the same man.
24 Unless Your Honor objects, I'm going to ask --
AcM i Reporters, Inc.
25 I would like to ask him the man -- you know, give the man 's
8921
- 8-5-SueW 1 name and ask him if it's the same one.
( 2 MR. BAXTER: Well, I'm going to instruct the j 3 witness not to answer such a question. If the State i
i 4 wants to incur that potential liability, he can ask the
, 5 question.
6 But Carolina Power and Light Company isn't 7 going to. And'I don't think we are going in circles. I i 8 think the witness is being responsive.
9 ,
Counsel is just trying to testify.
10 JUDGE KELLEY: Let me make sure I understand i
i 11 here. Earlier on in this line, I think there was confusion 5 12 about arrested, who was the rocamate and all the rest. I i
thought it got a little clearer there.
(]) 13 I
14 Am I correct that there was one arrested at the 15 airport, and then the other guy at the airport ran away?
l 16 Whether he got arrested or not is unclear to me.
17 But it was the first man's roommate who used to 18 work at Shearon Harris as an engineer of some sort. Is 19 that right? Or, am I confused?
$ 20 WITNESS JOYNER: There was one individual who 21 was arrested at the airport.
22 -JUDGE KELLEY:- Right.
23 WITNESS JOYNER: The second individual ran.
4 24 JUDGE KELLEY: Right.
'Aco- Repor%rs, Inc.
25 WITNESS JOYNER: They apprehended him at the 1
y , ~ . - - , ...n ,
' 8922 ,
1 l
l
, #8-6-SueW l airport.
I 2 JUDGE KELLEY: Right.
' 3 WITNESS JOYNER: He had nothing on him. He was
-4 not charged.
l 5 JUDGE KELLEY: Right.
6 WITNESS JOYNER: They went back, got a search 7 warrant'and searched his residence.
8 JUDGE KELLEY: His residence?
l 9 WITNESS JOYNER: The second individual that 10 ran that was not charged at the airport.
.11 JUDGE KELLEY: Okay.
! 12 WITNESS JOYNER: Okay?
13 JUDGE K2LLEY: Then, how does the roommate get
-(}
14 into the picture?
[
15 WITNESS JOYNER: This second individual's 16 apartment that they searched, the house that they searched --
17 JUDGE KELLEY: Yeah.
18 WITNESS JOYNER:. -- had a roommate.
19 JUDGE KELLEY: Right.
20 WITNESS JOYNER: 'When they searched this --
21 JUDGE KELLEY: He wasn't at the airport at all?
-22 WITNESS JOYNER: No, sir, he was not.
23 JUDGE KELLEY: But he was working at'Shearon.
24 Harris?
It pasws. Inc.
'25 WITNESS JOYNER: That's correct.
l' f
8923
- 8-7-SueW 1 JUDGE KELLEY: As an engineer?
() 2 WITNESS JOYNER: That is --
4 3 MR. BAXTER: Engineering aid.
4 WITNESS JOYNER: -- when Mr. Turboville called 5 me. He also wanted to emphasize that he did not find any-6 thing in the man's room.
7 JUDGE KELLEY: Terminated a week or so before i
8 Turboville called you?
9 WITNESS JOYNER: Yes.
10 JUDGE KELLEY: Now, if that's basically a 11 quick outline, how is identity significant, Mr. Cole?
12 MR. COLE: Judge, I guess inasmuch as you have pulled it all together in a very clear pattern, it probably
{) 13 14 is not.
15 And I really prefer not to ask his name anyway.
16 I don't know what real purpose would be served by that.
17 But I -- from your --
18 WITNE'SS JOYNER: The subject that was arrested 19 is public record. And if you want me -- I do know his 20 name.
21 MR. COLE: No, it's not the arrested people.
22' JUDGE KELLEY: No, we don't need that.
23 MR. COLE: No.
24 JUDGE KELLEY: The State doesn't need to know it.
' Ace. Reporters, Inc.
25 MR. COLE: Well, let me just ask one last question.
8924
- 8-8-SueW l BY MR. COLE: (Continuing) r~g
(_j 2 Q The gentleman we are talking about, the non-3 arrested individual, he was not a quality control engineer, 4 I believe you are saying?
5 A That was not what our records indicated.
6 Q Do you recall what they indicated he was?
7 A An engineering aid is what I recall it beina.
8 Q All right, sir. And it's further your testimony 9 Mr. Turboville did not tell you what alerted him to call 10 you about that individual?
11 A For some reason he suspected he worked at the 12 ' Harris site. That's my only knowledge of it.
13 Q You have no way of knowing? He didn't tell you
['])
14 why he suspected he worked at the Harris site?
15 A I don't remember.
16 Q All right. Let me go to Mr. Hindman a minute.
17 Mr. Hindman, I assume this information was passed to you 4
18 by Mr. Joyner?
19 A (Witness Hindman) I recall not the specifics 20 .but generally the dimension of this scenario about the 21 airport and the linkage to a person.
22 Q What did you do after that information was 23 passed on to you, Mr. Hindman?
24 A I inquired of Mr. Joyner what actions were
\
Ace- Rmm%n. Inc 25 being taken to determine if the information had any validity I i
I i
8925 i
D-9-SunW 1 or if there was anything we needed to do, or what the
() 2 circumstances were with his relationship with the site.
3 Q What did he tell you then or later?
4 A I think basically he indicated what he.just 5 indicated on the record, the fact that the man had already 6 discontinued his relationship with. the site.
7 Q And that was the end of the inquiry as far as 8 you were concerned?
9 A I'm not sure it was the end of the inquiry.
I 10 0 Well, were any further investigations made 11 into this particular employee, when he quit, what he did, 12 talk to any of his friends or people who might know him, 13 supervisors or anything?
)
14 A I'm not aware of any specific actions, but 15 I'm not sure that his file has been closed either.
16 Q All right. Well, let me go back to Mr. Joyner.
17 Has that file been closed, Mr. Joyner?
18 A (Witness Joyner) As far as I'm concerned, the 19 file has been closed.
20 The subject had no indications of any drug use.
21 There was none found in his room. He was not arrested.
22 And he had discontinued his employment at the site at
^
23 the time of the arrest of the other individuals.
24 Q Well, Mr. Turboville had advised you to have hpori.n, Inc.
, 25 the fellow go in a bottle, did he not?
1
8926 38-10-SueW 1 A Mr. Turboville doesn' t make that determination.
(,w) 2 Q But he juat suggested that you micht want him 3 to do that?
4 A That is correct, only because of his association 5 with individuals they arrested. That was his feelings.
6 Q All right, sir. So, once y:ou found out that 7 this individual had terminated employment you say a week 8 prior to that, that closed the file as far as you were 9 concerned?
10 A~ I saw no evidence of his drug abuse.
11 Q Well --
12 A And as far as I was concerned, yes, the files 13 were closed.
(~')
b 14 Q What did you do to determine that you saw no 15 evidence of drug abuse?
16 MR. BAXTER: Mr. Chairman, I think we are 17 getting repetitious here.
18 MR. COLE: I don't think so, Your Honor.
19 MR. BAXTER: He has outlined several times why 20 he decided the investigation did not need to proceed further.
21 It seems to me obvious that a drug screen urin-22 alysis couldn' t be ordered on the employee when he didn't 23 work there anymore. '
24 JUDGE KELLEY: In the interest of just tying i it.po,,.n. inc.
25 this up, I think it's starting to get repetitious, do
8927
- 8-ll-SueW 1 you want to ask whether anything other than the things (s) 2 he has already mentioned was done and get a response to 3 that?
4 MR. COLE: Yes, sir. I didn't think -- I was 5 going to ask him the same questions I asked Mr. Hindman, 6 because I don't think that had been done.
7 BY MR. COLE: (Continuing) 8 Q Did you just close your file then when you saw 9 he had been terminated?
10 You did not -- you didn' t do anything further; 11 is that correct, sir?
12 A That's correct.
13 MR. COLE: All right, sir. No further questions.
(}
14 JUDGE KELLEY: Okay. It's quarter of 12.
15 Mr. Eddleman --
16 MR. EDDT.EMAN: If this is a good time for a 17 break for you, Judge, it's a good time for me.
18 JUDGE KELLE'Y: Let me ask the Board.
19 (The Board members are conferring.)
20 JUDGE KELLEY: Gentlemen, how about a five 21 minute break? Really, no more th=n that. And then we 22 can come back and go to 12:30 or so, all right.
23 Let's do that.
24 (Whereupon, a' recess is taken at 11:45 a.m.,
Reporters, Inc.
l Ace-I 25 to reconvene at 11:58 a.m., this same date.)
8928
- 8-12-SueWI JUDGE KELLEY: We would like to go back on the 2 record.
3 JUDGE CARPENTER: Before we return to the cross-4- examination, Mr. Baxter, would you confirm for me that you 5 are still planning on pursuing the reinspection of the 6 steam generator and planning on submitting testimony with 7 respect to that steam generator reinspection for the second 8 part of this proceeding?
9 MR. BAXTER: Yes, Judge Carpenter. We are going 10 to do a new base line eddy current inspections of the Il three percent sample of the tubes, and Mr. Brombach will 12 be recalled in the Fall.
13 The only thing I'm slightly uncertain about is 14 whether given the time span the tests will be done by then.
15 I don't know the answer to that question, whether we can 16 schedule them and get them completed by that time. We 17 are moving a little too fast.
18 JUDGE CARPENTER: That's why I thought it would 19 be useful to explore the dimensions of this, since the 20 direct -- since testimony of the Intervenor's witness 21 no longer makes any reference to the eddy current testing.
22 on the steam generator.
23 I was trying to see the context of that inspection 24 as-to whether it would be. essential'for us to proceed.
si,.,mes, Inc.
25 MR. BAXTER: Well, the context is that just as-
8929
- 8-13-SueW1 we are putting on an evaluation of sorts of the safety
~')
2 significance of the work of the two hundred and one employees 3 we are, for the purposes of that exercise, considering :hese 4 five Conam employees as if they were suspects. And, 5 therefore, we will put on some kind of evidence in the 6 second phase about the integrity of their work.
7 JUDGE CARPENTER: That was part of a negotiation 8 with the Intervenor?
9 MR. BAXTER: Yes, that is part of the stipulation 10 from the Applicants' side, is that we will treat them as 11 if they were in the suspect cateaory and evaluate their 12 work.
,~ 13 JUDGE CARPENTER: Mr. Barth, I would like to i, _'
14 ask to what extent you anticipate the NRC Staf'f will be 15 involved?
16 MR. BARTH: To the same extent, Your Honor, 17 that we will evaluate the matrix of the two hundred and one 18 allegations that have previously been submitted. We 19 intend to make this p trt of nur review of that now list 20 of two hundred and six just as we would make the review 21 of the two hundred and one.
22 That was part of the stipulation of the parties, 23 that they would add these people to the list without any 24 kind of inference of guilt, innocence or suspicion. And Ace-F I Reporters, Inc.
25 we will check them the same way we check the others.
8930
- 8-14-SueWI There is no difference between, from our point
() 2 of view, the additional five to the other two hundred and 3 one.
4 JUDGE CARPENTER: Thank you. I just wanted to 5 be sure that up front if there was a need for Staff observa- ;
6 tion of the planning of that reinspection that it be done
- 7 sooner rather than later.
8 MR. BARTh: That's a technical matter, Your 9 Honor. And my degrees in law are not in this kind of stuff.
10 And I am certain that the Staff will take what-11 ever appropriate measures are necessary from a technical 12 basis to make the evaluation of this in the same accord 13 that we made the evaluation of the two hundred and one.
- I4 JUDGE CARPENTER
- Thank you.
15 JUDGE KELLEY: Mr. Eddleman?
16 MR. EDDLEMAN: Thank you, Ju'dge.
i 17 CROSS EXAMINATION 18 BY MR. EDDLEMAN:
19 Q Mr. Hindman, was it you that testified about the 1
20 communications to the quality check program concerning 21 drugs?
). 22 A (Witness Hindman) Yes.
23 Q I believe you mentioned the number of forty-six 24 of these communications were concerning drugs.
n.p.<,.n. inc.
' 25 Now, the first thing I want to ask you about l
8931
- 8-15-SueW 1 this is the communications, is that just phone calls or
() 2 information put into the drop boxes, or does that also 3 include an interview?
4 In other words, is it an interview that is 5 counted as one communication?
6 A Yes. That number that I gave you included 7 the random, or continuing, interviews, t
8 Q And the exit interviews?
9 A And the exit interviews and all other sources 10 of communications with the QCP program.
11 Q Okay. Could you tell me how many interviews are 12 in that number of six thousand one hundred and sixty-nine 13 you gave earlier?
14 A You are speaking of random interviews?
) 15 0 Of all interviews.
16 A Okay, to include exit interviews?
17 0 Yes, sir.
18 A It's almost in the high fifties. I would have 19 to do some math to come up with thac.
20 Q Fifty percent, you mean?
21 A More than fif ty percent, yes.
22 O Ok ay . And do you know how many of those were 23 the random interviews?
A Random interviews would be about sixteen hundred "Ac h n.p.<,.rs,24 Inc.
25 or more I believe.
8932
- 8-16-SueW I Q All right, sir. Now, in the forty-six communica-j 2 tions concerning drugs, can you tell me without compromising 3 any confidentiality how many individuals were identified 4 or alleged in those communications?
5 A In the forty-six communications that did have 6 some drug allegation information contained in them, I think 7 if you counted up all the names that were included in those 8 allegations it would be in the range of seventy persons.
9 Q Okay. And that's the best figure you can give 10 me on that?
II A That's the best I can give you richt now, yes.
12 Q All right. Now, I believe you also testified
/
13 earlie", was it approximately twen*y of those were confirmed 14 to your satisfaction and people were discharged?
15 A I indicated that twenty of that number are 16 included in our matrix of the 201 that we were speaking of 17 earlie r.
18 Q Okay. But that matrix of the 201, ignoring for l9 the moment the stipulation that has been made between the 20 Applicants and CCNC and the Staff on the steam generator 21 people from Conam, that two hundred and one is all the 22 people that CP&L has discharged or Daniel or any of your 23 subcontractors have discharged from the beginning of CP&L's 24 construction at the Shearon Harris through early September Ace- l Reporters, Inc.
25 because of drugs or suspicion, is that right?
[ 8933 l#8-17-SueW 1 MR. BARTH: Objection, Your Honor. We have
() 2 been through this, this charge, these 201, until even I ,
i 3 know the figures.
. 4 And this is repetitious and repetitious.
~
5 JUDGE KELLEY: Well, it is. Just a quick'yes, 6 which I think is probably what the answer is, would 7 probably be quicker.
8 Isn't that so?
9 WITNESS JOYNER: Okay. That it wasn't from the i 10 actual -- it was from the beginning of construction, the
! 11 formal construction when we got our construction permit, i
12 yes, l
t 13 MR. EDDLEMAN: Okay.
O 14 BY MR. EDDLEMAN: (Continuing) i 15 Q So from 1978?
16 A Correct.
I l 17 Q Okay. Now, you also provided the breakdown of i 18 the number of these discharges by years among the two hundred i
19 and one.
20 Through what date is the data for 1985?
21 A The data for 1985 to the best of my memory is i
i 22 about. September 15th.
i 23 Q Okay. Through mid-September? Okay.
, 24 Now, Mr. Joyner, let me refer you to your A
w g hp mn. lac.
25 testimony at Page 4. You are talking about the person l
4
..-.,-,..m , y # 3 ,,- , , , - .,m-.----,-,--.--.m, , ~ . , = - - - , , . , , , - - - . <~- ,-- . - - - - ,-
8934
- 8-18-SueW l hours per week that are authorized by the various industrial
() 2 security forces on site there, I believe.
3 And I want to ask you if there are about twenty-4 five hundred person hours per week allocated for that, 5 then if there is a hundred and sixty-eight hours in a week i
6 that would be an average of about sixteen guards in any 7 given hour, wouldn ' t it?
8 A (Witness Joyncr) If you want to average it 9 that way, yes, sir.
10 But it's not done that way.
ll Q Okay. Are there more guards on the first shift 12 or the second shift?
() 13 A There are more guards on the first shift.
14 Q okay. And is there a period between when the 15 second shift goes off and the first shift comes on now?
16 A We have a distinct starting time, but we do have 17 overlapping shifts now, eight hour and ten hour shifts.
18 Okay.
Q But what I'm saying is, is there a time 19 in the early morning hours when there may not be construction 20 employees on shift but there would still be guards?
21 A Yes.
22 Q And about how many guards -- if this doesn' t 23 compromise your s'ecurity, about how many guards do you 24 have on duty during that time?
Ace. Reporters, Inc.
25 A I don' t know.
8935
- 8-19-SueWI Q Okay.
I) 2 A It would be the same amount that would be prior 3 to that time, because they would be working their shift.
4 Q All right.
5 A The guards would be working their shift. When 6 I spoke of the overlapping shift, that was craft workers.
7 The guards do work a set shift.
8 Q Okay. Are there three shif ts of guards?
9 A Yes.
10 Q Okay. Now, has the number of these industrial 11 security guards overall been increased in the last couple 12 of years?
7 ~') 13 A Yes, they Lave.
\_ -
14 Q Okay. Has it been -- can you give me a percentage 15 of increase or a number of increase?
16 A I can tell you that we have reduced the 17 Wackenhut guard hours. At the same time we have increased 18 the Burns' hours.
19 Q Okay. What I'm trying to ask is, overall have 20 you increased the number of total guar '.s regardless of 21 who they work for in your industrial security at the plant?
22 A Yes, we have.
23 Q And has it been like a doubling or fifty percent 24 increase?
Ace F l Reporten, Inc.
25 Or, can you give me a number for how much?
8936
., #8-20-SueW I A To date, I would say we almost doubled.
t
( 2 MR. BAXTER: From when? The record is unclear 3 to me.
4 BY MR. EDDLEMAN: (Continuing) 5 Compared to, say, 1983 you have about doubled?
1 Q
6 A Yes.
7 Okay. Now, the statement on Page 5, Mr. Joyner, Q
8 this is continuing your answer that I was asking you a 9 little about earlier.
10 In the second paragraph that begins on that Il Page 5, you talk about your contract security personnel I2 observing people coming in and going out for physical signs
(} 13 of incapacity.
14
- Wnat I want to ask yog again if you can answer 15 this without compromising your security, how many persons 16 have been identified as having those signs through these 17 contract security people in this way?
18 A I would be unable to give you a number. I can 4
19 tell you that there have been some.
20 Okay.
0 There have been some but if it were thirty i
21 or forty or fifty, or a very large number, wouldn't you 22 think you would know that?
23 A Yes.
24 Q So, it's not a real large number but it's some?
W h it.pe,ws, Inc.
25 A That's correct.
8937 1
- 8-21-SueW I Q Okay. Fewer than thirty, then, do you think?
() 2 MR. BAXTER: Mr. Chairman, I think the witness 3 has said he doesn't know the number.
! 4 MR. EDDLEMAN: All right. I will withdraw 5 that.
6 BY MR. EDDLEMAN: (Continuing) 7 Q Mr. Joyner, further down -on that page you are 8 talking about the narcotic detection dog coming in. This 9 is the ending paragraph on Page 5, on an unannounced 10 schedule.
Il Now. who knew the schedule, Mr. Joyner?
12 A I set the dates. I notify the canine detection
{} 13 service. We agree on the dates.
14 I, in turn, just prior to the dog arriving on 15 the job site I notify the Daniel Industrial Relations 16 personnel so they will be present at the time we do the 17 search and I also notify Mr. Hindman.
18 Q All right. So, until just prior to the dog 19 coming on site, nobody but you and the handler knows that 20 the dog is coming; is that right?
21 A That's correct.
22 Q I mean, to your knowledge?
23 A To my knowledge.
24 0 Okay. And about -- is it like' minutes or hours w h i h porten, Inc.
25 before the dog arrives, or is there a typical amount of i
8938-
- 8-22-SueW I time when you would notify Mr. Hindman and your Daniel
() 2 Industrial Security people?
3 A On many occasions, Mr. Hindman doesn't know 4
until the dog is actually on the site only because of his 5 unavailability at the time.
6 You mean, like if the dog comes in at 4 a.m.
0 7 you don't call him and wake him up?
8 A That's correct.
9 (Laughter.)
10 0 Let me ask you this, going over to Page 6 about Il random sampling of area.3 on the site.
t
- 12 Are there normally any dogs on the job site?
13 A No.
I4 Q All right, sir. When the dog is searching, 15 is there any effort made by you to conceal the presence 4
10 of ' the dog?
17 A No.
l END #8 18
! Jon flws 19 i
20
- 21 22 l 23 24 Reporters, Inc.
25 1
4
9-1-JosWal 8939 i
) Q Mr. Hindman, let me refer you to Answer 7,
() 2 beginning down there at the bottom of page 6.
3 Talking about urinalysis drug screening. Can 4 you tell me which drugs, again if it doesn't compromise 5 your security, which drugs have been detected through 6 this urinalysis?
7 A (Mr. Hindman) I can't give you a listing, no.
8 Q Mr. Joyner or Mr. King, could you?
9 A (Witness Joyner) I don't know.
yo A (Witness King) I don't have any data on that 11 on an individual basis.
12 Q All right. Now, gentlemen did any of you, Mr.
Hindman, Mr. King, or Mr. Joyner, did any of you provide
[]} 33 ja any information to Mr. Bensinger about which drugs had 15 been detected in urinalysis at the site?
16 A (Witness Bensinger) May I?
i 17 Q If you know the answer, Mr. Bensinger, it might 18 be cleaner that way.
19 A I d2 ink it would be. I also think in Mr.
20 Ferguson's statement, the drugs that are screened by 21 Carolina Power and Light and Compuchem, and I believe Mr.
22 Ferguson, who is present in the room can confirm this, 23 I think it is also identified in his testimony although 3 24 I can't do two things at once, would include a drug such wm too,we , Inc.
25 as herion, cocaine, marijuana, THC, and principal metabolites
8940 9-2-Jo:Wal 3
1 that would include 11 NORD, Delta 9 THC, amphetamines, j () 2 barbiturates, benzodiazepines. It would include from my 3 review, and I can be refreshed by Mr. Ferguson, the
)
4 principal illegal drugs of abuse, and the principal 5 dilutant or aIdulterant that would be associated therewith, 6 in the case of quinine, s
7 Q Mr. Bensinger, perhaps you misunderstood my 8 question. My question was as to the specific drug that
! 9 had been detected, not the drugs that were tested for.
l 10 A Pardon me. I didn't understand your question.
11 I think I would have to defer to my colleagues as to 12 exactly what drugs were detected in the urine screens.
() 13 Q You gentlemen have already answered that you 14 don't know, right?
15 A (Witness King) Mr. Eddleman, I misunderstood 16 what you were saying. On an individual basis, I did not 17 have that data by employee.
l 18 The only two positive results that I know of
]
l 19 have been positive test results for THC in the cannabinoids, i
l 20 and positive cocaine.
?
! 21 Q Now, gentlemen, let me move on to Mr. Hindman's
- 22 answer, which begins on page 7, but what I want to ask you 23 about is over here on the top of page 8. Where you state 24 that anonymous reports of drug activity have been made es nowan,w.
! 25 directly to security personnel and site management.
i 1
9-3-Jo;Wal 8941 1 What I want to ask you is again if you can j 2 answer without compromising your security, about how 3 many such reports -- now, I am distinguishing from the 4 ones that come through quality checks and other means, 5 but these anonymous reports you are talking about, how 6 many such reports have come in?
7 A (Mr. Hindman) I can't give you a number again, 8 but I know that there are anonymous reports that we get.
9 I have memory of this going on, but I can't pin a number 10 on it.
11 Q So, it is more than zero, but you don't know what l
12 the number is?
() 13 A It is more than zero, and I can' t identify the 14 exact number.
15 0 All right, sir. Mr. Bensinger, I would like to 16 refer you to your Answer 10 on page 10.
I 17 Down at the very bottom of that page, your I 18 testimony mentions a review of confidential files, l 19 investigative data, search procedures, and a quality check l l
20 program. Is this a review that you personally conducted?
21 A (Witness Bensinger) Yes.
22 Q Okay. Over on page 11, you are talking about 23 your professional opinion about those measures. That is 24 in the first full paragarph on page 11. Do you see where me s worwi, ine.
25 I am?
9-4-JoaWal 1 A I do indeed.
A
(-) 2 Q Okay. Now, you state in the second sentence 3 that there is legal limit to these steps based on court 4 and arbitration decisions.
5 Could you cite for me any of those court and 6 arbitration decisions that you have in mind?
7 A I can. I can refer you to a monograph I wrote 8 on the subject, called: Employers Rights and Responsi-9 bilities, Drugs in the Work Place.
10 But what I had in mind, and this came up 11 yesterday.
12 For example, steps that could give greater
() 13 assurance of individuals on the Harris site, not having 14 drugs either in their system or having used them before, 15 would include a daily urinalysis of all individuals 16 entering the plant.
17 Would include testing of individuals not only 18 on aarandom basis, but on a basis that was so regular 19 as to be an intrusion, perhaps, from a legal standpoint, 20 on the practicalities and the economics of that situation.
21 Generally, testing has been upheld in court 22 on a cause basis. My review further of the positive 23 screens of those that had been ordered by Carolina Power 24 and Light reflect an aggressiveness at intervention that -
nonm. inc.
25 indicates the Company is erring on the side of safety.
8943 9-5-JoeWal 1 In other words, they are not -- of all the urine 2 tests taken, that they have individuals suspected of having 3 violated their policy, they are not all positive, and that 4 indicates to me that they are reacting to information and 5 supervisors are intervening where there is some question.
6 The individuals are negative. But I think that is encouraging.
7 Not that you would necessarily select someone that didn't 8 have a reason, but it doesn't indicate to me that the 9 Company is waiting until people are laying down on the floor 10 stoned before they do a drug test.
11 Well, Mr. Bensinger, what I am trying to find out Q
12 is where that limit is, and you may have described it, but
() 13 what I would like you to tell me if you can is where the 14 limit is.
15 What is the limit. You have described a pretty !
16 extreme example of analyzing everybody that comes in and 17 l
out all the time. Where is the limit that these court !
18 decisions won't let the Company go beyond?
19 A Would you give me a moment?
20 Q Yes, sir.
21 (Pause.)
22 A I don't know if you would like to get into the 23 individual citations, but in terms of testing, and the 24 right to search, you will find in Champion Spark Plug neporws inc.
25 Company, that an arbitrator refers to probable cause in the
8944 9-6-JosWal l
1 context of a threat from the standpoint of safety to an 2 industrial felony, you find information in other cases 3 throughout arbitration and court decisions which do not 4 give employers the right to -- so to speak -- indiscriminately 5 search, and that would include a body fluid search, without 6 determining an interest in public safety or in behavior 7 activity or information.
8 I think that the Company can take a drug test, 9 Mr. Eddleman, for information it receives which it believes 10 is reliable about an individual.
11 For behavior actions that are inconsistant with 12 safety.
( 13 For pre-employment purposes, for post-accident 14 purposes, and the courts haven't clearly resolved whether 15 for certain selected groups of individuals, where there 16 seems to be an overriding need to have a higher stand, 17 you might do some testing.
18 'But I think the legal limits that have been 19 challenged: and upheld by courts have said you can't auto-20 matically require on an intermittent, random, or non-21 reasoned basis urine testing.
22 Q Does that. complete your answer?
23 A That is the legal limit that is responsive, I
() 24
- m. pees,m noso,w,,,Inc.
believe, to_your question. There probably are others that 25 reflect a search of individuals bodies, even though you
9-7-Jo W:21 8945 l l
1 might post a sign outside an industrial facility that said:
( ,', 2 Individuals are subject to search.
3 If the Company, in ef fect, doesn't do it often, 4 that sign's validity may be subject in case review to some 5 question.
6 Q Mr. Bensinger, I would like to ask for the 7 record, is the document that you were referring to 'when 8 you started to answer this question the same one that you 9 mentioned earlier, your monograph? I 10 A Yes.
11 Q Okay. And also, you mentioned court decisions l 12 there. And I would like to distinguish arbitration, because !
i i
(~i, 13 I think the record will reflect that there is not a unionizedI.
14 work force at Harris.
15 In the latter part of your answer there, you 16 said: I think the court decisions reflect that you can't 1 i
17 be arbitrary about searches, and you have to have information !
I i
18 that you reasonably believe and so on.
l l
19 Is that all from court rather than arbitration 20 decisions?
21 A My answers stem from my general assessment of 22 these rulings . It probably included both.
23 Q Okay. What I was trying to ask then, is 24 have you assessed what the limit is based only on court Ace-F a Reporters,Inc.
25 decisions, and not on arbitration?
-_ . _ - . . -- _ .. _ - - . - - - - . - . - - . . _ -- - ~.- - - -
9-8-Jo:Wal- 8946 i
3 1 A I would assess what the legal limits are on both, O 2 and I am not testifying as an attorney.
l 3 I am not an expert on Constitutional Law. I i
- 4 have had legal assistance in preparing the monograph, and
)
} 5 I am answering from the standpoint of what would be practical-
!' 6 and appropriate, and which could be upheld by a reviewing 7 body such as a court, the National Labor Relations Boards, i
- l - 8 independent panels reviewing the reasonableness of company 1
f 9 policy.
- 10 Q All right, sir. Mr. Hindman, I would like to f 11 refer you to page 12 where you have given a breakdown of i
12 the 201 persons in the matrix who were discharged or let
]
l O. i3 se en account of drue r 1ated information.
14 Can you tell me approxima".ely how many of these
}
15 the Company obtained evidence or suspicion again'from the 16 drug dogs?
I '
j 17 A (Witness Hindman) I do. 't have a number to offer l
i 18 on that.
19 Q Have there been any?
4 I l 20 A Yes, there have been some. '
i j 21 Q You don't know how many?
I 22 A No, I don't.
[ 23 Q Mr.-King, Mr. Joyner, do you know any numbers on O
W Reporters, Inc.
24 that2 ;
l 25 A (Witness King) l We don't have it broken out that !
I
_ - _ , , - _ . _ _ . _ . . -_---,. _ . . - _ _ _ _ . _ _ , - . . . . . . _ . _ , _ _ . _ . . , _ . _ - , _ . . , . _ _ , , . _ , _ ~
8947 9-9-Jo Wal I way.
J 2 To the best of my recollection, I believe we have 3 terminated five individuals as direct result of dog 4 activities.
5 Q All right, sir.
~
6 A (Witness Joyner) That is correct.
7 Q Thank you, Mr. Joyner. Mr. King, in Answer 12, 8 beginning down there on the bottom of page 12, you give 9 some estimates of how much of various drugs have been 10 actually confiscated on site by CP&L security, and also 11 an estimate of drugs turned over to the Wake County Sheriff's 12 Department. !
/~
(j 13 Who 'urned the drugs over to the Wake County 14 Sheriff's Department?
15 A (Witness King) The drugs referred to here as i
16 being turned over to the Sheriff's Department, were turned l l
17 over with the individuals for the Sheriff's Department to 18 prosecute those individuals. They were turned over either 19 by myself or Mr. Joyner at the time we turned those people 20 over.
21 Q Okay. So you didn't actually assess the amount 22 of drugs they had on them, but you turned them over to the 23 Sheriff's Department, and then you got this information back 24 from the Sheriff's Department as to how much they had?
W -F 4 f.eporters, Inc.
25 A These are estimates based on what was in their
8948 9-10-Jo:Wal 1 possession at the time they were turned over.
- 2 Q Estimates based on your security people looking 4
3 at what was in their possession?
I <T 4 '- A That is correct.
5 Q All right, sir. Now, you state these estimates 6 do not include the drugs purchased during the undercover 7 investigation,.and.,I would like you to refer if you can 8 to Attachment 5 to the previous panel's testimony, where
\
9 -I believe you have some information there about those drug 10 buys.
II A ,
Yes, I have that.
12 Q And if Mr. Joyner or any of the other panel members
( 13 know the answer to this question, please feel free to state 14 it, but I am going to ask Mr. King, do you know the amounts 1
15 of the drugs that were involved in these buys?
16 A We do not. This is all of the data that was 17 provided.
18 h' ~
It is all of the data that you received from i
19 Deputy'Hensley?
20 A That is correct.
A 21 Q Did you ask him- kbout the amounts?
22 A I don't recall a specific conversation with him i 23 about that.
O q,j 24 Q So, to your knowledge you did not ask him about no reneren neooners, enc.
25 the amounts that he purchased?
r l.
i
, _, . _ - , ., - . - . . . - . . . , ,~ -- --
9-ll-Jo:Wnl 8949 t
1 A That is correct.
O. 2 Q Mr. Bensinger, when we were discussing the 3 legal limits, do you recall your testimony --
4 A (Witness Bensinger) Mr. Eddleman, I think I 5 can -- if I can interrupt you -- I might be able to give 6 you a hand on that Exhibit 5, if it is of use, as to what 7 these amounts would be.
8 Q Mr. Bensinger, do you have direct knowledge of 9 the amounts?
10 A No, but I am working from the amount paid, and 11 what normally is -- constitutes a level of -- for example, 12 200 dollars worth of cocaine, or 90 dollars worth of
() 13 marijuana, and maybe if you would like to have it I can 14 submit it subsequently.
15 Q Well, let me ask you this. Have you made a 16 survey of the prices of these drugs in the Wake County 17 area, or at the Shearon Harris plant?
18 A I am talking about the national retail, both 19 purity and price of -- so, it would not necessarily be 20 site-specific, but I think generally it would not be 21 dramatically different.
22 Q Well, I think I will leave it to your counsel.
23 I am not going to ask you that. What I do want to ask you, 24 do you recall testimony on Monday and if you have a transcript neporwes, inc.
25 available I would like to refer you to transcript 8400.
I 9-12-Jo1Wal 8950 1 (Pause.)
2 This is where Judge Kelley was asking you about 3 CP&L's drug policy, and I think this has to do with legal 4 limits.
5 (Pause.)
6 A I see the --
7 MR. BAXTER: Excuse me. Is there a question
.I 8 pending, please?
9 MR. EDDLEMAN: There is not a question pending I
10 right now.
11 BY MR. EDDLEMAN: (Continuing)
, 12 Q Do you see the question? What I would like to
( 13 ask you about, if you have had time to review the question, i
) 14 please take the time you need, but your answer on page 8401.
15 A (Witness Bensinger) Yes, what about it.
16 Q Okay. Does your analysis of the legal limits
~
17 on what kind of actions CP&L can take with respect to employees 1-18 use of drugs include -- still include this requirement that 1
19 you are talking about here that they be able to establish 20 some kind of ' relation between the drug use and the employees 21 job performance?
22 MR. BAXTER: We are talking on this page, as
! 23 I understand it, about the statement of policy, Mr. Eddleman.
() 24 m neseemes, Inc.
The testimony in the prefiled which we are examining on today 25 is about legal limits of security measures and other such i
l
9-13-Jo:W:1 8951 1 actions that can be taken at the site.
(~) 2 BY MR. EDDLEMAN: (Continuing) 3 Well, let me try to tie that up, then. If the Q
4 policy isn't actually put into practice, Mr. Bensinger, 5 that part of it that is not put into practice doesn't make 6 any difference, does it?
7 MR. BAXTER: I am going to object, Mr. Chairman.
8 This is Monday's examination. If he had a question about 9 that answer he should have asked it then. I think we ought 10 to get back to the direct that is being examined.
II JUDGE KELLEY: Your response to that, Mr.
12 Eddleman?
13 MR. EDDLEMAN: I just want to know if he stands Id by it. If they will go with the transcript, I will go with 15 it.
16 I think I want to clear it up, though, and I I7 think I could with a question.
18 JUDGE KELLEY: Objection sustained. Let's move I9 on. It is Monday's subject. -
20 BY MR. EDDLEMAN: (Continuing) 21 Q Mr. Joyner, in your answer on page 16, where you 22 say: I would like to add that I am a law enforcement officer; f
23 and then you go on there, 24 ame-F neporters, Inc.
You made the statement that you were well 25 equipped to observe and identify indications of drug activity, 1 .- - __
9-14-Jo Wal 8952 1 but didn't you testify earlier that one inason why you
~ 2 couldn't conduct an investigation like this undercover 3 investigation was that employees would probably know who 4 you were if you tried to do it.
5 A (Witness Joyner) I don't believe that has 6 anything to do with purchasing drugs, by being able to 7 make an observation.
End 9. 8 MS fols.
9 10 11 12
,9 C) 13 14 15 16 l
17 18 19 20 21 22 23 24 m9.i n con.n, Inc.
25
8953
- Sim 10-1 1 Q All right. So you are talking about observing
{} 2 people rather than actually arresting them or making purchases ?
3 A That is correct.
4 0 All right, sir.
5 Mr. Bensinger, your answer 16 begins on page 17 6 of the prefiled and goes over. What I want to ask you about 7 is on page 19 where that same answer is continuing I believe.
8 In the first full paragraph of that page, if you have that, 9 you talk about the drug activity at the Harris plant that 10 has been identified by CP&L, its contractors and law 11 enforcement. Is that the 201?
12 A (Witness Bensinger) Yes, t
13 Q All right, sir.
14 Now when you talk about the national work force's 15 percentage of drug abusers, is that the number of people in 16 the national work force who are arrested and terminated for 17 use of drugs?
18 A The 5 to 12 percent would not necessarily that 19 I have made reference to in the opening Monday hearing would 20 not include all of those that would be necessarily arrested 21 or terminated.
22 0 All right, sir.
23 Now just to be clear for the record, the national 24 work force's percentge there is the 5 to 12 percent that Ace 4 i Reporters, Inc.
25 you are talking about?
8954 Bim 10-2 i A That is correct.
2 O Now how do you get that number of 5 to 12 percent?
3 A You get that from information from the National 4 Institute of Drug Abuse, from surveys of associations that 5
have done questionnaires on the subject. You take the 6 statistical information from NIDA, that is the National 7 Institute of Drug Abuse, and earlier in my testimony, and 8
I could call attention to it, I identified the number of 9 regular marijuana users estimated to be present, the number 10 of cocaine users, the number of people abusing pills, those 11 figures were extrapolated and those statistics have been 12 used by the principal adviser, Mr. Carton Turner in the 13 White House, and they have been used by Dr. William Pollin, 14 former Director of the National Institute of Drug Abuse, 15 who represent for this country at least the designated 16 experts in this field.
17 Q Those are the estimates that are given on page 18 17 in the second paragraph for the population at large?
j9 A Yes. In fact, on that testimony I identify the 20 source of my information and the date and time of it, '82 to 21 '83. I might add that the cocaine reference, which'is.the 22 third sentence down, indicates a doubling of abuse and 23 availability, and that survey is still just being completed 24 and the figures should be published by NIDA in October.
Reporte,s, Inc.
25 Q Okay. You say you identify the source as NIDA,
8955 I
m 0-3 1 the National Institute of Drug Abuse. Is there a particular l
('\ l
(_f 2 NIDA publication that you got those figures from? l 3 A Yes. It comes out and is produced in fact in 4 two different locations. One is the national publication,.
5 which is in booklet form, produced by the U. S. Government 6 Printing Office, and it is entitled " Federal Drug Strategies."
7 It has a compilation of statistics that include the NIDA 8 data. NIDA also puts out semi-annual drug trend reports 9 in their community epidemiology surveys, and those records 10 are available from the Government Printing Office.
11 NIDA does do regular reports, and their principal 12 officer during testimony to the Hill, to the Congress'
{} 13 Select Committee on Narcotic Control and Abuse, does give 14 official testimony. The figures I have cited are statistics 15 that have been used in all of those documents.
16 Q Mr. Bensinger, do those documents, do they give 17 a correlation between accident rates and percentage'of drug 18 users in work forces on various projects?
19 A Some of the testimony presented to Congress will 20 give that. The Federal Drug Strategy Report does not talk 21 about accidents, but there have been a number of reports, with 22 which I am familiar, that do relate accident data to alcohol 23 and drug use.
24 Q. Alcohol and drugs?
Ace. Reporters, Inc.
25 A Yes, sir.
8956 aim 10-4 1 MR. EDOLEMAN: Thank you.
() 2 That is all the questions I have.
3 JUDGE KELLEY: I am ready to stop for lunch. We 4 can resume here at quarter of two.
5 MR. RUNKLE: Can I raise one matter before lunch 6 before I forget?
7 JUDGE KELLEY: Yes. Go ahead.
8 MR. RUNKLE: Previously we had requested that 9 Mr. Prevatte of the NRC become a rebuttal witness. We would 10 withdraw that request based on the stipulation this morning.
11 JUDGE KELLEY: Okay. Fine. Thank you.
12 (Whereupon, 12:38 p.m., the hearing recessed, 13 to resume at 1:45 p.m., the same day.)
)
14 15 16 17 18 19 20 21 22 23 24 7-p.s n .e.~n. une.
25
8957 Sim 10-5 j AFTERNOON SESSION
) 2 (1:47 p.m.)
3 JUDGE KELLEY: Back on the record.
4 Mr. Barth, questions for the staff?
5 MR. BARTH: We have no questions, Your Honor.
6 JUDGE KELLEY: Okay. The board has a few questions.
7 BOARD EXAMINATION 8 BY JUDGE CARPENTER:
INDEX 9 Q Mr. Hindman, I would like to ask whether as a 10 result of the matters outlined in Ms. Burch's affidavit that 11 you have any perception during 1985 the cooperation that 12 Carolina Power and Light has enjoyed with the Wake County
() 13 Sheriff's Department has been diminished in any way? Give 14 us an assessment of the relationship with the Wake County 15 Sheriff's Department this year.
16 A (Mr. Hindman) To my knowledge, we have continued 17 to have a successful working relationship, and I can't point 18 out to you anything that I would call a factor that would 19 indicate that there was a dimishment of that cooperation.
20 Q Could you help me also with respect to the 21 State Bureau of Investigation?
22 A I am not sure of exactly how much interface we 23 would have on a regular basis with the SBI. One of my 24 companions here might be able to answer that more clearly.
Ace FAl Reporten, Inc.
25 Q Fine.
A (Witness King) Yes, sir, Mr. Carpenter. The
8958 Sim10-6 i relationship with the SBI and the Sheriff's Department has
() 2 remained very effective. The information is flowing both 3 ways. We have not called on them for assistance that it 4 hasn.'t been provided, nor have they called on us and us not 5 providing what we could to them.
6 JUDGE CARPENTER: Thank you very much for that 7 perspective.
8 BOARD EXAMINATION 9 BY JUDGE KELLEY:
INDEX 10 0 I have a few questions. On page 10, the answer 11 attributed to Mr. Hindman, the first full paragraph beginning 12 with " Finally, where employees terminated and so on. . .
() 13 and I really think my question might go more to the next 14 Portion of the hearing instead of this one because it is j
15 a corrective action type question, but I raise it now partly 16 because it is in this direct testimony.
17 My understanding is that inspections with respect 18 to the 201 are being done pursuant _to a procedure, and I 19 won't say exactly a random basis, but some sampling basis 20 of the QA people, but that reinspections are not proposed 21 and are not being done for craft. Is that correct?
22 A (Mr. Hindman) For those individuals, craft 23 individuals who we have identified in the 201?
24 Q Right.
Ace- Reporters, Inc.
25 A We have looked at them as individually as possible,
8959
@im 10-7 1 primarily by talking with their supervision and finding out (qj 2 the kind of work that we are doing. Then in some few cases 3 we have gone back into more depth where there was something 4 to indicate, but generally we don't do any reinspection unless 5 there is a reason to cause us to want to do that.
6 Q And, again, this may be looking forward more than 7 today, but we have had some experience with welding at other 8 facilities, and I believe I heard some indication that one 9 reason you don't reinspect is because it is, and I don't 10 know if it is impossible, but it is not that easy to go 11 back and identify the work of' craftsmen. Is that the case?
12 Is that one reason it is not done?
13 A Well, I think the case of the welder is probably
[}
14 the exception because it is more traceable than others. But 15 in the case of other type craft activities where craftsmen 16 are working as part of a large crew or in a general group of 17 people, it is very hard to determine exactly what one 18 individual would have done on a certain date. But we can 19 verify that the activity that he was performing was inspected 20 according to a certain criteria.
21 Q We can get into this in greater detail at the 22 next hearing, but since it was at least averted to here, as 23 you indicated, my own experience with welders is that they 24 are all stencils, don't they?
Ace- Reporters, Inc.
25 A I believe they have ways of finding out exactly l
p __
8960
@im 10-8 who did the weld.
(3) Q Right. Okay. So you might in looking ahead 2
bear in mind, and I am sure you will be expanding on that at the future hearing, and I have some interest in that. I
, thought there was an implication here that there was perhaps a broader reinspection effort than in fact I understand that there is, and that will be clarified I guess next time.
7 Toward the bottom of page 12, fcur lines from g
the bottom, five and four lines from the bottom where it 9
says 450 pills (non-schedule). What does "non-schedule" 0
mean?
))
A (Witness King) In this reference, sir, we are s
referring to drugs that are not controlled by general (u- j 13 statutes of the State or the Federal Government. In this particular instance these were just purely caffine type g pills. They are not prescriptive nor controlled substances.
O I just wonder if they are even within the case.
I m an is this just in there for the sake of completion?
8 A Yes, sir. This is to make sure taht we reported completly as much as possible what we were finding.
Q Okay. Thank you.
g I have some questions mainly for Mr. Bensinger, g
but any other witnesses who want to speak to it can add if they wish. I am looking at page -- well, in general ke-F i Reporters, nc. , ,
the discussion on pages 17, 18 and 19, which is sort of a 25
8961 Sim 10-9 wrap-up Q and A, an overview, if you will, of the situation j
that is attributed to Mr. Bensinger.
2 If I 1 k over at 19, you refer, Mr. Ber. singe r , to 3
the 201, and in the last sentence of that mid-paragraph you 4
say " Consequently, this is not a high rate of arrest 5
dismissals and is not indicative of widespread drug use."
6 7
And my question is, as I read that you are not equating 201 8
with the total number of actual users on site in the last number of years. You are saying, if I understand you correctly ,
9 that that number, although it may indicate some larger number, 10 jj still doesn't indicate wide spread use; is that correct?
A (Witness Bensinger) Yes. And I think your 12 understanding of my representation is correct. There may 13 be individuals that have not been identified above and beyond j4 201. There was considerable discussion about how could you 15 arrive at that.
16 17 My only other assessment is based on the other indicators that I addressed in that testimony and my further 18 j9 assessment of positives and negatives with respect to drug referrals indicating that intervention" and fitness for duty 20 testing seemed to make additional compensation if it was, 21 and I think the words I used was err on the side of safety.
22 Q I want to pursue this a little bit. So I think!
l you.and I could agree, could we not,.that as a minimum threshold we don't know for sure that there aren't more ;
l l
l J
8962 Sim 10-10 1 people who have used drugs on that site since 1979, or whatever g_
\ 2 the construction date is, but that is how many got caught
- 3 or got suspected.
i 4 A That is how many are identified. We don't know
- 5 if all 201 in fact used.
6 Q okay, I understand that, too. There are conser-7 vatisms in that number. I understand that.
g A Exactly. Some didn't take the tests, some were 9 dismissed without being tested or having a positive indication.
10 Q But are you saying that you think 201, or let's I
11 say 200 is the call it best available number for users at 12 the site during construction?
, () 13 A It is the best available number. It is an 14 identified number. You would be speculating upwards or 15 downwards as to whether there were more or less. I would 16 doubt if there were less. The other kind of indicators I i
17 would look to to give me a sense as to how many more are 18 referenced in other testimony in the sense of the size of 19 drugs found which was just the question you posed, or the 1 20 ability to intervene ever time somebody came in in a sense 21 with some drugs in their system.
4 22 I would doubt and.I would say this would apply 23 really at any location that the individuals caught represent 1 l I
24 the total number that have-used. ,
l n ,w=m w.
25 Q You are saying that you doubt that that does 1
l s
8963 Sim 10-11 j represent the total number?
O 2 A . Yee.
3 0 I guess my feeling is, and it is a feeling to 4 this date in the hearing I have retained, that afterall 5 people try to do this and not get caught, and some of them 6 just succeed.
And then the question is how many? We can't
, 7 8
find out in this hearing, can we, exactly how many used?
9 A You will not find out with a definitive number 10 how many used. You will get'a sense of it. You will have 11 to hear from all of the sources that would make and venture 12 CP i nions and give testimony.
() 13 I think though that you can get a sense of that from those that are identified, and then I tried to make 14 15 a correlation in my testimony between accidents, which is 16 also an indicator of some impairment, and interventions. I 37 don't want to get too complicated, but if you have a low 18 rate of accidents and a high number of interventions, you 19 are probably picking up and intervening and intercepting and 20 getting closer to the difference between 201 and what the 21 total number of potential users are than if you had had a 22 high rate of accidents and that same level.
23 So what I am saying is I don't feel uncomfortable l
24 with 201. I think there are probably individuals who have i Reponers, Inc.
25 not been caught, but my sense is that that does not represent l
8964 Sim 10-12 j (a) a large number and (b) ---
{} 2 Q Relative to the 201?
A Yes. --- and (b) that it would be difficult 3
4 really to statistically and without question be able to document a better number.
5 I can' t give you a representaticu that I can 6
arrive at the total number of users on site and represent 7
g exactly what that would be.
9 0 Can't we stipulate that nobody can do that?
A I w uld say that no one could do that.
10 jj Q And anyone who claims they could ---
A Is a magician or has abilities to look at informa-12 tion and come to conclusions that I don't think other people 13 j4 can do.
Q So if given the measures that have been taken 15 and the facts that have been adduced here, you are saying 16 j7 that you don't believe -- well, the same sentence -- that not a high rate of arrest dismissals and not indicative 18 j9 of widespread drug abuse.
20 Can you give us any sense on one higher side number, sort of this national use number that is an 21 approximation also. Is that anywhere from 5 to 12 percent?
22 A Yes. And take in a given year you have got, and 23 let's take '84 and '85, you have got 6,500 people on site l 24 b a it. port.n, Inc.
! 25 plus 300 per month that turnover, and it is kind of a I
8965 i Sim 10-13 1 rotating numbar, so you approach about 10,000. If you took
, ( ') 2 5 to 12 percent of that number, you are talking anywhere 3 from 500 to 1,200 individuals. The 201 number is really 4 over four years with concentrations on two, and if you took i
5 the 80 that have been identified or so already in '85, and 6 I am backing off the 127 and the 40 or 60 that were picked 7 up in the undercover, what I am reaching is a number some-8 where between 80 and 100, or 110 if you just continued the 9 same rate for the balance of this year, and I am way below 10 what would be ---
lend Sim 11
- Sue fois 12 4
C:)
14 15 l
16
! 17 i
. 18 19
- 20 21 22 23 Ace- st.po,ve, 25 1
. - - - - - , ,, - - - , - - --r , , n . , - - - . .
8966
- 11-1-SueW l Q Per year, is that the hundred and ten number?
(') 2 A Yeah.
3 O Extrapolated from the 201 and the other history?
4 A No, I'm taking a hundred and twenty-seven that 5 have been indicated by Mr. Hindman, a hundred and forty-six 6 and twenty-seven. And we are adjusting for the fact that --
7 MR. BAXTER: That's '84 and '85 terminations, 8 right?
9 WITNESS BENSINGER: Yeah.
10 BY JUDGE KELLEY:- -(Continuing) 11 Q Maybe you could slow down a little bit?
12 These number games have their limits. But it is good I 13 think to do as best we can with them.
)
14 A Okay. We backed off from the '85 figure of 15 one forty-six --
16 Q Right.
17 A -- about sixty-one who were included in the 18 undercover investigation and information that was provided 19 by Mr. Joyner. I think there were twenty-one individuals, 20 and arrived at a figure that seemed to be about eighty-four 21 or eighty-five for each of the last ' two years.
22 O That were suspected or --
23 A Identified.
24 Q All right. Identified.
I Reporters, Inc.
! 25 A Then, seeing that in ' 85 there has been increased i
8967
- 11-2-SueWI awareness, emphasis, interdiction methods, the drug dog
) 2 has been present, and an increase as we have already 3 commented about in drug use, you might even extent that 4 number, although they haven't been identified, upwards to 5 a hundred.
6 O And the rest of the year is --
7 A And that's the best response I can give you.
8 As to whether that represents three-quarters, sixty 9 percent, eighty percent of the total number that actually 10 use, as I said to you, I don't think anyone really has 11 that abili ty to predict.
12 I can only say from the accident data, from the lv") 13 drug find data, from the positive versus negative urinalysis 14 data, and from the other observations that I've made, our 15 associates have made, and the testimony I've looked at, 16 my sense is that this is -- this eighty-five to a hundred 17 is realtively close, within twenty to thirty percent of 18 the total possible users.
19 But I'm not comfortable with being able to even 20 predict using all those other indicators.
21 Q But you are saying in the examples you give, 22 at least you are suggesting, that the aggregate effect of 23 these various measures is to identify more than fifty per-24 cent of the users?
Ace- l Reporters, Inc.
25 A I would say certainly based on the data that one
8968
- 11-3-SueW I has. I think you also can cet though when you look at
) 2 national statistics , when you look at the number of total 3 prosecutable arrests to the total number of users, thit 4 theory begins to lose some weight because we just don't i
5 have the capacity to take to trial everybody that violates 3
6 the law.
7 Q You mean the five to twelve percent number is 8 spongy for those reasons?
i
! 9 A I don't think it's spongy. I just don't think i 10 you are going to find arrest records and interventions that Il are going to approximate daat number.
12 Q If we take the estimate of a hundred for '85 l
13 as an estimate, users, then if you would assume a certain
({}
i I4 turnover at the site you are in the ball park of one percent, 15 correct?
16 A That's richt.
! 17 0 You indicated ten thousand as a round number, 18 and I'm not trying to be precise, but now if the national 19 use number can range anywhere from five to twelve of work
- 20 force use, would you say that if were dealing with a work 21 force that was in that five to twelve range would the word 22 " widespread" be appropriate for that kind of a range?
I 23 A I-would say the upper limits would be, eight 1
r 24 hundred.
l hpatws. Inc.
l 25 0 okay. In -- I realize you are not offered as a
,, , - .,.-w -..,g -
-,---y-a , - - - . - ,-,_-y ,-,w-,,p, , - - -- . _ - , ,-,,-,y-,,- , . - ,
8969
- 11-4-SueWI nuclear safety expert but I guess I will try this question
<m
(_) 2 on you from your perspective. If you view the one hundred 3 number here based on the evidence that we've been talking 4 about as not widespread, and in your judgment, may I use 5 . the word " acceptable," in a work force in this day and 6 age -- I gather that's your position, correct?
7 A Well my position, of course, would be that no 8 use of illegal drugs would be acceptable but I think it's --
9 Q Well, maybe the wrong word --
10 A -- practical.
Il Q Practical is a better word. But the fact is that 12 you can't eliminate it entirely, and you have testified 13 to that.
14 A Yes.
15 0 And I agree with you on that. If that kiri of 16 a number is acceptable, do you have an opinion as to a 17 threshold of what would be widespread or- what would be 18 unacceptable?
19 If I, as a Nuclear Licensing Board Judge, am 20 told to look at the drug use at'a site can I find a 21 reasonable sort of trigger number where I should start 22 worrying in terms of percentage?
23 A Well, I suppose -- I think you probably should 24 look to see if that site has made efforts -- and I'm not Ac hi n. port.n, w 25 trying to preach or give gospel or anything like that --
8970
- 11-4-SueWl to reduce and control that use and then if that ultimate
, 2 assessment reflects activity that is higher than what 3 would normally be expected in a work location, I would be 4 concerned.
5 If it com'es close to what is normally the case 6 I think I would have further inquiry as to just what has 7 been done. And really you can' t conclude because someone 8 has used that you have an automatic safety oroblem, that 9 you have an automatic work problem.
10 We get into this difficulty by trying to link 11 impairment with use. It doesn't always work. We say 12 if there is an indication that someone has drugs in their
( 13 system it could be a potential threat to safety, but it
~
14 is the potential that is clear. It's not a documented fact 15 that there will be a safety hazard as a result.
16 Q Well, I guess I'm trying to distinguish -- and 17 maybe one can't -- but you say that you look to see if 18 people are doing the best they can and that's certainlv 19 something one would do, and we've heard about the program 20 at Shearon Harris in some detail, but even with all measures 21 in place, if you, for whatever reason, find that there is 22 still some level of drug use or there appears to be, I 23 guess I'm getting back to when should I start worrying?
r, 24 Once I'm satisfied that all reasonable action Ace-F s_ , J Reporters, Inc.
25 has been taken and somebody tells me it's one percent, then
8971 ,
1
- 11-5-SueW 1 I can say: Well, that's , you know, tolerable.
, 2 It used to be said we could take five percent 3 unemployment. Nobody worried about that.
4 What kind of percentage am I suoposed to worry 5 about with drug use, assuming all reasonable actions have 6 been taken?
7 A That's a difficult question to answer. I think 8 the thrust of your inquiry though addresses the flip side 9 o f thac , and that is whatever percentage what is the impact 10 on the construction of the plant, too.
II And you could have a very low percentage of drug 12 use theoretically and that could be a problem; and, you
() 13 could have even a higher one and from the standpoint of 14 construction and safety maybe no impact.
15 My sense would be a figure that would be upwards 16 of half the natienal statistical average would cause me 17 additional concern.
18 Q Upwards of five?
19 A (The witness nodded in the affirmative.)
20 There has to be some pcint. If somebody says Q
21 to you: Once a month a marijuana cigarette gets smoked 22 at Shearon Harris, I assume you would just say that's not 23 worth worrying about?
24 A I would say that's -- if that's all that Ace-FA1 Reporters, Inc.
25 happened I would be surprised and while that would be
8972
- 11-6-SueW1 what I would hope one would find and not have on the site
() 2 would be remarkable in view of the level of drug use in 3 society.
4 I get concerned when I look at police departments 5 and they are looking at applicants and you are looking at
- 6 people coming in for pre-employment testing. In the city 7 that you gentlemen emanate from, this was a big issue.
i 8 Q No nuclear power plants up there. Go ahead.
9 A Yeah. It just -- you'know, if you had a one 10 percent in some high levels of law enforcement you might 11 be doing well.
12 Q That's helpful. Gentlemen, do you have Eny Mr. Hindman?
(} 13 . comment?
14 A (Witness Hindman) No '.
15 0 Anyone else? Mr. Joyner?
16 A (Witness Joyner) No, sir.
17 JUDGE KELLEY: Redirect, Mr. Baxter?
18 MR. BAXTER: Yes, sir.
19 REDIRECT EXAMINATION 20 BY MR. BAXTER:
INDEXX 21 Q Mr. Hindman, someone inquired yesterday about --
22 excuse me, we have the number nineteen for ' the positive 23 drug screen results in the testimony I believe on Page 12.
24 And I believe somebody asked yesterday, and you didn't Reporters, Inc.
25 have the answer.
8973
- 11-7-SueW I Do you have the answer now as to how many
) 2 urinalysis drug screen tests have been ordered for cause?
3 That's excluding the ones that are done for pre-employment 4 screening and transfers.
i According 1
5 A (Witness Hindman) Yes, I have that.
6 to the information I could put together, we've had sixty tests ordered for the site, including CP&L, Daniel, Davis 4
7 8 and TSD at this point in time.
9 0 You were asked yesterday, Mr. Hindman, about i
10 the decision making process that goes on in determining Il that a suspected employee should be sent for a drun screen 12 urinalysis test.
And often the question was referred to, getting
() 13 14 the people together. Do you have to get -- do you get 15 people together to make the decision?
16 A Many times we don't have to get them together 17 physically. We simply communicate by telephone and ex-18
- change the information by that method.
19 0 Earlier today Mr. Cole asked the panel why the 20 distribution over time of the two hundred and one -- and 21 there was a higher number for 1984 and 1985, and one of 22 the reasons Mr. Hindman gave, if I recall, was increased 23 use in society around us.
24 Is that correct, Mr. Bensinger?
Ace- Reporte,s, Inc.
L 25 A' (Witness Bensinger) Yes. That was one of the I
i i
8974
- 11-8-SueW factors that Mr. Hindman referenced.
() 2 Q And do you agree with that?
3 A I do.
4 Q Mr. Joyner, there has been some examination 5 of a number of the panel members about the capabilities of 6 you and the contract security force and others, even the 7 NRC Staff panel, people who are mobile around the power 8 plant site, in identifying employees who may be involved 9 in drug activity.
10 It might be helpful to the Board, if you 11 observe what might be drug activity how -- by what means 12 could you potentially identify the employee without going
{} 13 up to him, physically close, and asking for his identifica-14 tion card?
, 15 A (Witness Joyner) We could do it by hard hat 16 identification.
17 (Mr. Baxter puts two hard hats in front of 4
18 the witness.)
19 Q Could you describe for the record what I've 20 handed to you, Mr. Joyner?
21 MR. RUNKLE: May counsel have a chance to look 22 at that before we start testifying about it?
23 MR. BAXTER: Would you like -- I've got come 24 more. Would you like --
i Reporters, Inc.
25 MR. RUNKLE: Sure.
l l
8E75
- 11-9-SueWI (Mr. Baxter passes out hard hats to the 2 parties and the Board members.)
3 BY MR. BAXTER: (Continuing) 4 Q Okay. Mr. Joyner, would you describe for the 5 written record what I've handed to you and several additions 6 of around the room?
7 A Yes. These are indicative of the type of hard 8 hats that are used by construction craft workers.
9 Q And what are the various identifying marks on 10 the hat?
11 A The first identifying mark would Le the color 12 of the hat. And that would identify a craft, a carticular O
'3 c= re-14 We also have on the side of the helmet, you see i
15 two large -- a letter. and a number. This would indicate '
16 the crew.
s 17 Q Approximately -- well, - first about the craf t.
18 How many different colcrs are there on the site roughly?
19 A I believe there is approximately fifteen dif-20 ferent colors.
21 Q And could you give us 'an estimate of the heighth 22 of the crew identification, the symbols you just described?: ,
23 A I would estimate it would be close to three ,
24 inches.
l Ace- Reporters, Inc.
25 Q How many persons are involved in a, typical crew?
'I
- d. l
i I
8976 '
- 11-10-Sueti A It could range from eight to fifteen.
() 2 Q Okay. Go ahead.
3 A on the front of the hat, you have the employee's 4 last name. And belcw' that there are some numbers.
5 The first set of numbers indicate the craft.
6 The last set of numbers if the individual ID Code for 7 that employee.
8 Also we have that same number on the rear of 1
9 the hat.
10 Q4 How far would you expect a person with good 11 vision, or 20/20 vision,-could, read the three inch crew 12 identification markings you've described?
() 13 -A I would say anywhere from a hundred to a hundred 14 and fif ty feet.
i 15 MR. BAXTER: Thank you. I have no further 16 questions.
17 MR. BRYANT: Could Mr. Joyner just repeat that 18 answer?
19 WIm:'ESS JOYNER: A hundred to a hundred end fifty 20 feet with a person with perfect vision.
21 MR.!BRYANT: Thank you. ,
22 JUDGE KELLEY: You say the side of the helmet 23 is the crew identification?
24 WITNESS JOYNER: Yes, sir.
I Reporters, Inc.
I 25 JUDGE KELLEY: Is that the foreman's initials?
'r, 5 >
l
8977 rll-11-SueW 1 Or, who -- what is MW?
() 2 WITNESS JOYNER: No, sir. MW would be mill-3 wright.
4 JUDGE KELLEY: Millwright. Okay.
5 WITNESS JOYNER: Seven would be the crew 6 number.
7 JUDGE KELLEY: Okay. Thank you. Okay. We 8 are still on redirect. '
9 MR. BAXTER: No, I concluded.
10 JUDGE KELLEY: Oh, you are through. Okay, fine.
11 Thank you.
12 Can we keep these?
() 13 MR. BAXTER: No. We ' ve spent enough today, 14 thanks.
15 (Laughter.)
16 JUDGE KELLEY: Okay. Mr. Runkle?
17 MR. RUNKLE: Yes, sir.
18 RECROSS EXAMINATION 19 BY MR. RUNKLE:
INDEXXX 20 Q Since we have hard hats in front of us, I would 21 just like to ask a couple of questions on that so keep 22 yours before you.
23 Sir, what color do the inspectors wear?
("3 24 A (Witness Joyner) We have different colors for Ace-Fl.,j Reporters, Inc.
25 inspectors. We do have CP&L and Daniel inspectors.
i 8978
- 11-12-SueW I Q Okay. What colors do CP&L inspectors wear?
2 A They wear the light blue with CP&L insignia 3 on it. They also have identified marks on the side that 4 has QA on the side of it, which is quality assurance.
- 5 0 Okay. What color hats do security personnel 6 wear?
7 A Burns or Wackenhut? Or, do you want to know 8 both?
9 Q Well, let's start with Burns.
10 A I believe the Burns' people wear the blue hats.
11 They are kind of a dark colored blue.
- 12 Q Okay. The Wackenhut?
(A_j 13 A Wackenhut wear white.
14 Q And then what color does the CP&L security wear?
15 For you, for instance, what color hat --
I 16 A I wear the same thing as any other CP&L 17 employee wears which would be the light blue.
18 0 And on the -- all the CP&L employees wear 19 light blue hats, do they not?
20 A Yes.
21 Q And those would have no identification numbers..
22 They would just have'some, say, QA and then have the
~
23 person's name in the front of the hat; is that correct?
24 A No, that's not correct.
Ace F Reporters, Inc.
25 Q Okay. What is incorrect about that?
8979
- 11-13-SueN 1 A They also have decals on the rear of the
() 2 helmets that have an ID number on it.
3 0 Okay. And how large are those decals on the 4 back of the hat?
5 A If you will look at the left rear portion of 6 the hard hat you've got there now, we have a decal that 7 is probably about two inches wide and maybe about an inch 8 and a half high.
9 0 Okay. And how big are the letters on that decal 10 on the CP&L hard hats?
11 A I would say about a half an inch.
4 12 Q And then the name on the front of the CP&L hard hats is how large?
(]) 13 14 A I haved't measured it. People have various 15 ones. You can put it on there with a label maker, half 16 an inch I would say.
17 Or, the size you see there.
18 0 Uh-huh. And the size I see here is about three-19 quarters of an inch maybe?
20 A That would be my estimate.
21 . Q But you could put it on any size just as long 22 as_you have your name in the front; is that right?
23 A CP&L, 1 would say yes. The Daniel people, they 24 all do theirs the same way.
'Ac n.por,.n inc.
25 Q Now, some of the other contractors besides
8980
- 11-14-SueWI Daniel, and that would be also excluding CP&L, have (G_) 2 different color hats, do they not?
3 A Yes, they do.
4 Q And some of those are random colors, are they 5 not?
6 - A Yes.
7 Q What colors do the dog handlers wear when they 8 walk through the plant?
9 A The visitor hats from the lobby, whatever is 10 available.
11 Q And what generally are the colors of the visitor 12 hats?
13 A Some are purple; some are CP&L used hats that
[}
14 we put over there for their use.
15 Q And some of them are white hats also, is that --
16 MR. BAXTER: Objection, Mr. Chairman. I don't 17 think we are concerned about visitors to the plant, are 18 we?
19 MR. RUNKLE: Well, drug dog handlers are t
20 visitors. That is certainly our concern about that.
21 JUDGE KELLEY: Okay. We established as to the 22 handlers. But, do the visitors really figure in the-23 casei other than the drug dog handlers?
l
, 24 MR. RUNKLE: Well, the question -- we don't Ac l Reporters, Inc.
2'S have all the color of hats that the dog handlers have worn.
l
l l
8981 '
- 11-15-Subl 7 They are either -- we've been told they are 2 either blue or purple. And I just want to know if 3 they are white.
4 MR. BAXTER: I'm not sure why. There is no 5 testimony that we attempt to disguise the dog handlers.
6 JUDGE KELLEY: Where are we going on all of 7 this?
8 MR.BAXTER: They always have a dog with them 9 among other things.
10 (Laughte r. )
11 JUDGE KELLEY: All right. Where is the question 12 going if we have to know this much about dog handler hats?
() 13 MR. RUNKLE: Well, if we are going to have any 14 hats in front of us we need to know how Mr. Joyner and his 15 security people identify, you know, drug abusers by walking 16 through the plant.
17 JUDGE KELLEY: Well, the whole thing came in 18 on redirect and we were told in general about how these 19 hats work. We don't have any hat tied to any issue in 20 the case yet that I know of.
21 I assume it's going to have to do with identifica-22 tion at some point.
23 Mr. Baxter, why did we need to know about these 24 hats at all?
Ac
(~}
C a n.portws. Inc.
25 MR. BAXTER: Because there may be testimony, I
8982
- 11-16-SueW 1 don' t know, about observations, estimates of drug activity
() 2 among employees where no identification was made.
3 So, the relevance is how close you have to be 4 to identify an employee in some manner.
5 JUDGE KELLEY: All right. Mr. Runkle --
6 MR. BAXTER: But the dog handlers really --
7 I mean, I don't see the relevance of that at all.
8 MR. RUNKLE: Well, if a dog handler would wear, 9 you know, a unique colored hat and one of the visitors 10 hats and come through, it's a lot easier to see a white 11 hat coming from a mile away than it is to see, you know, 12 one of the other colors.
13 JUDGE KELLEY:
(]} Is there any suspicion here that 14 these once a month dog handlers are going to come on site 15 and use drugs?
16 MR. RUNKLE: No, sir.
17 JUDGE KELLEY: Then, I must say this eludes me.
18 MR. RUNKLE: But it shculd be clear, and if I 19 set the foundation at this point, that drug users can see 20 the dog handlers.
21 MR. BARTH: They can see the dog, too. So, the 22 helmet that he wears is irrelevant, Your Honor.
23 JUDGE KELLEY: Let's -- excuse me. I really 24 think this is getting a little bit off the edge. Le j : Reporters, Inc.
h _gg .
25 focus on this, Mr. Runkle. Why do we need to know about the f
Il
8983
- #11-17-S ueW l dog handlers' hats?
() 2 MR. RUNKLE: Because it's --
3 JUDGE KELLEY: How is that going to add to the 4 inquiry?
5 MR. RUNKLE: If the dog handlers' hats are soma 6 unique color, the drug users will be able to see the dog 7 handlers from a muc'h further distance than they would if 8 they had blended in with all the other hard hats on site.
9 And it would be easier to see a hard hat on a 10 five to six foot person than it would be to see a dog on 11 the ground. And you can see --
12 JUDGE KELLEY: I mean, whose case are you
() 13 proving? I thought we had established here that they 14 wear various hats.
15 If they had some distinctive hat, whicn we are 16 told they don't -- if you want to undercut what they are 17 doing and give people time to get rid of their drugs, it's 18 if they have a distinctive hat. And I gather they don' t.
19 MR. RUNKLE: We --
20 JUDGE KELLEY: Isn't that enough?
21 MR. RUNKLE: They wear the visitors' hats is 22 what the testimony was.
23 JUDGE KELLEY: Yes.
24 MR. RUNKLE: Some of them are blue and some of Reporters, Inc.
25 them are purple, and I wanted to know if there were any
8984 l
.#11-18-SueW 1 white hats.
, l() 2 JUDGE KELLEY: Are there any white hats on the 3 dog handlers?
4 WITNESS JOYNER: We use whatever is available.
5 JUDGE KELLEY: Might there be a white hat?
6 WITNESS JOYNER: There is a possibility it 7 could be.
8 JUDGE KELLEY: All right. Thank you. Move 9 on.
10 MR. RUNKLE: Thank you. I have no other i
. 11 questions.
12 JUDGE KELLEY: Good. I'm sorry.
(Laughter. )
(]) 13 14 The dogs are wearing me down. Mr. Runkle,-
15 anything else?
16 MR. RUNKLE: No, sir. I'm --
17 JUDGE KELLEY: I'm sorry. Mr. Eddleman?
, 18 MR. EDDLEMAN: I have a couple, too.
19 RECRO'S'S EXAMINATION 20 .BY MR. EDDLEMAN:
21 Q Mr. Joyner, now I'm sitting here within ten 22 feet of you'and I'm looking at two hard hats, and referring-J.
23 to the big letters what angle do I have to be at to that 24 person's hard hat to see the big letters that are three
, Ace-A Reporters, Inc.
25 inches high or so?
l l
l
8985
- 11-19-SueW I Can I see those from the front of the person?
, '(_/ 2 MR. BAXTER: If you remain stationary? Is 3 that the question? -
4 MR. EDDLEMAN: Yes, sir.
5 BY MR. EDDLEMAN: (Continuing) 6 Q If I'm looking straight from the front, can 7 I see those letters?
8 A I'm sorry. You would have to tell me what 9 you can see.
10 0 Well, let me just tell you. I'm looking at 11 two hats that are within ten feet of me, okay.
12 MR. BAXTER: Objection, Mr. Chairman. The
() 13 question is testifying.
14 MR. EDDLEMAN: All right.
15 BY MR. EDDLEMAN: (Continuing) 16 0 Well, let me take this hat here, okay, and now 17 I'm going to just face it straicht to you, okay.
18 Now, that's within about six feet of you, 19 isn't it?
20 A Yeah. Yes.
21 Q Okay. Now, can you read the big numbers on i
22 the side of this hat?
23 A I can see a portion of the number on one side 24 Ace. I Reporters, Inc.
of the hat. But assume that a person's head is not going 25 to stay stationary. At some point in time, if I wanted to
l 8986'
- 11-20-SueW j identify him,. I would get close enough to see it.
("T 2 Q All right. But --
, \_/
3 A (Witness Bensinger) If you put it on your 4 head, in the course of probably twenty seconds that -- -
5 y ur mcVement would identify those letters.
6 Q Well, now my question is about the angle.
7 You have to move to an angle such that you could see from 8 the side, isn't that true, to see these letters?
9 A (Witness Joyner) Yes, that's true.
- 10 Q Okay. You couldn't see them from the front or 11 the rear. And there is some angle -- let me turn this 12 thing around to the rear. I'm going to turn it where I
( 13 think is directly rearward.
(
14 Now, can you see the numbers on the side?
15 A The numbers on the side only identify the crew, i
16 if you remember my testimony.
17 0 I undarstand that.
18 A Now, I can tell you from the rear, because I 19 can see the numbers on the rear of the hat.
20 0 Okay. But that's because you are close to it.
21 I'm just asking you, can you see the big numbers on the 22 side?
23 A No, I can't.
24 0 Okay. Now, the other thing is, suppose you were Ac h n.petwi, fac.
25 a hundred feet away from a person and suppose they weren't J
8987' l
- 11-21-SueW1 moving, suppose they were standing relatively still,
() 2 which I think some people probably do when they use drugs --
3 but I will defer to your judgment on that.
4 Anyway, now in order to get around to the side, ,
5 you might have to go a substantial distance to get around i
l 6 them and stay a hundred feet away from them.
1 7 Isn't that true?
]
8 A If that's what was necessary that's what I 9 would do to identify the individual if I thought they 10 were using drugs.
END #11 11 Joe flws
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12 4 C:)
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16 17 18 19 20 21 22
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hp=*n, 25 9
12-1-Jo Wal 8988 1 Q Okay. Now, suppose while you are doing that
/~~N, I
l 2 they walk off?
3 A Then I would follow them.
4 (Laughter.)
5 Q Okay. Now, do the people on the site have to 6 wear these hats all the time?
7 A Yes, it is required.
8 Q Now, have you ever heard of somebody wearing 9 somebody else's hat?
10 A No, I haven't.
11 Q Not at all. Not since you have ,been there.
12 A No, sir.
m/ 13 Q Okay. Now, is there a particular color of hat 14 that identifies managers; construction management or CP&L 15 management.
i 16 A CP&L management, no. It would be difficult to 17 determine because of our organization, but some Daniel people 18 do wear the light blue colored hats, as other CP&L employees !
19 do. j l
20 Q Now, there are Daniel people wearing light !
21 blue hats?
22 A That is correct.
23 Q Okay.
24 A Upper management people.
> Federal Reporters, Inc.
25 Q Okay. I believe that is all I want to ask you l
12-2-JosWal 8989 i about that.
( 2 Let me look here.
3 (Pause.)
4 Q The crew identification numbers on these hats !
5 are black on yellow typically, is that the big numbers, 6 three inch ones?
7 A Yes.
8 Q Okay. Now, the smaller name and crew and 9 individual ID numbers, they are kind of stamped white on the 10 green tape, is that what these are?
i 11 A Yes.
12 MR. EDDLEMAN: Okay. I think that is all the i
() 13 questions I'have.
14 JUDGE KELLEY: Okay. Mr. Cole?
15 MR. COLE: I just have 'a cc ;ple of questions, 16 Judge. One to you: Can you tell me wnat that number is? ;
17 I am being facetious again.
18 RECROSS EXAMINATION 19 BY MR. COLE:
20 Q Mr. Bensinger, you . testified just a few moments 1
l 21 ago about the charts and numbers in '84 and '85 based on i ,
- 22 national figures for the increase and so forth. l i
23 Let me ask you, could those higher numbers 24 in '84 and '85 also be interpreted as meaning that CP&L nepormes,Inc.
25 maybe wasn't as interested in detecting drug useage in those t
y v - ~r -
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12-3-Jo Wal 8990 l
1 earlier years? Couldn' t that be a cause also?
(#)
2 A (Witness Bensinger) It is possible that I
l 3 fewer interventions could have resulted from a number of 4 factors.
5 I think Mr. Hindman talked about some of them; 6 population at the site, openness of the space, relative 7 level of drug use in society, fewer opportunities to 8 intervene, less awareness.
9 And, so, I guess my answer to the question you 10 pose would include that fifth possibility, increased 11 emphasis or lesser emphasis.
12 MR. COLE: Thank you, sir. That is all.
q
(' 13 JUDGE KELLEY: Anything further, Mr. Baxter?
14 MR. BAXTER: No.
15 JUDGE KELLEY: No? Okay. Gentlemen, that it -
1 16 is then with this panel. We have one remaining panel l I
17 from the Applicants' -- it is the dog handler, right?
f 18 Okay. So you have been with us for three days.
19 Thank you very much. You were very helpful and we appreciate i 20 your appearance.
21 You are excused. l 22 (WITNESS PANEL STANDS ASIDE.)
23 JUDGE KELLEY: Let's have a few minutes for a I
(() 24 W-Federal Reporters, tric.
break, and then we will move to the dog panel.
25 (Short recess taken.)
l
12-4-JonWal 8991 1 JUDGE KELLEY: We are back on the record.
t O' 2 We are resuming at this point. Mr. Baxter, if you will
! 3 introduce the Applicants' remaining panel?
4 MR. McDANIEL: Mr. Chairman, I may have been 5 introduced earlier, but I am Andy McDaniel.
i 6 JUDGE KELLEY: Thank you.
7 MR. McDANIEL: And I will hopefully handle this 8 panel, i
9 JUDGE KELLEY: Okay, fine. Thank you, Mr.
10 McDaniel.-
11 MR. McDANIEL: The Applicants' call Dana-B.
- 12 Mackonis and Kenneth A. Mathias as its witnesses to be 13 sworn.
) 14 Whereupon, I 15 DANA B. MACKONIS, i
l 16 - and -
17 KENNETH A. MATHIAS, i
18 were called as witnesses for the Applicants, and after being 19 first duly scorn by Judge Kelley, testified as follows:
I XX INDEX 20 DIRECT-EXAMINATION 21 BY MR. McDANIEL:
i 22 Q I call your attention to a document dated l 23 September 23, 1975, consisting of 13 pages of questions and 24 answers entitled:- Applicants' Testimony of Dana B. Mackonis me.sase,s c oo,w,,, Inc.
t j 25 and Kenneth A. Mathias, on use of drug detention dogs, l
l 12-5-JoeW21 8992 i l
l 1 CCNC Contention NB-3, 2 Does this material in this document represent 3 your testimony prepared by ycu or under your supervision in 4 this proceeding, Ms. Mackonis? ,
5 A (Witness Mackonis) Yes, it does.
6 Q Officer Mathias?
7 A (Witness Mathias) Yes.
8 Q Do you have any changes or additions to your 9 testimony?
10 A (Witness Mackonis) I have one addition to my 11 testimony. On page 12, I would like to insert something i 12 after the first paragraph.
/3
(,) 13 On September 26, I did one other search for CP&L 14 and the results were negative.
15 Q What year?
16 A 1985.
17 JUDGE KELLEY: Where exactly would that go?
l 18 WITNESS MACKONIS: Page 12, after the first 19 paragraph.
20 JUDGE KELLEY: After the sentence: The search 21 had negative results?
22 WITNESS MACKONIS: Correct.
23 JUDGE KELLEY: Okay. Then you would add the 24 sentence you just stated?
W Reorurs, W.
25 WITNESS MACKONIS: Yes. i
. - . - - _ _ ~ _. --. . ._ . . -
12-6-Jo:Wal 8993 2
1 JUDGE KELLEY: Thank you.
) 2 BY MR. McDANIEL: (Continuing) 3 Q Officer Mathias?
4 A (Witness Mathias) On page 7, under Question 8, 5 it says how many types of controlied substances are the 6 dogs you use at the Harris site trained to find, I answered 7 five-8 The correct number should be six.
9 Q Thank you. Is the testimony and the changes 1
10 you have indicated true and correct tx) the best of your 11 knowledge and belief?
12 A (Witness Mackonis) Yes.
i
() 13 A (Witness Mathias) Yes.
14 MR. McDANIEL: Mr. Chairman, I would move the 15 identified , testimony, including the additions by each l
16 witness be received into evidence and physically attached t
17 to the transcript in this proceeding.
18 JUDGE KELLEY: Any objection to the motion to i
19 admit?
20 (No response.)
21 If there is no objection, the Motion is granted 22 and the testimony is admitted.
i 23 (Prefiled testimony follows.
24 Reporters, Inc.
! 25 I
i
9 O September 23, 1985
! UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
i and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
i )
(Shearon Harris Nuclear Power Plant) )
)
APPLICANTS' TESTIMONY OF DANA B. MACKONIS AND KENNETH A. MATHIAS ON USE OF DRUG DETECTION DOGS
, (CCNC CONTENTION WB-3) i 4
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JOINT TESTIMONY !
O Or DANA B. MACKONIS AND KENNETH A. MATHIAS Q1. Will you please state your name, your address, present occupation and employer?
, A1. Mackonis:
My name is Dana B. Mackonis. Both my home and my business address is 5501 Welkin Court, Durham, North Carolina 27713. I own and operate Canine l
Detection Services and Companion Dog School which are sole proprietorships. I am also an employee of Northern Telecom at its business location in Research 7
Triangle Park, North Caron ta. My work with Northern Telecom involves computer systems analysis and design.
Mathias:
My name is Kenneth A. Mathias. I am a police officer with the Raleigh Police Department in Raleigh, North Carolina. My home address is 6509 Orchard Knoll Road, Apex North Carolina 27502.
Q2. Will you briefly describe your educational and professional background?
A2. Mackonis:
I am a 1971 graduate of the University of Connecticut at Stores from which I received a BA degree in English. I also have a certificate in Business i
Programming from the Computer Processing Institute in Bridgeport, Connecticut.
In connection with my background in training and handling dogs arid my I
Canine Detection Services business, I have been raising and training IIelgian i
Tervuren dogs for over 14 years and have been actively working in obeslience competition for dogs for over 12 years. I have taught training classes, both g oup and private lessons, and presently hold such classes under the name of Companion l Dog School. I have been working dogs in Schutzhund (protection work) for O a,oroaimateir 10 vears. i am a member of various breed and obedience ciubs and 2
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t have served as an officer and board member in each of these clubs. I work closely with Garry Lapham, a professional dog trainer in Fayetteville, North Carolina, who operates a business known as Sentinel K-9, in the proper procedures and techniques of training drug detection dogs. I have attended numerous seminars 1
l and classes on detector dogs. Both myself and one of the dogs I use have received certificates of completion in drug detection classes.
Mathias:
I am a 1978 graduate of the University of Maryland at College Park with a l Bachelor of Science degree in Industrial Hygiene. I am also a graduate of the i
University of Southern California (Eastern Regional Campus in Virginia) with a Masters of Science in System Safety Engineering.
My law enforcement education and professional experiences include:
j - 1978 Graduate of Prince Georges County (Maryland) Police Academy (graduating 4th in a class of 60).
- 1978 recipient of University of Maryland Rookie Police Officer of the Year award.
- 1980 Graduate of Raleigh (NC) Police Academy (graduating 2nd in my class).
- 1982 Raleigh Police Officer of the Year.
- September 1982 - Raleigh Police Officer of the Month (Rotary Club award).
- 1983 Graduate of Baltimore (Maryland) Police K-9 Training Academy (14-week K-9 trainers' course).
- 1983 Graduate of Baltimore Police K-9 Training Academy -
Scent Discrimination Course, including o
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- 1) Narcotics Detection
- 2) Explosives Detection
- Attended United States Police Canine Association (USPCA) trainers seminars.
- Conducted USPCA, Region 2, Seminar,1984 - Raleigh, NC, and conducted Region 2 training on bi-monthly basis,1983 to present.
A
- Started K-9 unit in the Raleigh Police Department.
- Consultant to many Police Departments concerning set-up of Potice K-9 units.
- Founder and President of Region 2 of USPCA (covering NC, SC and southern VA).
- Currently working on minimum K-9 standards with Attorney General's Office.
- Have provided police dog candidates for Police Departments throughout the United States.
l - I have recovered illegally possessed drugs through use of Police K-9 dogs " Juno" and " Phantom" resulting in arrests and convictions of suspects. Every court case I have participated in involving use of detector dogs has resulted in a conviction.
Q3. What is the purpose of your joint testimony? -
A3. The purpose of our testimony is to discuss and explain the capabilities, utilization and training of dogs to locate and ferret out controlled substances
(" drugs") and our experiences in working our narcotics detection dogs at CP&L's Shearon Harris Nuclear Power Plant. Finally, we will express an opinion, based on O
4
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our experiences, es to the contention that there is widespread drug use at the Harris site.
Q4. How many years of experience in handling dogs do you have?
A4. Mackonis: Fourteen and one-half years with dogs generally; 21 years with narcotics detection dogs.
' Mathias: Four years as a police officer. Five years prior to that as a civilian in AKC shows. A total of nine years.
QS. Of those years, how many have you had in police dog and narcotics detection dog l
work?
- AS. Mackonis
- Three and one-half years with police dogs and, as set out above, 21
- years with narcotics detection dogs.
Mathias: Four years.
Q6. How many narcotics detection dogs have you trained? -
G V A6. Mackonis: Three.
Mathias: Five.
Q7. Would yo'n generally describe the training that your narcotics detection dogs undergo?
A7 The detection principle is based on the olfactory ability of the dog and his desire to retrieve. In training a narcotics detection team (dog and handler), the l searching exercise must always be made to appear to be a game and therefore fun for the dog with the dog most always " winning" the game. This develops the dog's confidence and encourages the dog to work for the praise of the handler.
- Basic materials needed for training are State and Federal permits to i'
possess drugs for training (Drug Enforcement Agency Permit #222), fresh druga. a variety of containers and hiding places, a dog between the age of twelve and j
thirty-six months (this is the optimum age range to start the training of a dog, but j
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a dog can work for many years beyond that age) with the desire to retrieve, and a i handler with the desire and patience to develop a productive team.
The olfactory ability of the dog, along with his intelligence and willingness
! to work for an intangible reward, are the dog's most desirable traits. The techniques of narcotics detection are different from the methods used in tracking.
4 which most people are probably familiar with. The spirit of the chase, present in j a tracking exercise, is not a stimulus that a narcotics detection dog will have.
Also, unlike the tracking dog, a drug dog does not cast about for a scent and then j follow it to the objective. Instead, the dog must search in a prescribed manner, i l
not following a scent, but attempting to pick up a scent. The task is demanding, i
tedious, and often boring since the dog r , ten work for long periods without
- detecting a scent he is trained to detect.
Training initially starts with the hacdler having the dog retrieve a small i
O canvas bag fi11ed with a partieuiar drug - norma 11y marijuana as the first drug.
- The handler allows the dog to smell the bag and then tosses the bag in plain view of the dog for his retrieval. The handler then engages in a tug-of-war with the dog over his " find" for the purpose of building up a tremendous interest by the dog l
in the bag and, consequently, in the odor of the drug. The idea again is to make the exercise truly fun for the dog.
Eventually, with the aid of another person, the bag is hidden in a rather I obvious place while the dog remains seated. Then the dog is commanded to find or fetch the bag. Each retrieval is rewarded with a tug-of-war over the bag which creates the incentive for the dog to repeat the exercue over and over.
}.
i Once the dog is able to search for and locate the bag, the areas involved, the type and size of the containers the bag is placed in, and the hir.'ing places and l conditions are expanded and changed. Each time the dog has a series of successful
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finds, then additional difficulty is introduced into the training. Changing the kinds
- of areas and amount of drugs increases the dog's interest. Other drugs are introduced into the training program. Special care is taken to wrap the drugs so as not to allow the dog to break open the container and be exposed to ingesting the drugs. However, different drugs are not mixed in any one bag. You start a
- dog on one drug only and then build up to other drugs. The exercises are repeated over and over again until the dog learns to locate and retrieve any article containing the scent. Such training is continued and increased in difficulty to 4
develop the dog's ability and interest so he will search tirelessly and enthusiastically to locate particular scents. Records are kept by the trainer as to i the training and the results.
The training of a dog usually takes e period of approximately 14 weeks. A longer period is required before a handler and a dog become a highly effective i team. Various elements are introduced into the training such as advanced search patterns, vehicle searches, masking agents which create a foreign odor (such as
- perfume, gasoline or formaldehyde), artificial distractors that might confuse a l
! dog, and theories of scent as related to narcotics detection. Most trained dogs f learn to totally disregard artificial distractors and develop an amazing aptitude for detecting drugs even though concerted efforts may be made to hide the drug l scent from the dog.
i The drug detection reliability of a well-trained dog is in excess of 95 i percent.
i Q8. How many types of controlled substances (" drugs") are the dogs you used at the Harris site trained to find?
- A8. Mackonis
- Four.
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m Q9. What are these types of drugs?
k i A9. Mackonis: Marijuana / hashish; cocaine; heroin; and methaqualone. j i
Mathias: Marijuana / hashish, methaqualone, methampetamine, heroin, cocaine, phenmetrazine Q10. Please describe generally your search patterns with the narcotics detection dog when used at the Harris site?
, A10. During each of our searches at the Harris site, we were directed by CP&L's Construction Security Unit personnel to the areas we were to conduct controlled searches with our dogs on leash. Considerable areas at the site were covered during each search.
Q11. What types of responses or reactions does a narcotics detection dog give upon finding a controlled substance?
All. There are basic responses: 1) aggressive - which is the way our dogs were O trained, and, when an asaressive response doe has an indication he wiii bar*.
scratch, dig or bite at the area; 2) passive - where the dog will sit at an area.
Q12. Have you ever had a dog alert in an area and not find any drugs in that area?
A12. Mackonis: Yes. Residual odors of a controlled substance or materials may cause i an odor to linger for various periods of time depending on how porous the material l
l Is that came into contact with the substance.
Mathias: Yes. Residual amounts are present from prior contact of that area with a controlled substance. Although they (molecules) are invisible to the human eye ,
they are very much " visible" to the well-developed olfactory system of the trained dog.
1 Q13. Have your dogs ever indicated or made a find at the Shearon Harris Nuclear Power I
Plant site?
O l
A13. Mackonis: Yes.
Mathias: Yes.
Q14. What type of drugs were found?
A14. Mackonis: Marijuana.
Mathias: Marijuana and cocaine (see my answer A21. below).
Q15. Have'you had occasion to utilize your dogs for searches at other construction or Industrial sites or similar type areas for narcotics?
A15. Mackonis: Yes.
Mathias: Yes. Construction sites in the line of duty.
Q16. Did your dogs give any Indications or finds at these other sites?
A16. Mackonis: Yes.
Mathias: Yes.
! Q17. How do you maintain the proficiency of a narcotics detection dog?
O A17. 87 workine the de severa1 times a week.
j Q18. Ms. Mackonis, when were you or your Canine Detection Services first retained by i CP&L to do searches at the SHNPP site?
i A18. My first search was conducted February 25, 1985, on the basis of a written i
Memorandum of Understanding, dated February 19, 1985. A more formal contract was entered into between CP&L and my business, which contract is dated July 1, 1985.
Q19. Ms. Mackonis, how is Ken Mathias connected with your business?
A19. He is a subcontractor.
Q20. Give the dates, general tirne of day and length of search involved for each of your searches, and any finds or indications of drugs.
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A20. Mackonis:
My first search lasted approximately 4-5 hours as did all my subsequent searches and commenced at varying times ranging from 4:00 a.m. to 9:00 p.m. As previously stated, the search areas were indicated to me each time by personnel from CP&L's Construction Security Unit. At that time and at all times hereinafter mentioned I was hecompanied by a CP&L representative and a Daniel international Company representative.
My first searcli for CP&L at the SHNPP site was done on February 25, 1985. As a result of this search, a pipe with marijuana residue was found in a locked toolbox in a gangbox in front of the Diesel Generator Building. No other drugs were found.
On February 28,1985, a search was conducted by me in various areas at the site. The dog alerted on several items, i.e. codeine, and caffeine pills, which were O e eauentir eeterminee to de lesaliv 90 e ee on ite-
, On March 19, 1985, a search was conducted by me in varicus areas at the site. The search had negative results.
On March 28, 1985, a search was conducted by me in vr.rious areas at the site. The search had negative results.
~
On April 5,1985, a search was conducted by me in various areas at the site. The search had negative results.
On May 9,1985, a search was made by me in various areas at the site. The search had negative results.
On June 13, 1985, a semich was made by me in various areas at the site.
The search had negative results.
On June 26, 1985, a search was made by me in various areas at the site. A plastic bag containing a small amount of marijuana was found in a toilet room in l
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l the Common Building (Room A372). The bag had been rolled up and placed in a '
O pipe which was protruding from the wall. Otherwise, the search had negative results.
On July 11, 1985, a search was made by me in various areas at the site.
The dog had a strong reaction to a locker in the Service Building which locker was searched with negative results. Otherwise, the search had negative results.
On July 30, 1985, a search was made by me in various areas at the site involving the Administration Building and a parking lot. Five vehicles were Identified by the dog as possibly containing drugs. I was subsequently informed by CP&L that the vehicle owners were Identified and the vehicles were searched with the following results: marijuana seeds and ashes were found in the ashtray of one car; a small marijuana roach (a marijuana cigarette butt) was found in another vehicle; an employee refused for his vehicle to be searched; a small roach was found in another vehicle; and the fifth vehicle was searched with negative results.
On August 8,1985, a search was made by me which concentrated entirely in employees' pcrking lots. Eleven vehicles were identified by the dog as possibly containing drugs. I was subsequently informed by CP&L that all eleven vehicles .
were searched with the exception of one whose owner refused to permit a search and that the ten vehicles searched had negative results. There is reason for me to believe that false indications may arise if a vehicle parks over an area where an ashtray containing traces of marijuana ashes has been emptied. Likewise, if a roach was disposed of on the ground, the dog will give a positive indication. One roach on the ground was found by the dog during that search.
On August 30, 1985, a search was made by me in various areas at the site.
A plastic bag containing a minute amount of marijuana seeds was found inside a pipe in the Reactor Auxiliary Building. Otherwise, the search had negative results.
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l On September 17, 1985, a search was made by me in various areas at the l O site. The search had negative results.
e e-e - - <. t " -- a2w~
3 ca.v- A . w v-ese e neyWc. .
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During each of these searches, controlled tests were conducted using a controlled substance which was hidden by CP&L's Construction Security Unit personnel without my knowledge as to its location and the dog was successful each time in making a find of the drug.
Mathias:
I made two searches with my dog at the Harris site on behalf of Canine Detection Services. The searches were made on May 23, 1985 and on May 31, 1985, at various hours with each search lasting several hours. The areas searched were indicated to me by CP&L's Construction Security Unit personnel. With the i
exception of controlled sub' stances found by my dog as a result of his being tested by CP&L's Construction Security Unit personnel, the results were negative.
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O 921- 8 ee =9e= v => tr i i"< 6 e*<re==o #6 ex9 erie =ce i= " =eii#< " reetie-detection dogs and your work at the Harris site on behalf of CP&L as indicated above, do you have an opinion as to the contention that there is widespread drug i
use at the Harris site? State your reasoning for any opinion.
A21. Mackonis: Yes, I have an opinion. I do not feel that there is widespread drug use at the Harris site. This opinion is derived from my work at the Harris plant as set t
out above and is based on the few finds that we have made and the minuscule amounts of drugs that we have found there, and the confidence that I have in my i
dogs' drug detection capabilities.
Mathias: Yes. My opinion is that there is not widespread drug use at the SHNPP site. This opinion is based solely upon the two searches I conducted at the site.
My dog made indications only on the drugs hidden by CP&L security personnel. He searched large areas and made no Indications as to controlled substances, if drugs
i were used on a widespread basis as alleged then they would have been present in
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! some of the areas searche'd. Based upon the dog's abilities and his lack of
!' indications, I do not feel that there is an on-site drug problem.
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12-7-Jo Wal 8994 1 MR. McDANIEL: Before turning the panel over for 2 cross-examination, I would like each witness to briefly 3 summarize their testimony.
4 Ms. Mackonis?
5 JUDGE KELLEY: I am getting a pretty heavy volume 6 of noise through whatever that is . Shall we go ahead?
7 Is that okay with the witnesses. Can you hear?
8 (Witnesses nod affirmatively.)
9 Okay. Let's give it a try. If you can just 10 summarize your testimony, go ahead.
11 WITNESS MACKONIS: I have been raising and training 12 dogs for the past fourteen years, and have been working n
(j 13 dogs in detection type of work for the last ten, and in !
that respect I own and operate K-9 f 14 Detection Services.
15 I entered into a contract with CP&L in February 16 1985 to provide drug detection dog searches at the Harris I
17 site.
18 Including my initial search made on February l 19 25, 1985, sixteen searches have been conducted at Harris 20 under the said contract.
21 The latest search was made after my profiled j l
22 testimony was filed last week. The results of the latest '
I 23 search were negative. I handled fourteen of the searches.
l 24 A subcontractor, Kenneth Mathias, conducted two of the e_, c .... .. ~. ,
25 searches. l l
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12-8-JoeWal 8995 1 These searches have encovered only small amounts
() 2 of marijuana along with other types of drugs which were 3 determined to be legally possessed in my opinion, based 4 on my experience and my dogs training and abilities. ;
5 If the drugs were used on a widespread basis at ;
)
6 the Harris site, as alleged, evidence of such use or 7 presence would have been found by my dog in the large areas ,
8 that we searched.
9 WITNESS MATHIAS: I have been in law enforcement 10 since 1978, and have been involved in handling dogs for the ,
11 past nine years.
i 12 I am currently a Raleigh police officer, and ;
() 13 am in charge of the police department's K-9 unit. In that 14 capacity, I have trained and handled narcotics detection 15 dogs.
16 In my job, I have recovered illegally possessed 17 drugs through the use of my police dog. I have been involved 18 in approximately forty drug felony arrests and convictions i
19 utilizing dogs that I have trained and handled. l l
20 Outside my work as a pollce officer, I am a j 21 subcontractor to K-9 Detection Services. In that capacity, j 22 I conducted two searches at the Harris site.
23 Prior to my first search I had a preconceived 24 belief based opon newspaper articles and my knowledge of :
M Coomes, tne.
25 drug use in the Wake County area, that there was widespread
r 12-9-Jo W21 8996 1 drug use at the Harris site.
2 However, based upon my searches at the site, I 3 do not believe that there is an onsite drug problem or that 4 there is widespread use of drugs at the site.
5 If there had been, my dogs would have made an 6 indication of that use.
7 MR. McDANIEL: Thank you. Mr. Chairman, the 8 panel is open for cross-examination.
9 JUDGE KELLEY: Mr. Runkle?
XX INDEX 10 CROSS-EXAMINATION l II BY MR. RUNKLE:
12 Yes, sir.
O Mr. Mathias, so your opinion that there ;
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() 13 is not widespread drug abuse at the Harris site is based l
14 on your two searches with your dogs?
15 A (Witness Mathias) Yes, sir. l 16 And -- when you went out to the site on those Q
I 17 two instances, where did you unload your dog? !
18 A At the parking area that lies in front of the l 19 security booth at the main administration building.
i 20 0 How many entrances are there at the Shearon Harris 21 site? l 22 A I am only familiar with that one.
23 0 And on the first time you were out, how long were 24 to Fas9J.eporters, Inc. you there?
25 A Approximately six hours . l l
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r 12-10-Jo Wal 8997 1 Q And you went all through the site at that time?
(y
(_,) 2 A Not the entire site, no, sir.
3 0 What parts of the site did you go out to?
4 A From my recollection, the cooling tower, the 5 administration building, the diesel generating building, 6 and the switch yard.
7 There were other areas that I covered, but I am !
8 not that familiar with the site to be able to tell you 9 ! exactly where they were, or the exact name of the buildings.
10 Q And those results were negative, were they not?
I 11 A Yes, sir; they were negative.
12 Q Who knew that you were coming out to the site?
f) v 13 A Ms. Mackonis, and Glenn Joyner with CP&L.
- 14 0 And did anyone else know? Are those the only ;
t 15 two people that knew?
16 A Those are the only two that I am familiar with 1
17 that knew. I got my direction from Ms. Mackonis, and 18 contacted Glenn Joyner that morning when I arrived at the 19 gate.
20 0 And it states on page 12 of your testimony that ;
21 you were met by some of the construction security personnel, l l
22 is that correct?
J 23 A Yes, sir. That is correct. f i
24 Q Itow many construction personnel?
.s.9.:.mn.re. w. l 25 A Well, when I made that statement I was referring l
t
12-ll-JoeW31 8998 i to Glenn Joyner, and then there was an employee relations
) 2 person, Mr. Plueddemann, with Daniel Construction Company; 3 those two people.
4 O And did you walk around the site with those 5 two people?
6 A Those two and my dog, yes, sir.
7 Q Just the three of you and your dog?
8 A Yes, sir.
9 Q And, you have no other k nowledge of the Harris 10 site except following Mr. Plueddemann and Mr. Joyner around, 11 is that correct?
12 A Yes, sir, that is correct.
(~l 13 0 If they said go here, you would go there?
l t
14 A Yes, sir.
15 Q Ms. Mackonis, you made 13 searches, is that 16 correct? j 17 A (Witness Mackonis) Fourteen.
I 18 Q Fourteen. And where did you unload your dog? i 19 A At the same security area. j 20 0 On each of those fourteen times, is that correct?
21 A No, no. At one other time --
22 Q Ma'am, I am having a hard time hearing you. If 23 you could speak into the microphone, g 24 A Okay. Can you hear better now?
w r.1 5 E c. port. .,inc.
25 Q Yes.
12-12-Jo;Wal 9999 1 A Okay. On one other search we unloaded up at the l parking area, which is at the complete opposite end of the plant.
2 3 I am not sure what that area is called. It 4 is the main parking area where the majority of the people go 3 in.
6 Q Now, when you unloaded your dogs how much of the 7 plant could you see from that spot? l 8 A From which spot?
I 9 Q The spot where you unloaded your dogs?
10 A You mean both different --
l 11 Q At the -- !
l 1
12 A I just told you I unloaded in two different 4 (3
s ) 13 areas .
i 14 Q All right. Not the time at the parking lot, but l 15 i the rest of the times.
16 A Not all that much. There is the cooling tower on 17 one side, and there are buildings on the other side, and 18 there is an open area with a roadway.
19 Q At -- when you unloaded your dogs at that gato, 20 looking out over the site how many workers could you see?
i 21 A I couldn't over. begin to guess on that. !
l 22 O Woro thora more than ton? l l
23 A Yes.
f 24 0 !!undreds? l w r.9e cemem inc.
25 A It is very difficult. I wasn't standing thoro l l
l l
l
12-13-Jo:Wal 9000 1 counting workers.
2 I unloaded my dog and proceeded to the security 3 area.
4 Q But you did see shall we say a substantial number 5 of workers?
6 A What do you consider substantial?
7 0 Can you give us any better word than substantial.
8 What word would you use to describe the number of workers 9 you could see?
10 A Maybe a hundred. l
\
11 O Now, at what times of the day did you go out to j l
12 the site with your dog? ;
/' \
()s 13 A Various times of the day. In the morning, afternoon, ,
14 and evening.
15 Q Of your 14 searches, how many of those were in !
16 the morning, how many in the afternoon, and how many in the 17 evening?
18 A I don't have the count with me, but they were !
19 any place from four a.m. , in the morning until some evenings, 20 I believe we started as late as six. !
21 Q Six p.m. )
l 22 A Yes. I i
23 0 On Page 10 of your testimony, you talk about the i
24 various searches you made at the plant. I ief ai9c morms. tre. }
25 Now, the first search which is described in the i
i I
i
12-14-Jo Wal 9001 I second paragraph, that you found marijuana residue, is 2 that correct? Are you with me on that?
3 A Yes.
4 Q From the time that you began your search to the 5 time that you found your marijuana residue, how long was 6 that?
7 A I don't remember.
8 0 On your second search -- is there any other 9 searches that you had positive results on?
10 A On June 26th.
I 11 Q You found a plastic bag containing marijuana.
12 A Correct. And on August 30th.
() 13 Q All right. Now, on your June 26th trip, how long
'4 was it from when you ontered the gate until you found the i
15 plastic bag with the small amount of marijuana?
16 A I didn't record the times. i 17 Q Was it naar the beginning of your search, or !
l 18 near the end? j 19 A I really don't romomber to bo honest. l 20 0 Again, on the August 30th search, how long was l 21 it from when you entored the gato until you found the plastic 22 bag with the minuto amount of marijuana seized?
I 23 A I don't record the timos during my searchos wa
(). c n.,..
24 m..
as far as how long it takes mo to go from ano placo to the l 25 other, or how long it takes the dog to scarch before ho finds l_____-_________
12-15-Jo W21 9002 I some thing .
m x2 2 Q Now, how long would it take a dog to search a 3 room the size of this one?
4 A Anywhere from two to ten minutes.
5 0 And during the -- I think you testifed to each 6 search was roughly about four to five hours, is that 7 correct?
8 A Correct.
9 Q During that time, would you be moving pretty much 10 the whole time?
11 A We move from one site to the other, and then when i
\
12 I am given an indication as to where wo should be searching !
/~
l (N) 13 wo stay in that area and search it thoroghly, and then go on ,
1 14 to the next. i 15 0 And so you would bo -- would you also be with Mr.
16 Joyner and Mr. Plueddomann? i i
17 A We are always escorted on our scarchos.
18 0 Woro you always escorted by Mr. Joynor and Mr.
19 Plueddomann?
20 A I was excorted by Mr. Joynor and one othar Daniel l i
21 omployco.
22 0 And Mr. Pluoddomann was that employco at somo i l
23 timos, was he not? I 24 A At times, yes.
w.1.9erporter.im.
25 Q And thoro other employons -- Daniel employoos l
l 12-16-Jo;Wal 9003 1 that also went with you?
O 2 A res. '
3 Q So, you would be walking along with Mr. Joyner 4 and one of the Daniel employees, and he would say: Search L 5 this area? f 6 Is that how the procedure worked?
L 7 A He would indicate to me what areas needed to be j 8 searched. [
L 9 Q And would he give you any ideas of what part f i
10 of the area he wanted you to search? l 11 A Could you clarify that question, please? l 12 0 In a room this size, would he says Please search Q 13 behind the speaker here, or would he say search the whole 14 room? [
15 A In a room this, size, we would search the whole 16 area.
17 Q And in a bigger space you would search one area 18 of that, would you not?
19 A Certain areas that were pointed out.
20 Q Now, do you have a command for the dog to have t
21 it begin making a search?
?
22 A Yes.
End 12. 23 MS fois. ,
we meerms, i .
25
< 1 9004 Em 13-1 r 1 Q So if the dog was not on command it would walk
by drugs?
2 l
3 A (Witness Mackonis) Not necessarily.
4 0 Would it find all the drugs that it walked by if 5 it was not on search or whatever, your 95 percent?
6 A The 95 percent is the amount that the dog -- it is 7 the percentage of reliability while he is searching.
8 0 Do you have a percontage of reliability if the 9 dog is not on search?
10 A I can't give you an answer on that. That is a 11 hypothetical question.
12 Q In the four or five hours of each scarch, what
('s 13 proportion of that time would the dog be on search?
U 14 A Wo work about 20 to 30 minutoa and take about a 15 10-minuto break, and in a fivo-hour period thoro is between 16 a half an hour and 45-minuto rest period approximately half 17 way through.
18 Q And thoro would be timo in betwoon on location 19 and another location, would thoro not?
20 A The timo that it taken un to got from one area to 21 the other.
22 Q And in part of thono 14 noarchos on July 30th, you 23 nearchod tho Administration Building and the parking lot. Wan 24 that the parking lot adjacent to the Administration Building?
A ,h n,p.,, .. ta<.
25 A No. It was the parking area in tho far and whoro
9005 Sim 13-2 1 the workers come in.
() 2 O Okay. Would that be the same parking lot that 3 you investigated or searched again on August 8th?
4 A Yes.
5 Q on the July 30th search, how long were you in the l
6 employee's parking lot?
7 A That was our standard search time of four to five 8 hours.
9 Q And how much timo did you spend at the Administratior 10 Building searching the ---
l 11 A Ch, I am sorry. I was looking at the wrong dato.
12 0 Yos. On August 8th you woro at the parking lot l
() 13 the wholo timo; is that correct?
14 A Correct.
I 15 Q Now on July 30th you were at the Administration 16 Building and the parking lot?
17 A Yos.
18 0 Okay. On July 30th how long woro you at the parking 19 lot?
20 A I boliovo it to be approximatoly an hour and a half l 21 to two hours. I don't hava a full rocollection.
22 Q So would it be fair to say that half tho timo you l
23 wore at thu parking lot?
j (-) 24 A APProximatoly.
wa_; s.co,,.... in.
25 0 Now for tho two naarchos of the parking loto, what i
L _ _ _ _ _ _ _ . _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ . _ _ _ _ . . _ . . . . . _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ - - - _ _ _ _ _ .
9006 sim 13-3 j time of day were you there?
2 A In the morning.
3, Q Can you give us a rough time, early morning, 4 mid-morning?
5 A Early morning.
6 Q And again on August 8th, when were you at the 7 employee's parking lot?
8 A Early morning.
9 Q Itava you ever had the dog stationed at the main 10 employcos' entrance?
11 A Do you mean searching things that como in through 12 the gato?
'T 13 Q Yes.
ja A No.
15 Q !!avo y u over had the dog at any one of the gatos 16 acarching employeca or anybody coming through?
17 A No.
18 Q Mr. Mathias, on the two searchos you mado out at 19 the llarris oito, as you ontored the gato how many workors 20 could you sou on tho !!arris sito?
21 A (Witnoon Mathian) on the first scarch thoro woro 22 two, and they woro in the security booth. I didn't sou anybody 23 until I got to the nocurity booth. And on tho nocond aoarch 24 I don't rocall.
4.. sh,i e.g.o. .. iac.
25 Q Did you look out over the conatruction sito and only
9007 Sim 13-4 i saw two workers?
) 2 A To be honest with you, I didn't pay any attention.
a 3 I was lost and I was looking for the security booth.
4 Q And then the second time did you look out over 5 the whole site?
6 A No, sir, I didn't. .
7 MR. RUNKLE: I have no other questions.
8 JUDGE KELLEY: Okay. Mr. Eddleman.
9 CROSS-EXAMINATION 10 BY MR. EDDLEMAN:
11 Q Good afternoon. Let me refer you to -- well, 12 actually I do have a question of Ms. Mackonis about your eT 13 answer 1 on pago No. 2 of the profiled joint testimony.
(
u 14 Do you have that?
15 A (Witness Mackonis) Yos.
16 Q You are describing your work with Northern 17 Telecom. Is that a full-timo job?
18 A Yes, it is.
19 Q Is it on somo kind of flox timo?
20 A It is not on flox timo, but I can arrango my hours, 21 if that is what you are asking.
22 0 Yos.
23 A Yes, I arrango my hours.
24 Q Okay. Now is thoro any particular day of the u.Ma e m.o.,. w.
25 wook that thoso scarchos woro conducted on or woro they c
9008 cim 13-5 all different days of the week?
1 A They are on random days.
3 Q Which we could obviously figure out from a 4 calendar. So I am not going to ask you that.
5 Now concerning question and answer 7, since i
6 neither of you have your names written on that answer, do 7 I take it that that is an answer by both of you, or just by ;
8 one of you?
9 A (Witness Mathias) It is a joint answer.
10 Q All right. Now with regard to that, Mr. Mathias, II when you are subcontracting from Ms. Mackonis, are you using 12 a Raleigh police dog?
13 A It depends. The dog has been retired.
14 Q It is a retired police dog and not an active duty l l
15 polico dog?
16 A Well, he is retired officially now, yes, sir.
17 Q Was he retired when you were using him in these l I
18 searches? !
19 A No, sir.
20 Q Okay. Now also you say "he," and you also at and l
21 end of the paragraph, the first full paragraph on page 6, you l l
22 talk about the dog went for long periods without detecting l 23 a scent he is trained to detect. Aro all these dogs male? f A Mine are, and ---
ae.4 ne,24W.
25 A (Witness Mackonis) My dogs are of both sexes.
9009 l
cim 13-6 j Q Is there any difference between the sexes of l
\
dogs as to their abilities in detection as far as either of 2
3 y u is aware?
4 A (Witness Mathias) Not as long as they possess the qualities that you look for in choosing a detection dog.
5 Q Is that correct, Ms. Mackonis?
6 A (Witness Mackonis) I agree with the same answer.
7 Q Okay. So this is based purely on ability and 8
not on sex?
9 A Correct.
10 (Laughter.) \
jj Q Now I want to ask you a little more about the 12 ability part of that. At the end of that answer 7, down !
13 ja toward the bottom of page 7, it is stated "The drug detection 15 reliability of a well-trained dog is in excess of 95 percent."
16 And what I want to know is -- well, let me start I j7 in with one question.
jg Do you determine that, for example, by having [
39 say 20 samples of drugs hidden in some large area and the 20 dog goes out and finds 19 or 20 of them and that is how you (
l N" " 1D 1s in excess of 95 percent? [
21 ,
h A (Witness Mathias) That was a figure that was 22 23 derived from the United States Police Canine Association. [
24 What that refers to is a standard that is set forth for A h hp.mn, =. the minimum qualifications for a dog to be certified as a j
25 t i
i
___-_ ___ . _ _ _ - _ _ _ _ _ _ _ _ _ _ _2
9010 im 13-7 1 detection dog.
O 2 o ox r-3 A The training records reflect though that they 4 are in excess of 95 percent.
5 Q Now these training records are compiled by the .
6 trainer of the dog?
7 A Yes, sir.
8 Q Now is there some certification beyond the records 9 of the trainer that the dog has to go through to get this 10 rating or certification?
11 A Well, the certification is a term that is loosely 12 used. There is only one nationally set standard for 13 certifying policy dogs by an outside body, and that is the
}
14 USPCA standard. Other agencies, including the U. S. Customs 15 Service and any policy department that has facilities for 16 training, also certify dogs as do private idividuals who 17 train dogs to sell to police departments or other private 18 individuals. So the word " certification" is and can be a 19 misnomer.
20 Q Okay. In conducting these searches would the 21 dogs ever climb around on scaffolding?
22 A Ine one of the searches I went on, the dog went 23 to the top of a cooling tower, and I believe it is about 24 four stories of steps that are not scaffolding in the terms A h % s, w.
25 that you are using, but ---
l 9011 Sim 13-8 1 Q It looked like a walkway up, very steep ---
2 A It was a very steep walkway up, yes.
'( })
3 Q Like a ladderway?
4 A something that scare a human being, yes, sir.
5 (Laughter.)
6 0 All right, sir.
7 Ms. Mackonis, could you respond to that question 8 as regards to the searches you did? Do you want me to repeat 9 the question?
10 A Would you repeat the question, please.
11 0 Did the dog, when you were searching, Ms. Mackonis, 12 every go up on scaffolding?
A He has been up on grid work, which would be
(~'
1 -
13 14 similar to what Mr. Mathias had mentioned.
15 0 But not scaffolding?
16 A Scaffolding is a misleading term. When I think 17 of scaffolding, I think of painter's scaffolding, which is 18 two boards hanging by a rope. No, I wouldn't go on that.
19 The dog has gone into high areas and climbed stairs and 20 gotten into places where he has access to, but I do not 21 allow the dog to go into any dangerous areas, or areas I 22 would not go into.
23 0 So typically the dog would either be climbing 24 on something that a person could go on like a ladder or 4<.rh n,por,.,.. anc.
25 a grid work, or would be on the ground or the floor of
9012 o m 3-9 whatever area you were searching; would that be correct?
j A Correct.
2 JUDGE KELLEY: Is the dog on a leash?
3 WITNESS MACKONIS: The dog is always on a leash 4
and under control unless we are in a very small room.
5 .
BY MR. EDDLEMAN:
6 Q And just for completeness, Mr. Mathias, that 7
8 last description of being on the ground or on something 9
where a person could go, would that apply to your searches, t
10 too, as to where the dog would go?
13 A (Witness Mathias) Yes, sir. There are also some '
things, too, that would help explain that. There are 12 13 areas that we might not be able to get into because they are smaller, where the dogs would be able to, and also 14 15 because of the dog's olfactory abilties, they would be able 16 to detect things in those areas.
1 j7 Q Okay. With regard to the dog's smelling abilitios, lot me refer you to page 11. I believe, 18 j9 Ms. Mackonis, this is your description of searches, and 20 I want to refer you to the one on August the 8th, 1985, which 21 I believe is the second paragraph from the bottom of that 22 page. Do you have it? l 23 A (Witness Mackonis) Yes.
24 Q You are describing 10 vehiclos searched there j
.4. -
25 had negativo resulta, and then you say that you believe i l
9013 Sm -10 1 false indications may arise if a vehicle parks over an n 2 area where an ashtray containing traces of marijuana ashes 3 had been emptied.
4 Now are you saying there that you think it is 5 possible that 10 ashtrays of marijuana ashes had been 6 emptied in that parking lot?
7 A That is not what I said.
8 0 Well, is that possible?
9 A It is possible that quite a few could have been.
10 0 Okay. Now in order to get an idication -- well, 11 let me ask you this.
12 When the dog gives you an indication, how does the dog indicate -- for example, suppose there were a car
(
} 13 14 out in the middle of this hearing room like it is sitting 15 on a dealer's showroom floor just for a hypothetical 16 example. Now if your dog came up to this car, would the 17 dog be able to indicate to you something on the ground 18 under the car an distinguished from something in the car?
19 A It would depend on where in the car, if it 20 was in the wheel well or something like that, he would be 21 able to distinguish that.
22 0 But if it were just a question of maybe there 23 is something in the car, maybe under the seat or some other 24 place insido the body of the car, and not near the ground Ace F8al Reportert. Inc.
25 on the outside, then you would just get a general indication
9014 Sim 13-11 1 on that car from the dog; is that what you are saying?
(] 2 A A general indication of the area. If it was 3 on the driver's side, I would get an indication, yes.
4 Q Okay. Do you know whether CP&L or anyone else 5 searched the area under these cars for ashes containing 6 marijuana ashes?
7 A All I do is identify the vehicles. I do not 8 stay behind for the search of the vehicles. That is not 9 part of my job.
10 0 Okay. And is that true for you, too, Mr. Mathias ,
11 that you don't stay around to see the results of a search 12 of any area that your dog identifies?
( ') 13 A (Witness Mathias) Yes, sir. I am told b'y my 14 employer or contrctor that it is my duty to locate and 15 that the CP&L personnel will take action from that point 16 on.
17 MR. EDDLEMAN: Thank you very much. I have 18 no more questions.
19 JUDGE KELLEY: Okay. Mr. Bryant.
20 MR. DRYANT: Yes, sir. Thank you, Judge 21 Kelley.
22 CROSS-EXAMINATION 23 DY MR. DRYANT:
24 Q Mr. Mathias, let me begin with you since you Ace 4 eof Reporters, Inc.
25 are closer.
9015 Sim 13-12 i In your summary you stated I think to the effect that you might have had a personal opinion before you ever
( 2 went out to the Harris site. Now am I correct that you 3
4 had no personal knowledge of any drug activity before you 5 made your first visit to the site in May?
i 6
(Parties expressed difficulty in hearing.)
7 Mr. Mathias, I was referring to the summary 8 that you made, and you said at that time you might have 9 had a personal opinion on what you might find prior to your 10 first visit, but yuou had no personal knowledge of any 11 drug activity at the Harris site prior to your search in 12 May, did you?
A (Witness Mathias) Personal in the sense that I 13 14 did not know anyone. However, I through my duties as a 15 Police officer have contacts in the narcotics section and 16 a detective friend of mine had arrested an individual who 17 was employed by one of the contarctors out there for 18 possession of a controlled substance, and I based my 19 opinion on the statement that he made to me about that 20 arrest. But from a personal perspective of knowing someone 21 or having been in contact with someone out there that 22 did, no sir.
23 0 And you stated in your testimony that your opinion is based on the results of your two searches; is
- 2. sh n.pe.n. 24 w.
25 that correct?
9016 Sim 13-13 A Yes, sir, that is.
Q S y u have no way of knowing whether the drug
(~' _
2 s at Harris was widespread in say December of 1984, do 3
you?
4 A No, sir, none whatsoever.
O When you made your first searcn in May, Ms.
Mackonis had already been on I think three searches at the 7
site; is that correct?
A I don't know the exact number. I know she had 9
been on searches prior to me doing searches there, 10 Q Ms. Mackonis, let me refer to you. Do you know jj g how many searches you had made prior to Mr. Mathias going
/"'s 13 A (Witness Mackonis) Only if I count them.
g Q I thought three, but is that correct, to the 3
g best of your knowledge?
A Five.
7
' Y' 18 39 A (Witness Mathias) Five searches.
Q Mr. Mathias, back to you. Did you use the same 20 21 dog each time in both of your searches?
A Yes, sir.
22 Q And just to clear up something that you answered 23 t one of the other counsel, you were talking about the dog 24 A<+ thin.por+.,,,Inc.
25 being retired from the Raleigh Police Department.
9017 Sim 13-14 I A Yes, sir.
2 Do you own this dog?
Q 3 A Yes, I own the dog, and I owned the dog during 4 the search, prior to the search and still do own the dog.
5 And at the time the dog was still part of the 0
6 Raleigh Police Department?
7 A Yes, he was on active duty.
8 Just one other clarifying point. 'You were at the Q
9 Harris site not as a Raleigh police officer; isn't that 10 correct?
II In no way, shape or form did I A Yes, sir.
12 represent the Raleigh Police Department. It was under an O oez-auty eme1orme=e-I4 Q Right. Thank you.
15 Also based on your experience with the Raleigh 16 Police Department, have you ever been involved in an 17 undercover drug investigaton?
18 Yes, sir, I have.
A 39 And when was that?
Q 20 A There have been several instances. The most 21 recent one was in 1982, and prior to that when I came out 22 of the Police Academy I worked undecover for a month in 23 an undercover narcotics operation.
24 So 1982 was the first one?
Q Ae- I Repo,te,s, Inc.
25 A No, sir. That was the most recent one. The
9018
'Sim 13-15 first one was in December of 1980. That was the very first y
2 one.
Q And all of these have been with the Raleigh 3
4 PD?
A Yes, sir.
5 Q Ms. Mackonis, let me refer these to you.
6 7
Your opinion that drug use at the Harris plant 8
was not widespread is based on your observations and 9
searches with the dog that began in February and continued 10 until the present; is that correct?
11 A (Witness Mackonis) Correct.
Q Mr. Mathias, I am referring to page 12 of the 12 13 testimony. Could you explain what you mean when you say
(}
ja your dog searched large areas?
A (Witness Mathias) Yes, sir. I refer to a large 15 16 area as something about the size of this motel here, and that would be what I would equate each search to.
17 18 A normal search for me in the performance of 19 my duties as a police officer would be at small areas such 20 as a three bedroom house, but a large area would be somethinc 21 about the size of this motel or greater.
22 Q Okay. I just wanted to clear that up.
23 And, Mr. Mathias, it was Mr. Joyner that.would 24 contact you on when to arrive at the Harris site; is that Ace- 1 Reporters, Inc.
25 correct?
~
i
9019 A No, sir. It was Ms. Mackonis, and then I would Mm 13-16 1
! 2 contact Mr. Joyner at the security booth there when I 3 arrived. And in the two instances he was -- in one of the 4 instances he was waiting for me and in the other one he 5 was there about 30 seconds after I got there.
6 O How far in advance would you be notified as to 7 when to arrive?
8 A Generally the night before, anywhere from 8 9 to 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> before.
10 Q Is that also true for you, Ms. Mackonis?
II A (Witness Mackonis) No. My schedules are preset 12 usually from visit to visit.
- 13 0 Oh, I see. And they would be set by Mr. Joyner?
14 A Correct.
15 Q I think this answer on page 5 is a joint answer, 16 if my' notes are correct. But I am referring to when you 17 are speaking'of training your dogs that you use containers 18 and hiding places. Is this correct, is this a joint I9' answer?
20 A (Witness Mathias) Yes, it is.
21 Q I will refer this first questi.on to you, 22 Mr. Mathias.
23 Do you train your dog to find drugs on a person 24 as well?
Acda. ! Reporters, Inc.
25 A No, sir. W~e do not because of the type of
9020 Sim 13-17 1 response that our dogs are trained, and that response
() 2 being an aggressive response.
3 Q Okay. And I think you mentioned that later 4 in your testimony.
5 A Yes.
6 Q And that is what you mean by aggressive 7 response?
8 A Yes, sir.
9 0 In other words, if your dog found drugs say in 10 my pocket, to go for the drugs he might go for me, too?
11 A No. You might construe it as going for you, 12 but his aim would be at the drugs in your pocket. Howevery
/~ your shirt would probably be torn and you would feel like h' 13 you were being attacked by the dog, where again his point 14 15 of attack would not be you. It would be the narcotics.
16 Q So at the Harris site you would only search 17 for stash areas; is that correct?
18 A Yes, sir.
19 Q And you would not try to search individuals?
20 A None whatsoever.
21 Q So I am correct that you never took your dogs 22 to the gate say at an entrance gate where employees would 23 be passing in and out?
24 A No, sir. I don't do searches of persons at all h Repom. inc.
25 in either off-duty employment or on-duty employment.
9021 Sim 13-18
.O Are there drug detection dogs that are trained to find drugs on a person?
( '
A There probably are. However, because of the unreliability of training a dog to do that because people have i fears of dogs and that sort of thing, it is not a common-and Sim 6
- Sun fois 7
8 I 9 10 11 12 13 14 15 4
16 17 18 19 20 21 22 23 Ac.- n.p.mn, nc.
25
,- , e-~, --- . , - - - - - - - . . . .-. - -----,...---,,.,-n - - - ..m a-,,--,,w--m-,--,m,. -w,w-------n,--
9022
- 14-1-SueW 1 Q Now, Ms. Mackonis, are your dogs also trained
) 2 in this same fashion?
i 3 A (Nitness Mackonis) Yes, they are.
4 Q Mr. Mathias, going back to the containers, ifa 5 drug were inclosed in a container how close would your 6 dog have to come to that container before he would alert?
7 A (Witness Mathias) It depends on a number of 8 factors. One, the amount of drug in the container, the 9 type of container, the length of time the drug has been 10 in the container, the length of time the container has 11 been in the place it's in, the air currents surrounding l
the container. !
i 12
() 13 There are just so many variables there, it's 14 hard to give a definitive time.
f
! 15 Q Let me assume for this question that, say, a 16 drug in a container were some thirty feet away from your i
17 dog, would he be able to pick up a scent, then?
18 A Again, the first parts, the type of container, 19 the amount that has been in the container, those -- if 1
20 you can be more specific on the question I might be able
. 21 to answer that better.
l 22 0 okay. Also, for purposes of this question 23 let's assume, say, a small amount of marijuana, say, hidden 1 24 in a thermos --
. Ace- I Repo,ters, Inc.
25 A Uh-huh.
--,9 - , , _ _ . ,.,.--.-_-_,,,_,,,,-,.,,_,..,.,r_,. __
, _ , , . , , _ . , ,.7_ , , . . , , . , , , . . _ . , , ,
7, y,_,,,,,_,,,,,..-,y ._,_7_.. m.r,__ _, ._.
9023
- 14-2-SueW 1 Q -- say if it were some thirty feet away, would
! 2 your dog be able to detect that?
3 Or, would he have to be in closer proximity?
4 A Closer proximity. And the manner in which I do 5 my searches, the doc is on lead so he is directed to 6 containers and that sort of thing by me which would bring 7l him within his range.
8 It is conceivable though that given the right 9 conditions that a dog could, in fact, indicate on marijuana 10 in that type of situation, from thirty-five feet.
11 Q What if the drug were cocaine under the same 12 circumstances?
13 A He would need to be brought closer to it.
(^/')
x_
14 Q He would have to be closer for cocaine than 15 marijuana?
16 A Yes, sir.
17 Q When you were speaking of the senses of your 18 dog, could he indicate a drug that was, say, thirty feet 19 in the air under those same circumstances?
20 A Again, it still reverts back to my original 21 answer, because there are too many other factors including, 22 like I said, the wind and that sort of thing. But it is 23 conceivable that should that drug be marijuana that that 24 would not pose any problems.
Ace- I Reporters, Inc.
25 Q And the same would be true if it were cocaine; it
9024
- 14-3-SueW I would just --
2 A He would need to be brought in a closer proximity 3 to it.
4 Q I was just trying -- I've never seen dogs being :
5 worked this way. I'm just trying to get in my mind, because 6 you said he was on a lease.
7 You know, would he like have his head down or 8 would he be walking around with his nose in the air?
9 You know, I'm just trying to get a picture of 10 this.
II A Well, in training of the dog he is taught both I2 to alert on objects that are high and also on objects that
() 13 are low.
14 So, that poses no real problems for a well trained 15 dog.
4
- 16 Q Okay. Ms. Mackonis, if we could sort of narrow
{
17 this down to a specific example, this line of questions I 18 was asking Mr. Mathias. I think it was on Page 10, you 19 were mentioning that your first search resulted in a find ,
i 20 of marijuana residue.
21 A (Witness Mackonis) Yes.
22 Q How close t'o that pipe was your dog when he 23 alerted, if you recall?
' 24 A I think the best way for me to identify that
'Ac I Reporters, Inc.
25 question is to tell you where the pipe was. The pipe was
9025
- 14-4-SueN 1 inside a container inside a small box inside a toolbox l ()
1 2 inside a gang box. He indicated on the gang box.
3 Q How close was he to the gang box?
4 A When we do our searches, you know, he searches --
5 I mean, his nose is up to the gang box. And I would say 6 the toolbox was probably three feet Aaside, two to three 7 feet inside, the gang box.
8 Q Did you use the same dog each time?
9 A I use one dog the majority of the time. But, 10 I do have other dogs that I use.
11 MR. BRYANT: Thank you. No further questions, i 12 Judge Kelley.
{} 13 JUDGE KELLEY: Mr. Barth?
14 MR. BARTH: No questions, Your Honor.
15 BOARD EXAMINATION 16 BY JUDGE CABPENTER:
INDEXX 17 Q Ms. Mackonis, turning to your testimony on Page 8,
! 18 please. In response to Question 12, you point out that
- 19 use of drugs may produce residual loadars, i
l 20 Do you have knowledge of whether the use of 21 an average size of a marijuana cigarette or an average pipe 22 load of marijuana in an automobile would produce a linger-23 ing odor --
l 24 A Yes.
'Ac.J hk R,ormes fx. j 25 Q -- in that automobile? !
p- r--w s v 9,,y -a- -
wg- w--y 4 sya- - --w---
9 i- -- 7--r--- - * - - --e*--w----yy-w-vw-w-yy- y e - sw-wgy y v www-
9026
- 14-5-SueW 1 A Yes.
I ; 2 Q Is it established what the typical or average C/
3 period of time that that odor might remain such that a 4 dog could detect it?
5 A It depends on again, you know, how much of a 6 substance or if they were smoking something in the car 7 how much they had smoked, whether the windows were lef t 8 open on the vehicle, again the air currents.
9 There are different things to be taken into 10 consideration for that also.
11 Q Recognizing that each of these variables can 12 vary, let me specify a marijuana cigarette -- I don't know r~3 13 how to characterize marijuana in the same way you would G
14 characterize the strength of alcohol, but of average strength, 15 or market strength, if a marijuana cigarette were smoked in 16 the car with the windows closed -- I'm trying to get a 17 feel whether you think the odor would persist for an hour 18 or a day or days?
19 A I can't give you an accurate, scientific answer 20 on that. I can tell you that we have indicated on automobiles 21 where we have found a very small roach towards the end of 22 the day that had been smoked in the morning.
23 0 You've never tested your dogs against development
.,_s 24 of odors in the car and then looked to see whether he could Ace F, j Reporters, Inc.
v 25 detect those odors some hours later?
l
9027
- 14-6-SueW I A I -- what do you mean by development of odors?
2 Q Smoking o f --
3 A You mean, have someone smoke a joint in the 4 car and lock it up for an hour and then keep going back?
5 Q And see some hours later whether the dog could 6 pick it up?
7 A I have to say, I have not done that.
8 (Witness Mathias) U.S. Customs did that, sir.
9 And because of the material that the car is lined in, the 10 soundproofing material, there is an absorbancy there where 11 the smoke even from cigarettes and from marijuana cigarettes 12 will linger for substantial periods of time.
(~N 13 Even one single roach would last for a substantial V
14 period of time.
15 Q Ms. Mackonis, apparently you were not aware of 16 that demonstration by the Customs service of the persistence?
17 A (Witness Mackonis) No, I was not.
18 Q Because I wanted to ask, on Page 11, with 19 respect to the August 8th search whether you felt in addition 20 to the reasons that you cave, whether there was a possibility 21 that marijuana had been smoked in the car but was not pre-22 sent in the car, in addition to the possibility of the ashes?
23 A I don't think I understand your whole question.
24 Are you asking me if I think that that would have been one Ac+Fhi R pore.ri, inc.
25 of the reasons he would have indicated on the vehicle?
9028
- 14-7-Sudtl Q Yes.
(} 2 A Yes. That's a possibility.
3 Q Well, do you think it's as probable as the 4 theory that you put forth that he perhaps indicated on 5 ashes which had been dumped from a car that previously 6 occupied that spot?
7 A Yes.
8 Q In your search on August the 8th, what fraction 9 of the total cars in the employee's parking lot were you 10 able to cover?
11 A I would say we probably did two hundred plus 12 if not more.
13 Q Could you estimate the total number of cars for 14 me?
15 A I'm not very good at numbers, to be honest.
16 It probably was even higher than two hundred, because I 17 just looked back and noticed that that was the day we 18 spent the whole morning out there.
19 0 Take your time.
20 A Gosh. Several hundred. Probably not more than 21 five hundred, let me put it that way. Probably not more 22 than five hundred and definitely not less than two hundred 23 or three hundred.
24 0 I was trying to get a feel for whether you Ac. $ n.p.,w s,inc.
25 covered most of the employee parking lot or only a small
9029
- 14-8-SueW l portion?
2 A A portion of it. The area I was in, I really 3 didn' t have a good feel on how far it extends out. I 4 don't know how many cars the parking lot holds. So, I 5 can't give you an answer on that.
6 Q Would you think -- well, I was hoping we might 7 come to some notion that perhaps some of these cars, if 8 not many of them, were attractive to your dog because 9 marijuana had been smoked in them. But apparently that's 10 not very de finitive.
11 Is that where I come to?
12 A I don't think I understand your question.
13 0 I'm asking once again, you felt -- your dog
([ ])
14 was attracted to something. You don't think the oossibility 15 that marijuana was smoked in that car is a prime candidate 16 for having caused the attraction?
17 A Okay. It could be. It could have been a crime 18 candidate.
19 I think the one thing I would like to say about 20 this one particular search is that due to time constraints 21 the vehicles were not searched the same day as the indica-22 tion was made.
23 So -- and, again I'm not there for when they 24 are actually searched. And I'm not sure how long it takes, Ace 4G21 Reporters, Inc.
25 because they have to identify it by tag number and then go
9030
- 14-9-SueW I back through and find out who owns the car and have permis-g 2 sion to search it.
3 And I don't have an answer for the times on 4 that. I do know that they weren't searched that same 5 day.
6 0 Were you advised as to whether the owners of 7 those cars were subjected to urinalysis?
8 A I don't recall being advised of that.
9 JUDGE CARPENTER: Thank you very much.
10 BOARD EXAMINATION II BY JUDGE KELLEY:
12 Q A question on the car searches. The day that 13 you searched anywhere from two or three hundred up to
( )
14 maybe five hundred, perhaps I should have gotten this 15 from the testimony or your comments but I'm not clear.
16 I was assuming that when you go out inspecting 17 that many, it's either a sweep or randam search as 18 distinguished from going out and searching suspicious I9 cars; is that correct?
20 A We do both types of searches. I would send 21 him through on a random search down a line and he --
22 0 Right.
23 A -- is trained to go up and down aisles.
24 Okay.
Q Ace-F4i Reporters. Inc.
25 A And then there are certain cars where we will
9031
- 14-10-SueN I take a break on the randon searches and then we will do a 2
_) controlled search on maybe five or ten cars.
3 0 What is a controlled search?
4 A A controlled search is where he is on lead, 5 and I take him around the entire vehicle and we look 6 underneath.
7 0 But, surely you don't have five hundred 8 suspicious cars on one day?
9 A I'm not saying that we did five hundred controlled 10 searches.
Il Q Well, I'm just trying to get a notion now the 12 extent to which car searches are either all the cars in
~~
('v ') 13 Lot A or every fifth car or some such approach as opposed 14 to having some special reason to go and take a close look 15 at one particular car.
16 ,o some large number of your searches, are thev --
17 not searches, but brincing the dog to the car, are they 18 based on some kind of tip or something suspicious, or is 19 it more random?
20 A It's more random.
21 0 okay. I was not aware until we got into the 22 questioning that you are only looking for stashes. That 23 is to say, you don't approach people on the site, correct?
24 A Correct.
Ace 4 i Reporters. Inc.
25 Q Okay. Now, is that partly because the dog might
9032
- 14-ll-SueW I bite or harm the person in some manner?
2 2 A There are several reasons for that. One of them 3 is, I do not allow my dogs to do body searches. I don't 4 I don' t approve o f it.
train for it.
5 And the other primary reason is that my contract 6 with CP&L specifically states out that body searches, 7 you know, personnel searches are not to be done.
8 Q Don't misunderstand me. I'm not advocating it 9 and I can see some reasons to not do it.
10 But, in any case, since you don't do it I II wonder about your confidence, based on your dog searches, 12 the drug use up at that site is not widespread if you 13 don't approach any individuals who presumably are carry-I4 ing it around if it's being used?
15 A Is that a question?
16 0 Yeah. Why are you confident at some high level, 17 I gather, that there is not widespread use at Shearon Harris 18 if you only look for stashes?
I9 A We would have found more indications on residual 20 loaders. We would have found traces of substances that 21 were left.
22 Q Well, I understand about the cigarette butts, 23 the marijuana butts, or the roaches I guess they are called.
24 What about cocaine?
Aced 9al Repor+ers, Inc.
25 A Cocaine is usually wrapped in some kind of
9033
- 14-12-Suet paper or kept in some kind of container. We would have j 2 found containers or more dif ferent -- you know, different 3 things that would have indicated more druc use.
4 Q Well, if the person buys a glassine packet of 5 cocaine and sniffs it, do you know from your experience 6 that cocaine users throw 'away the cellophane?
I 7 Or, what is the basis for your statement that 8 there would be any kind of garbage lef t over that would 9 show the use?
10 A I can't imagine that all the users of drucs 11 are neat and tidy.
12 Q But other than that, you can't cite any other
( ';
~
13 empirical basis for the statement, just that oeople throw RJ 14 things away, cigarette butts, beer cans or whatever?
15 Is that in the same category, they will throw 16 away pieces of cellophane?
17 A I feel that would fall in the same category.
18 And I still feel confident that my doc would have indicated 19 on residual loaders or on sabstances that would have been 20 found if drug use was widespread.
21 0 But in the case of cocaine, there is no residual?
22 Or, is there?
23 A Yes, there is.
7) 24 0 Let's take the user who buys a ban of this powder Aca.J neponm. Inc.
25 and sniffs it during the day and puts the cellochane back
l l
9034
- 14-13-SueWI in his pocket. What would the doc find of that?
) 2 A Nothing.
3 Q So, to the extent that that practice were 4 followed, the doas -- the negative doa search wouldn't 5 tell you anything?
6 A Based on that, it wouldn't.
7 0 okay. Some of the questions, at least indirectly, 8 have rasied a concern about the efficacy of a dog search 9 that takes five or six hours.
10 Let me put it as a hypothetical. You come out Il there at ten o' clock one morning, and you are going to be 12 there with your dog until four in the af ternoon searching 13
(}) for stashes. And shortly af ter you are there, the grape-14 vine advises people that there is a dog on site.
15 So, if I'm out there selling cocaine might I 16 not go to my lunch bucket and go back to my car or somehow 17 get rid of the stuf f so that the stash is not detected?
18 Or, do something with the stash, dispose of it or conceal 19 it better.
20 Is that a feasible thing for a person who 2I possesses drugs to do?
22 A Part of our searches also include coing through 23 designated eating areas and doing random searches on lunch 24' boxes. If pieces of clothing are lef t out, the dog will Ace 4ai Reporters, Inc.
25 also search over and through pieces of clothing.
9035
- 14-14-SueW1 I suppose if someone took it and hid it somewhere O 2 outside the bounds of the plant that we were not in that area --
3 we walk through dif ferent areas. It's not like we stay in ,
l l
4 one small area so that if someone went to the far end they t 5 would be able to hide it.
6 0 What you see in the movies and on TV is they l
7 immediately flush it down the toilet. What if you just take 8 your supply, go to the men's or ladies room and get rid of 9 it? ,
10 The dog -- could the dog trace that that has been ,
11 dono, let alone find out who did it? But, could they trace 12 that it has even been done?
() 13 A We have searched bathrooms. I don't think he 14 would be able to tell, you know, if it was flushed down the 15 toilet. You know, but he would be able to tell if someone -- ,
16 you know, again the residual loader on a stall door, on a 17 sink.
18 Your hands have to come in contact with all of 19 those things.
20 0 So, you would find it perhaps on the sink or on 21 the -- wherever something is touched? You wouldn't know l
22 who did it, but you would at least know that the odor was l
~
23 there and there would be some indication there was a ,
24 problem, whoever the source of the problem, whatever the l t
- now=,. w.
25 source might be? ,
9036
- 14-15-SueW
^
1 A Yes.
/T U 2 O Yeah. Let me just ask a general question, then.
3 The fact that your search is not instantaneous but takes 4 some hours, do you think that that impacts its effectiveness 5 in terms of the opportunity to dispose of the matter?
6 It must have some effect.
7 A I -- can you repeat that question?
8 Q The whole thesis that dog searchers -- here is 9 the thesis. Dog searchers really aren't effective, because 10 the word gets out immediately and people get rid of the stuff, 11 and the dog won't find most of it anyway.
12 Is there a response to that? I mean, you said 13 that you think that drug use is not widespread so you 14 must have a response to that.
15 What would it be?
16 A Well, I think if they are getting rid of the !
17 drugs then part of what we are doing is effective, because 18 then we are essentially being preventive maintenance. l l
19 Q Driving it in the ground, in effect. Maybe ;
20 lite rally .
21 (Laughte r. )
22 Sorry about that. Go ahead. I'm sorry. Go ahead.
23 A I think if the people that are using the drugs
() 24 was . c. con . inc.
are concerned enough to try and get rid of it, then part 25 of our searches are offective as far as preventing the sale ;
t I
END 414 and the use of drugs on the plant. Is that not your question?
JCQ flws ,
9037 15-1-Jo:Wal 1 Q That may well be true, but might that not be
{)
K> 2 true on the day that you came with the dog, and the day 3 you don't come, if they are not deterred from trading in 4 drugs, it could continue?
5 The drug user says: If I see that dog, I will 6 run right to the men's room, and otherwise, I will just do i
7 business as usual.
8 Isn't that a possible hypothesis?
9 A Possible, but it is expensive.
10 Q Some significant quantity of concaine would cost, i
11 I guess, some substantial amount, is that what you are l
12 suggesting?
{
b 13 A Yes.
14 JUDGE KELLEY: Okay. Mr. Baxter? ,
i 15 MR. McDANIEL: Officer Mathias -- oh, I am sorry, j 16 JUDGE CARPENTER: Excuse me, if I may. i XX INDEX 17 BOARD EXAMINATION !
18 BY JUDGE CARPENTER:
l 19 Just to follow up on a question Judge Q Kelley 20 was asking you. Have you ever conducted a search that led l 21 you to conclude that drug use in the search area was wide- !
22 spread?
23 A (Witness Mackonis) Are you asking me?
O 24 0 Yes, wfMi mmonert W. !
25 A No. I have never conducted a search that would !
I l
1
l 9038 j 15-2-JosWel i
j 1 show that it was widespread.
2 Q How about you, Officer Mathias?
l 3 A (Witness Mathias) At the Harris site, no.
d i
4 Q No, I said --
5 A At any place?
1 >
6 Q At any place. [
+
7 A Yes, sir.
i 8 Q In the context of Judge Kelley's questioning f
9 concerning the probability of people disposing of drugs 10 before you can detect them, was there any real difference l r
11 in this situation than the situation at the Harris site?
12 A Not in once sense, but again, if the search is
() 13 conducted so that it is totally random, and in a situation -
14 where the date and time are not known but to a few people, l 15 then the likelihood of an entire group of people who are ;
16 allegedly using drugs on a widespread basis disposing of l
17 their drugs becomes very slim.
18 Also, if the area to where the search is to be j 19 conducted again is random, such that one week you search 20 one area and the next week you search another area, 7 i
21 possibly come back, if everything is totally random, then 22 again, the likelihood of an entire group of people using !
i 23 drugs disposing of them becomes slim.
24 Q . Could you say that the search in which you came l c===n. w.
25 to the conclusion that drug use was widespread was comparable (
L
9039 [
15-3-JosWal 1 to the situation at the Harris site in terms of the 2 possibilities of communication between individuals. Their 3 general distribution, if you will?
4 A Yes, sir. In the majority of searches that I 5 have conducted, in a police perspective, the possibility of 6 communication is a great one, but measures are taken to help 7 eliminate that.
8 We do expect that a certain amoant of drugs will 9 be disposed of prior to getting there.
10 However, if we do the search properly and it is ,
1 11 sudden enough and random enough, then we limit the likelihood !
12 of that happening. Or reduce the likelihood of that
() 13 happening.
14 But in the Harris situation, the fact that if I 15 you search a different area on different occasions at ;
l 16 different -imes, and no one is prepared for the dog, then 1
17 those that do get the information through the grape vine j 18 as it were, if they dispose of whatever it is that they 19 had, then you have accomplished something there, because l l
20 you have eliminated that particular amount of drugs being 21 either used or sold at that point in time.
22 JUDGE CARPENTER: Thank you.
23 JUDGE KELLEY: Can you just give us an idea. I am !
I 24 not asking you for the name of the site or the company, but l wer reorwes, im. t 25 this other search, maybe there are more than one. ,
i I
t
15-4-Jo:Wal 9040 1 Are you talking about a search of an industrial xJ 2 site with maybe several hundred or even thousands of employees 3 like Shearon Harris.
4 In what sense was it similar?
5 A (Witness Mathias) School system. High school, 6 with twelve to thirteen hundred people.
7 JUDGE KELLEY: Okay, thanks. Mr. McDaniel?
8 MR. BARTH: Before redirect, I have one question, 9 Your Honor.
10 JUDGE KELLEY: All right.
11 MR. BARTH: Mr. Mathias, I have heard the word 12 used, what is a ' roach,' for those of us who are not
(_,1 13 initiated? i 14 WITNESS MATHIAS: The non-insect type. It is l
15 a piece of cigarette-type paper with a small amount, usually l 16 one gram to two grams of marijuana rolled up in it, so that 17 it looks like a cigarette.
18 MR. BARTH: Thank you. l 19 JUDGE KELLEY: Mr. McDaniel? ,
i XXX INDEX 20 REDIRECT EXAMINATION 21 BY MR. McDANIEL: )
22 Q Officer Mathias, on the basis of the Chairman's >
I 23 series of questions about -- I will characterize them as the lll 24 was mes Room,s, W.
housekeeping habits of a drug user, based on your law 25 enforcement experience in narcotic detection, would you i l
I
9041 15-5-Jo Wal 1 enlighten us at all about so-called housekeeping habits of 2 drug abusers?
3 In other words, do they -- how do they dispose 4 of the roaches, how do they dispose the plastic bags?
5 A (Witness Mathias) From my experience, they 6 are, like Ms. Mackonis said, are not very neat. They 7 generally put them in trash receptacles, drop them on the 8 floor, stuff them in cracks next to work areas. That sort 9 of way.
10 It is not a very neat process at all, which l 11 would make these things available to the well trained 12 detector dog.
13 And from the two searches I conducted there, I i 14 didn't find any evidence of that at all, either by my dog ,
l 15 or my -- looking myself, which was also done. I 16 Ms. Mackonis, in your fourteen trips to date, !
Q i
17 has there been any effort to your knowledge by CP&L to hide i 18 you .r your dogs presence or appearance at the Harris site?
19 A (Witness Mackonis) No, there hasn't.
20 0 In your experiences, have you ever been directed 21 to the area of the main gate where numerous gang boxes are l
1 22 located at a shift change? !
l 23 A Yes. Part of the reason for that is to make 24 I myself and the dog visibic.
w i c. con.n. 4. I 25 Q Does your dog rest during these four to five,six l !
i !
i !
9042 15-6-Jo:Wal I hour --
r b'3' 2 A Yes.
3 JUDGE KELLEY: Can I ask whether on your searches 4 you actually made any point to look in trash containers?
5 A (Witness Mackonis) Yes, sir. That is a common 6 practice, because again -- at least from my perspective 7 through my experience, I know that is where things are 8 disposed of. Not only items that no longer contain large 9 amounts, but also ounces and so forth.
10 BY MR. McDANIEL: (Continuing) 11 Q Ms. Mackonis, one last question. Ms. Mackonis, l t
12 at the time your dog is unloaded at any gate at the Harris -
/
-~ l i
3
(_/ 13 site, you do not know where you are going?
14 A (Witness Mackonis) No, I have no advance notice.
15 , Q The employees that you stated you observed, in i
16 your opinion, do not know where you are going? l 171 A No. !
18 MR. McDANIEL: Thank you. !
19 JUDGE KELLEY: Okay, Mr. Barth?
20 MR. BARTH: Ms. Mackonis, I didn't hear, and i l
21 I am not certain you answered the Chairman's question, th'ough '
I i
22 Mr. Mathias did, does your dog search throw away areas, 23 trash boxes, and that sort of thing?
. ,_ lll 24 c._,....,~.
WITNESS MACKONIS: Yes, he does. l I
25 MR. BART!!: Thank you. I 1
l I I i !
9043 15-7-JonWal 1 JUDGE KELLEY: Do you have more than one or two, 2 Mr. Runkle? I am thinking about a break, but if you can 3 finish up.
4 MR. RUNKLE: I would prefer to take a break.
5 JUDGE KELLEY: Let's take a short break.
6 (Short recess taken.)
7 JUDGE KELLEY: Okay, we are back on the record.
8 I believe that brought us to recross from Mr. Runkle?
XX INDEX 9 RECROSS EXAMINATION 10 BY MR. RUNKLE:
11 Q Ms. Mackonis, at the employees parking lot would 12 you accept a round number, subject to any later correction
() 13 that you would like to make, that there are between four 14 to five thousand cars parked in the employees parking lot?
15 MR. BARTH: Objection, Your Honor, because I 16 don't see the relevance of the number of cars to the issue 17 before this Board in regards to this panel.
18 Y JUDGE KELLEY: We are trying to get a notion 19 of the number searched in relation to the total number, so 20 it is a legitimate question. Overrule the objection.
21 WITNESS MACKONIS: If it is possible, I would just 22 like to refer that to someone from CP&L that would be able 23 to give you a better answer than I could.
24 Could I do that?
w9a c corms,inc.
25 JUDGE KELLEY: No. Do you have an estimate or not.
9044 15-8-JosWal 1 If you don't, you don't.
(G s/ 2 WITNESS MACKONIS: I don't have an estimate.
3 JUDGE KELLEY: All right.
4 MR. RUNKLE: No other questions.
5 JUDGE KELLEY: Thank you. Mr. Eddleman?
6 RECROSS EXAMINATION 7 BY MR. EDDLEMAN:
8 Q Mr. Mathias, you were testifying about somebody 9 disposing something down the toilet, I believe. Was it you 10 that said there would be some residue from touching the 11 sink, or the stall door?
12 A (Witness Mathias) That was Ms. Mackonis, but 13 I can address that if you like.
14 Q Well, either one or both of you address as you 15 will.
l 16 My question is: If a person knew the drug dog 17 was coming, or on plant site and wanted to flush something 18 down the toilet, would they havo to touch the stall' door 19 with the same hand with which they disposed of the substance?
20 A I think before I answer that I don't think the 21 panel understands what we mean when we use the term, 22 ' residual.'
23 Q Well, I didn't ask you about a residual, but 24 can you answer that question, and then if you want to clarify w coorwe,. inc.
25 some thing, then go ahead and do that, but I would like you to I
9045 15-9-Jo Wal 1 answer the question first.
~') 2 A Okay. Ask me the question one more time.
3 Q Okay. A person has some drug, and they know 4 that the drug dog is in the area. They want to flush that 5 drug down the toilet. Would they have to touch the stall 6 door or anything else in the bathroom with the same hand 7 in which they took the stuff, say, out of their pocket, 8 if that is where it were, and dropped it in the toilet?
9 A If I am understanding your question correctly, 10 if I just hypothetically just take my right hand and I 11 have marijuana in right pocket, and I have never touched j t
12 marijuana or cocaine, or whatever the drug is with my left 1-./ 13 hand, it is totally void of any contact with narcotics, 14 and I open the door and I drop the drug with my right hand, 15 then there would not be an residual order there because my f 16 left hand was totally void from any contact with narcotic. !
I 171 Q Now, do you want to clarify further what you j l
18 meant by residual odor? l 19 A Yes, sir. Residual odor comes from contact ,
i 20 with the narcotic over a period of time, and that period of 21 time can be anything from a second to months or whatever.
22 It depends on the quantity, the quality of the 23 narcotic, and that sort of thing.
() 24 b-For:eral Coporters, lac.
Q All right. Now, let me ask you this. Does it 25 typically take a whole second to open the door of one of the
15-10-Jo3Wal 1 stalls in a typical bathroom?
2 A I have not clocked that at all.
3 (Laughter) 4 I am not trying to be funny, but I also don't 5 recall there being indoor plumbing at the Harris plant.
6 Most of the facilities are Johnny-on-the-spot type things 7 outside.
8 MR. EDDLEMAN: I don't think I have any more 9 questions.
10 JUDGE KELLEY: Anything more.
11 MR. BARTH: I will ask a question, Your Honor, 12 if I may. N 13 RECROSS EXAMINATION I 14 BY MR. BARTH:
1 15 Q You mentioned Johnny-on-the-spots. Are all the 16 toilets flush toilets at the facility, Mr. Mathias?
l 17 A (Witness Mathias) .I really can' t answer that. i i
18 The one that I used out there was an outdoor Johnny-on-the- {
19 spot, and it was not a flush type, it was a hole in a piece 20 of fiberglass.
21 Q Have you seen flush toilets at the site?
22 A No, sir, I don't recall. I did do a search of 23 a locker room which had some sinks, but I don't recall seeing g
! 1 24 any urinals or toilets.
4m-Federal Reporters, Inc.
25 MR. BARTH: Thank you. No more questions. ;
i
9047 - 49 15-ll-JonWal I 1 JUDGE KELLEY: Mr. McDaniel, any redirect?
('
2 MR. McDANIEL: Just one, Your Honor.
XX INDEX 3 REDIRECT EXAMINATION 4 BY MR. McDANIEL:
5 Q Officer Mathias, is it correct to say that you 6 can have residual odors without the physical presence of 7 roaches, or ashes, or glassine bags?
8 A (Witness Mathias) Yes, sir. Any time a 9 controlled substance comes into contact with most any 10 given surface, there will be a transfer of odor, as it 11 were .
12 We can't see it, but because the dog's whole 13 system is so much more developed and so much more acute 14 than ours is, it is very visible to his nose.
15 The strength of the indication -- by that, I 16 mean how much he scratches, how much he barks, how much 17 he bites at the area, depends upon the amount of the I i 18 controlled substance that was there, the length of time 19 it stayed there, and a number of other factors.
' But simple contact over time will result in there 20 i 21 being a residual odor, which again to the trained dog is 22 very present.
23 JUDGE KELLEY: Okay. Anyone else any further?
()
W Reconen, Inc.
24 (No response) 25 JUDGE KELLEY: This, then, would bring us to the s
1
9050 15-12-Jo;Wal l 1 Applicants' proposed bringing in the dog demonstration.
'~'
2 Do you want to outline first, for the record, 3 Mr. McDaniel, what you have in mind, and I understand 4 interveners may have objection to the demonstration, and 5 we can hear that.
6 MR. McDANIEL: Yes, sir. Mr. Mathias would 7 be the person conducting the demonstration -- Ms . Mackonis, 8 I am sorry. Officer Mathias will furnish what I understand 9 to be a packet of marijuana and a packet of cocaine.
10 The packets can be hid at the same time. I 11 believe there has been some request, or suggestion, that 12 they be put at least fifteen feet apart.
,c\
()
_ 13 Anyone is welcomed to leave the room before, 14 during, or after, but we would ask the people in the room 15 to kind of go to one side or one corner during the 16 demonstration. l l
17 The packets should not be hidden on a person or l 18 real near any personal property that someone has concern 19 about. l 20 I might ask the panel, as the panel may want to f 21 explain more. We do not think the demonstration will last 22 over five to fifteen minutes. l l
23 JUDGE KELLEY: The basic pttpose, I take it, c'N
() 24 WFederal Reporters, irsc.
is to demonstrate the ability of these dogs to find these ;
25 drugs, right?
l
9051 15-13-JorWnl 1 MR. McDANIEL: Correct.
'~'
2 JUDGE KELLEY: Mr. Runkle?
3 MR. RUNKLE: Yes. If I may ask the panel a couple 4 of questions on voir dire.
5 JUDGE KELLEY: Okay, go ahead.
XX INDEX 6 VOIR DIRE EXAMINATION 7 BY MR. RUNKLE:
8 Q Mr. Mathias, if you were an employee, and this 9 room was your work station, and you had some control 10 substance -- a package of marijuana on you, and you were 11 given five minutes advance notice that a drug dog was going 12 to search this room, what would you do to hide that package 13 of marijuana?
14 MR. BARTH: Objection, Your Honor. That is not 15 voir dire. Voir dire goes to qualifications. I In this case 16 the '
qualifications of Ms. Mackonis and Mr. Mathias, and 17 it could be to the dog, too, but this has nothing to do 18 with the qualifications of these people to have a dog l 19 conduct a search and smell out marijuana and cocaine .
l l
20 It has nothing to do with voir dire. We object.
21 JUDGE KELLEY: Let me just ask, Mr. Runkle.
22 The thrust of your question is toward what point?
23 MR. RUNKLE: It goes toward the relevancy of n
(j 24 this demonstration to any onsite search that they may W-Federal Ceporters, Inc.
25 conduct.
9052 15-14-JonWal m
1 (Pause.)
2 MR. BARTH: No conceivable relevance, Your Honor.
3 JUDGE KELLEY: Well, --
4 MR. McDANIEL: There is no --
5 JUDGE KELLEY: Let's take it one at a time, 6 gentlemen.
7 Are you saying, Mr. Runkle, briefly your point 8 is that this won't be a valid demonstration because things 9 are different at the site, is thet your point?
10 MR. RUNKLE: Yes, sir.
11 JUDGE KELLEY: All right. We can allow limited 12 questioning along this line.
,z s
(_,! 13 MR. BARTH: If I may remind, Your Honor, that i 14 on the examination previously, Ms. Mackonis testimony that 15 this room is the size comparable to other rooms that have l l
16 been searched at the site, and therefore we have a record l l
17 that this is comparable. l l
18 This is no place to try and rechallenge that. I 19 He has had the opportunity to cross-examine these people. l 20 This is not really to voir dire. We already have testimony 21 in the record of evidence which is uncontraverted that this 22 is a comparable sized room.
23 JUDGE KELLEY: Well, it is not voir dire in the 24 normal sense, but I gather -- are your questions to lay keF W Rmorters, Inc.
25 a foundation to bar the demonstration, or are you giving End 15.
MS fois, context to it.
i 9053 Sim 16-1 MR. RUNKLE: Well, depending on the answers, we I
may continue with our objection or we may drop the objection
() 2 on relevancy groups.
3 JUDGE KELLEY: Well, if you want to ask two or three 4
questions along this line, go ahead.
5 VOIR DIRE 6
7 BY MR. RUNKLE:
INDEX Q Sir, do you understand the question that I 8
9 posed to ---
10 A (Witness Mathias) Yes, sir, I do, and I will tj qualify my answer before I answer it. As a law enforcement 12 officer and with my experience in narcotics in the past, I 13 would probaably keep the substance with me because the
[}
ja average individcal is not going to hide that he has paid 15 a lot of money for. If it is cocaine, and especially cocaine 16 when he $100 a gram for cocaine, if he has a gram or two in j7 his pocket, that could equate to two-days' salary and he i
18 will probably play the roulette wheel, as it were. He will j9 play the odds.
l 20 And also the average individual, including people 21 in this room, do not totally understand how a dog works or 22 the way the dog is trained.
23 In the past the law enforcement community has 24 not made the training methods public. Based upon the those hp.mn, tac.
25 things, there are a few places, given five minutes, except
9054 Sim 16-2 1 for flushing it down a toilet, that an individual could hide
) 2 his stash and not have it detected by the dog.
3 Q So what you are saying is that an individual could 4 either keep it on him or take it some place else and dispose 5 of it or just remove himself from the dog's path?
6 MR. BARTH: I object, Your Honor, because that 7 he could keep it on his person is not related to the fact 8 that they intend to secret it somewhere in the room and 9 not a person and have a dog sniff it out. It just is not 10 relevant to the issue before us.
11 JUDGE KELLEY: I thought that the purpose of the 12 demonstration primarily was to simply show the Board and
~3 13 parties that these trained dogs could indeed detect these (G
14 drugs whether they are hidden on the person or whether they 15 got flushed down the toilet and the flusher forgot to use 16 the right hand.
17 (Laughter.)
18 or whether it is a residual of some kind. In any 19 case, it still goes, does it not, to the ability of the 20 dogs to smell the substance.
21 MR. RUNKLE: We have offered a stipulation that we 22 believe that the dog will be able to find any packages that 23 are secreted in this room. I will not carry it any father.
24 I do not have any objdctions. I just fail to see how that A. I Reporters. Inc.
25 is relevant to this proceeding.
9055 Sim 16-3 1 JUDGE KELLEY: But you are not objecting to it?
) 2 MR. RUNKLE: No, I will not object.
3 JUDGE KELLEY: Mr. Eddleman.
4 MR. EDDLEMAN: I don't I guess have an objection 5
to this event taking place, but I do think I have an objection 6 to having it on the record, and it is this. I don't think 7
it proves anything.
8 If the dog comes in here and finds two packages, 9 you know, fine. I mean I would stipulate that the dog is 10 very likely to find them, too.
But what does that prove?
I JUDGE KELLEY: It may impress the Board with the 13
) olfactory senses of the dogs.
4 MR. EDDLEMAN: But what I am talking about is ---
15 JUDGE KELLEY: I don't know how you are prejudiced 16 by this, Mr. Eddleman, and we have got this dog out in the I7 hall who is going to come in here and try to find this bag, and 18 if he fails, I would assume from your perspective that is I9 great, and if he succeeds, we have got a lot of testimony 20 that he will be able to anyway.
21 How are you prejudiced by this demonstration?
22 All I am saying, Judge, is I don't MR. EDDLEMAN:
23 think it can add materially to the record. If the dog finds 24 Ac.4hi R. pore.,i, Inc.
- # # "U " M # F D ""
25 you are just doing two trials, and you could see that a
9056 im 16-4 ; wide range of probabilities could still -- suppose it is 50-50? There is still one chance in four that the dog would
( 2 3 find it even if it is just random chance.
4 JUDGE KELLEY: Well, the Board will put to one side 5 whether you have got.any standing to. object to this at all.
6 MR. EDDLEMAN: All right.
7 JUDGE KELLEY: Mr. Runkle, whose contention this is 8 does not object. So not having heard anything very persuasive 9 as to why we shouldn't see this dog, we are going to allow 10 the demonstration to proceed.
11 We will take into account the points that you have made, and to the extent that this demonstration may not prove I 12 a great deal in the case for a variety of circumstancial
{) 13 reasons, that is fine, but that is true of a lot of evidence 14 15 in this case.
16 So we are going to allow it to proceed. '
17 MR. EDDLEMAN: Judge, may I state what I think the 18 problem is? I don't tjhink I quite finished.
19 JUDGE KELLEY: Well, if you will do it very:briefly, 20 Mr. Eddleman, you may, 21 MR. EDDLEMAN: Yes, sir.
22 JUDGE KELLEY: One or two sentences perhaps.
23 MR. EDDLEMAN: If the probability is in fact high, 24 then finding it doesn't prove anything either. So it doesn't f-Ac. F v i n.pervers, Inc.
25 prove anything either way.
9057 (m 16-5 1 JUDGE KELLEY: You are the one that is wasting our time, Mr. Eddleman, at this point.
3 Let's go ahead.
4 MR. BARTH: Your Honor, because the dog can't talk, 5
I would suggest and request that the Chair narrate what 6
happens so we have a written record. Someone has got to do 7
this, and the Chair is always a neutral party in this situation, and I think it would be helpful if the Chair, or one of the 9
Judges, would narrate what is happening so we can look at the 10 record and see.
11 JUDGE KELLEY: Well, let the record reflect in that 12 regard that we did have a brief informal conference of
() 14 counsel off the record as to how we would treat this demonstra-tion in the record and how the reporter would note it, and 15 there was a general agreement that what lir. Barth is suggesting 16 might be the best way at least initially.
17 So in the course of this, to the extent it is 18 necessary to get some description in the record, I will try 19 to make one. Then at the conclusion if other counsel what 20 to add to what I have said or correct or modify it, they 21 -
will have an opportunity to do so. ;
22 So with that, we will go back to Mr. McDaniel, 23 or the panel, if we are ready for the panel to take over.
24 wga ng,, gy, MR. McDANIEL: I was told by the panel that 25 Ms. Mackonis would need about five minutes, and you are going
9058 Sim 16-6 1 package, officer.
() 2 WITNESS MATHIAS: Yes, sir.
3 MR. McDANIEL: Should we just get in one end of 4 the room?
5 WITNESS MATHIAS: If you stay there, we will just 6 use this half of the room. How is that?.
7 JUDGE KELLEY: So the Board should move over 8 that way, too?
9 WITNESS MATHIAS: Yes, sir.
10 MR. RUNKLE: Your Honor, we have no objections to 11 you narrating what is going on, and we would also stipulate 12 that the bags contain marijuana and cocaine, fy 13 WITNESS MATHIAS: Yes, sir. Under my license by t !
~ . -
14 the State I have the results of the tests that were run on 15 the amount ---
16 MR. RUNKLE: We would stipulate that they contain 17 what the witness says they contain.
18 JUDGE KELLEY: All right. Were you going to state 19 what they contain? Maybe that is something we should establish 20 now.
21 WITNESS MATHIAS: Yes, sir. When I bring them in 22 I will describe them in detail.
23 JUDGE KELLEY: Thank you.
24 (At this point in the proceedings all persons in Acwgi n. pore.ri. Inc.
25 the hearing room moved to the back portion of the room.)
9059 l
Sim-16-7 I WITNESS MATHIAS: What I will do is two things.
2
! ) I will describe in detail the amount and the type of drug.
p 3 Since one of the contentions us cocaine, what I have done 4
is I have packaged inside a sealed clear glassine packet 5 three grams of cocaine, which was cut with three grams of 6 manitol, which is the common street cutting agent. It is 7
45 to 50 percent cocaine, which is the common amount percent 8 cocaine on any given location in Wake County.
9 It is sealed a second time inside another clear 10 plastic glassine bag, and for the protection of the dog it II is placed inside a canvas bag, which is made of a porous 12 material so that the scent frmo the cocaine can come through 13
{') the bag.
Id It is placed in this bag to p:: event the dog from 15 tearing into the cocaine which would be very hazardous to 16 the dog's health and well being.
I7 In this bag here I have approximately eight grams IO of marijuana. It also is scaled inside this canvas bag.
I9 And what I will do is make the hides and then I will step 20 over to where the Judge is, which will allow the dog to 21 work, and in that way it cannot be contended that I cued the 22 dog as to where the hides were made.
23 So I will remain over in the corner there away 24 from where the dog is working.
Ac I a.poren, Inc.
25 MR. McDANIEL: It wasn't my understanding that 9
9060 8
i Sim 16-8 ; were going to make the hides. f r
2 WITNESS MATHIAS: Yes, sir. I could, place, or l 3 if the Assistant Attorney General there wants to do that, i i i 4 that is fine, either way. But because of my license, these L
i 5 are in my possession and they must remain in my possession [
1 !
! 6 or I w uld be in jeopardy of my State Researcher's License. j l
7 MR. McDANIEL: I have no objection to that. It ;
j 8 seemed like I thought maybe someone else was going to make l l
j 9 the hides with you observing where they would be made.
i k 10 WITNESS MATHIAS: It really makes no difference
! t 11 to me. Again though, I just have got to be present when it 12 is done and they have to remain in or about me because of i 13 my licensing. So your pleasure.
i
) 34 JUDGE KELLEY: Gentlemen, would you wait just I
15 a moment, please. We have had some discussion of this very -
1 l' 16 matter. I was surprised to learn that there was any problem i
17 with somebody other than you hiding this. It was my under-18 standing that Ms. Duer, our law clerk, was going to hide
! 19 the materials, and with that understanding why don't we r 20 just proceed that way.
21 (Ms. Duer placed the described packets inctwo f 22 hiding places.) f 1
23 JUDGE KELLEY: The record can show that the Board's t law clerk, Donna Duer, has these two packages and she is 1 b h n., m.24 t=.
hiding them on the far side of the room from us. One of them t
25 i
1
9061 Sim 16-9 1 is in the potted plant on the left and the other is under m
) 2 the sound system.
3 WITNESS MATHIAS: You might lose your plant.
4 (Laughter.)
5 (Pause.) -
6 JUDGE KELLEY: We are now going to bring the 7 handler and the dog into the room 8 (Dog and handler enter the room with the dog on 9 a leash.)
10 JUDGE KELLEY: The handler and the dog are coming 11 in at about 4:42 in the afternoon.
12 The handler and the dog are now beginning to
, 13 walk around the room.
14 The dog is searching the counsel tables.
15 (Laughter.)
16 The dog is standing up against the wall attempting 17 to reach the potted plant.
18 The dog is barking.
19 (Laughter.)
20 MS. MACKONIS: Is it up there? I can't reach 21 it to take it down if there is anything in there.
22 JUDGE KELLEY: The dog has found the first package 23 at 4:43.
The dog is by the Board table.
lA<,.$ n.p n.n,24 lac.
25 The dog is around the sound system.
t
9062 Sim 16-10 1 The dog has found the second package at 4:43 or
,o
(,) 2 4:44.
3 Mr. Mathias now will retrieve the packages.
4 (Dog is barking.)
5 WITNESS MATHIAS: The one by the sound system 6 was the marijuana, which leaves the remaining one in the 7 potted plant, the cocaine.
8 JUDGE KELLEY: I would just add that it seemed 9 clear that the dog did find the cocaine package. It wasn't 10 actually pulled out because it was too high up on the wall.
11 The dog is now leaving the room.
12 Are you through?
^
z' L
- 3) 13 WITNESS MATHIAS: Yes.
14 JUDGE KELLEY: All right. Thank you.
15 WITNESS MATHIAS: I will have these here for 16 your examination should you want to look and see that they 17 are what I in fact said they were.
18 JUDGE KELLEY: I think it is stipulated that your 19 statement is accurate.
20 Does that conclude your comments, too, Mr. Mathias?
21 WITNESS MATHIAS: Yes, sir, it does.
22 JUDGE KELLEY: Thank you.
23 (The Board and parties in the room resumed their seats.)
wrh n.pe.n. 24 w
25 (Discussion off the record.)
9063 Sim 16-11 JUDGE KELLEY: Mr. Runkle has a question that he wishes to put.
Mr. Runkle, go ahead.
MR. RUNKLE: We have no objection to the way that the demonstration was conducted. You have accurately described what happened.
The question is to Mr. Mathias.
7 CROSS-EXAMINATION 8
BY MR. RUNKLE:
9 Q How long have those drugs been in those glassine bags?
A (Witness Mathias) The cocaine was put in the glassine bag yesterday afternoon, and the marijuana is in the 13 canvas bag.
Q And how long has it been in the canvas bag?
A Yesterday afternoon.
cnd Sim Sus fois I7 18 19 20 21 22 23 24 hp.,=, inc.
25
9064 t
i
- 17-1-SueW 1 MR. RUNKLE: Fine. No other questions. l 2 JUDGE KELLEY: Okay. Do you have something, 3 Mr. Eddleman?
4 MR. EDDLEMAN: I have one question and then I j 5 would like to make a comment for the record. !
6 JUDGE KELLEY: Okay.
7 BY MR. EDDLEMAN: ,
8 Q Mr. Mathias, in that canvas bag, is the marijuana l 9 inside any other thing like a plastic bag or is it just in 10 canvas?
11 A (Witness Mathias) It is just in the canvas bag, 12 sir. !
l O is MR. EDDtEMAN okay. Whae I would 11ke ehe i 14 record to reflect is that the commentary, the running 15 commentary, including saying where the packages were being l 16 hidden was over the sound system, and also that as far as 17 I can tell there was always at least one door to this room !
18 open during the whole preparation before the dog came in.
19 MR. BARTH: Your Honor -- l 20 JUDGE KELLEY: I'm afraid I don't understand the j l
21 relevance of the comment. I 22 MR. COLE: The dog could hear. l 23 MR. BARTH: Your lionor, I can make a contribution i f
24 to this -- !
mesonen,ine.
25 JUDGE KELLEY: One at a time. I've got a question j I
i
9065
- 17-2-SucW1 to Mr. Eddleman. I don't understand the rolovance of the 2 comment.
3 MR. EDDLEMAN: Woll, sir, I think that this 4 sound system -- we've had interference from time to timo 5 when we've been in other rooms, other parts of this building.
6 You know how it is not up with those floxible partitions, I
7 that you can hear what's going on over the sound system l
8 oven in the next room sometimos.
9 And so I'm saying that it's possiblo -- I'm not i impuning anybody, okay. But I just want tiio record to 10 , l i
11 reflect the actual conditions which woro that tho description l l
17 of what was being dono, including whero the things woro ;
I
,o (J 13 put, was over the sound system and that thoro was at least ;
14 one door open all tho timo so that you couldn' t oxcludo 15 the possibility that someono outsido heard whero they wore.
i 16 Now, I'm not saying anything was done but I 17 think that's the condition of the test. And I just want 18 the record to reficct it. l 19 JUDGE KELLEY: Lot's assumo that that's true.
i 20 Then, what happens? Did ho toll tho dog? l 21 I just don't got it. Did somo unknown person l
22 outsido say to the dog Go over to the potted plant. Is 23 that what happonod?
MR. EDDLEMAN: Judgo, Idon'tthinkyouwouldhavof 4 . - .... ~24. ,
25 to say that to the dog. For examplo, one of the things about I 1
9066
- 17-3-SuoW 1 animals -- and, you know, I'm not making any implications q, 2 as to this particular dog or either of the handlers or 3 anybody, okay.
4 JUDGE KELLEY: Well, if you aren't doing that, 5 then why aro you saying it at all?
6 I assume that you are trying to impeach the 7 demonstration. And if it's impeachablo, by all means do 8 it.
9 But I'm not with you at all, Mr. Eddleman.
I 10 MR. EDDLEMAN: Woll, Judge, the best analogy 11 that I could make was the famous counting horso who could 12 answer math probloma. And on caroful observations by ,
f
[) 13 oxports, not by an ordinary person liko myself, it was found l
14 that thoro woro very subtle clues which an ordinary person l
l 15 would not nocessarily pick up, that indicated to the horso l 16 when to stop counting.
17 Okay. Now, I'm saying that the conditions of 18 this tost don't soom to mo to exclude the possibility of :
i 19 subtle cluos liko that, or transfor of information. Now, ;
20 ' that's that. j 21 I don't claim that I know anything. I'm just 22 saying thoso woro the conditions under which tho test was 23 conducted. If thoso conditions that I've stated are falso, l
24 then they shouldn't go in the record. l ue1 c epore.<i, W. ;
(
25 But I think it's a fact that thoro was a door
9067
$17-4-SueW I open. I think it's a fact that the things wore road over
([ 2 the PA system.
3 JUDGE KELLEY: Ms. Mackonis, did you tell the 4 dogs where the drugs woro located, assuming you heard it over 5 the PA?
6 WITNESS MACKONIS: I would just like to say ono 7 thing. I am soaking wot. I walked up to my car, picked 8 up the dog and was escorted in by two people. I came in 9 just as I camo in. I was not standing in the hallway. l l
10 And in caso you were not watching tho demonstra- l 11 tion, the dog's body carriago and his actual activitios i
12 changed whon ho came into scent of the substancos. He l (m) 13 started broathing heavior, ho lingorod in a spot. l 14 I cannot mako a dog -- you cannot mako an animal 15 broatha in a diffaront manner.
I 16 JUDGE KELLEY: So, you are saying, I gather, 1
17 that when the drugs woro boing concealed and I recorded 18 for the record whore they woro being concealed, did you !
19 not hear that or did you?
l 20 WITNESS MACK 0NIS: I did not hoar anything.
il JUDGE KELLEY: Did you notico any other person 22 approach the dog and toll the dog whero thoso substancos !
l 23 woro hiddon? I i
l 24 WITNESS MACKONIS: Do you think Mr. Eddioman ;
u.1 gg room,,,
25 would like to ask the dog about it himself?
l
i i l 9068 !
l i
bl7-5-SueW I JUDGE KELLEY: No. I just want to know if you 2 saw anybody else do that. t 3 WITNESS MACKONIS: Thank you. I think the 4 comment is absurd. I 5 Any other comment on the demonstration? l 4 MR. MC DANIEL: No, sir, not from the Applicants. ,
7 JUDGE KELLEY: Staff?
8 MR. BARTH: None, Your Honor.
9 JUDGE KELLEY: The State? ;
10 MR. COLE: No.
11 JUDGE KELLEY: Then, may we excuse this panel?
12 (No response.)
l i
r O Ia I eather we can. M . Meckonis, Mr. Meehie , t Id thank you very much. We appreciate you coming. l i
15 You are excused. l
! I6 (The panel stood aside.) }
l l 37 JUDGE KELLEY: That then, Mr. Baxter, concludes l I s 18 your direct case, correct?
f I'
MR. BAXTER: That's correct, Mr. Chairman.
20 JUDGE KELLEY: Okay. We've heard the Staff's !
i 21 case in advance of the usual sequence. l l I 22 We are coming next I believe to the Intervenor's 23 case. Are you ready to proceed, Mr. Runkle? j i
24 MR. RUNKLE: We will be ready to proceed at Reporters, IM.
l 25 9 o e clock tomorrow morning.
r 9069 Ol7-6-SueW l JUDGE KELLEY: And Ms. --
2 MR. RUNKLE: Ms. Miriollo, she had to go to l 3 work at four o' clock, as I informod the Doard on Monday.
4 We were in -- the Wake County Sheriff's Department l
5 could not como this afternoon but will be hero in the 6 morning ready to go after Ms. Miriello.
7 JUDGE KELLEY: What is your assessmont as of now 8 of timing with Ms. Miriollo and dion I boliovo a panol of 9 the Wako County --
10 MR. RUNKLE: Yes. l l
11 JUDGE KELLEY: -- peoplo? What would your l 12 estimato be for tomorrow?
L[ ) 13 MR. RUNKLE: It really depends on cross-examination 14 o f Ms. Miriollo.
15 JUDGE KELLEY: Yeah. But I asked the question !
16 in recognition of the fact her tastimony has boon modified 17 so that it doesn' t cover as much ground. !
18 MR. RUNKLE: Yeah. I would hope that it would bo l 19 fairly rapidly. I mean, sho reports four difforont things l
20 and that's it. !
l 21 For direct examination of tho Wako County Shorif f's l 22 Department, wo should be able to do that easily in an hour.
23 JUDGE KELLEY: Would that suggoat -- I know it's 24 an estimato, but somo timo after lunch we would likely havo i kel Ce mrtert, loc.
25 your caso, thon?
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9070 I
- 17-7-SuoW MR. RUNKLE: Yes, sir.
2 JUDGE KELLEY: So that we would start at least 3 with --
4 MR. COLE: No would still have a panol, yes, sir.
3 JUDGE KELLEY: And romind me again. Wo havo 0 Williams --
7 MR. COLE: Burch and Overton.
8 JUDGE KELLEY: -- and Burch all on as one panol.
9 MR. COLE: And overton, yes, sir.
10 JUDGE KELLEY: Yosh. And they would bo availablo, II you will havo them horo tomorrow no they could go on af ter I2 lunch if nood bo?
/ 13 MR. COLE: I have told thom to como in tho Id morning, yes, sir.
I3 JUDGE KELLEY: Fino.
16 (The Board memborn are conforring.)
i II Lot mo ask tho Staff and tho Applicant also about I8 tomorrow's estimato. Roportor, by tho way, you can loavo l I9 this of f tho record until wo ask you to como back on. I ;
20 should have dono that earlier.
21 (An off-tho-rocord discussion onsuoa.)
22 JUDGE KELLEY: All right. Ono moro mattor I 23 quena, Mr. Daxtor. Wo will go back on the record.
24 MR. IlOLLAR: Yos, ploano.
No7 Reportere, Inc.
25 JUDGE KELLEY: You.
I
9071 I MR. l{0LLAR:
017-a-suow Judge Kelloy, I just wanted to 2 point out that during the break this af ternoon I distributed 3 to the Board and to the parties five documents that we 4
intend to uso on cross-oxamination of Ms. Miriollo.
3 JUDGE KELLEY: Yos, we rocoived that. Thank you.
6 Anything olso?
7 (No responso.)
8 okay. Nino o' clock tomorrow.
9 (Whoroupon, tho hearing is adjournod at 4:55 p.m.,
10 Wodncaday, October 2, 1985, to reconvano at 9:00 a.m.,
I II Thursday, October 3, 1985.)
12 *********
13 GNSUkD 1
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NO PAGE NUM IR CERTIFICATE OF OFFICIAL REPORTER This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSISON in the matter oft NAME OF PROCEEDING: SilEARON llARRIS NUCLEAR POWER PLANT l EVIDENTIARY llEARING l
I
~
DOCKET NO.I '
PLACE: APEX, NORTil CAROLINA l
l DATE: WEDNE'SDAY, OCTODER 2, 1985 were hold herein appears, and that this is the official I transcript thereof for the file of the United States Nuclear Regulatory Commission.
J sigt ) s a (TYPED) Garrott J. fish fnigt) / u/-
LTYPEDTsuo Walsh .
(nigt) % l.
(TYPED) Mary G Mnons vW %
l I
Official Roportors Reporter's Affiliation G
_.