ML20138B833
| ML20138B833 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/21/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#186-575 OL, NUDOCS 8603250181 | |
| Download: ML20138B833 (202) | |
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m ORIGINAL O UNH ED STATES 1
NUCLEAR REG ~ULATORY COMMISSION l
i l IN THE MATTER OF: DOCKET NO: STN 50-498 OL HOUSTON LIGHTING & POWER COMPANY, a et al.
(South Texas Projects, Units 1& 2)
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LOCATION: BETHESCA, MARYLAND PAGES: 15711 - 15911 DATE: FRIDAY, 3* ARCH 21, 1986 h6, .
0 \ eggangggggg ge O ACE-FEDERAL REPORTERS, INC.
Oficial P.eprters 444 North Capito! Street Washington, D.C. ~C001 (202)347-3700 NADONWIDE COVEFAGE s . , - .
CR26292.0 I BRT/sjg 15711 1 UNITED STATES OF AMERICA (7-)s 2 NGCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
_ _ _ ___ ___________ _x 4 :
In the Matter of: :
5 1 : Docket Numbers HOUSTON LIGHTING & POWER COMPANY, :
6 et al. : STN 50-498 01
- STN 50-499 OL 7
(South Texas Project, Units 1& 2) :
J ii - - ----- - - - - - - - - - - -x 8" ,
a Nuclear Regulatory Commission l 9 Fifth Floor Hearing Room I 4350 East-West Highway !
10 g Bethesda, Maryland
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- Friday, March 21, 1986 l t
12 I)\_'
The conference in the above-entitled matter convened at 13 '
9:30 a.m. l 14 15 BEFORE:
16 JUDGE CHARLES BECHHOEFER, Chairman Atomic Safety and Licensing Board ;
17 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 18 I JUDGE JAMES C. LAMB III, Member 39 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 <
JUDGE JUDGE FREDERICK J. SHON, Member 21 i Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i 27 Washington, D. C. 20555 l
23 l
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1 Am FMarel Rmorters, lrr. j 25 -- continued --
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15712 1 APPEARANCES:
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2 On behalf of the Applicant:
MAURICE AXELRAD, ESQ.
JACK R. NEWMAN, ESQ.
4 DONALD J. SILVERMAN, ESQ.
ALVIN H. GUTTERMAN, ESQ.
5 Newman & Holtzinger, P.C.
1615 L Street, N.W.
6 Suite 1000 Washington, D. C. 20036 7
I On behalf of the Nuclear Regulatory 8 Commission Staff:
I 9 EDWIN J. REIS, ESQ.
Office of the Executive Legal Director l.
1 10 U.S. Nuclear Regulatory Commission f 4 Washington, D. C. 20555 l 11 <
On behalf of the Intervenor, Citizens !
12 Concerned About Nuclear Power, Inc.: l 13 LANNY A. SINKIN, ESQ.
The Christic Institute u 1324 North Capitol Street Washington, D. C. 20002 15 16 17 jg , i 10 i
20 21 .
I 22 23- .
L'J'i 24 Am FMetal Rermrters, inc. ,
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26292.0 15713 BRT 1 PROCEEDI NGS 2 JUDGE BECHHOEFER: Good morning, ladies and 3 gentlemen. This is the seventh prehearing conference in 4 this operating license proceeding. The Board here is the 5 same as the one that presided over hearings last summer, 6 but for those of you who may not be familiar with this 7 Board, on my left is Mr. Fred Shon and on my right is 8 Dr. James Lamb. My name is Charles Bechhoefer.
9 For the bene fit of the reporter, would the 10 pa r t ie s ' representatives identify themselves?
11 MR. AXELRAD: Yes, Mr. Chairman, on behalf of 7, 12 the Applicants I am here today. My name is Maurice Axelrad,
( ;
13 with the law firm of Newman & Holtzinger. Sitting on my 14 right is Mr. Jack R. Ne wman and on my le f t, Alvin Gutterman.
15 seated in back of me is Mr. Donald J. Silverman.
16 MR. REIS: I'm Edwin J. Re i s , appearing on 17 behalf of the NRC Staff.
18 MR. SINKIN: Lanny Alan Sinkin, appearing on 19 behalf of Intervenors, Citizens Concerned About Nuclear 20 Po we r .
21 JUDGE BECHHOEFER: The purpose of this 22 prehearing con ference is really twofold. First, to 23 determine what matters there are remaining for phase 3 24 hearings. But also to determine whether there are any lef t
) 25 over ma tters from phase 2. In that con te x t , we have two ACE-FEDERAL REPORTERS, INC.
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~s 1 additional motions to reopen the record that are before us.
2 I thought we would deal with the motions to reopen first.
3 We have a number of questions, but does any party want to 4 raise any preliminary matters first?
5 MR. AXELRAD: Mr. Chairman, I don't have any 6 preliminary matters, but I would appreciate it if the Board 7 could identify for us, perhaps a little more specifically, 8 exactly what matters the Board intends to take up today and 9 in what sequence.
10 JUDGE BECHHOEFER: We have just a few questions 11 dealing with motions to reopen.
12 MR. AXELRAD: Fine. Then you will identify the 13 matters that you want to discuss with respect to phase 3 14 before we beg in that set of discussions?
15 JUDGE BECHHOEFER: Well, there's really only one 16 matter, I think, which is what we do with the so-called 17 drug issue. There may not be a drug issue.
18 MR. AXELRAD: Fine.
19 JUDGE BECHHOEFER: Where it falls, how it should 20 be considered, whe the r it should be considered. We have ,
21 essentially, only one issue before us for phase 3. But we 22 thought we would start with the motions to reopen.
23 I think the Board will just start by asking its 24 own questions, and the n if parties have any further O)
(_ 25 information they want to provide on these motions, they can ACE-FEDERAL REPORTERS, INC.
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i 1 26292.0 '15715 i BRT l 1 do so.
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! 2 First, I would like to ask Mr. Sinkin, j i 3 3 concerning both the fourth and fifth motions, why is the l 3
4 information in the Briskin/Saltarelli af fidavits, 5 conceptually any dif ferent than the side benefit testimony 6 that we've already got extensively in the record? What J
l 7 would it add?
8 MR. SINKIN: Our essential argument is that if 9 you take motion to reopen number 2 in context with motion s
10 to reopen number 4 and motion to reopen number 5, you have 11 a very clear pattern that when individuals are recorded as 12 giving their reasons why the Quadrex report was O 13 commissioned, the only reason they provide is that the l
, 14 Quadrex report was commissioned to prepare for the phase 1 2
l 15 licensing hearings and that that independent, three-point j 16 proof of that as the reason for commissioning the Quadrex I
17 is quite dif ferent from the Applicant's position that there
! 18' was, pe r ha ps , a side bene fit of commissioning the Quadrex 19 report, that they might be able to answer in hearings in 20 phase 1, but they did not consider the Quadrex report as
]
- 21 being prepared for phase 1. We think that's a clear i
22 distinction between what is being said in the motions to 23 reopen and what has been testified to by the witnesses . for f 24 Applicants.
25 JUDGE BECHilOEFER: Do you think the deposition, f
1 i
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1 .the two depositions in question establish that the Quadrex
. 2 report was prepared to respond to phase 1 issues? Or did 3 they merely state that, as Mr. Goldberg just sta ted on . the
- 4 record,' and a number of other of witnesses have confirmed, t
5 that the company wanted the background information in case 6 any questions were raised in the hearings which may or may i 7 not be phase l? Particularly the Briskin deposition
]
8 appears to me to support only the latter. -
l 9 MR. SINKIN: Well, it depends, of course, in 10 part on how you view Mr. Briskin's deposition, in terms of I 11 the intention to submit the Quadrex report as backup to i
12 Mr. Goldberg's testimony versus Mr. Briskin's affidavit, O 13 which says: That didn' t mean backup was being submitted.
i
- 14 It depends on which version you want to accept, as far as i
j 15 we are concerned on that point.
j 16 We think, overall --
[ 17 JUDGE BECHHOEFER: Why isn' t backup -- why 18 couldn't that be construed -- why shouldn' t it be construed 1
i
- 19 as having the information available in case the line of
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j 20 questioning got into that area? What I'm trying to figure y l 21 out is what additional this now information would add to 22 the record, if anything?
l' l 23 MR. SINKIN: Well, I think it depends in part on l
! 24 how the view of the Board is today on the state of the 25 record. If the view of the Board is that the Quadrex i
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- 1 1 report was prepared for the phase 1 licensing hearings and 2 that that is indisputable and sh*own by the record, and that
! 3 Applicant's testimony that the Quadrex report was not I
4 prepared for the phase 1 hearings is therefore false, then i
! 5 this adds nothing to the record. ,
6 We are not sure that the Board views the record j 7 as it now stands in that light. We think that the addition
! 8 of these pieces of evidence and, we would expect, the
- 9 cross-examination of these witnesses, would solidify that l 10 particular point in the mind of the Board as to why the i
11 Quadrex report was commissioned.
] .
1 12 I think, too, that there may be an ambiguity -
', ) 13 around the word " is sue s ," whether it is being used in a e
14 capitalized or noncapitalized sense.
- 15 If the Applicants want to take the position that i
{ 16 the Quadrex report was not with respect to the Issues A 1
{ 17 through E, that the issues called into question the i 18 compe tence of the Applicants, the re fore it was relevant to 1
19 the Issues, capital "I." If they want to say it was not 20 relevant to any of the issues -- small "i" -- in the 21 proceeding, we think that is disputable. There have been 22 varies arguments made in the Applicant's pleadings as to j
23 which way they are going in that respect.
l 24 The af fidavit filed by Mr. Goldberg, if I'm
() 25 correct, says issues with a small "i." And the testimony i ACE-FEDERAL REPORTERS, INC.
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1 similarly hps said tha t , but there are some ambiguities 2 this would help clear up. That's a minor point.
3 I think the more important point is that the 4 Board has set out the contention, in ruling that the 5 McGuire rule was viola ted , the Quadrex report should have 6 been turned over to the Board. The only question remaining 7 in the Board 's mind , as se t out in the February 25, 1985 8 order, was: Did that f a ilu re to turn over the report to 9 the Board reflected adversely on the character and 10 compe tence of the Applicants? Part of the decision on 11 whe ther it reflects adversely will revolve around the 12 motivations for not turning it over.
13 The Applicants would have you believe it was a 14 perfectly innocent error, if error it was. They would even 15 have you overturn your earlier ruling, but if you insist on 16 your ruling that the McGuire rule was violated, they would 17 insist it was an inadvertent, innocent error.
18 We think the evidence was to the contrary, the 19 report was prepared for the phase 1 licensing hearing, 20 Mr. Goldberg fully expected to testify about the quality of 21 Brown & Root's engineering, and we think that's another 22 reason to have it reopened, be ca use the evidence is 23 Mr. Goldberg fully expected he would be questioned about 24 the quality of engineering, one, beca u se he wa s r~s
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1 because he was the new man on the job, and three, because 2 Brown & Root's construction work had been so poor that 1 3 there were obviously going to be some serious questions 4 about the rest of the ir work, that they fully expected the 5 matter to come up.
6 It was not going to be an incidental matter, as 7 they have since testified, and the Quadrex report was then 8 central for preparing questions they expected to come from 9 the Licensing Board, not some matter that was a side 10 benefit while they were in fact preparing the Quadrex 11 report for some other reason. I think that would be my 12 final response to your question. They are claiming the O 13 Quadrex report was prepared for some other reason, whatever 14 that reason is. The evidence submitted in the motion to 15 reopen shows that every time they are talking about why the 16 Quadrex report was commissioned, the only reason anybody 17 seems to record or remember was to prepare for the phase 1 18 licensing hearings and that's where we say the issue of 19 falso testimony comes into clarity.
20 JUDGE BECHHOEFER: Again I ask, do you mean 21 pre pa re for those hearings or just be prepared to answer 22 questions if they arise, assuming at those hearings?
23 I tried to see if most of the evidence in the 24 record wouldn't be con s i s te n t , including the depositions.
() 25 f1R. SINKIN: I guess in part I would respond I
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I that there was pre filed testimony submitted by the 2 Applicants on engineering that was limited, to a great 3 e x te n t , to HL&P's engineering oversight and not Brown &
4 Root's quality of engineering. So it wasn't just a matter 5 of whe ther the Board might ask a question out of the blue 6 and the re fore the issue would come up, totally unexpected 7 to them. They fully expected engineering would be a matter 8 of controversy and submitted prefiled testimony on 9 engineering. So if you expect an issue to come up and you 10 commission a report to prepare for it and the report comes 11 in highly critical and you don't submit it to the Board, 12 that's our case for a deliberate withholding of the Quadrex O 13 report from the Board.
14 Part of their defense is the report was not 15 prepared for the he a r irq , was not -- that's what 16 Mr. Goldberg's affidavit says. It was not prepared in 17 preparation for that hearing.
18 Second, that they only expected it to come up as I
19 1 an incidental matter and might not come up at all. And 20 third, therefore, tha t was not a reason for having Quadrex 21 prepared. It was a side benefit, if it happened to come up, 22 they'd have something to answer with.
23 We see that as two distinct stories. They are 24 very different stories. And you can't have it both ways.
25 So, that's the dif ference in the record that we ACE. FEDERAL REPORTERS, INC.
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26292.0 15721 BRT 1 see, if this evidence is admitted. And we think " prepared 2 for the hearings" has a very strict meaning. It's not --
3 you don't go out and spend S500,000 on a study because you 4 think maybe , maybe , maybe, way out in nowhereland the Board 5 might ask a question you didn' t expect. And you come in 6 with the answer based on this massive study. Maybe it was 7 a S300,000 study. Maybe I oversta ted tha t .
8 There's a very real difference in our minds and 9 a very real difference in the credibility of the te s t imon y ,
10 depending on what you decide as to whe ther it was prepared 11 for the phase 1 hearing or not.
7, 12 JUDGE BECliHOEFER: If we should decide it was
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13 I
maybe pre pa red in part for the hearings but also had the 14 .
Other purpose that the Applicants have uniformly testified 15 ! to, would that make a difference?
i 16 MR. SINKIN: Well, it seems to me there's 17 grada tions he re . Grade 1 is it was never prepared for the 18 ; hearings, wasn't considered relevant to the hearings and 19 issues and all that.
20 Grade 2, well, it might have had a side benefit 21 that we could answer questions in the hearings, but it 22 wasn't pre pa re d for the hearings.
23 Grade 3, yes, it was prepared for the hearings 24 but was also prepared for other reasons.
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1 hearings and had some side be ne f i ts for the other reasons.
2 The Board will have to decide which of those four stories 3 they think is the truth.
4 We think it was prepared primarily so 5 Mr. Goldberg could testify about the quality of Brown &
6 Root's engineering before this Board in phase 1 of the 7 licensing hearings. And all the other i te ms , the status of 8 the hearings, whether they comple te the project on time, 9 those were the side benefits of the Quadrex report to the 10 Applicants. The Applicants would put it down at grade 1, 11 tha t it wasn't really prepared for the licensing hearings 12 at all and it was maybe in Mr. Goldberg's mind some side O 13 bene f i t , but that's all. And that that is -- goes to the 14 heart of the motivation that would exist for turning that 15 report over to the Licensing Board or not turning that 16 report over to the Licensing Board and the motivation is a 17 key element in deciding whether their failure to turn it 18 over to the Licensing Board reflects adversely on their 19 character and competence and so that's where our whole line 20 of argument goes.
21 JUDGE BECHHOEFER: On the question I just asked, 22 I would like Applicant's and Sta f f's response , if they wish 23 to. I'd ask that.
24 MR. AXELRAD: Yes, Mr. Chairman. I have just a 25 couple of things.
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26292.0 15723 9RT 1 Mr. Sinkin makes the point or tries to make the 2 point that when people spoke, apart f rom these hearings, 3 they described the purpose of the Quadrex review 4 differently than has been te s ti f ied to at the hearings, and 5 he attempts to cite the depositions of Mr. Saltarelli and 6 Mr. Briskin to that effect. And, quite clearly, as we have 7 pointed out in our responses, those depositions dealt with 8 discussions which had taken place at which the overall 9 purpose of the Quadrex report had not bee n ex pe c te d to come ;
10 the re was no reason for there to have been a complete 11 discussion; there was no reason for the individuals 12 involved, namely Mr. Saltarelli and Mr. Briskin, to have O 13 explained in their depositions some of the other matters
, 14 involved if they knew the specific reasons Mr. Goldberg had 15 in mind. And clearly there was no reason to e xpe c t that 16 there would have been a complete explication in those 17 depositions of all the reasons that the Quadrex report had 18 been undertaken.
19 To the response to the second.part of 20 Mr. Bechhoe fer's questions, Mr. Sinkin has not really J 21 responded to the question of whether " prepared for 22 hearings," in his language, means prepared for presenta tion j 23 at the hearing at the ASLB hearings with respect to l 1
j 24 engino3 ring matters which are part of the issue be f ore the )
25 Board , oor whe the r the Quadrex report was viewed as having l
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1 the incidental benefit of being available if questions 2 should arise .
3 It is quite clear from all of the testimony this 4 Board has heard that the Quadrex report was not prepared 5 for submission at the hearings in phase 1 or at any 6 hearings be fore this Board and the depositions of the two 7 individuals involved are quite consistent in that regard.
8 And specifically, as Mr. Bechhoefer has ind ica ted ,
9 Mr. Briskin's deposition talks about the information being 10 ava ila ble if questions should arise at the hearing and i 11 therefore is clearly consistent with all of the te s timony 12 that has been given be fore.
' O 13 Mr. Sinkin, in the course of his argument, 14 s ta ted that the company would not have spent $300,000 or 15 S500,000 or whatever the amount was, simply in order to 16 have information available if questions would arise at the 17 hearing, and he is quite right. That is not the reason why 18 that money was expended. And there was extensive te s timony 19 by Mr. Barker, Mr. Goldberg, and others as to the 20 project-related purposes for which a report was prepared 21 and the fact that the report might be available if j 22 questions would arise was just a side benefit. And to the 23 e x te n t that there might have boon any ambiguity at all in i
f 24 the two depositions, the a f fidavits that we have provided,
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2 With respect to Mr. Saltarelli, Mr. Goldberg had 3 testimony even at the phase 2 reopened hearings with 4 respect to his previous discussions with Mr. Saltarelli and l 5 the fact that he had attempted to -- they had those 6 discussions in order to convince Mr. Saltarelli of the 7 importance to the project of having those kinds of reviews 8 done. Of course, that was then confirmed in Mr. Goldberg's 9 subsequent affidavit.
10 As to Mr. Goldberg 's expecta tions, he has 11 testified many times on that subject and, as a matter of 12 fact, even though Mr. Sinkin has claimed in one of his O 13 pleadings that Mr. Goldberg concocted the side benefit i
14 theory in order to respond to Mr. Sinkin's second motion to 15 reopen, that side benefit explanation had been provided 16 '
from the very first back at the phase 2 hearings in the 17 summer of 1982. That has been Mr. Goldberg's consistent 18 explanation of that -- I'm sorry, the summer of '85.
19 It had been Mr. Goldberg's consistent 20 explanation, even at that time. It is fully consistent 21 with all logic to expect that a new vice-president for 22 engineering and construction would have wanted to be sure 23 at the time that he took over responsibilities in the 24 project that he know the status of engineering.
() 25 Mr. Goldberg's background, in particular with Stone &
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26292.0 15726 BRT 1 Webster, would have led him to want to be sure that he knew 2 what that status was. And the fact that hearings were 3 forthcoming and that the information might be use f ul in 4 ca se he was asked questions, as Mr. Sinkin aptly put it, as 5 a new kid on the block -- the individual just come on the 6 project and as a vice-president who was in charge of both 7 construction and engineering -- I think that made it quite 8 apparent that it would be considered as a side bene fit of 9 that information. But the need is clear on the record, 10 cicar on the undisputed testimony of a number of witnesses, 11 and nothing in these two depositions, these exhibits that
,_ 12 Mr. Sinkin is trying to get in to t he record, would cast any
('"' )
13 doubt on that consistent te s t imon y .
14 JUDGE BECHHOEFER: Mr. Re is?
15 MR. REIS: Mr. Chairman, first I would like to 16 mention that of course we have already had reopened 17 hea r ing s focusing on the question of why the Quadrex report 18 was commissioned and the question is: Do these things show 19 anything dif ferent?
20 JUDGE BECHHOEFER: That's really what I was 21 trying to --
22 MR. REIS: Ye s . And I don't be l ie ve they do.
23 The first point is there is no showing the witnesses who 24 had direct and actual knowledge of what we n t on , was
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1 showing that Mr. Saltarelli or Mr. Briskin, even if they 2 had given their full knowledge at that deposition, which 3 was not focused on that question at all -- it was an aside 4 in both depositions -- even if it was focused, there's no 5 showing that they had complete knowledge, that they were 6 privy to the thinking of HL&P management or of Mr. Goldberg.
7 Secondly, and what the Sta f f believes is very important in 8 this, is if we look at the commissioning of the Quadrex 9 report and look at the Quadrox report and how it was 10 formulated and what it addressed, it addressed problems.
11 It obviously couldn't have been commissioned to show good 12 engineering if it was focusing on problems.
7-l 13 The testimony is consistent in the record that 14 when Quadrox was brought on board, they were told to search 15 out problems. ' There were certain areas where HL&P thought 16 there were problems which were given to Quadrex and they 17 were told to explore those areas.
18 This whole thing indicates, and gives the whole 19 background of indicating that the report was not generated 20 and there is no basis to think that it was genera ted to 21 show proper engineering, but instead, to look at problems.
22 And in footnotes 5 and 7 of our last pleading, of March 19, 23 in replying to motion 5 to reopen, we specifically cite the 24 record on that.
() 25 JUDGE BECHHOEPER: Mr. Sinkin, any response to
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1 those comments? Anything additional?
2 MR. SINKIN: Well, a couple of points, 3 Mr. Chairman.
4 First of all, we don't have an affidavit from 5 Mr. Saltarelli. All we have is Mr. Goldberg's supposedly 6 reading his affidavit to Mr. Saltarelli and Mr. Saltarelli 7 agreeing with the essence of it.
8 Secondly, we don't think this is a matter that 9 should be disposed of simply on pleadings that there are 10 serious questions raised by the evidence submitted and it 11 should be dealt with in a hearing with cross-examination.
12 And as to Mr. Re i s ' point that the witnesses who had direct O 13 knowledge have te s t i f ie d , I would say, essentially what we 14 are saying is we think that testimony was falso and there's 15 evidence it -- it has been contradicted. So we can't rely 16 simply on the fact that the witnesses with the most direct 17 knowledge have te s t i f ied , when it is in fact their 18 testimony that is called into question.
19 I think that's all we have in response to the
! 20 remarks that have been made so far this morning. We did 21 want to direct the Board's attention to one matter related 22 to motion *.o reopen numbe r 5, since that is what we are now 23 discussing.
l 24 JUDGE HECHHOEFER: I thought we would go through
) 25 the few Board questions we have and --
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1 MR. SINKIN: Oh, you have more? Fine.
2 JUDGE BECHHOEFER: That's just the first. Then 3 we 'll le t all the parties make any additional statements 4 concerning the motions that they deem necessary.
5 I would like to start with the Applicants on 6 this question. Why was not the side bene fit mentioned in 7 the direct testimony for phase 2, or the prepared testimony 8 here?
9 MR. AXELRAD: Mr. Chairman, I don't have the 1
10 direct te stimony with me , but my recollection, unle ss it is 11 faulty, is that the testimony did specifically state that 12 the information would be available to respond to questions O 13 from regulatory authorities.
14 JUDGE RECHHOEFER: That statement was made but 15 that i sn ' t -- the side benefit of answering the question 16 should they be asked by the Board. That's a little l
17 stretching of that. It came up on cross-examination and 18 Mr. Goldberg readily answered questions on 19 cross-examination as I recall.
20 MR. AXELR\D: Mr. Cha irman , we v iew the Atomic 21 Safety and Licensing Board as part of regulatory 22 authorities. I didn't think there was any distinction 23 be twee n the hearitig arm of the NRC and the administrative 24 arm of the NRC.
O)
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2 JUDGE BECHHOEFER: No. I just wondered why the 3 so-called side benefit wasn't explicitly mentioned in the 4 direct testimony as such, side benefit of answering 5 questions should they arise.
6 MR. AXELRAD: Le t me just make sure the Board 7 understands. The purpose of the Quadrex review was to 8 obtain information that was necessary in order to be able 9 to conduct and comple te the project in an acceptable and 10 satisfactory fashion. The side benefit of the review was 11 that if questions arose from any source, they'd be able to 12 be answered. Those other sources could be co-owners; the O 13 other sources could be the NRC Staff in the course of its 14 re v ie w; the other sources could be the inspection arm of 15 the NRC; other sourcen could be the Licensing Board if, as 16 Mr. Goldberg explained, be ca use of the Board's wide 17 latitude they might get into other issues. That was all 18 swept into Mr. Goldberg's thinking about the side bene fit 19 of the re v ie w. The side bene fit wasn' t j ust the Board.
20 The side benefit was being able to answer questions if 21 anybody asked them; that the information was needed in 22 order to be able to conduct the project properly.
I 23 JUDGE BECilllOEFER: Should the Board have been 4 24 specifically named, particularly in view of the importance 25 or the prominence which that point had in the minds of ACE. FEDERAL REPORTERS, INC.
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1 people like Mr. Briskin and Mr. Saltarelli, or even -- I 2 think we have some testimony by Dr. Sumpter to that e f fect, 3 if I recall?
4 MR. AXELRAD: Prominence? To the extent it had 5 prominence in the mind of Mr. Briskin, my recollection is 6 that it happened to como up in the course of discussions 7 that he and Mr. Goldberg were having with respect to the 8 forthcoming hearings and that's why it had that -- it was 9 coupled in that way in his mind. But as Mr. Briskin's 10 affidavit ind ica te s , he clearly was aware of the 11 project-related purposes. I don't think that the 12 forthcoming hearing or that possible side benefit had any
~
13 particular prominence in his mind.
14 To the extent that any other individuals were 15 involved, certainly Dr. Sumpter was fully, fully aware of 16 the project-related purposes for which the review was being 17 conducted.
18 JUDGE BECHHOEFER: I'm not denying the 1
19 project-rela ted purpose. But the thought is, wasn't the 20 side benefit of having it available to discuss with the 21 Licensing Board at the hearings enough so that, in the 22 phase 2 direct te s t imon y , that should have been mentioned?
23 MR. AX ELRAD: No, Mr. Chairman.
24 JUDGE BECHHOEFER: Specifically.
( 25 MR. AX E LRAD: The only reason that particular ACE-FEDERAI, REPORTERS, INC.
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1 side benefit came up in the phase 2 hearings with which it 2 is now developed is because those were the questions people 3 were asked. If anyone asked Dr. Sumpter or the other 4 witnesses: Is one of the side benefits of the review the 5 ability to answer the questions that are going to come up 6 in the course of the Sta f f's review of the FSAR? They'd 7 say: Sure, that will be an important reason. We know they 8 will have questions.
9 If someone asked: Isn't it important, an 10 important side benefit of review that if we have future 11 mee tings of the committee -- they'd say: Sure, it's an 12 important benefit. We have been talking about those at 13 management mee tings for the past two years. Those are all 14 side bene fits of the rev iew.
15 The reason they didn' t develop prominence at 16 l these hearings is because nobody asked about that.
17 Everybody started to focus about the possible cide benefit 18 of having information if questions came up at the hearings.
19 I really don't think there was the kind of prominence that 20 your queation is implying, ftr. Chairman. And that's why 21 the direct testimony didn' t focus on it. He didn't go into 22 trying to identify all of the possible sources of questions 23 that might have como up. It was covered in a general 24 fashion and in our minds there was no doubt about what the 25 profiled testimony was saying.
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1 JUDGE BECHHOEFER: I take it you would not agree 2 with what I read in Mr. Sinkin's motion, second motion I 3 guess -- maybe first as well -- or fifth motion, and maybe 4 fourth as well, whe thar f a ilu re to mention that directly 5 would be a McGuire violation or akin to one?
6 MR. AXELRAD: Yes. I would certainly deny that 7 anything that Mr. Sinkin says about a McGuire violation has 8 any validity at all. I think the profiled testimony was 9 very, very accurate with respect to the reasons why the 10 review was conducted, and I think provided information with 11 respect to the po te n tia l side bene fits of tha t review and 12 that there was certainly an ability on the part of anyone I, ,l
13 l
to question Mr. Goldberg f ully with respect to any details 14 of that testimony that they wanted to inquire about. I 15 ! know of nothing in the McGuire rule that sp311s out the 16 details that have to be included in the testimony of an 17 individual that's going to be subject to full 18 cross-examination. I just don't know how you can try to 19 devise a rule that specifies every potential connotation 20 that people may have in mind and require that the 21 individual visualize that in advance and try to cover it 22 f ully and completely to overyone's satisfaction in profiled I l
23 te s t imony . l 24 As the Board is well aware, the individual could
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1 to examination and cross-examination without prefiled 2 testimony at all. I think the prefiled testimony in this 3 instance was fully adequate and satisfied all NRC 4 re quireme n ts , both of the regula tions and of case law.
- 5 JUDGE BECHHOEFER
- If we were to determine --
6 hypothe tically now, if we we re to de termine that the direct 7 testimony should have specifically referred to the side 8 benefit, would the Applicants want to have the record 9 reopened for them to explain? Or would they take a chance
- 10. on what measures, if any, we might think were warranted 11 because of that?
12 MR. AXELRAD: I'm not sure I understand that 13 hypothe tical question, Mr. Chairman. I don't know what the 14 potential decision would say, hypothetically, with respect 15 to what obligation was violated, how it was violated, 16 whether it was inadvertent or advertent, whether it has any 17 significance to the issues be fore this Board, whe ther it 18 impeaches the witness or not. I just cannot conceive, on 19 the basis of this record and the information that was 20 provided and everything, all the information in the record, 21 that the Board could conceivably come out with the 22 hypothetical judgment that you just described.
23 JUDGE BECHHOEFER: Just assume it for t he mome n t .
24 MR. AXELRAD: Wha t I'm trying to say, O(_j 25 Mr. Chairman, in I have difficulty visualizing that ACE. FEDERAL REPORTERS, INC.
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1 judgment. I can't quite visualize the con te x t in which it 2 would come up, what the ramifications would be, because it 2 would be so dependent upon what the Board says in 4 conjunction with that judgment.
5 JUDGE BECHHOEFER: The context would be that the 6 side bene fit was so well understood, perhaps from as early 7 as December 1980 at least until throughout the period of 8 Quadrex review and extending at least until at dinner 9 that Mr. Briskin talked about , it was so well understood 10 that it should have been -- and was so important that it 11 should have been put in as an explicit s ta temen t in the 12 direct te s t imon y .
13 If we should determine that to be the case --
14 and I'm not saying what implications we would draw from it 15 -- would the Applicants want to have the record reopened to 1
16 permit them to provide an explanation why they didn' t 17 mention it? Why the various witnesses -- mostly 18 Mr. Goldberg, I think -- why he didn' t mention it in the 19 direct te s timony?
20 MR. AXELRAD: Mr. Chairman, I ha te to say that j 21 Applicants would not want an opportunity to explain 22 anything that seems to be troubling the Board, but it seems 23 to me that Mr. Goldberg has so clearly and consistently 24 explained what was on his mind from December 1980 until
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1 seems to me that his explanations are so clear and explicit, 2 that it would seem to me that the Board is fully aware of 3 his motivations, the reasons why he took actions, the 4 reasons why he gave testimony and what he meant by his e 5 testimony, that at the present time, without having 6 consulted either with my client or my cocounsel, I can't 7 visualize what we would add to that.
8 I think we have presented a fully persuasive 9 case to the Board and it would seem to me that even if that 1
10 kind of hypothe tical judgment were made by the Board, the 11 Board would fully understand that it was an inadvertent 12 violation of this obligation that the Board has 13 conceptualized, and that it cannot possibly reflect upon 14 the character and credibility of the witnesses here. And 15 of course, that is a key issue before this Board. We are 16 not really parsing testimony or anything else, the Board is 17 trying to reach a judgment as to the charactor and 18 compe tence of the Applicants and is trying to do so based 19 upon its views on the in teg r i ty , the character and the 20 credibility of witnesses it has had be fore it from senior 21 management of the company, witnesses that in some instances 22 have appeared be fore this Board for at least -- on at least 23 three or four dif ferent occasions over days and days of 24 te s t imony. And it appears to us if the Board, on the basis 1
() 25 of all that testimony, does not have complete faith in the l
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~J l 1 credibility and integrity of those ind ividua ls , cannot on 2 the basis of their answers to questions believe that those 3 individuals gave truthful and candid testimony, I'm not 4 sure what I could add to that, Mr. Chairman.
5 (Discussion off the record.)
6 JUDGE BECHHOEFER: I would like to get comments 7 of the other side, not on whe ther we should open up the 8 hearing, but whe ther the side benefit should have been 9 specifically mentioned, whether that may constitute either 10 a McGuire violation or something akin to it.
11 MR. REIS: Mr. Chairman, of course the Staff has 12 said that failing to reveal the Quadrex report be fore phase i
( 13 1 -- Staff felt was a violation of McGuire , although staf f's 14 position has been it was not so serious as in the Three 15 Mile Island case -- similar to the Three Mile Island case 16 as to reflect adversely on character and competence. In 17 this case we don't see a violation of McGuire.
18 When we look at the total context of what the
- 19 testimony said, when it said " regulatory authority" -- and 20 we know the time at which the Quadrox report was dealing, 21 immediately preceding the hearings -- regulatory authority 22 had to include this Board and the questions of this Board.
23 Just reading it on the face of the record, 24 looking at the times talked about and when this issue was 25 there, this wasn't sometime three years later or three ACE-FEDERAL REPORTERS, INC.
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1 years before, where a regulatory authority was the Public 2 Service Commission or Railroad Commission of the State of 3 Texas. This was talk about the time immediately before the 4 hearings. What other regulatory authority? The phrase 5 itself indicated this Board.
6 That's all the Staf f has.
7 JUDGE BECHHOEFER: Mr. Sinkin?
}
)
l 8 MR. SINKIN: I guess in a sense I would endorse l
( 9 Mr. Re i s ' analysis that a report prepared immediately I
10 be fore the hearings was intended for the hearings.
( 11 JUDGE BECHHOEFER: I'm not sure that's what he l 12 said.
! ( 13 l MR. SINKIN: I'm not sure Mr. Reis would agree l 14 with that interpretation of his analysis but that's how it l 15 sounded to me.
16 MR. REIS: Le t me make the record very clear 17 that I don't --
18 MR. SINKIN: The issue raised by the Board -- I 19 think when you talk sbout total context, Mr. Reis talked i 20 about total context -- total context goes back to December l 21 3, 1981, when the Applicants first informed the Board and j 22 parties about the existence -- no, actually it goes back a l j
23 little earlier than that, December 3, 1981, Applicants sent 24 a letter to the Board explaining the letter of the Quadrex
( 25 report, and nowhere in the re is the e any mention of the e \,
\. ~
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.e 1 licensing hearings, although other reasons are given such 2 as NRR might be in te re s ted . So they were told about it and 3 reviews were being conducted for why Brown & Root wasn't 4 staying apace of construction. There was nothing mentioned 5 about any side benefit to the Licensing Board at all.
6 Then, I think in Mr. Goldberg's eworn statement 7 to the NRC investigators is the first time that there seems I
8 to be a link between the licensing hearings and the Quadrex 9 report, in his explanation of why it was commissioned.
10 Although there, it is not really very clear at all that he 11 pe rce ived it as a side benefit or anything of the sort.
12 And then, as has become clear through
( 13 cross-examination and motions to reopen and new documents, 14 that there is a distinct link between the Quadrex report 15 and the phase 1 licensing hearings, I think we have seen 16 Applicant's position move in a sen se to embrace at least
- 17 the side benefit theory, so that there would be an 18 explanation for all this evidence that has come forward i 19 over the years as to why the Quadrex report was 20 commissioned, and that there has been a lack of candor from 21 the beginning as to the relationship between the Quadrex 22 report and the phase 1 licensing hearings.
23 MR. AXELRAD: If I can have just one very brief
! 24 reply, Mr. Chairman? Mr. Sinkin again talks about a shift
( 25 in position based on his mot' ions to reopen. That's totally ACE-FEDERAL REPORTERS, INC.
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1 and utterly false. The side benefit theory -- side benefit
! 2 explanation was provided before Mr. Sinkin's motion to
! 3 reopen was filed.
i
! 4 The discussion about informing NRR and not !
I 4 5 mentioning the Board -- Mr. Goldberg has clearly explained )
l 6 why the company thought that NRR, which does review the j l
7 engineering aspects of the project, should be informed 8 fully and completely while the review itself was being 9 undertaken.
10 Mr. Sinkin is raising matters which have nothing 11 to do with the questions that the Board raised.
,l 12 MR. SINKIN: Mr. Chairman, if I might be i O 13 indulged by the Board, there was an additional point I 14 wanted to make that I overlooked.
i j 15 It seems to me that what gives the issue 16 prominence, in relation to your initial question about why i 17 it wasn't mentioned in direct te s timon y , is the contention 18 that was being addressed. The contention that was being 19 addressed was: Why didn't you tell us about the Guadrex 20 report when you received it? That is the essence of 21 contention 10, I guess it is whether it reflects adversely 22 on the character and competence , would revolve around why 23 they didn' t turn it over to the Board. And any informa tion 24- that the purpose for which the report was commissioned l () 25 rela ted to, expected questions f rom the Board or even I ,
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1 questions they hypothetically thought might come from the l 2 Board, would be relevant to that contention and would be i
3 highlighted by that contention and given prominence by that ;
l 4 contention; whereas the other matters Mr. Axelrad touched i 5 upon, such as the management committee or being able to i
6 answer questions to the management committee or other 7 partners or whatever, were certainly not highlighted in any
) 8 way by the existing contentions.
l j 9 JUDGE BECHHOEFER: I have one question now on I 10 some of the discovery questions that we have had a number J 11 of papers filed on. I'll ask the Applicants first. Did 12 CCANP have any right to discovery a f ter the May 5 da te ,
( 13 after the Brown & Root material -- the protective order on 14 the Brown & Root material was lifted? I 15 MR. AXELRAD: I'm sorry, Mr. Chairman, could you 16 re peat the question? I didn't hear the question.
17 JUDGE BECHHOEFER: Would CCANP have any right of i
18 discovery or to engage in discovery following the lifting j 19 of the -- I call it protective order , but I'm not sure what I
20 the Court in Texas called it -- on the materials filed in l 21 the Brown & Root HL&P litigation?
l 22 MR. AXELRAD: Mr. Chairman, 'there was no 23 discovery period in effect at that time. The materials, of 24 course, were from the Brown & Root litigation record, were
, () 25 available in the courthouse beginning in Mcy, and Mr.
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! 1 Sinkin was well aware of that. He even referred to it in a 1
2 pleading or a letter that he filed with the Board some time -
- 3 in June. The materials, including additional materials, i
- 4 were also available beginning in September in Austin. As i
l S the Board itself pointed out, in asking Applicants'to
] 6 provide some additional information when the hearings were 1
7 reopened, Mr. Sinkin, as I recall, had not asked for 8 discovery with respect to that particular reopening of the 9 hearing at that time. I think that was later than 1985.
10 But the short answer is that there was not i 11 discovery available at that time, but the information, the 12 documents, bulk of the documents were obviously readily f
O 13 available to Mr. Sinkin and CCANP if they had chosen to go 14 to hatagorda County or Austin.
15 JUDGE BECHHOEFER: My next question goes to 16 Mr. Sinkin. I am aware that the Staff has taken the 17 position that CCANP ought to have -- since it was a
. 18 publicly available document, they should have undertaken
] 19 research earlier. I want to ask Mr. Sinkin what his 20 re spon se is to why, particularly prior to the second motion i 21 to reopen the record, the depositions in question could not ,
! 22 have been uncovered, so it all could have 'been considered
- 23 in the reopened record in December. I guess that would had i
! 24 to have been in the September-October period, you would
( 25 have had to have discovered it.
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1 MR. SINKIN: -I presume the assumption in the 2 question is that CCANP had some discovery rights.
3 JUDGE BECHHOEFER: I'm talking about a publicly 4 4 available document now. l 5 MR. SINKIN: I'm not sure what the term " publicly
. 6 available document iyeans. " Th6re was a document room in 1
i 7 Austin that was created for litigation that was Public 4 8 Utility Commission dockets that were being heard by the j 9 Public Utility Commission of Texas. CCANP was not a party 10 to those docke ts. I was not a representative of any party 11 to those docke ts. Those were dealing with the Brown & Root 12 se t tleme n t .
! 13 JUDGE BECHHOEFER: Were they not publicly
! 14 ava ilable ? Anybody walked in off the street, couldn't 4 15 anybody have gone through that material, or am I wrong?
16 This is what I'm.trying to' find out.
17 MR. SINKIN: I believe you are wrong, ,
i 18 Mr. Chairman. I believe those rooms were available to the 19 parties in the proceeding and not to anyone walking in off
, 20 the street who cared to read what was on - the shelf.
4 21 JUDGE BECHHOEFER: Do the Applicants have any i
22 further knowledge on that?
23 MR. GUTTERMAN: I think I have a little more, 1
- 24 Mr. Chairman. There are two different places in which i
() 25 ' documents were available . There were documents available i
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! i 1 at the courthouse in Matagorda County. Those are documents 2 that were filed with the Court and that would include 3 Mr. Saltarelli's deposition. There's also a document room i 4 which was created in connection with the Public Utility 5 Commission proceeding in which HL&P has put into a public 6 -- into a document room, which was created to be available 7 to the parties in the Public Utility Commission proceeding.
l 8 It is a document room where, to my knowledge, 9 nobody has ever been denied access to it, whether they 10 represented a member of one of the parties to the 4
11 proceeding or not. My understanding is that the copies of
, 12 the documents that were attached to CCANP's motions 4 and 5 i
(:) 13 to reopen the record were both copied out of the document 14 room in Austin. They came out of that very same document 15 room. s 4
i 16 Au Mr. Sinkin has pointed out, on a couple of a
17 occasions he $as been associated with another organization 18 other than CCl*/P, which is a party to the PUC proceeding,
- i 19 an organizaticei called the Cancellation Committee, or 20 Cancellation C$mpaign -- something like that.
I 21 Myf.nderstanding is that the documents that were
} 22 attached to th motions to reopen 4 and 5 were obtained by 1 i
. I
+
- s. 23 a representati@e from that Cancellation Campaign shortly 3
I i 24 beforet they were filed with this Board. l l () 25 In addition to that, the --
l j
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- Can we take that into account 2 in ruling on timeliness of a party before us? The fact
, - 3 that it was available to a party in another proceeding with 4 whom the representative here had some connection? Can we 5 legitimately rule that CCANP, now, which is the party here, 6 should have had access and undertaken its -- well, not 7 discovery as such, but uncovering of information for this 8 proceeding, just because its representative had a 9 connection of some sort with another organization involved 10 in that other case?
11 MR. GUTTERMAN: I want to make sure we 12 understand, Mr. Chairman, that there are two different 13 cases here.
14 Ia motion 4, that dealt with documents which' i 15 we re filed with the Court and are publicly available to 16 everybody in the world at the courthouse in Matagorda 17 County.
I 18 The issue that you raised arises with respect ,
1 19 only to Mr. Briskin's deposition, which had not been filed 20 with the Court and therefore was not available at the 21 courthouse in Matagorda County. As far as whether the :
22 Board can consider that that's a document that's publicly i
! 23 ava ila ble , I think as a practical matter, Mr. Chairman, it 24 is publicly available. !
() 25 As a formal matter, I suppose one could say i
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L B RT l there is a formal distinction there, that at the time, the 2 reason the public can get those documents is because HL&P 3 is willing to make them available to the public and not 4 because HL&P has opened the doors and put a sign, "Welcome 5 public" on the front of the doors. There is a distinction 6 there. I'll agree it's a distinction. But as a practical 7 matter, these documents could have been obtained much 8 earlier than we've seen them.
9 of course, as we have pointed out to the Board 10 on both occasions, discovery in this proceeding was 11 unlimited for a long period of time and the very 12 information that we are now seeing in motions to reopen O_s 13 could have been discovered back in 1984 or 1983.
14 JUDGE BECHHOEFER: I'm aware of that. I was 15 trying to focus on the other aspect.
16 Mr. Reis, do you have any further comments on 17 that question?
18 MR. REIS: My only comment is I think the Board 19 should look at the realities of t he situation and know 20 organizations or corporations act through individuals.
21 It's what those individuals actually know and the ability 22 to get material.
23 Here there is no showing that CCANP lacked the 24 ability to get the material in Austin as well as in (n) 25 Matagorda County.
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- 1 JUDGE BECHHOEFER
- Apparently one of those
] 2 documents was not at Matagorda County.
3 MR. REIS: That's true.
- 4. JUDGE BECHHOEFER: Mr. Sinkin, anything further?
5 MR. SINKIN: Ye s . I would like to address the 6 whole question. I don't want to repeat all the arguments i 7 that we have given in our various responses to this 8 discovery question. Discovery did end for CCANP in.1984, i 9 long be f ore the lifting of the protective order. Formal 10 discovery rights were over.
11 As far as their being available in the Matagorda 12 County courthouse , we are talking about something in the O 13 nature of 3 million pages. And to expect a pro bono j
j 14 representative with no resources to review 3 million pages 15 is, I think, unreasonable.
16 Furthermore, the documents in the Matagorda 17 County courthouse are not kept in a well ordered manner.
- 18 According to the people I have discussed -- whether I 19 should bother going down to Matagorda County -- the 20 opinions I heard, it was clear that case was never going to ,
- 21 trial, because all the documents were stuck in boxes and 22 thrown in a warehouse for the Court, _ and they were not t
23 easily accessible.
That may or may not be relevant. :
24 As far as documents in Austin, I think it would
() 25 be incredible if CCANP were held to be responsible for i
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i 26292.0 15748 i BRT i 1 knowledge that an organization that CCANP's representative 2 happens to belong to might have in another proceeding in i 3 which I am not involved, and which the organization I do
)
4 not represent happens to be involved, but I happen to be a 5 member of the South Texas Cancellation Campaign.
6 When matters came to my attention from Austin 7 about documents in that room, I would ask the party to the i
8 proceeding, the South Texas Cancellation Campaign, to go to
! 9 that room and copy the necessary documents and send them to 4
i 10 me. And you will see that the Applicants are absolutely 11 correct, they came from that room. There's a little F
i 12 notation that is required to be put on any document copied 7
13 in that room as to who copied it and you will see in the t
14 documents submitted in the . motions to reopen, it says " Dan 15 Harrison, STCC." Mr. Harrison is the representative for
{ 16 the South Texas Cancellation Campaign in the PUC 17 proceedings and I simply call him and say, here's what I 18 heard, will you please go look up this document and will 19 you please send it to me, copy it and send it to me.
20 That's how I happened to come to have this information.
21 JUDGE BECHHOEFER: How did you find out about
, 22 the information to start out with? Did Mr. Harricon call i
23 you? Or someone in that group?
24 MR. SINKIN: Someone other than Mr. Harrison 2
() 25 called me who is participating in the proceeding.
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l JUDGE BECHHOEFER: I don't care about the name 2 of the person.
3 I assume that pe rson knew something about the 4 issues in this proceeding?
5 MR. SINKIN: They were aware of the issues being 6 litigated by this Board.
7 MR. GUTTERMAN: Can I just add a couple of 8 points, Mr. Chairman?
9 JUDGE BECHHOEFER: Ye s .
10 MR. GUTTERMAN: First of all, t he point about 11 the protective order being in effect, the Court's 12 protective order during t he time of the discovery that CCNP 13 had available to it, certainly the Court's protective order 14 was in effect at that time, but that protective order would 15 not have in any way limited CCANF's ability to take the 16 depositions of Mr. Saltarelli or Mr. Briskin or to obta in 17 production of the exhibits to those depositions or the 18 documents that eventually became exhibits to those 19 depositions.
20 Secondly, while I don't know whe ther there 21 really are 3 million pages of documents filed with the 22 Court in Matagorda County, I will concede there are a lot 23 of documents there, but the vast bulk of those documents 24 are pleadings, interrogatories or responses to m
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U 1 of that volume of documents and assume because it is a lot
! 2 of paper one can't find anything in it, I think that's a 3 little bit misleading. )
4 JUDGE BECHHOEFER: Do you know whether they were l 5 indexed in any way or were they just sitting in boxes, in a ;
4 4 6 warehouse?
7 MR. GUTTERMAN: Well, frankly, all I can say i
8 about that is the one time I went down there to get some
- 9 documents from the courthouse, they were indexed, but it 4
- 10 was very early in the lawsuit. I wouldn't -- I couldn't J
11 really represent that that was representative of the way 12 they were maintained years af ter that.
13 Mr. Sinkin mentioned that he has called and 14 asked a party to go to HL&P's room in Austin. I think that, 15 then, is an admission that he's well aware of the existence i 16 of that room and has been aware of it for sometime.
4
! 17 I would also point out, I didn' t mention before 18 that in addition to members of -- representatives - of i
19 par tie s in that proceeding going to that room, members of 20 the press frequently go in that room. In fact, HL&P, from 1
1 21 the day that the lawsuit settlement was first announced in j 22 May of 1985 has routinely made available to remembers of j 23 the press, on request, any part of the material discovered I
24 in the Court or disco rernd as part of that proceeding.
- 25 So there has been a very large public i I f
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2 litigation.
I 3 The only other point I wanted to add is that ,
1 4 while Mr. Sinkin says that he's just a member of the l 5 Cancellation Committee, he , in fact appeared as its legal e i i j 6 re pre sen ta tive in proceedings before the PUC in the prior j 7 PUC docket involving the South Texas project. That's a i .
] 8 little bit more than being just a member, althouah I don' t j 9 know that he has appeared in the current PUC proceeding.
10 MR. SINKIN: Mr. Chairman, number one, there's
! 11 no question of my admitting to the existence of that room.
! 12 I put the existence of that room in my pleadings to explain 13 to the Board ~where the documents are coming from. I never 14 + denied the existence of the room or knowing _ it was there.
15 Two, the fact that I represented a party in the' HL&P rate 16 case some years ago has nothing to do with whether I am
! 17 representing that party in an entirely dif ferent proceeding
- 18 in front of the PUC in 1985. I am not representing that i
l 19 party. I am not consulting with the representative for 1,
20 that party. I have . called upon them to perform favors for l
i 1 j 21 me in that proceeding, and it's up to them whether.they 22 would devote the resources to help me. I am a member of u
23 the organization, but I don't think that gives me any legal 24 obligation to know what's going on in that proceeding.
() 25 JUDGE BECHHOEFER: That's all the questions we i
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l 1 wanted to ask about the motions to reopen. Do the parties 1 2 have any further statements they want to make about the two 3 outstanding motions? We'll take a break af ter that.
4 MR. SINKIN: I did want to direct the Board's i
}
l 5 a tte n tion to one matter. In motion to reopen number 5, we 6 supplied a sworn deposition by Mr. Briskin, and the
[ 7 Applicants have responded with an affidavit from I
8 Mr. Briskin. I do want to direct the Board's attention to l 9 page 399 -- excuse me -- 397 of Mr. Briskin's deposition, I
10 which is attached as an exhibit to our motion to reopen 5, 11 in which Mr. Briskin talks about a meeting.
( 12 JUDGE BECHHOEFER: What page was that?
f l 13 MR. SINKIN: 397.
t
! 14 JUDGE BECHHOEFER: Go ahead.
15 MR. SINKIN: Page 397, Mr. Briskin is discussing l
16 a maeting in the summer of 1981, la te spring or May of 1981.
f 17 He 's talking about sitting at a dinner and discussing with 18 Mr. Goldberg -- just a moment. I'm going to withdraw that 19 for the moment, Mr. Chairman. I see something else that 20 may change my mind about what I was going to say.
21 That was all I had.
22 JUDGE BECHHOEFER: Do the other parties have 23 anything further on the motions?
24 MR. AXELRAD: I would just like those remarks by
) 25 Mr. Sinkin to be stricken from the record since they had no ACE-FEDERAL REPORTERS, INC.
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l 1 basis in the remarks -- in the transcript that he was
] 2 purporting to c i te . There is nothing about May in the 3 transcript.
4 4 JUDGE BECHHOEFER: Nothing about what?
I
^
5 MR. SINKIN: Who said "May"?
6 MR. AXELRAD: You said " late spring or May."
I 7 JUDGE BECHHOEFER: I thought he said " summer."
8 I was reading it -- it said late spring of '81. Line 4.
] 9 He's withdrawing any comments on it.
] 10 MR. AXELRAD: I withdraw my request.
i 11 JUDGE BECHHOEFER: I think we'll leave it.
12 o Let's take a 15-minute break and then we'll come -
j 4
13 up with -- talk about --
- 14 MR. AXELRAD
- Mr. Chairman, be fore we do ' take ;
15 that break, I would like, in order for the parties to be 16 fully prepared, to make sure af ter the break exactly what i 17 the Board plans to take up and in what sequence.
i 18 As I understand it, the only matter left is the l
l 19 so-called drug use matter?
, 20 JUDGE BECHHOEFER: That's correct. I'm going to i
l 21 ask that, but I assume that's correct. We are going to ask i
1 22 Mr. Sinkin to identif y -whe ther he -- he still has an l
23 opportunity to come forward with comments, at least on the j 24 Staff's Issue C -- or on both of your Issue C affidavits.
1 4
() 25 He had two weeks a f ter the Staf f. We may be talking a ;
1 l
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1 little bit about that. But the drug is the only issue 2 identified so far.
3 MR. AXELRAD: On the opportunity -- there was a 4 specific date specified in the Board's order when 5 Mr. Sinkin was to specify any issues that he wanted to 6 raise based upon the affidavits that were filed. That was 7 this past Tuesday. The Applicants had filed their 8 a f fidavits four weeks be fore that. The S ta f f was la te in l
9 its response. Mr. Sinkin, Lto' my knowledge , did not request 10 any extension of his opportunity to file anything.
i 11 If he had asked for such an opportunity to file 12 late, we would certainly have taken the position that there
(:) 13 was no reason why he could not have filed anything based 14 upon Mr. Dewease's affidavit this past Tuesday, which was
- 15 four weeks af ter he had received Mr. Dewease 's af fidavit.
i 16 That would then have permitted the Board to consider j 17 argument at this prehearing conference and dispose' of any 18 such ma tters. If he asked for more time to respond to the 19 Staff affidavit, we would certainly have argued that the i
20 only time he would be entitled -to would be to file ' any 21 issues that he had based upon any new information in the
, 22 Staff's affidavit, which differed from that that was l
23 contained in Mr. Dewease 's a f fidavit, and there was none 24 such, at.least in the Applicant's view.
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, 1 did not request any more time to file anything, simply let j 2 last Tuesday's filing deadline go past without saying 3 anything and I think that certainly prejudices the Board's j
4 ability to hear any of these matters at this prehearing j 5 conference today and dispose of them.
1 J 6 There fore , I think it's incumbent upon the Board
! 7 to decide whether Mr. Sinkin is in fact entitled to any --
l 8 as a matter of fact, Mr. Sinkin has not asked for any more I
j 9 time to my knowledge until today.
s 10 JUDGE BECHHOEFER: We will break until af ter the
! 11 break, be fore we discuss it, but that was one of the i '
12 matters we were going to discuss, and then we'll get into
(:) 13 the drug issue.
14 MR. REIS: Again, the Staff, again, doesn't know l
15 whether Mr. Sinkin has anything. But le t me ma ke it clear 3 16 that in my letter, although Mr. Sinkin didn't move, I said 17 in my letter, since my time was extended, Mr. Sinkin's time 18 ought to be extended. I think that is the posture we are-19 in.
20 I don't know whe ther because I said that, i 21 Mr. Sinkin also had to move. I'm not sure at all. I 22 really don't think so.
23 JUDGE BECHHOEFER: Well, let's talk about that l
24 a f ter the break, but we are going to talk about that 3
() 25 subject. When we ge t into drugs we are going to discuss i ACE-FEDERAL REPORTERS, INC.
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Q 1 first were whether -- well, I don't know about first -- but 2 we want to discuss whe ther the drug issue would be barred d
3 by the rulemaking, by the rulemaking, that position which i 4 the Applicants have taken. We would want to discuss l 5 whe the r the drug issue falls within either Issue C or Issue !
l 6 F. And then we would want to discuss -- if we decide that
- 7 the drug issue should be heard -- how it should be handled.
8 We have a number of documents dealing with what the 9 pe rmissible types of discovery should be. I would think we
, 10 could discuss to some extent if we should decide that the
! 11 drug issue is a proper issue or if we should decide that, 12 based on some additional information, it might be a proper O 13 issue, we could decide then what kind of discovery would be s 14 allowable.
15 I recognize that the discovery was submitted in 16 connection with Issue F, but it may well be that we decide 17 the issue should go someplace else, i 18 MR. AXELRAD: Mr. Chairman, that's exactly why I i
19 raised that question about what we are going to argue in 20 what sequence. It seems to me that we should not be 21 indulging, in this prehearing conference, in theoretical 22 arguments on matters which do not have a direct bearing 1
23 upon the matters before this Board, and it seems to me it
- 24 is important to consider the se issues in a proper, f
() 25 appropriate and orderly fashion.
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0.BRT 4 1 The first question before this Board is not, you l 2 know, whether the drug issue is barred into rulemaking, 3 although that may be a subissue, but the only thing pending j 4 be fore this Board now is whether or not the drug issue
{
5 question is part of Issue F.
a
] 6 JUDGE BECHHOEFER: We have asked for argument on i 7 C.
1 8 MR. AXELRAD: I understand. I would just like 1
9 to go in an orderly sequence.
i 10 With respect to the question of Issue F, we have 11 filed a motion for a protective order and that motion for l 12 protective order, among other things, does bring up the j O 13 rulemaking question, and I think it's perfectly appropriate
! 14 to have argument, if that's wha t the Board wants, on the i 15 motion for protective order and everything that is T
- 16 associa ted with that -- that that's an Issue P question.
17 There is also a motion to compel by Mr. Sinkin 18 which deals with the discovery on Issue F. We don't 19 be lieve that it is necessary to get to that motion for l 20 protective order, because -- to that motion to compel 21 because we think the motion for protective order, when 22 decided by the Board, if they can decide it today, for ,
23 e xample , would in fact take care of that.
l 24 But if the Board still has that question opened, l
() 25 then we should have an argument on the motion for 1
1 1 l 4
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1 protective order , but again within the context of Issue P.
2 If we rule on Issue F, the only question before this Board 3 would then not be whe the r the drug use question falls 4 within Issue C or something like that, but only whether 5 that issue falls within the limited portion of Issue C 6 which is still before this Board.
7 The Board has ruled on Issue A, it has ruled on 8 Issue B, it has ruled on Issue C, except for a limited 9 upda te . And we can have a perfectly appropriate argument --
10 JUDGE BECHHOEFER: I can argue with you on the 11 lim i te d , but --
12 MR. AXELRAD: Whatever the Board reserved in its
/~g b 13 partial initial decision with respect to Issue C, that's 14 the only raatter still reserved. The Board disposed of 15 Issues A, B, and C.
16 If beyond tha t -- whether it is narrow or not --
17 whether beyond that reserved portion of Issue C, whe ther 18 drug use is something which should be considered by this 1 1
19 Board, that could only be considered in the context of any )
l 20 motions to reopen Issue A, B, or C by Mr. Sinkin. l I
21 Now, if the Board wants to consider Mr. Sinkin's j l
22 allegations with respect to tha t matter, in essence, a !
l 23 motion to reopen Issues A, B, and , then we can discuss l l
24 that in the con te x t of a motion to re ope n . But I think l
~
/N
(_) 25 it's extremely important that we discuss these various j ACE-FEDERAL REPORTERS, INC.
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I 26292.0 15759 xBRT 1 matters in their proper context, so the Board can apply the 2 proper standard. And I think it is also extremely 3 important that we not confuse arguments and not get into a 4 mix of arguments without either the Board or the parties 5 being aware of what issue is being addressed in what 6 context.
7 So I would strongly suggest that we have 8 argument on our motion for protective order first. Then, 9 if the Board feels it necessary, have argument on the 10 motion for protective order. And then, if the Board wishes, 11 we can have , as apparently invited by the Board's order ,
12 have an argument as to whether the drug question, even if O
\/ 13 it does not come within Issue F, falls within the reserved 14 portion of Issue C. And I think those three arguments 15 should be ke pt se pa ra te ly .
16 (Discussion off the record.)
17 JUDGE BECHHOEFER: I think however we want to 18 term it, the rulemaking issue is sort of basic to any 19 consideration, or may be basic to any consideration of the 20 issue as framed in discovery, the discovery responses, and 21 we will have to hear argumen t on that. I would just as 22 soon start with that.
23 MR. AXELRAD: But, Mr. Chairman, we can't 24 discuss rulemaking in a vacuum.
() 25 JUDGE BECHHOEFER: Well, you have said that ACE-FEDERAL REPORTERS, INC.
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I 26292.0 15760 emBRT 1 because it is -- in rulemaking it can't be considered.
2 Basically that's your position. I am not sure I agree with 3 that. I have given you some other decisions which might 4 counteract that, but I want to hear argument on that first, 5 because, if we can't consider it at all, we don't have to 6 get into anything else , and it's irrelevant whether you 7 call it a motion for protective order or motion for summary 8 disposition of F, or whatever context. Your argument would 9 apply whether it goes into C or F, or whether we should 10 consider whether it be considered a la te-filed contention.
11 MR. AXELRAD: I understand, Mr. Chairman, but in 12 all fairness to the Applicants, I ho pe the Board r')
~' 13 appreciates that our basic position is that the matters 14 that Mr. Sinkin is trying to raise is not within the scope 15 of Issue F and if it's not within the scope of Issue F you 16 don't have to reach the issue of rulemaking.
17 We have reached that, beca use it's a help in .
18 considera tion Issue F, but Issue F is clear on its face, 19 and whether the rulemaking doctrine ever applied it is not 20 at at all credible that the issue Mr. Sinkin is trying to 21 raise falls within Issue F.
22 JUDGE BECHHOEFER: Assuming we agree with you, 23 we have raised Issue C, and we are also going to ask the 24 parties to consider whether we should consider it as a n
(_) 25 late-filed contention. Because there's plenty of l
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- 1 information in there which would support that.
j
- 2 MR. AXELRAD
- I'm sorry, Mr. Chairman, the j 3 late-filed contention question is the first time the Board 4 has just raised that. But in any event, it does seem to me 5 that orderly procedure is to first of all determine , is it 6 within Issue P; is it within the reserved portion of Issue f
7 C; and then, is it proper for a motion -- is it a proper 8 motion to reopen, including as a late-filed contention?
9 And we can argue those things.
! 10 All I'm trying to do is I want to make sure that 11 we don't lose track of the issues that are before this l
I 12 Board. The issues that this Board has to decide is whether
(:) 13 or not the matters Mr. Sinkin is trying to raise fall
! 14 within Issue F, for example. And that involves much more i
l 15 than the simple question of whether it is. barred by I
a
- 16 rulemaking.
1
- 17 As a matter of fact, the question I'm raising is ,
18 I think more fundamental and would not require the Board to
- 19 seriously consider the rulemaking question.
i 20 MR. REIS: Mr. Chairman, there are some very i 21 grave questions of the jurisdiction of the Board here ,
s 22 especially in the light of the recent opinion of the 23 Commission in the Waterford case. To go out and reach for
- 24 things on the basis -- I mean we'll have to address- this
() 25 af ter the he a r ing , but I just want to say something. To go i
i I
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1 out and reach for this on the basis of what is admittedly 2 an anonymous telephone conversation, and seek to expand and i 3 reopen the proceeding to reach for these sort of things and I 4 talk about contentions and new contentions without a motion 5 -that addresses the standards in the rules and regulations 6 that the Commission has again and again reemphasized and 7 the Appeal Board has again and again reemphasized, to just 8 throw that out at this point is very improper.
9 If we are talking about a new contention, we 10 be tter get a motion in for a new contention, that we can 11 talk about good cause, that we can talk about a basis for 1
4 12 the contention with specificity, with a showing -- a j 13 late-filed contention that there is evidence to support the 1
14 con te n t ion . Be cause the rules for a late-filed contention
! 15 are different than contentions at the beginning of the I
16 proceeding and you have to show a basis to go forward, and 1
i 17 there are a lot of things we are going to have to talk 1
j 18 about after this break.
19 JUDGE BECHHOEFER: I'm aware of that. I'm aware 20 of that.
l 21 MR. SINKIN: Mr. Chairman, just for our two 4
22 cents in this little deba te , it seems to me the Board has
, 23 indicated if it's not under Issue F, we might want to look l
l 24 whe ther it's under Issue C, and if it's not under Issue C,
() 25 we might want to look at whether it's a late-filed i
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{ 26292.0 15763 sBRT i 1 contention. And the Board has raised the other side of the i
2 issue as, if it is barred by being in rulemaking, then none
! 3 of those three can happen. It makes sense that both of
.I 4 those have to be a rg ue d . We don' t care which order they 1
5 ata argued in, but both of them have to be argued. There 6 is a threshold question, if it's barred by rulemaking all 7 the rest of the debate becomes irrelevant, but I don't 8 think the Board is going to make a ruling today whether 9 it's barred by rulemaking. If you are prepared to rule 3 10 today whe ther it may be barred, maybe we ought to take it l 11 up first and not waste time on the rest of it. If you are 12 not going to make a ruling today, we are going to have to 13 address both of them.
i 14 MR. AXELRAD: I would strongly object to that.
- 15 It's almost as if the Board were trying to decide a i 16 constitutional question while there are very simple factual l 17 questions that can be decided, the question whether this is 18 an appropriate issue under Issue F. And it is not. And it '
}
j 19 seems to me --
! 20 JUDGE BECHHOEFER: Or C. Or C.
}
] 21 MR. AXELRAD: But the first question -- the i
- 22 Board is the only party, the only participant in this !
23 proceeding so far that has raised Issue C. The only thing 1 24 that the Intervenor has raised, is this under Issue P.
i
() 25 I'm perfectly willing to argue anything the i
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1 Board wants to hear, but it seems to me that the first 2 thing the Board should hear is argument with respect to the 3 matters that are properly before it. And then it can 4 decide whether it wants to go into other matters which 5 nobody else has raised before it.
6 MR. SINKIN: Mr. Chairman, I guess I'd make my 7 argument the other way, too. If the Board is not prepared 8 to rule today that it is or is not under Issue F, then we 9 are going to hear debate on all those issues including the 10 rulemaking issue, anyway, so it doesn' t matter what order 11 we take then up in. If the Board is prepared to rule today 12 that the issue is not under Issue i, then that may be a
\
('~s / 13 d if fe ren t situation. I didn't sense -- I thought the Board-14 wanted to hear argument. I didn't sen se the Board was 15 prepared to make rulings today. Maybe that would de termine 16 it. If you are not prepared to make rulings, we are going 17 to discuss all these issues and it doesn't matter what .
18 order we discuss them in.
19 (Discussion off the record.)
20 MR. AXELRAD: Mr. Chairman, I believe the 21 parties will be prepared to address these issues in 22 wha tever sequence the Board wants to address them, having 23 heard our arguments, so this might b6 an appropriate time 24 to take the break and then after the break you can tell us
() 25 what you want of us.
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26292.0 15765 f~sBRT 1 There are a limited number of sequences that can 2 arise.
3 JUDGE BECHHOEFER: We'll take a 15-minute break.
4 (Recess.)
1
! 5 JUDGE BECHHOEFER: Back on the record. We have I
. )
l 6 flipped a three-headed coin and we have decided that we I
7 will start with Issue F first. But then, next we'll 8 certainly have to discuss the rulemaking point. I guess 9 the Applicants can lead off on Issue F. In addressing 10 Issue F, I would like the Applicants to comment on whether 11 the issue as defined in the responses to interrogatories, 12 as well as in the pleadings filed by CCANP, would fall I 13 within the introductory language to Appendix B, which 14 states that: "The Applicants must set forth the managerial 15 and administrative controls to be used to assure safe 16 operation." And the definition of quality assurance which 17 says that: " Quality assurance comprises all those planned, 18 systematic actions necessary to provide adequate confidence
-19 that a structure, system or component will perform 20 satisfactorily in service."
21 If you read those two together the question we 22 ra ise is: Wouldn' t drug use by plant personnel fit within 23 the context of that, of that language?
24 MR. GUTTERMAN: We ll , le t me see - i f I can 25 address this issue, Mr. Chairman. I'm not sure I have the ACE-FEDERAL REPORTERS, INC.
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1 exact language you quoted, but.I.think I got the (,eneral l 2 thrust of it. l
,1 3 JUDGE BEClillONFER: It's'in the first and third X
4 paragraphs to the intr,oduction. What I. quoted first was l 5 the last sentence of the first paragraph of the 6 introduction. Secondly I quoted the definition of quality 7 assurance in the third paragraph.
8 MR. GUTTERMAN:. As the Board clearly recognizes 9 our contention, our position is that the issues CCAt1P seeks 10 to raise do not fall within Issue F.
y 11 '
Implicit in the way the Board addressed the last 12 question is the recognition that Issue F deals with ' only O .
13 ' on question, that question is whether Applic ant's quality
! \
14 ( assurance program for the operation of the South Texas l c.15 projecc) meets the rekuirements of Appendix B.
1 l
16 In looking at the introductory language 1to l
' L 17 Appendix B, the re is some language which is very general in '
l
\
18 nature. ,.
at, in essence, says quality assurance program .
-l 1
)
19 comprises a certain a~
set of actions necessary - . related to l 20 the physical characteristics -- well, I'm not reading it j j
1 21 right.
I realize there's very general language in the '
l 22 introduction to Appendix B. But the fact that tihere 's 23 general language in that introduction does not alter, the 24 fact that quality assurance programs are comprised of all l 25 of the specific re'quirements that are se t forth in the 18 a ' {
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1 criteria of Appendix B.
2 JUDGE BECHHOEFER: Only those?
3 MR. GUTTERMAN: Ye s , Mr. Chairman, I think 4 that's right. I don't think you'll find any additional i
5 requirements in the introduction that aren' t addressed in 6 the 18 criteria. I think the ' 18 criteria explain how one 7 meets the general objectives that are included in the 8 introduction.
9 The quality assurance system set out by Appendix 10 B is a system of planning and training, checking, 11 inspecting , auditing. It does not-purport to address 12 matters such as control of drug use by project. employees.
13 The FSAR that the Applicant has filed -- I invite you to 14 look at the SAR filed by any Applicant -- the standard 15 review plan that the Commission uses to judge the adequacy 16 of the se safety analysis reports, the regulatory guides, 17 the ANSI standards, all of the documents which interpret 18 and implement Appendix B do not address drugs. That's i 19 shown by the af fidavit of -- well, I'd be getting of f 20 talking about the motion for summary disposition which 21 hasn' t been addressed ye t.
22 But I think it is clear, on the face of it, 23 there is no mention at all in Appendix B of control of drug 24 use. If the Board were to interpret a generalized
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26292.0 15768 n BRT 1 drug use, the Board would have absolutely no standard to go 2 by in determining what was an acceptable drug control 3 program. There's nothing there, nothing in Appendix B that I I
4 tells you how to judge that. In essence, the Board would ,
5 be writing on a clean slate and reaching its own 6 determination of what the Board considers is an acceptable 7 program of controlling drugs. There's nothing in Appendix 8 B that establishes that standard.
9 JUDGE BECHHOEFER: Just speaking from an overall 10 standpoint, wouldn't reasonable assurance depend on that?
11 If -- particularly if an issue -- if indications of 12 improper drug use were shown, which is one of the questions
\O)
'~' 13 we are going to ge t into la ter , but assuming that there 14 were an adequa te basis for showing that there was improper 15 -- either improper drug use or improper administra tive 16 controls applied to that drug use, wouldn't a reasonable 17 assurance finding in a particular case -- maybe not 18 generally, but in a case where such an issue was raised, 19 wouldn't that be necessary and proper?
20 MR. GUTTERMAN: Mr. C ha irman , I think the 21 Commission's regulations have a set of standards by which 22 Applicants are judged. Implicit in the question is the 23 assumption that if people were using drugs, the ir behavior 24 would be unacceptable and they would do something wrong.
() 25 Appendix B establis.hes a system for detecting that "something ACE-FEDERAL REPORTERS, INC.
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l t 26292.0 15769 BRT 1 wrong" that might be done , a work activity that's done i 2 wrong. That's what Appendix B is focused on. It's 3 planning the work activities, checking to see that those 4 plans are properly followed, auditing to verify the work is 5 done in accordance with the applicable requirements. The
- 6 en tire focus of the Commission's regulations in this i
7 re s pec t is on achieving the quality-related activities, not
- 8 te s ting the capabilities of the individuals, in the ' sense 9 of, are they strong enough or are they in good . health, are 10 .they under the influence of strong rays of the sun or 11 illegal drugs or alcohol or mesmerized by rock and roll j 12 music or whatever may af fect somebody's behavior. Those 13 kinds of things are not addressed in Appendix B.
14 That doesn't mean they are not real or they 3
15 shouldn't be of concern. In fact, in this particular, case l 16 the Applicants have a very strong program for controlling I
- 17 drugs. But that's not an Appendix B program.
18 JUDGE BECHHOEFER: That is what the question is l 19 being raised about, basically. .
- 20 MR. GUTTERMAN
- If the chairman understands what 21 the question is, you are one step ahead of me. Be cause 22 reading all the filings of CCANP, I'm not clear what it is i
- 23 about. But whatever it has to do with, it's got nothing to
! 24 do with compliance with Appendix B.
() 25 JUDGE BECHHOEFER: How about the general' l i
a i
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1 1 language defining quality control, which is the last part 2 of the introductory paragraph?
3 MR. GUTTERMAN: Could you read a couple of words 4 just to get me oriented to the sentence you are looking at?
5 JUDGE BECHHOEFER: It says: Quality assurance t
6 includes quality control which comprises those quality 7 assurance actions related to the physical characteristics 8 of the physical structural component or system which 9 provides a means to control the quality of the material, 10 structure, component or system to predetermined 1
11 requirements."
i 12 MR. GUTTERMAN: I see the sentence you are i O 13 directing my attention to. I'm not sure I understand the 14 question, though.
15 If the Board's question was, does the definition j 16 of quality control imply that control of drug use is'an i
17 element of quality control, I think clearly that's not the 18 ca se . And I point out to this Board, in phase 1 of this 19 proceeding, the Board considered the adequacy of Applicant's 20 quality assurance program for control -- applicable to
- 21 construction of the plant, and found it was acceptable and
! 22 there is no mention there of control of drug use. And 23 there was no issue considered by the Board about that. It f 24 was clearly not an issue. It was not a matter that is 4
() 25 addressed in any way in the quality assurance program i
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l j 1 description that was filed with the Board. It's not !
2 mentioned in any way in the quality assurance section of 3 the preliminary safety analvsis report that was the oasis 4 for the issuance of construction permits. Thero's no 5 mention at all about drug control in any of the documents i
i 6 related to Appendix B, either in this docket or in 'any r
l 7 docke t that I am aware of, or in any of the various i
1 8 documents that the Commission and the Staff have issued i
i 9 that interpret Appendix B and explain what is an acceptable l
) 10 program to meet the Commission's requirements.
i 11 JUDGE BECHHOEFER: How about the implemen ta tion
's 12 of Appendix B? You recognize, I assume, that
!( 13 implemen ta tion is part of the likelihood -- adequate
- 14 implementation has long been recognized as part of an i
15 adequate QA program.
i 16 MR. GUTTERMAN: Certainly it requires that the i 17 requirements of Appendix B be implemented properly.
1 l 18 JUDGE BECHHOEFER: Could drug use have an ef fect i
l 19 on that? Likely? Could it? Would it?
20 MR. GUTTERMAN: I ' d be speculating wha t people i
- 21 would do under the influence of drugs, but Appendix B 1
l 22 doesn' t establish any requirement for control of the use.of 23 drugs to assure that implementation. It requires the
]
24 inspection and checking and auditing functions, and also
]
i
() 25 training requirements.
j i
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1 Certainly there are other things that might 2 influence people's behavior that are not addressed by 3 Appendix B.
4 I don't think that in any way makes something 5 that might af fect peoples' behavior a part of Appendix B.
i
- 6 You can't have -- I don' t. see how you could read 7 into Appendix B a requirement if people have a fight with c
- 8 the ir wife , they shouldn't go to work because they might j 9 not be concentrating on their work.
10 If one tries to apply one's imagination to it, 4
! 11 you can imagine numerous things that might af fect somebody's 12 behavior on the job, but Appendix B doesn' t try to get at j 13 assuring quality by controlling those things. It tries to 14 get at it through a system of audits and inspections. And 15 drug use , drug -- control of drug use is not a part of that
,t
[ 16 directly. Although if somebody were on drugs and his 17 performance on the job was adversely af fected by it, 1
18 certainly one would expect that the control programs that 19 are in Appendix B would detect that, would detect the poor l 20 performance of work. That's what those control programs 21 are designed for, is to detect poor performance on the job. !
22 JUDGE SHON: Mr. Gutterman, what about the point i l
! 23 I think Mr. Sinkin has made a couple of times in his l
j 24 filings, which is that he is not really addressing the
()' 25 goodness, the excellence of the drug control program, its i
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1 adequacy or lack of adequacy. What he is addressing is, in 2 a sense , management dishonesty. He maintains, not that 3 this is a bad program or that it may miss people who take 4 drugs or that there may be drug use on the job, but that 5 this program, since it is applied in a discriminating and 6 unfair way, manifests a management attitude that is i
7 inconsistent with proper control of a nuclear power plant; 8 that is, not managerial and administrative controls used to
- 9 assure safe operation that are mentioned in Appendix B,
, 10 just the unevenhandedness of its administration represents i
11 that sort of a flaw.
! 12 MR. GUTTERMAN: Thank you, Judge Shon. I'm 13 happy to address that, because I think that gets to the I
- 14 heart of what we were discussing just before the break.
15 That kind of contention, to the -extent I can 16 understand it, clearly goes to whether there is reasonable 17 assurance that this Applicant will meet -- will comply with 18 its QA program, not to the question of whether the OA i
19 program mee ts Appendix B.
I 20 When the Board set out the six issues, A through 21 F, to be considered in this proceeding, it encompassed 22 within Issues A and B, the questions of the character of
! 23 the Applicant and whether its performance showed a 24 character which would be inclined to try to comply with tha
)
() 25 Commission's regulations, could be reasonably expected to i
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! I comply with the Commission's regulations.
l 2 Issue F was never ~ intended by the Board to 3 invite a separate litigation of the same kinds of facts 4 that the Board was considering under Issues A and B.
5 JUDGE BECHHOEFER: Mr. Gutterman, are you l 6 forgetting or ignoring the rulings that go way back to the
! 7 early Midland decision, I think, which said that i
j 8 implementation of a OA program is as significant as the 9 formal structure of it. I think ALAB-106 was the earliest 10 decision that said that, that you have to look at the i
! 11 implementation as well as the paper program.
12 MR. GUTTERMAN: Mr. Chairman, I am not ignoring O 13 that and I'm certainly not arguing tha t the Board ignored i
14 it in phrasing the issues. I think the Board had that 15 clearly and directly in mind when it wrote issues A through 16 F. And I think the Board parsed those issues, among issues
- 17 A through F, and issues A and B were issues the Board
! 18 established to determine the character of HL&P, to i
- 19 determine whether the Applicants in general could be relied d
20 upon to carry out and follow the Commission's requirements.
l 21 Issue F was a much narrower issue. It assumed -
i i 22 that Issues A and B had already been answered and the Board 23 had reached a judgment about the character of the l
- 24 Applicants and looked solely at whether the quality
() 25 assurance program that had been established for application .
l l-
' 1 l
l 1
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1 during the operation of the plants met -the requirements of
- 2 Appendix B. Tha t's all Issue P is related to and nothing i i 3 further.
d l' 4 JUDGE BECHHOEFER: Does A and B cover operation 5 or construction?
6 MR. GUTTERMAN: I think clearly issues A and B-7 were intended to judge the qualifications of the Applicants i
8 to be given operating lice n se s .
9 As you recall, Mr. Chairman, this was not an i
10 enforcement proceeding. The entire proceeding has been a 11 proceeding on application for operating licenses. And in 12 judging the character and competence of the Applicants, the 13 issue was the eligibility to be granted operating licenses.
, 14 JUDGE BECHHOEFER: Wasn't Issue A linked to l 15 their record of past -- the evidence relevant to Issue A, I 16 would gather , would be limited to the past pe r formance ?
17 MR. GUTTERMAN: Mr. Chairman, I agree with you 18 entirely, exactly what Issue A was related to was past i 19 performance, i .e . , the performance of the Applicants during 1
- 20 the construction of the plant.
1 21 Now that I have Issue A in front of me, I.see i ;
J j 22 the explicit words are, "if viewed without regard to !
i !
j 23 remedial steps including - " and then the four examples are l i 24 included, it says, " -- sufficient to determine that HL&P i
() 25 does not have the necessary managerial competence or i
i
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1 character to be granted licenses to operate the STP."
2 Clearly Issue A was talking about qualifications 3 for operating licenses.
4 As you recall, I'm sure, Mr. Chairman, during 5 the course of the phase 1 proceeding, new questions.were 6 raised, new staff inspection reports were issued as the 7 proceeding was going on and that came in to evidence ,
8 evidence of those inspections, the results of them, 9 Applicant's responses to them, all came into evidence under 10 Issue A, even though they weren' t past in the sense they 11 occurred before the Board's December 2, 1980 order, but 12 they were events that occurred during the construction of O 13 the project.
14 To the extent that there is some issue to be 15 raised under the matters that are discussed in CCANP's 16 pleadings, whatever events they are -- and really they are 17 a little hard to recognize , be ca use t he facts don't seem to 18 relate to what has actually happened -- but whatever they i
j 19 are, they are matters that occurred during the construction.
20 JUDGE BECHHOEFER: That we can't decide now.
21 MR. GUTTERMAN: I understand that, Mr. Chairman.
.1 22 But wha tever they are , they are clearly intended to be 23 matters that occurred during the construction of the a
j 24 project and, as such, to the e x ten t the Board ever
! () 25 contemplated hearing something about them in Issues A i
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j 1 through F, it was clearly under Issues A or B.
! 2 JUDGE BECHHOEFER: Well, I won't ask you about C,
! 3~ now, but when we get to talking about C -- that's perhaps a i
l 4 dif ferent question. Right now we are on F.
! 5 Do you have anything further on F? We ' ll go to -
i 6 the other parties if you don't.
i 7 MR. GUTTERMAN: I'm just reminded that we were l
! 8 going to talk about the relevance of the rulemakings and I
, 9 suppose I ought to reserve that for the second element.
?
10 JUDGE BECHHOEFER: We want to hear the original
! 1 i 11 parties first.
12 MR. GUTTERMAN: I want to point out --
- 13 JUDGE BECHHOEFER
- I realize that. ,
e i 14 , MR. GUTTERMAN: -- that our pleading cited the j 15 pendency of two rulemakings was to just point out the 1 16 implication that the Commission, in proposing rules that
- li would require control of drug use, by implication is 1
18 suggesting that Appendix B does not address such matters.
- 19 I'm not sure that argument is necessary, because I think on i
} 20 the face of it, what we all know about the history of the i
j 21 application of Appendix B and - nuclear power plants has been 1
r 22 that drug control has not been an element of quality 1
j 23 assurance programs. But that's an added indication that 4 :
i 24 the Commission- itself in te rpre ts its requirements as not I
(
()
l f 25 currently addressing the control of drugs. That's all I i
I i l
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1 have, Mr. Chairman.
t i 2 JUDGE BECHHOEFER: Le t me a s k -- we ll , I'll save 4
l 3 it for the rulemaking part. I guess we haven't heard at l 4 all what the Staff's position is on this, because you l 5 haven't had a chance to file anything. I guess we ought to 6 hear what the Staff's position on Issue F is, i
, 7 MR. REIS: It is a dispute for discovery between l I !
8 Applicants and -- but there are broader implications here, l l
- 9 so I will make some comments on it.
1
! 10 First of all, I want to put this into the 1
l 11 context of what Mr. Sinkin is trying to get to in the sense 1
12 of his answer to the eighth set of interrogatories, where 13 Mr. Sinkin has said "CCANP does not contend that the 14 quality assurance program for South Texas will not satisfy i 15 the requirements of Part 50, Appendix B, or revisions or 16 additions to such OA programs are necessary in order to j 17 sa tisfy the parts."
l i 18 Now, he goes on and says that he doesn' t feel l
l 19 that HL&P's program for operation of South Texas will not --
20 he does say that he does not feel that HL&P's OA program r 21 for operation of South Texas will not meet the requirements i
j 22 of Appendix B, because HL&P lacks the character to properly J
l 23 implement such a program, which plainly shows it does not i
24 fall under Issue F. If any place, it might have been under
() 25 Issue B, which did' deal with: Has HL&P taken sufficient t
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26292.0 15779 f-sBRT-s_J 1 remedial steps to provide assurance that it now has the 2 managerial competence and character to operate South Texas j
- 3 safely. But mainly from what Mr. Sinkin says, it is not i 4 under F. We b ivo an interpretation that we are talking 5 about a program. And that is what we were all talking I
6 about when these particular issues were adopted, when we l
I 7- talked about what evidence would be put in on these issues, i
j 8 how we were formulating the issues -- we were looking at I
I 9 the FSAR for operations; that's why it couldn' t be heard I 10 originally, why we didn' t have the sufficient information
] 11 to go into Issue F originally at the original Phase 1 1
1 12 hearings, and that's what we are faced with today.
(:) 13 MR. GUTTERMAN: Was the issue limited to that or 14 did it include likely implementation?
15 MR. REIS: I think at the time --
16 JUDGE BECHHOEFER: It falls under Appendix B,
! 17 and I again re fer to the ALAB-106 which is probably the i
- 18 first decision, that was way back.
i; 19 MR. REIS: I agree we can look at implemen ta tion ;
i 1 20 of a program and there's no question about that. And the 21 implementation of Appendix B.can be litigated in the light ;
- 22 of whether Applicant has the. character to implement it.
i 23 But that wasn' t wha t Issue F dealt with. It dealt with the 24 program. The program in the square terms of Appendix B.
i
() 25 And that's wha t we are dealing with. If you are talking i
j
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k 26292.0 15780 BRT pd 1 about have they the character and competence to carry out-a 2 OA program, that was encompassed within Issue B.
3 What we talked about for Issue F, and what was 4 raised at the time, was the foursquare written document for 5 OA of operations. And we could not review that and did not 6 put evidence in -- and we could not introduce evidence at 7 phase 1, and that's why we required other phases, because 8 that wasn't prepared at that time.
9 MR. GUTTERMAN: Well, would Issue B have even 10 permitted any consideration of --
11 MR. REIS: To the e x te n t --
12 JUDGE BECHHOEFER: -- because they are talking 13 about corrective actions under A, and I'm not sure this 14 drug use allega tion, at least, would fall there either.
15 MR. REIS: It may be , as the Staf f will take the l
16 position, if it's anything, it's a new contention or should I
17 be submitted as a new contention and must be judged under i
18 those standards. It could be that it is not in proceeding i 19 at all and that's really where the Staff is ultimately in l 20 this discussion going to come out, that it is not in this !
i 21 proceeding, that it must be judged under the standards of l 22 2.714 as a new contention, and whether there is sufficient 23 information to allow it to be raised as a new contention.
l 24 Perhaps I'm getting aber.d of myself, but 1 l
() 25 quoted from paragraph 4 of the response, or answer 4 of the ACE FEDERAL REPORTERS, INC.
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1 response to the interrogatories, and answer 5 talks about 2 anonymous telephone calls and information being put forth 3 on tha t basis.
l 4 The Staf f will ultimately take the position --
i 1 5 JUDGE BECHHOEFER: We have a lot of questions
] 6 about that when we get to it. We recognize there may be j 7 problems with that. But we are going to address that when 8 we get to it. But we started with this Issue F first.
9 MR. REIS: To re itera te , the Sta f f, aga in ,
10 emphasizes that Issue F was only looking at the foursquare i
).
11 program. I realize what the Midland case said. But that 12 was not -- when Issue F wa s dra f te d , it did not encompass 13 what was talked about in Midland. What was talked about in l 14 Midland we all talked about in connection with Issue A, we i
15 briefed it in connection with. Issues A and B, and that was
- 16 in that sense.
17 JUDGE BECHHOEFER: When we talked about QA for i
18 ope ra tions , Issue F, did we have any ~ discussions one way or i
19 the other? Was there any record that we limited it to the 20 program, as such, rather than the likely implementation 21 during operations?
! 22 MR. REIS: My recollection -- and I think -- is
{ 23 that ue did limit it to the program at that time. I'm 24 trying to think of whether there was any particular record l( ) 25 of it. I can't think of it spelled out in any particular
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26292.0 15782 gsBRT q) l 1 prehearing conference order. But it was talked about in 2 terms of the program.
3 Certainly I agree with the Applicants, that the 4 Commission's talk about further rules and the need for 5 further rules shows that the drug problem, and drug issue --
6 which is a problem and it is an issue -- generically -- is 7 not of itself under Appendix B.
8 (Discussion off the record.)
9 JUDGE BECHHOEFER: Mr. Sinkin, I guess it's your 10 turn.
11 MR. SINKIN: Thank you.
12 First of all, Mr. Chairman, I think that the O'
13 argument made by Applicants that the quality assurance 14 program is designed to examine the work done and to catch 15 any work done by people in a condition where they have not 16 done the work properly, but is not designed to control the 17 behavior of the people doing the work, is simply 18 unreasonable.
19 We know in cases such as Midland, where 27 20 workers were found to be using drugs, the enforcement 21 response by the NRC regional officer, Mr. Keppler, regional 22 director, was to order 100 percent reinspection of all the 23 work done by anyone who had sold or used drugs. ;
i 24 JUDGE BECHHOEFER: That wasn't the Midland I was l 25 re fe rr ing to in my question, by the way. I was referring ACE-FEDERAL REPORTERS, INC.
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- RT 1 to a very early decision.
.l 2 MR. SINKIN: But I think Region 4 has taken a
- 3 dif ferent approach to drug use, and not required this kind
! 4 of major re inspection , to our knowledge. But the idea that j 5 you don't control drug use under Appendix B, but if you 6 find someone has been using drugs then you go back and i 7 reinspect everything you inspected under Appendix B, I i
j 8 think is a clear indication that the drug use itself is an
) 9 Appendix B problem.
i j 10 JUDGE BECHHOEFER: Was that taken under Appendix 11 B or some other authority?
12 MR. SINKIN: I can't tell you. I don't know.
O 13 More specifically, however, I think that rather 14 than in addition to the introductory sections you called to 15 the attention of the Applicants, that a reading of criteria s
! 16 2, as to what constitutes a quality assurance program --
I 17 clearly drug use by people doing safety-related work would 18 fall under the type of activity that should be detected by j 19 such a program.
20 For example, last line on -- well,'I don't know l
21 if we have the same version -- in that first paragraph it 4
l 22 s ta te s : "The quality assurance progrrm shall provide 23 control over activities af fecting the quality of the 24 identified structures, systems and components to an extent l
1
() 25 consistent with their importance to sa fe ty. "
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1 Well, obviously one activity affecting the 2 quality of the structures, systems and components is the 3 condition of the people pe r f orming the work producing the 4 structures, systems, and components. " Activities af fecting 5 quality shall be accomplished under suitably controlled 6 conditions." We don ' t consider that people under the 7 influence of controlled substances are what this phrase 8 means by " suitably controlled conditions," that instead, it 9 means they should not be under the influence of controlled 10 substances.
11 Those are matters that a quality assurance 12 program, in general, must address.
O k' 13 We do think the introductory section has meaning 14 apart f rom the 18 criteria, and that it is designed to be 15 f le x ible , that the fact that there were not previously 16 speci fic instructions about control of drugs results from 17 the fact that previously, up suntil three or four years ago, 18 it was not recognized as a serious problem on nuclear power 19 plant projects. It has become a serious problem. He would 20 direct the Board's attention to Business Week magazine, 21 October 1985, where they focus on the fact that drug abuse 22 at nuclear power plants has become a major problem.
23 The NRC has declined to adopt a program to 24 address that on more than one occasion, leaving it up to O
(_j 25 the industry to address it. But the problem has surfaced ACE-FEDERAL REPORTERS, INC 202-347 3700 Nationwide Covo age 800 336- % 46
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1 and has become a problem at nuclear power plants, and we 2 would argue falls under Appendix B and Appendix B should be 3 read broad enough to include new problems for which 4 regulations had not previously been written.
5 As far as Issue F, and what it contains or does ,
1 6 not con ta in , at the time we were discussing Issue F in 1981, l 7 the Applicants didn' t have a quality assurance program for 8 operations. They were in the process of -- excuse me --
9 they had a quality assurance program for operations. They 10 didn't have a fully staffed program for operations. So we 11 were looking at the fact that there was a program that we 12 would be able to evalua te , perhaps. Mr. Reis says we were 13 looking at the foursquare program. We weren't just looking 14 at the program, we were looking at personnel as some thing 15 that would need to be examined. And in 1981, that wasn't 16 developed well enough for us to look at, so we de ferred 17 consideration of that until a later time.
18 Now we have the personnel. What we are arguing 19 in our -- regarding the drug use -- is that we not only 20 have, now, the program and the personnel, we have evidence 21 on the actual implementation of that program and how 22 personnel in the operations group will be trea ted when 23 found to be in conditions that are not -- that are not 24 s ui ta ble for the sa fety-rela ted work that they were (A) 25 required to pe r f o rm .
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1 The fact that it is happening in the 2 construction phase doesn' t mean that it's not relevant to 3 an operations contention. The whole thrust of a licensing 4 proceeding is that it is predictive and that has been 5 sta ted on more than one occasion and in this proceeding it 6 has been sta ted.
7 Wha t we are saying is you now have a basis for l 8 predicting how well the quality assurance program for t 9 operations is going to work by how the operations personnel 10 have been treated during this drug investigation and its 11 resulting dismissals or nondismissals of personnel.
12 JUDGE BECHHOEFER: Mr. Sinkin --
l O' N- 13 MR. SINKIN: Yes?
14 JUDGE BECHHOEFER: --
in terms of the issue you 15 propose to litiga te , does it include solely the managerial 16 treatment of people who are -- who have been found to use 17 drugs? There was one statement in one of the papers you 18 filed that indicated that you thought the Applicants had 19 not been forthcoming with the NRC regional people. Is that 20 still part of your claim? Or is it solely limited to t he 21 managerial problem?
22 MR. SINKIN: Le t me re s ta te it. There's two 23 parts.
24 The essence of the allegation is that operations
/O
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1 illegal drugs were protected by management. They were 2 protected in that people were fired who were found to be 3 using or selling drugs, but other people in similar 4 condition were not fired because they would implicate the 5 operations people , and this ef fort was made to protect the
- 6 operations group from exposure. There was use and sale of 7 drugs within the operations group.
8 The exposure , that we understand would be -- the 9 concern would be that the NRC would be very upset if they 10 found out the operations group was involved in the sale or 11 use of illegal drugs and that some enforcement action would 12 undoubtedly follow.
O k' 13 The thing that captured our attention, obviously, 14 when we got this allegation, was that there was a pending 15 contention be fore the Licensing Board about whe ther the 16 quality assurance program for operations of the Applicants 17 would be adequately implemented and, in our view, this 18 would -- this, as a pending ma tter be fore -- the one 19 pending issue before the Licensing Board was the operations 20 of the plant. And here was the operations group, right in 21 the middle of wha t appeared to be a special treatment of a 22 problem that had been discovered in the ir group, and'that 23 it would relate to the licensing hearings, too, and we 24 expressed that directly to the NRC investigative office
() 25 when we called with the allegation that this had numerous ACE-FEDERAL REPORTERS, INC.
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.BRT 1 ramifications and we were urg ing them to investigate it, 2 not only because there was apparent drug use in the 3 operations group, but also because there was apparently an 4 effort by management to cover it up that would affect about 5 both the NRC's licensing arm and this Board's inquir ie s .
6 Tha t's how we presented the allegation originally to the 7 office of investigations.
8 JUDGE BECHHOEFER: Does your allegation, then, 9 as to keeping the NRC informed, was that as to the 10 preferential treatment or was that as to drug use itse l f ?
11 MR. SINKIN: Well, the allegation is not that 12 they didn't tell the NRC they gave preforential treatment 13 to the opera tions group. They didn't tell the NRC that.
14 And that could be pa r t o f it. The essence of the 15 allegation was that they took steps to prevent the NRC from 16 learning that the operations group was involved in the sale 17 and/or use of illegal drugs.
18 Uhat you are suggesting in your question was 19 there was a second thing they didn't tell the NRC, and that 20 is they were going to take those steps. I mean if they 21 took the steps, tha t's the issue.
22 JUDGE BECHHOEFER: Are you claiming that NRC 23 wasn't told anything, that there was anyone involved with 24 drugs on the site?
() 25 MR. SINKIN: Oh, no. The firings were in the ACE. FEDERAL REPORTERS, INC.
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3 JUDGE BECHHOEPER: I see. Okay.
4 MR. SINKIN: The fact of the investigation, the 5 fact that there were firings, were not hidden facts. What 6 we are talking about is the allegation that the actual 7 firing process was conducted in a discriminatory way.
8 JUDGE BECHHOEPER: Okay. Go on.
i 9 MR. SINKIN: As far as Issue P, that's the 10 essence of our response.
11 JUDGE BECHHOEFER: Le t's hear some responses, if 12 you have any.
O'
' 13 MR. GUTTERMAN: Can I have just a minuto, 14 Mr. Chairman?
15 JUDGE BECHHOEPER: Sure.
16 (Discussion of f the record. )
17 MR. GUTTERMAN: I can go ahead now.
18 JUDGE BECHHOEPER: Pine.
19 MR. GUTTERMAN: The first point I wanted to make 20 is while counsel for CCANP read to us from criterion 2, 21 CCANP's answers to Applicant's eighth set of 22 interrogatories clearly say that CCANP is not contending 23 that Applicant's OA program, in the sense of a written 24 program for plant operations, in any way fails to satisfy
() 25 NRC requirements. So I don't understand CCANP is ACE FEDERAL REPORTERS, INC.
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1 contending in any way that there's an alleged deficiency of 2 some sort in the Applicant's quality assurance program.
3 JUDGE BECHHOEFER: I read them as saying there's 4 a deficiency in how it's going to be implemented.
5 MR. GUTTERMAN: Ye s , Mr. Chairman. I just 6 wanted to be sure that distinction was clear. The program 7 that is on file, that CCANP has conceded meets Appendix B, 8 does not mention anything about drug control.
9 Also I would just respond to the last comment 10 about some allegation about concealing something from the 11 NRC which --
12 JUDGE BECHHOEFER: I saw that in some of the
\- 13 documen ta t ion .
14 MR. GUTTERMAN: In CCANP's?
15 JUDGE BECHHOEFER: Yes.
16 MR. GUTTERMAN: I agree it was there.
17 JUDGE BECHHOEFER: I can't remember which one 18 but --
19 MR. GUTTERMAN: There's no basis for it at all.
20 I just wanted to point out that in CCANP's descriptions of 21 how it came to be making the se allegations, it refers to an 22 anonymous phone call, but it does not represent in any of 23 its written documents that whoever made this anonymous 24 phone call to CCANP alleged anything about hiding
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26292.0 15791 O(~BRT 1 that CCANP has como up with based on the allegations it 2 received in this anonymous phone call.
3 If one goes back and looks at the issues as the 4 Board adopted them at its December 2, 1980 order, the 5 conclusion that the issue of judging an Applicant's 6 character and compe tence to be granted operating licenses 7 was in te nded to be encompassed within issues A and B is 8 just simply inescapable.
9 Looking at' the context of the six issues written 10 together, one cannot possibly, I don't think, conceive that 11 the Board had in mind that when we got down to considering 12 Issue F, that every f act which would be considered under 13 issues A and B would then be considered anew under Issue P.
14 Clearly what was contemplated was that the Board 15 would be able to judge Applicant's character and competence 16 to be granted operating licenses based on the evidence it 17 would hear under Issues A and B. And ir. f a c t , the Board 18 issued a partial initial decision in March of 1984 in which 19 the Board concluded that the Applicants had the necessary 20 character and competence to be granted operating licenses, 21 reserving only on the question of how the handling of the 22 Quadrex report reflected on the Applicant's charactor. And 23 also asking for an upda te about Issue C. But we'll discuss 24 that in a few minutes.
() 25 JUDGE BECilHOEFER: There were some B questions ACE-FEDERAL REPORTERS, INC.
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1 left open, but they were competence questions.
2 MR. GUTTERMAN: As to character, the only 3 question that was lef t open was clearly the handling of the 4 Quadrex report. The Board clearly did not have in mind at 5 that point that, having reserved on Issue F, it had 6 reserved some question about Applicant's character for ,
7 implemen ting the quality assurance program for operations. .
l 8 JUDGE BECHHOEFER: Would the se allegations have l 9 been even entertainable under Issues A or B? I'm not sure 10 they would have been.
11 MR. GUTTERMAN: If one puts aside the question ,
12 of timing --
13 JUDGE BECHHOEFER: Putting that aside. Assuming 14 there was some event, some uncovering of drug use, the 15 pre feren tia l treatment would have been difficult because 16 you didn't have identified too many operations personnel.
17 But -- .
18 MR. GUTTERMAN: I realize CCANP has said that, 19 but if you look back at the phase 1 testimony, you'll see 20 there was a considerable operational staf f even then. I 21 can't really specula te too much, really, what the Board 1
22 would have done had this been sought to have been raised 23 back then. I would point out, on the eve of the start of 1 24 the phase I hearing, there was an NRC inspection of an
( 25 electrical termination shack on the site, and there were
/
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1 issued raised at the hearing about the handling of that 2 inspection, about what the inspectors found, whether the 3 fact that the inspection had been disclosed to the -- the 4 f act of the imminence of the inspection had been disclosed 5 to people in the termination shack.
6 Also, it's a matter that occurred long after the 7 adoption of the December 2, 1980 order, facts which cannot 8 go directly to anything that was raised and anything 9 explicitly set out in Issue A. In fact, the work that was 10 involved that we heard testimony about wasn' t even 11 sa fe ty-related work. Clearly it was not something under 12 the quality assurance program, something specifically 13 contemplated when the Board wrote it's December 2, 1980 i
14 order.
15 Facts of this sort did come up under Issue A.
16 But Issue A has been decided and the record was closed on 17 that.
18 The only other point I wanted to make was that 19 in listening to all of the sta tements of CCANP's counsel, 20 looking at all the pleadings that CCANP has filed, no place 21 is there a single citation of any requirement, any specific 22 requirement in Appendix B, on Applicant's quality assurance 23 program for plant operations, that is alleged to have been 24 violated. There's just nothing there.
O
(_/ 25 JUDGE BECHHOEPER: What do you think about the ACE FEDERAL REPORTERS, INC.
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1 argument about criterion 2, which Mr. Sinkin just mentioned? ,
2 s MR. GUTTERMAN: As I said, Mr. Chairman, CCANP I
t
, 3 has itself conceded that Applicant's quality assurance 4 3
- 4 program for plant operations complies with Appendix B. And
- 5 there is nothing in there, nothing in the quality assurance i
j 6 program of Applicants that is alleged to have been violated.
- 1 7 So there is no violation of criterion 2 that has been r
'i 1
- 8 explicitly alleged. All we have is some pointing out that ;
T. 9 there is soma' general language in Appendix B that says that 10 we should take care to assure there's gcdd quality in a ;
11 nuclear plant. Nobody is contesting Ehat. The question is:
$ 12 Is there a requirement for some specific characteristic of 1 j 13 a quality assurance program that. we are alleged to not be i
14 meeting? I haven't heard that - at all.
i 15 JUDGE BECHHOEPER: If we read " program" to !
4 s' 4
, 16 include implementation, consider his comments.- Be ca use' e I ' m i
17 not positive -- I haven' t decided yet whe ther 18 implementation was excluded. I'm not? sure that it was.
19 Assume that it is included for, 't'ne momen.t . > '
20 Hould it then -- would the2e allegations, fall 21 under criterion.2? m -
4- <
s 22 MR. GUTTERMAN: I don't think so, Mr.f, Chairman. ;
2 23 There's just no allegation that I have heard that alleges 24 any violation of the quality assurance program requirements
-25 or any allegation that the quality assurance does -indeed I
, t,
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O i 1 violate Appendix B. If we violate 2, then the quality '
2 assurance program either fails to address something that 3 should have been addressed or there was a violation of the 4 quality assurance program. I haven't heard any allegation 5 of either of those.
6 JUDGE BECHHOEFER: The allegation, I guess, is 7 that the program will not be implemented in accordance with 8 criterion 2. That doesn't mean that the paper program 9 doe sn ' t mee t the Appendix B, but the allegation, as I .
10 understand it, is the way it is going to be implemented 11 will not comply with criterion 2. That is what I heard 12 from Mr. Sinkin just now. And that's a little bit 13 different.
J 14 MR. GUTTERMAN: I agree with the chairman, it is 15 different. And what you just heard is what I heard, too.
16 It's the allegation about the Applicant's character, 17 whether they will comply with the quality assurance program.
18 It's not an allegation about the quality assurance program 19 itself. And my thesis is that t he Board judged the 20 Applicant's character and whether it could be reasonably.
I 21 expected to comply with the applicable NRC requirements, 22 including the requirements of Appendix B, in reaching the 23 judgment on Issues A and B.
i 24 JUDGE BECHHOEFER: If we should disagree with
() 25 you and de termine that implementation was or is included in ACE-FEDERAL REPORTERS, INC.
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1 Issue F, is that, the allegation we have just heard or 2 assertion we have just heard, a violation or potential 3 violation of criterion 2?
4 MR. GUTTERMAN: There's a big "if" there, 5 Mr. Chairman. I don't believe that what I have heard 6 alleges a violation of criterion 2, no matter how you look 7 at it, how you parse it, how you turn it upside down or 8 wha teve r . There's just nothing the re that says that 9 there's a violation of criterion 2. And the reason for 10 that is simple. Criterion 2 requires a written program.
11 And it describes some of the characteristics for the 12 written program. For there to be a violation of criterion O 13 2, one of two things has to happen. Either you have a 14 written program that is inadequate because it doesn't meet 15 criterion 2 or you didn' t satisfy your written program.
16 JUDGE BECHHOEFER: Isn't that what is being I
17 alleged?
18 MR. GUTTERMAN: No, Mr. Chairman. That's my
?
19 point.
20 JUDGE BECHHOEFER: That it won ' t be . The l 21 evidence now shows it won't be . That's what I am hearing.
22 MR. .GUTTERMAN: To the only extent that is l
23 alleged, it's not pointing at any requirement of the i
j 24 quality assurance program and saying that in particular is h () 25 not going to be followed. It's making a general allegation .l 1
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26292.0 15797 BRT l 1 that these Applicants lack the character to comply with the 2 applicable requirements. And that, Mr. Chairman, is 3 exactly what the Board considered in deciding on Issues A a
4 and B.
! 5 JUDGE BECHHOEFER: I asked you to assume that we j 6 could include implemen ta tion in Issue F.
7 MR. GUTTERMAN: Mr. Chairman, what is being 8 alleged here is not some specific in te nt to evade some a
9 quality assurance requirement. All I hear alleged is a i
10 general allegation that the Applicants lack the character i
11 and competence , or lack the character to carry out the
! 12 requirements applicable to the operation of the plant. In
( 13 particular, he says, "the applicable requirements under 14 Appendix B," but there is no attempt to separate out
]
! 15 Appendix B, and say it is Appendix B in particular they
) 16 won't comply with. In fact, there's no' allegation there 1
17 that in the actions he says are indicative of character 18 propensity not to comply, that there was any violation of 19 Appendix B there. There is no allegation that these events 20 are related to hiring or firing of people for drug use, or 21 drug abuse had anything to do with Appendix B or a 22 violation of Appendix B. Appendix B just simply doesn' t 23 enter into it at all and the attempt to connect this 24 anonymous phone call with Issue F is strained, extremely f
() 25 strained.
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- 1 JUDGE BECHHOEFER
- Does Appendix B contemplate 2 that where particular circumstances are shown, the OA 3 program of one Applicant might have to differ somewhat from 4 the standardized QA program that is spelled out in various 3
5 guidance documents?
i 6 MR.'GUTTERMAN: Mr. Chairman, that question is i 7 so general that it's hard to say no to it.
j 8 Certainly, every plant would have to have a 9 quality assurance program that is adequa te for the 10 circumstances of that plant. So, certainly I would expect 11 there would be dif ferences from one to another. There are 12 dif ferent organizations involved in one plant or another, O 13 there are dif ferent sites involved. There might be the 14 possibility of flooding at one site that doesn' t exist at 15 another, so that the quality assurance program of one site 16 might have specific requirements to address that wouldn' t
! 17 exist at another. Certainly there are differences.
18 JUDGE BECHHOEFER: What about if drug use were 19 shown to exist in one site but is not necessarily assumed 20 to exist generically? What about that?
21 MR. GUT?ERMAN: Well, Mr. Chairman, I guess I 22 have two things to say to that. First of all, there's 23 certainly no basis for saying there's some special problem 24 in Texas that doesn' t exist nationally. - In fact, Mr.
() 25 Sinkin just cited to us a national journal that talks about l
! -1 i l l 1
' I
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26292.0 15799 BRT 1 drug use in the country. But aside from that, the ' kind of 5
) 2 problem you are talking about here, drug use , is something 3 that is not addressed by Appendix B.
4 JUDGE BECHHOEFER: That's what we are trying to 5 decide.
- 6 MR. GUTTERMAN
- In trying to decide that, I ;
7 don't think it's helpful to start off with the hypothesis j 8 that there is a requirement to address drug use. Appendix 9 B doesn't talk about that. It is hard for me to start off i y 10 with a hypothesis that you have a drug use . problem that is 11 found to be of quality concern and then say I don't have to 4
^
12 address it.
O 13 My point is, Mr. Chairman, the way Appendix B is 4 14 structured attempts to assure quality through a certain 15 series of ways of looking at the question of quality. It 16 does not attempt to get at it through control of drug use.
17 There are requirements for training and for planning the 18 work, for writing written procedures, for writing I
j 19 engineering specifications and drawings, and it has l
20 requirements for checking for imposition of engineering j 21 requirements on people you procure things from and for 22 inspecting, for auditing. But it does not say anything i
23 about control of drug use or control of numerous other i
24 things that af fect the performance of people in their work.
() 25 JUDGE BECHHOEFER: Mr. Reis or Sinkin, do you 4
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1 have any further comments? I think af ter we get done with 2 this Issue F, we'll probably want to break for lunch and 3 then come back and talk about the rulemaking later, even 4 though it af fects Issue F as well as the other issues.
. 5 MR. REIS: f!r . Chairman, when I look at the 6 gravamen of what is alleged with this drug problem, we are 7 talking about character, plain and simple character, and 8 character was what was litigated already in this proceeding.
9 It was not to be included in Issue F.
10 Whether we talk about it in terms of 11 implementation or reliability for implementation or how we 4
12 parse or mix up the words, character is something that has l O 13 passed by in this proceeding.
14 If we are moving to reopen, that's one thing.
15 If we are moving for new contentions, that's another thing.
16 But it is not -- it is what we have already passed. The 17 whole focus of this matter is on character.
- 18 When we talk about implementation and we get i 19 bound up on whether there be implement'ation and whether the 20 Midland decision talked about implementation, in the 21 context of this proceeding, any of that stuff should have 22 come in before when we were discussing character. And this 23 is an attempt to enter by the back door and bring in by the l 24 back door what was shoved out the front door in going to a
() 25 character again. And it is. character.
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26292.0 15801 U-sBRT 1 If you look at the matters, he talks about 2 preferential treatment and so forth -- that is character.
3 And that is what was heard be fore , not what is to be heard 4 now.
5 If we have some motions to reopen, if we have i
) 6 some motions for new contentions, that's something else 7 again. We will face those at that time. But whether it is 8 what is talked about in Issue F, no. The whole thought it 9 the proceeding in the past was to deal with character and 10 that is the gravamen of this complaint. It says " lacks the j
- 11 character to properly implement such program."
12 Well, the program is there and that's what the-( 13 issue itself talks about, the program. And it is admitted j 14 the program is there. But the character part is what we
{ 15 litigated already. And it is quite clear.
16 JUDGE BECHHOEFER: If we were to de termine i
17 otherwise , do you believe that drug- use is properly 18 considered under criterion 2? Implementation -- under the 19 implementation?
20 MR. REIS: The Commission.in the past has not 21 required that the drug -- that a drug program, to my-22 knowledge, be under criterion ' 2.
23 As f ar as implementation of it, if it affects 24 the work, I don' t think so. I don't think the Commission
() 25 has looked at it that way, though I am not positive. As ACE-FEDERAL REPORTERS, INC.
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1 26292.0 15802 1 far as I know, criterion 2 has not involved implemen ta tion 2 of the drug program and we are not talking here of general l 3 implementation of a drug program. We are talking about 1 4 character to implement a drug program and character is what 5 we were talking about before, and is not involved in this 6 issue.
7 Let me say further, that I am upset that we are 8 spending this much time and this depth of discussion on 9 anonymous telephone calls that say -- and I think they say, 10 and I don't know what the anonymous telephone calls really 11 said and I don't know if the one who dialed the number and 12 mailed the call had direct knowledge, or whether he heard O 13 it from somebody who heard it in a bar somewhere --
14 JUDGE BECHHOEFER: That comes later in the day.
, 15 MR. REIS: Okay, it comes -- no. I think tha t's
, 16 the primary question and is the question that comes first.
17 What are we dealing with here? Are we dealing 18 with scuttlebutt and gutter talk or are we dealing with 19 real things?
4 20 As far as I can te l l , there is nothing here to 21 say that we are dealing with something real at all.
22 JUDGE BECHHOEFER: We are going to get to this, 23 but we think we have to discuss this under --
24 MR. REIS: The only thing, when I look at number
() 25 5 in the answer to the interrogatories, which is really the ACE-FEDERAL REPORTERS, INC, 202-347-3700 Nationwide Coverage 800 336-6646
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f 1 heart of what perhaps we get to in Issue F, there's nothing
! 2 wrong with personnel being terminated. There's nothing 3 wrong that they turned up things. It's only that.there may 4 have been a discriminatory termination of people in some i 1
5 group rather than another group, and we haven't even gotten )
l l
6 to hear whether one group could have been treated dif ferent j 7 than another group, because was one group doing real work? I 8 Was one group employed by a dif ferent employer who might 9 have had regulations that prohibited use of drugs of f the 10 job and another group didn't yet, but will put t he m , in 11 e f fect, be forehand? Wed'on't know.
1 12 JUDGE BECHHOEFER: 1sn't that the merits, though?
- 13 MR. REIS
- We don't know anything.
14 JUDGE BECHHOEFER: Isn't that the merits, though?
15 MR. REIS: It goes to the basis of the 16 contention. And we are talking about dragging. in something l 17 very late. And we have to have some basis. And when we i
18 talk about late-filed contentions, certainly the Commission 19 and the Appeal Boards have emphasized again and again that t
20 you certainly have to spell out the basis of your evidence.
21 You don' t necessarily need basis to put a contention in 22 earlier.
l 23 But when .you are bringing in something at the 24 end of a proceeding or mid-proceeding, you certainly have l i
()
i 25 to show your basis of your evidence, and that isn't shown l
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1 here.
a 2 JUDGE'BECHHOEFER: Well, that we are going to 3 get to af ter lunch, actually; whether it is or isn't. But 4 until we know where it falls, I'm not sure -- we don't know 5 what sort of basis has to be shown. If it falls under an 6 existing contention, you may need a little less than if you 7 view it as a new contention.
8 MR. REIS: Woll, I --
9 JUDGE BECHHOEFER: I guess that's the order we 10 were discussing things in. Although they all sort of 11 overlap.
12 MR. REIS: Certainly I think it has been made i
4 O 13 clear that contentions should not be strained to expand 14 things and bring things into contentions that may already
, 15 exist in a prcceeding.
16 But let me go back to my original point and just 17 conclude with that.-
18 Certainly what we tried before was ct.aracter. I i
19 What was talked about here is character. And certainly 20 every -- at least for the Staff, we thought the character 21 issues were completed in this proceeding. !
l 22 JUDGE BECHHOEFER: Mr. Sinkin? I guess you can 23 respond.
i 24 MR. SINKIN: It seems that what the Applicants l
() 25 are arguing -- it's, if you look at their quality assurance l
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1 program, that it would not be a violation of their quality 2 assurance program to treat in a discriminatory manner the 3 operations group, if the operations group were found to be 4 engaged in the sale and/or use of illegal drugs that 5 there's nothing in their quality assurance program that 6 would prevent that. Perhaps, then, we have taken an 7 incorrect position that their quality assurance program is 8 a de qua te . We assumed that their quality assurance program 9 commits them to the implementation of Appendix B, that it 10 does fall under criteria 2. It also falls under criteria 11 16 -- " prompt correction of conditions adverse to quality" 12 -- that anything that did not meet the requirements of 13 quality at this project would be a violation of their 14 quality assurance program and that they would treat it as 15 such.
16 If it is their position tha t these kind of 17 matters are not matters they will treat as falling within 18 their quality assurance program, then perhaps their quality 19 assurance program is de ficient.
20 We think, in actual fact, that their quality 21 assurance program commits them to implement Appendix B, 22 that the violation we are pointing to in this incident is a 23 violation of Appendix B, and that it is all an unnecessary 24 debate around a point that should be moot.
O
\j 25 Also, the Applicants want to characterize I
I I
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1 Appendix B has somehow set in concrete, when it was written 2 as to what it would cover. Appendix B is very much a 3 policy document. It very much says to the Applicants: You 4 will control all conditions which might affect quality. We 1
5 are not giving you a list of every condition that might 6 af fect quality and saying these are every ones that might 7 control. We are saying, as a matter of policy you are 8 committing to a f fect all conditions that might af fect 9 quality and we contend that the use and sale, even, of 10 illegal drugs by personnel at this project involved in 11 quality-related activity is something that must be 12 controlled by their commitment to be a licensee of the NRC.
13 JUDGE BECHHOEFER: You are saying, then, in a 14 situation where there is some indication -- assume for a 4
j 15 moment that there is some indication of drug use, that in 16 those situations an Applicant or licensee must include in 17 its OA program provisions for dealing with that, on an ad
$ 18 hoc basis, for when those situations are shown to exist.
4 19 MR. SINKIN: Well, I would think that that might 20 be saying that the Applicants have to be too specific. In
) 21 a sense you have to say, if it's recognized as a condition 22 adverse to quality, the quality assurance program has to 23 deal with it.
i
- 24 I don't think the Applicants would debate --
f
() 25 maybe they would, but I don't think they would debate that I
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O l 1 having the operations group involved in the use of illegal 2 drugs is not a condition adverse to quality, and that they 3 would want our quality assurance program to address that i
4 condition and address it. It might be useful if they had 5 specifically in their quality assurance program something
- 6 about the use or sale of illegal drugs.
7 See, again, too, we are dealing with criminal
- 8 activity. I don't think the quality assurance program has 9 to go through and specify statute by statute which criminal i
10 activities will not be permitted by people engaged in 11 quality work. I think they say people engaged in quality i
12 work will not engage in criminal activities. . Period.
j 13 JUDGE BECHHOEFER: Is that part of the QA J
14 program, or perhaps another obligation of an Applicant, 15 taken care of under some other rule or regulation?
a 16 MR. SINKIN: Well, our contention is,-under 17 criteria 2 arid criteria 16, these are conditions-adverse to l 18 quality that should be controlled. If there are other i
j 19 obligations that the Applicants are under as well as those, 20 then those are violated, but we were aiming specifically at
}
21 the quality assurance issue.
22 The only other point I wanted to make is that i
23 perhaps we would have been better if in answer to t-24 interrogatory 4 we would have simply said: Yes.
() 25 "Are there any other facts.or reasons we contend I
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i 1 support a claim that HL&P - QA program will not mee t 2 requirements?" We could have answered that yes. Question l 3 5 indicates if the answer to 4 is yes, then we specify what
{ 4 the allegation is as to why they will not meet the 5 requirements of Appendix B.
j 6 The argument made by Mr. Reis is essentially -- "
i 7 JUDGE BECHHOEFER: So your answer 4 was purely 8 limited to the program as it appears on paper?
9 MR. SINKIN: Answer 4 is not limited to the 10 paper program. It talks about the implementation of the 11 program.
i 12 JUDGE BECHHOEFER: Wait a minute . I may not O 13 have the right numbers here.
j 14 MR. SINKIN: It says, "to properly implement i
! 15 said program." Answer 4.
16 You are referring back to the earlier answer 4
17 where answer 1 is limited to the paper program.
I j 18 JUDGE BECHHOEFER: Yes. I'm sorry.
[ 19 MR. SINKIN: Yes. Answer 1 is limited to the i
20 paper program; the program itself as written, we did not 21 perceive as being in violation of Appendix B.
22 Wha t we are talking about is how they are going i
f 23 to implement the program and I think .the chair has clearly 24 called that out as the crux of the issue. If you include 1
() 25 implementation and that the Board must have a reasonable l ACE-FEDERAL REPORTERS, INC.
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1 assurance that the QA program will be implemen te d , that's 2 got to be part of Issue F, and it doesn't matter if they 3 have a paper program if they don' t implement it. That was 4 a ruling a long time ago in the NRC case law.
5 JUDGE BECHHOEFER: But if we go the other way, 6 the way the original parties suggested, saying Issue F only 7 includes paper programs, you don't find any problem with 8 that, then?
9 MR. SINKIN: Af ter hearing the argument today, i
10 we may have a problem with that. If the Applicant's 11 argument is really, in fact, that their quality assurance 12 program for operations would not af fect in any way the i
13 event that we have described and would not apply to that 14 event, then we may have a problem with their program. We 15 assumed that their program would cover such an event and 1
16 this was a violation that had been covered up.
. 17 We did want to make one final point in response s
18 to Mr. Re i s ' argument. If you take Mr. Reis' argument on 19 its face, he's saying that you can only hear implementation 20 problems if they don' t rise to a character level under 21 Issue F.
22 Well, I think that turns the world on its head a 23 little bit, because obviously if they rise to a character 24 level, they are even more serious than if they didn't.
() 25 Issue F does not set out specifically the issue i
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1 26292.0 15810 BRT 1 of character. It doesn't have the word " character" in it.
2 It's a statutory requirement, first of all. It's in the 3 Atomic Energy Act. It must always be there.
4 If the facts as developed under Issue F 1
5 regarding the treatment of the operations group call into 6 question the character of the Applicants, the Board cannot
}
7 evade that issue and not look at it simply because it l 8 doesn't arise under Issue F. I think the Board would have 9 an obligation to look at it anyway. But it is not
]
- 10 essential for the development of the discovery that we are 11 asking for, that the Board view this issue as a character 12 issue solely. W'e think it is a violation of Appendix B, we 13 think it is a quality issue, that it's a safety relayed 14 issue and it needs to be heard in this proceeding under t
15 Issue F. And if you want to reserve the matter of whether 16 it rises to the level of character or not to some later 17 point in the proceeding, that's fine. We can do that and 18 still go forward with the issue under Issue F.
19 We think it goes hand in glove, and that in a 20 sense Mr. Reis is correct.
21 If you look at the allegation and assume for_a 22 moment it can be proven, then you have character problems 23 that you just can't avoid.
24 JUDGE BECHHOEFER: But right now you are calling 4
() 25 it mostly likelihood of improper implemen ta tion?
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, OBRT 1 MR. SINKIN: Improper implementation of the 4
2 quality assurance program, likely -- that's the de ficiency.
3 JUDGE BECHHOEFER: I guess we ought to break for 4 lunch. Does anyone else have any further comments on this 4
5 particular matter? We'll come back to the rulemaking later. l 1
I 6 If not, why don't we break until about 2:00.
-7 (Whereupon , a t 12: 45 p.m. , the conference was i
j 8 recessed, to reconvene at 2:00 p.m., this same day.) ,
9 10
} 11 12 13 14 15 16 17 l 4 -
! 18 4
} 19 i
20 21 4
1 22 23 i
24 lO 1
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1 AFTERNOON SESSION (2:00 p.m.)
1 2 JUDGE BECHHOEFER: Back on the record. We would i
3 like to get, next, to the rulemaking point tha,t the 4 Applicant raised. I have distributed a couple 'of decisions 5 which might have an impact on that.
6 My question is, first, in the rulemaking that is 7 re fe rred to, was there any indication from the Commission 8 that adjudication -- there should be no adjudication of
, 9 drug issues pending that rulemaking? Did they.say anything 10 to that e f fect?
11 MR. GUTTERMAN: Mr. Chairman, as I recall it, no, 12 there was no discussion of whether the subjects could be O 13 considered in adjudication or not. Although I would argue 14 that the implication of the proposal for rulemaking is that 15 there is no NRC requirement applicable to drug control. So j 16 the implication of that negative -- that negative 17 implication would go to adjudication, too,.since there are 18 no NRC standards applicable that an adjudicatory board j 19 would get compliance with.
20 JUDGE BECHHOEFER: Would not, just in terms of 21 generally authorizing operation, would not there have been t
22 an opportunity, if an issue were raised, or would there not 23 be an opportunity to raise an issue , . whe ther a reasonable 24 assurance finding could be made in view of alleged or
() 25 proven drug use of personnel involved in the project?
I i
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,n BRT L) 1 Could that not be raised as an issue?
2 MR. GUTTERMAN: Perhaps the best way to answer 3 your question, just to make sure there's a common 4 understanding of what it is we are contending in our motion 5 for protective order, there were really two parts to our 6 argument.
7 JUDGE BECHHOEFER: You have reiterated it in 8 your motion for summary disposition but I don' t view any 9 real difference. Maybe there is, but I haven't perceived 10 any.
11 MR. GUTTERMAN: We certainly didn't intend any 12 difference. There were two parts to the argument that were 13 made in both places.
14 The first part is, looking to the fact that the 15 Commission is conducting rulemakings, as an indication of 16 the Commission's interpretation of its existing rules, the 17 fact that the Commission feels the necessity for conducting 18 a rulemaking on fitness for duty and for including control ;
19 of access -- including in the proposed rules for access 20 authorization a specific requirement about drug users, the )
21 fact that the Commission has proposed both of those implies 22 very strongly, indicates, that the Commission does not 23 consider that its existing rules establish such standards.
24 And certainly that would indicate that there is no such o)
(_ 25 standard, in the Commission 's view, in Appendix B.
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f 1 And, secondly, to the extent that CCANP is
, 2 see king to litigate the need for drug control program or i
l 3 terms that should be included in Applicant's current l
- 4 programs for controlling drug use on the s i te , the fact I 5 that the Commission has a rulemaking under way, in my view, j 6 suggests very strongly, and under the Douglas Point line of 7 cases, indica te s that a Licensing Board should not itself 8 undertake to judge whe ther the Applicants for a license i
I 9 should have such a program. The Commission's regulations i 10 do not currently require such a program and the Commission, I
i 11 in fact, in this case, is considering on the one hand, i
- 12 whether it should adopt a rule; and on the other hand, i, 13 whe the r it should perhaps. deliberately stay its hand and i
14 not adopt the rule because it may be wiser to leave this 15 matter to the industry as a matter of self-regulation.
i
! 16 In fact, the industry has a set of guidelines i
17 established by the Edison Electric Institute which are j 18 currently being implemented by HL&P and other utilities 19 around the country, and the Commission is actively l 20 considering whether it ought just leave matters that way i- 21 and allow the industry to develop its own set of standards.
l 22 JUDGE BECHHOEFER: Assuming that were the ca se ,
i 23 would you claim that a Licensing Board could not litigate, 24 as part of its -- assuming all the contention requirements
() _ 25 were met -- are you saying that we couldn't litigate i
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- 1 whether a program that involved discriminatory treatment or 2 alleged discriminatory treatment to different groups of j 3 personnel was adequate? Does that mean we have to accept 1
1 4 any program that industry comes up with, without inquiring
]
5 into it? As part of our general reasonable assurance
) 6 requirements which the Commission makes, but if we have a 7 contention we have to make?
]
8 MR. GUTTERMAN: You sort of mixed a couple of I 9 different questions there. Le t me see if I can at least J l
. 10 explain how I sorted them out.
3 11 As far as the question whether a particular I 12 program as a program is adequa te , yes, I think the fact
( 13 that the Commission is conducting a generic rulemaking on 14 whether there ought to be prcgram, a requirement for such a 15 program and, if so, what the requirements for such a 16 program should be -- the fact that the Commission has that 3 17 under consideration, yes, that excludes licensing boards f 18 from considering the same issue. The Commission is dealing 19 with that on a generic basis and ~is not leaving it for 4
20 licensing boards to determine on a case-by-case basis, i
, 21 Now, you asked the separate question about well, I
! 22 how about discriminatory application of tnat program? Well, 23 I would first say --
24 JUDGE BECHfiOEFER: That is what has been alleged.
t
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1 like that alleged, although I really have trouble 2 understanding what the allegation is.
3 JUDGE BECHHOEFER: We ' ll ge t to that later. But i
4 assuming that's alleged --
1 5 MR. GUTTERMAN: First of all, for a Licensing I 6 Board to question -- to entertain a question about whether 7 a program is being properly implemented requires a 8 Licensing Board first to have in view some standard against 1
9 which to judge that program. That standard doesn't exist 10 now.
11 of course, I keep hearing this word a
12 " discriminatory," and that's a term one usually hears in an 13 E80 context. It's not something that comes up --
14 JUDGE BECHHOEFER: " Pre feren tial," .I gue ss , has 15 been used. That might be proper.
16 MR. GUTTERMAN: I don't think the word j 17 " preferential" really cures it. The real question I would 18 think a licensing board would consider is whether there are 2
19 people being permitted to work on safety-related activities 20 who, because of some rule the Commission has adopted, ought 21 not be permitted to do that work. I don't think the rule
, 22 exists. I don't think the allegation -- I'm sure it will ,
I 23 be instantly amended to allege this, but so far as I've 24 heard it to this point, there has been no allegation that
() 25 there is anybody doing any work that they are not qualified 1
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1 to do or that people have been doing work that they were ,
2 not capable of doing because of something they had ingested 3 in one way or another.
4 JUDGE BECHHOEFER: Are you saying, for instance, i 5 that if we had allegations that -- at an operating plant 6 the people in control in the control room routinely used i
', 7 drugs and the Applicant wasn' t aware -- licensee wasn' t ,
1 8 doing anything about it at all; they could care le ss
! 9 because there was no specific prohibition -- are you saying i
. 10 that a licensing board that had that issue would have to 11 ignore it? This is a specific allegation for a specific 12 plant, for instance.
13 Could a licensing board make a reasonable 14 as surance finding if they assumed that were - proved?
15 MR. GUTTERMAN: There's a grand leap from the i
16 kinds of things that have been alleged to that, and I'm not 17 sure I can answer that question with the crispness I'd like 18 to because deep down inside I'm sure there is some way the NRC will come up with a basis for keeping the situation you
- 19 20 postula te from occurring.
i 21 The NRC has not done that with Appendix B. And i
j 22 the proposed rulemakings that the Commission has under 23 consideration are two ways in which the Commission is j 24 considering addressing that problem.
() 25 You recognize the Commission hasn' t adopted a i
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- 26292.0 15818 sBRT 1 rule that prohibits people from drinking alcohol on the job 2 either. Every licensee controls that. I'm sure every i ,
3 licensee, as I~know HL&P does, has a rule that prohibits a,
4 people from being under the influence of alcohol on the job, 5 or on company property. But I don't know of any Commission 6 regula tion that seeks to control that, and certainly 7 there's nothing in Appendix B that mentions that.
8 JUDGE BECHHOEFER: Are you saying that if an 9 in te rve nor in a case found that people were routinely q
10 overindulging in alcohol and were on the job, in that j 11 situation, they couldn't raise a contention about it?
12 MR. GUTTERMAN: I think what you really are O 13 postulating is somebody contending that people are not 14 capable of doing their jobs. Whatever the reason. And,
, 15 yes, a licensing board can undertake that kind of inquiry :
a 16 in a proper case.
17 I don't think we have an allegation like that 18 here. I'm sure we'll hear one shortly.
19 JUDGE BECHHOEFER:- Should we not read the -- I'm i >
20 just taking it f rom the response to your discovery, 4 r 21 actually, aren't they saying that management personnel are 22 allowing certain people to use drugs? To remain on the job?
l 23 MR. GUTTERMAN: I should point out one thing
) 24 that's not in the allegation so far. That is, there's no
() 25 allegation that people have been under the influence of i
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J l drugs on the job or have taken drugs while they were on the 2 job. There is no allegation of that at all.
3 I suspect there's no allegation of that because 4 there would be no basis for such allegation, although that 5 hasn't alway 3 stopped allegations in the past.
6 There's a leap here that is going on between the 7 allegation that people have used drugs and the assumption 8 that it af fects their work performance. And there is no 9 basis for making that leap that I know of.
10 JUDGE BECHHOEFER: But in talking about the 11 rulemaking, though, to ge t back to that, are you saying 12 that we, even if there were such an allegation, we couldn't
\ 13 consider it?
14 MR. GUTTERMAN: What I'm saying is for the Board 15 to consider any allegation there has to be a standard that 16 they are te s ting the licensee 's per formance aga inst . The 17 whole basis for having the hearing is to determine whether 18 this Applicant meets the Commission's requirements. There 19 is no Commission requirement specifically directed to 20 control of drug use at this point.
21 JUDGE BECHHOEFER: So you are saying if we had 22 an allegation of extensive drug use , and assuming there is 23 some basis to it, that we couldn' t even look at it, 24 determining whe ther the plant should be licensed for
() 25 operation? Assuming a proper contention and all that.
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26292.0 '15820 I OBRT 1 MR. GUTTERMAN: If you'd just give me a second, 2 Mr. Chairman? ,
3 JdDGE BECHHOEFER: Okay. '
- 4 MR. GUTTERMAN
- If the contention was that 5 people weren' t doing their jobs properly, there was.some 6 misperformance; yes, a licensing board can and should
, 7 undertake a proper contention ~ of that sort, assuming it e
8 meets the other requirements for getting a contention into 9 controversy. But a contention purely that people who use i
10 drugs are employed at this site -- no, there's no standard i 11 applicable there. If the Board determined that they did or
! 12 didn't, there would be no basis .for' judging whether the -
( 13 utility had behaved properly. - -
l 14 JUDGE BECHHOEFER: How about an allegation, j 15 which is very close to what we may or may not have, but i
16 that people , officials of the company are tolerating some '
1 i 17 individuals who are to be engaged 16 safety-related l 18 ac tivitie s , using drugs? It may or may not be today, but u
19 people who are to be -- current management, who are the 20 same people that will be controlling operational management, i F !
21 are tolerating drug use today. , Ca n we use that as a l
! 22 predictive of what they will do? '
l l
23 MR. GUTTERMAN: I don't think changing the l
./
24 question that way really changes the- answer, Mr. Chair"m.a n'. !
() 25 The question still has to come back o: Is there an j
j c ,
l
, l 1 ,
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1 allegation of failure to comply with the Commission's 2 requirements; and whether it is action of management or of 3 somebody lower down, the question still has to be: Is1the i
4 allegation that they are not complying with the l 5 Commission's requirements? They are not going to comply 6 with the Commission's requirements?
i l 7 In a situation where there is no Commission 8 requirement there is no issue. There may be some 9 allegation of some other characteristie of their i
10 performance that somebody thinks is improper. If it 11 doesn' t go to Commission requirements, it is not a matter
- 12 for an NRC Licensing Board to consider.
13 JUDGE BECHHOEFER: Is.that true, even though the 14 conduct may have a significant impact on safety? I'm not c 15 including everything. I'm assuming the particular conduct 1
! 16 has to have some relationship to safety.
17 MR. GUTTERMAN: In my experience , the Commission i
, 18 regulations generally go to all aspects of protecting the i
19 safety of the public from the hazards of nuclear power. So, 20 it is hard for me to postulate a circumstance where there l 21 is no Commission regulation.
22 JUDGE BECHHOEFER: Well, talk about drug use. '
23 Le t's talk about that because that's what we have.
24 MR. GUTTERMAN: Talk about drug use. That's the
() 25 best example and keeps us from being too hypothetical.about 1
i
't i
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I 1 it, and that's the example right there.
2 The Commission requirements that are applicable 13 to employee performance do exist. The requirements in 4 4 4 Appendix B for training and qualificationi for checking 5 people, people 's performance , for auditing their
- i 6 performance. Those are the existing Commission i 7 requirements. ,
8 There is no requirement specifically directed to.
9 drug use . . I mentioned this morning there are a. lot of I 10 othe r things the Commission's regulations do not
.- t I
11 specifically address. They do not address alcohol l
< ^i L2 consumption. They do.not address the health of individuals.
,13 You know, soriebody'c caihntal health can af fect their 3
- 14 performance. Or their physical health; somebody can have a 15 brain tumor; there are a lot of things that can happen to 16 an individual that affect their pe r formance . And the way i 17 in which those kinds of things are addressed by management 18 of a particular. utility vary from case to case. The 19 Commission hasn',t addressed specifically how a particular i
j 20 utility should deal with it.
, 21 Some -- one utility might have very detailed l u 22 physical examinations and another utility might rely more-
, . e
! 23 heavily on - observation by supervisors. The way the 24 Commission gets at.that is to require that there be the a
.u
() 25 checking and auditing. ' functions of. Appendix B. ,
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1 It is when the employee doesn' t perform their 2 job properly that the Commission's regulations step in and
. 3 draw the line. To prevent that from happening, various 4 utilities undertake dif ferent kinds of programs.
< 5 In the case of drugs, the Applicants in this 6 ca se have a very stringent program for preventing -- there ,
i j 7 has been a long-term program for preventing anybody being i
8 under the influence of drugs, possessing drugs, using drugs, l
J 9 selling drugs on the site.
l 10 More recently they have gone to the extent- of i 11 prohibiting anybody whoever uses drugs from being involved j .
12 on the project.
4 13 JUDGE BECHHOEFER: My question did not assume i
- 14 whether the program was good, bad, or indifferent. What if i
i 15 there were no program at all and you had extensive i
16 allegations of drug use , could an intervenor not raise the
]
17 que s tion then?
j 18 MR. GUTTERMAN: That's right. Because the i 19 Commission doesn't require such a program. There is no I
20 requirement for such a program and an allegation of that j 21 sort does not allege a violation of any Commission 22 requirement.
1 1 23 JUDGE SHON: Mr. Gutterman, I would like to take ,
l 24 another look at the notion that the rulemaking' on the part
- e
() 25 of the Commission is a bar to us examining any aspect of i
?
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1 i l 26292.0 15824 1 the quality of the program in a particular plant from the 2 following standpoint: If the Commission has' already 3 started such a rulemaking and then has suspended that i
4 rulemaking, as it'has here, for the specific purpose of S finding out what develops, is it not even more important 6 then for individual programs and programs devised by the 7 industry itself to be scrutinized in just such tribunals as 8 this to see what is developing and whether it is 9 satisfactory, measured against the standard of adequate 10 protection of the health and safety of the public? That is 11 one of the things the Commission is going to find out. How j 12 of ten does this matter come up and how of ten is it decided
~
13 against an Applicant, or in favor?
l i
14 If they are waiting to find out what ha ppens .
15 MR. GUTTERMAN: Judge Shon, I agree with you to 16 a limited extent. I agree that, if the Commission steps j 17 back to see what happens, it has to have some mechanism for s
f 18 finding out what happens. That is certainly. clear. But I 19 don't agree that that mechanism is in an adjudicatory board,
! 20 because the role of an adjudicatory board is to test t 21 compliance with existing requirements.
! 22 The way in which the Commission de termines the 23 success or failure of its stepping back and seeing how the 24 industry goes about addressing the problems of fitness for
() 25 duty and those related problems is through its inspection 4
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26292.0 15825 1 arm. It inspects the performance of every licensee and it 2 gets feedback in that way to see how the licensees are 1
3 performing.
4 It cannot use an adjudicatory board to do that 5 beca use the premise of every adjudication is measuring 6 performance against a legal standard. There is no legal i
7 standard to be measured against here. I think the 1
8 situation you are positing is more of a legislative inquiry, 9 a legislative board rather than an adjudication. It's in a i 10 legislative hearing that a board inquires into something
! 11 and makes a factual inquiry. An adjudication measures
] 12 against a legal standard.
O 13 JUDGE BECHHOEFER: I was going to-ask him if I&E i
i 14 also didn't have to measure against -- I don't know that 15 that was added to yours --
16 JUDGE SHON: I was going to ask him --
17 JUDGE.BECHHOEFER: Okay. You ask him that.
l 18 JUDGE SHON: Does not the inspector function
! 19 also have to measure against a standard? ~ They always seem i
20 to, and they at least always give lip service to the notion i
l 21 that they are doing exactly that. ,
i 22 'And the second thing is, could not we 23 investigate or could not we hear allegations that, pe r ha p s , -
24 a developing industry standard was not being met?
f f
() 25 Supposing an intervenor came in and said: Well, now the l
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2 1 industry has - this standard -that they are circulating for 2 use and these people don' t come anywhere near meeting that?
3- MR. GUTTERMAN: Le t me address the last one 4 first, since it is closest in our mind.
i 5 I don't believe tha t's the - case . I don' t think t
6 a hearing board could conduct a hearing on compliance with 7 an industry standard. If the hearing board could do that, 8 that would be the hearing board standard and NRC standard.
9 Once the agency starts enforcing that standard, 10 .it is no longer a voluntary industry standard, it's an-11 agency requirement. But I believe that's exactly what the 12 Commission is not permitting to go on now, what the O 13 Commission has decided to refrain from doing.
.i 14 As far as the inspection and enforcement arm, j 15 there is a limit as far as enforcement, that the agency's 16 enforcement arm cannot take enforcement unless there's a 17 violation of a Commission requirement. I don't believe it 18 is the same limit as far as inspection.
19 The inspectors go out there and observe what is 20 going on, and certainly there's a' relationship when the i 21 Commission tries to judge whether the voluntary industry i
22 programs are being successful. Implicit in that is the l
23 underlying question of whether performance in each plant is h 24 meeting Commission requirements, and do exist.
l
() 25 Wha t I am saying is, in the absence of a i
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4 2 26292.0 15827 BRT 1 requirement of the Commission that~ there be some k
, 2 restriction about drug users, the Commission may find that 3 regardless of what utility programs there are, there is 4 compliance wi th the Commission's requirements on the 5 performance of employees, and may find that controlling 6 drugs is not necessary because in its experience, 1
7 performance on the job is adequately controlled through i
8 other mechanisms such as the supervisors who watch and see j 9 whe ther their employees are performing properly on the job.
10 Just as an example.
a 11 JUDGE SHON: If, indeed, simple compliance with i 12 existing standards and no examination of anything where an 1
13 existing standard does not pertain is the rule and the law,
{ 14 why do we continually see required findings of the nature 15 of: No undue hazard to public health and safety. and in i 16 compliance' with the Commission's regulations? If they.are l 17 both exactly the same thing. I' ve seen it of ten enough.
i j 18 MR. GUTTERMAN: Let me think about that for a 19 second.
f 20 (Discussion off the record.)
s
.; 21 JUDGE SHON: For example, in section 50.57(a),
i 22 number 2 says: "The facility will operate in conformancy' 1
l 23 with the application as amended and the provisions of the 24 Act and the rules and regulations of the Commission."
() 25 And number 3 says: "There is reasonable-i l
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1 assurance, 1, that the activities authorized by the 2 authorizing license can be conducted without endangering 3 the health and safety of the public; and, 2, such 4 activities will be conducted in compliance with the f 5 regulations of this chapter."
6 Now, if the regulations of this chapter are all t
7 that is required for health and safety, why did they put j 8 them in separately? The se are things that are required for
- 9- the issuance of an operating license. If they are all the 10 same thing, it seems -- that seems an odd way to read that I 11 regulation.
12 .What I'm suggesting is that it may be that we I
1 13 should listen to people who tell us that someone is-not j 14 producing an adequate drug program, from one aspect or 15 another, discriminatory or whatever it may be -- someone is i 16 not carrying out an adequate drug program which, although 17 the Commission has no specific regulation concerning this, 1
f 18 i's a threat to the health and safety of the public, so that
- 19 we could find that it is in conformity with the regulations l 20 but not that it didn' t present any undue hazard to the
! 21 health and safety of the public. And we have to find both l
, 22 separately, according to 50.57.
23 MR. GUTTERMAN: First of all, section 3
- 24 contrasts compliance with the regulations in this chapter --
1
() 25 I-shouldn't say " contrasts" -- it talks about regulations i
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26292.0 15829 f-V)BRT 1 in this chapter. There are other chapters, too, I believe, 2 that apply. l 3 JUDGE SHON: Sure.
4 MR. GUTTERMAN: But aside from that, if you take 5 the interpretation you are suggesting, Judge Shon, I think 6 what you end up with is no restrictions at all on the Board's 7 jurisdiction or authority. It's almost as if all the Board 8 had to go on was the Atomic Energy Act itself, and that it 9 can inquire into anything at all that was alleged to af fect 10 the health and safety of the public.
11 For example , appendix K, I guess it is, 12 establishes certain requirements applicable to emergency
(~)
\' 13 core-cooling.
14 Under the in te r pre ta tion that you are positing, 15 any licensing board would be free to go ahead and consider 16 whether more stringent standards ought to be imposed.
17 JUDGE SHON: Oh, no. I think there's a good 18 deal -- case law and everything else, that says you can't 19 necessarily require more stringent standatds than a 20 specific regulation requires. But where there is no 21 regulation and there are no standards required -- I don't 22 think tha t's the same at all.
23 MR. GUTTERMAN: Of course in the situation we 24 have here , Judge Shon, what we have is the Commission O)
(_ 25 specifically considering whether there ought to be such ACE-FEDERAL REPORTERS, INC.
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1 standards. What I'm trying to argue to you is that here we 2 have a case of the Commission specifically considering 3 whe the r there ought to be~a standard. And if the Board 4 were to consider it in adjudication, whether this 5 particular licensee has a program that's adequate , the 6 Board would be allocating to itself the same consideration 7 the Commission is now undertaking generically.
8 JUDGE SHON: Hardly. It's simply that where the 9 Commission says maybe we should establish a standard, and q 10 then says: Oh, no, let's back off and see what happens; 11 one of the things that might happen is that the
]
3 12 adjudicatory process would function in the absence of the
't
. 13 standard. And make just.this kind of decision in the 14 absence of a standard.
15 MR. GUTTERMAN: If that were - the case , Judge 16 Shon, what you would have is the NRC establishing its 17 standards and requirements, case by case in a case law 18 method. That is not the legal system, that is not the i
19 legal system that Congress has established and the Nuclear i 20 Regulatory Commission has established for controlling the 21 nuclear industry.
j 22 JUDGE SHON: I think we perhaps should not l-23 pursue this an awful lot further. I know an awful lot of l 24 things were established on a case-by-case standard before t
() 25 the Commission got around to making rules. I'm sure that I
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1 will happen in the future, too.
2 MR. GUTTERMAN: The only point I'm trying to 3 make, Judge Shon, is that we have a case here where the 4 Commission has specifically decided not to establish a rule ,
5 to defer establishing a rule for a time to see what the 6 industry does. And if licensing boards were to step into 7 the breach and start establishing rules, then the industry 8 would not be establishing the rule; it would be the agency, 9 through its licensing board arm, establishing the rules.
10 The Douglas Point line of cases that we cite in 11 our motion for protective order is specifically addressed 12 to just that point, and that whole line of cases is b)
%> 13 designed particularly to keep the rulemaking of the agency 14 in the arm of the Commission, in the hands of the 15 Commission and not delegate it to the adjudicatory boards.
16 JUDGE SHON: The portion of Rancho Seco that 17 cited Douglas Point tha t you cited , that was my case.
18 JUDGE BECHHOEFER: I was going to ask you, does 19 anything in Rancho Seco support what you are arguing that 20 it stands for? Rancho Seco, to me, was an attempt by an 21 intervenor to litigate a question under the terms of the 22 proposed rule, and I distinguish that in a couple of 23 rulings I passed out in Midland, which I passed copies of 24 to each of the parties. These are published decisions,
() 25 particularly discussions in LBP82-ll8 -- I could call that ACE-FEDERAL REPORTERS, INC.
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1 a learned point, but tha t would not be exactly appropria te.
! 2 I did have something to do with those decisions.
i 3 In that decision we were essentially backed by a
! 4 Staff position which was saying, you could adjudicate even 4
l 5 under -- when something was in rulemaking you could
! 6 adjudicate whatever the old standards, existing standards 7 were. Whatever those might be. Do you disagree with that?
)
l 8 MR. GUTTERMAN: No, Mr. Chairman. I think those 1
) 9 ca se s , the Midland decisions you were citing, really don't 10 apply to the situations we have here.
11 In those cases what the Board was talking about l 12 was adjudicating compliance with an existing NRC j
(:) 13 requirement, either an interim rule or whatever. . And what j'
14 distinguishes it f rom the Rancho Seco case was there the j 15 rule was only proposed. It was not adopted for interim uno .
I
- 16 In our case, there is no rule be ing used now.
17 The Commission is considering the adoption of a rule , and 18 there is no rule actually in place against which the 19 Applicant's performance can be measured.
20 JUDGE BECHHOEFER: Then we get back to -- isn't i 21 the current rule the ad hoc resolution of problems as they i
22 arise, in the absence of a general requirement for a 23 program effort?
j 24 MR. GUTTERMAN: I don' t believe so, Mr. Chairman.
l
() 25 I think there's a clear set of Commission requirements and i
t 1
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26292.0 15833 esBRT (J) l control of drug use is not one of them, and I don't believe 2 the re is any authority for having an ad hoc establishment 3 of requirements. I think the Board's task is to measure 4 this licensee's performance against the established 5 requirements.
6 JUDGE BECHHOEFER: Mr. Gutterman, do you have 7 anything further to state about the rulemaking? If not, 8 we'll go on to Mr. Re i s , I'd like to hear the Sta f f 's 9 position on rulemaking.
10 MR. GUTTERMAN: I'd be happy to hear the Staf f's 11 position, too.
12 JUDGE BECHHOEFER: In.the decision I passed 13 around, we were essentially adopting the Staf f position 14 t he re .
15 MR. REIS: I don't know if you ware adopting the 16 Staff's position, but le t me say that the Applicant's 17 position is not the Staff's position.
18 From the point of view of whether the 19 rulemakings that have gone forward and the hiatus in 20 rulemaking shows that the Commission does not believe drug 21 control is under Appendix B, I agree with the Applicant as 22 far as that goes. l 23 As far as saying whether Douglas Point is 1
24 controlling here, I don' t really believe so. In Douglas
() 25 Point you had a situation, really, where the Appeal Board's 1
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26292.0 15834 f esBRT 1 law was: Hold up where it appears that what you are doing 2 is going to be of no ef fect because the Commission is going 3 to generically se t a standard. And Douglas Point, that was 4 essentially the situation, it was shortly to be a 5 Commission ruling. I don't think we have that situation ,
6 here with the action the Commission has taken here.
7 I believe that at least in one other case -- and 8 I am not familiar with it and couldn't check it over 9 lunchtime -- the issue of drug use was litigated, and I 10 believe in Shearon Harris.
11 This does not mean that there should be or needs 12 to be a program. A program is a particular Commission 13 requirement and without that, there couldn' t be. But if, 14 for instance, it was alleged -- let's say it was alleged 15 that, or it was shown that a bunch of operators in the 16 control room were there 8aving a 'little party, be it on 17 alcohol or a controlled substance. There is no question 18 that there would be an undue hazard and that the Commission 19 could take action at tha t poin t.
20 Well, there are some interstitial areas - _ not ;
21 all interstitial areas, it has to be substantial, where the 22 boards can look and fill in, and they have in the past 23 filled in cer'tain areas and required more.
24 I think, one, though, they were reversed by the
() 25 Commission eventually, was the ECCS rule , where they filled ACE-FEDERAL REPORTERS, INC.
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1 in some material on the ECCS rule and then the Commission 2 said: No, we don't want to go that far. But there wasn't 3 a question of the Board's jurisdiction; it was a question 4 of what the safe ty significance of that was, and the 5 inerting, in that case, rather than ECCS, it was inerting 6 that it was thinking of.
7 This does not mean tha t I am saying that the i
d drug issue as it is alleged here comes in under Issue F, or 9 under Issue C. I will get to that at the appropriate time.
10 But I wanted to make our position clear on particularly 11 whe the r it was a Douglas Point situation. It doesn't 12 a ppe ar to be so.
~/ 13 JUDGE BECHHOEFER: Does the Staf f believe that, 14 if we were, say, to have a properly framed contention with 15 a proper basis involving preferential treatment of people 16 who use drugs, would the Staf f say that we were not barred 17 by the, at least the rulemaking, from considering that?
18 MR. REIS: I would have to see more of the 19 wording of it to know. It's very hard to give a definitive 20 answer.
21 Generally speaking, just because I said I would 22 have to see the wording of it indicates that there may be 23 some areas that could come in and would be amenable , should 24 it be poss ible to file a late-filed contention on this
() 25 subject at this time, and mee t all the standards of good ACE-FEDERAL REPORTERS, INC.
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j 1 cause and timeliness and adequate basis, and showing that 2 you have some real evidence to go forward and all those 3 things which would have to be me t first: Yes, it might be 4 possible in some way or other to frame something. ,
- 5 JUDGE BECHHOEFER
- Do you have anything further?
i 6 MR. REIS: I don't have anything further to say.
f 1 7 MR. SINKIN: Mr. Chairman, our position as laid 8 out in the pleadings is that the entire issue is a red
) 9 herring and that it's not an issue at all. We are not 1
j 10 talking about the adequacy of the Applicant's drug
- 11 detection program. We are not talking about whether this, f
) 12 the Applicants meet industry standards in the program they i
- O 13 have designed for the detection and prevention of drug use l
j 14 on this project.
j 15 The allegation says there is -- there are l 16 programs in ef fect for detecting and preventing drug use at
! 17 this project; that those programs operated at least I
i 18 e f fectively enough to identify certain people who were i 19 involved in the sale and/or use of illegal drugs; and that A
l 20 once that information was gathered by the program, that the I
i 21 information was used in a preferential manner. And that is 1
! 22 the issue: How the information gathered by the program was 1
23 used by the Applicants.
i 24 It is not an issue as to the adequacy or I
()' 25 inadequacy of the program itself. Even if the Commission
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- 1 1 were doing a comprehensive rulemaking on what a drug l
! 2 - program should be , I don't think that would foreclose l
j 3 litigation of an existing drug program being applied in a 4 preferential manner. So we think the whole issue raised by i
5 the Applicants of the rulemaking for closing this issue is l
6 simply a red herring. We don't think that we are asking
- 7 this Board to establish'any rules as to what should be pa r t 8 or not part of a drug program, detection or prevention 9 program at a nuclear site. We don't think we are 10 developing standards through case law litigation rather 4 11 than rulemaking, and we think that's a perfectly legitimate
] 12 way -- it has happened numerous times before -- but we C:) 13 don' t even think that's what's going on here.
j 14 I guess our essential response to this whole 15 thing is that we think the argument is being led astray by 4
16 the argument that it's relative to a rulemaking, and that 17 is not relevant in any way to whether this should be j 18 litigated at any time in this proceeding.
i l
19 JUDGE silon: Mr. Sinkin, you say you are really l l
h 20 not interested in the ef fect of the program or anythinq !
I' 21 like that or the nature of the program or the standards to 4 22 be applied in applying the program. And yet doesn't it I
1 23 seem that, at least by implication, you are suggesting that i
24 one standard to which a drug enforcement program of this
() 25 sort should conform is that it should be uniformly and i
e1 i \
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\,s) 1 evenhandedly applied to the operations group as well as to 2 everybody else?
3 MR. SINKIN: Yes.
4 JUDGE SHON: That this should be maybe written 5 in it somewhere?
6 MR. SINKIN: That is our assumption: that it 7 should be evenhandedly applied; yes.
8 JUDGE SHON: Well, I say that that appears to me 9 to be at least a standard of sorts that the program should 10 conform to..
11 MR. SINKIN: I would agree with you that it is a 12 standard of sorts. I can't imagine, as I think we said in (O
'/ 13 our pleadings, that any rulemaking by the Commission is 14 involved in deciding when Applicants should discriminate as 15 to those found using or abusing controlled substances on 16 their projects to give Applicants rules as to which 17 employees get preferential treatment. I don't think 18 there's anything in the NRC rules addressing that.
19 JUDGE SHON: I think the proposed rule is to 20 whom it does apply: to people who have controlled access 21 to certain areas. It doesn't apply to everybody else; 22 isn't that true?
23 MR. SINKIN: You are talking about the rule on 24 access?
() 25 JUDGE SHON: Yes. Which was folded right in ACE-FEDERAL REPORTERS, INC.
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l 1 with fitness for duty. I mean the two go hand in hand.
2 MR. SINKIN: I don't think, since we are talking i
I 3 about the operations group, that the problem of access is i
~
, 4 really a problem.
5 JUDGE SHON: Yes. That's true.
6 JUDGE BECHHOEFER: Mr. Gutterman, do you have
! 7 any response before we go on to the next section?
] 8 MR. GUTTERMAN: I just want to point out that 9 what divides our case from the case Mr. Reis was addressing a
10 is that he re the Commission is considering whether or not 11 there ought to be a rule not, as in the containment i
l 12 inerting case , what the exact requirements should be.
13 Actually, I believe that case was a case of interpreting
! 14 requirements rather than really whether there should be an i 15 additional one. I thought the Commission disagreed with i
16 the interpretation applied by the Appeal Board.
~
17 As far as what's going on in Shearon Harris, as l
i
- 18 I understand it, the contention that the Licensing Board
! 19 considered there was an allegation that construction work-I 20 was performed improperly because some employees were under 21 the influence of drugs. So the allegation was not about a l 22 program for controlling the use of drugs or the application i
l 23 of that program, it was about the adequacy of construction '
1 24 work. So I don't think that was a -- the same kind of
+
() 25 contention we are dealing with here. ;
i
)
i i
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26292.0 15840 BRT Os 1 Other than that, I think I have sa id be f ore 2 everything I wanted to say covering the main points I 3 wan ted to make.
4 MR. SINKIN: I don't think that's quite accurate 5 on Shearon Harris. The information we have is that the 6 Atomic Safety and Licensing Board began hearings about the 7 first of October on allegations of widespread drug use 8 among workers at Carolina Power & Light, and that the 9 allegations are both that the amount of drug use at Shearon 10 Harris has been understated by CP&L, and that such drug use 11 may have resulted in improper construction.
12 So, the information being gathered about drug 13 use apparently is also being challenged at Shearon Harris.
14 I mean, the fact that this Shearon Harris Board 15 is going straight in to investigating drug use at the 16 project and its possible implica tions for construction, I 17 think is a direct parallel to going into drug use and 18 looking for the implications in its opera tion.
19 JUDGE BECHHOEFER: Mr. Re is?
l 20 MR. REIS: That isn't the allega tion here ,
21 though. It's an allegation of preferential treatment and I 22 it's a long, long chain we are talking about here. If it 23 was an evaluation of people in the control room using l l
24 controlled substances, or even antihistamines that made
() 25 them asleep at the switch, it would be another matter. But ACE-FEDERAL REPORTERS, INC. l 202 347 3700 Nationwide Coverage 800-336-6646
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l I here the chain is very long. It's that some were not ' fired j 2 because they might have implicated those in the control i
j 3 room. It is very tenuous.
! 4 JUDGE SHON: But, Mr. Reis, it's not very far l 5 from the other matter that Mr. Sinkin said Shearon Harris' l 6 Board was looking at; that is, the understatement of the 7 amount of drug usage. That is something that implies a f 8 deceptive action on the part of the company that's 4
9 reporting this. That's what he's alleging.
1 l 10 MR. REIS: I don't know enough about it to 1
j 11 comment on it, Judge Shon. It depends on what the-l 12 understatement was.
j 13 JUDGE BECHUOEFER: We don' t either.
l 14 MR. REIS: If it was an understatement in a t
- 15 report to the NRC, then definitely it was a matter of a j 16 misrepresentation to the NRC. If it was an understatement i
17 of the public relations of ficer getting up and saying 18 something to a newspaper, that's another matter.
j 19 MR. GUTTERMAN: Judge Shon, I would-just like to
! 20 invi te the Board to inquire, in the Licensing Board panel's l 21 own records what the licensing board at Shearon Harris is 1
1 22 looking into.
I.
I 23 JUDGE BECHHOEFER: We haven't done that. I'm i
- 24 sure we can find out quickly.
' - () 25 Shall we go on to C?
i 6
s
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\. )
1 I think we want to get into whe ther the 2 allegations that we have now would fit into Issue C, the 3 portion of Issue C which we have left as an issue.
4 I guess the Applicant will lead off on that.
5 MR. AXELRAD: I'm sorry, Mr. Chairman. I didn't 6 hear the beginning of what you said with respect to which 7 aspect of Issue C we are looking at. We are looking at the 8 que stion --
9 JUDGE BECHHOEFER: Whe the r it fits into whatever 10 portion of Issue C is lef t for resolution.
11 MR. AXELRAD: I would like to make sure what 12 f ramework we are looking at. So far, no one has claimed k~ 13 that. This is a board raised, sua sponte question?
14 JUDGE BECHHOEFER: We consider the issue has 15 been raised by Mr. Sinkin, by CCANC.
16 MR. AXELRAD: But he is not. He's raising Issue 17 F.
18 JUDGE BECHHOEFER: At this moment we are trying 19 to see whether it fits under an existing contention.
20 If he -- assuming he misinterpreted Appendix B 21 and it came under F, we are trying to see if it fits under 22 C, and perhaps save sometime. At least his final response .
23 on contention C, we haven't discussed exactly what his 1 l
24 rights to respond on contention C are. We are sort of i
() 25 under the impression that he is not precluded from putting ACE-FEDERAL REPORTERS, INC.
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1 something in under C. And we wanted to be able to discuss 2 it today. That's why we raised the question. We thought 3 it might fit under C, which is -- a portion of which is 4 still open.
5 MR. AXELRAD: Fine. Well, let me put the 6 Applicant's position before you, then.
7 I believe it is important, just as we viewed 8 Issue F, in context of all the issues admitted by this 9 Board a number of years ago, to look at all of the issues 10 in context, and clearly at that time it was contemplated 11 that all the issues would be heard together and there was a 12 very specific framework of issues established.
13 Issue A, in essence, dealt with past actions of 14 HL&P, and whether those past actions would ind ica te that 15 HL&P did not have the necessary managerial competence or 16 character to be granted licenses to opera te the STP.
17 The next logical step was Issue B, which asked 18 whether HL&P had taken sufficient remedial steps to provide 19 assurance that it now has the compe tence and character to 20 operate STP safely. And between Issuo A and Issue B, we 21 essentially had past actions of the Applicant and whe ther 22 or not he has taken adequa te remedial actions and whether 23 or not, taking those two things collectively, he had the 24 managerial compe tence and character to opera te safely.
() 25 Issue C, then , added something very limited to ACE-FEDERAL REPORTERS, INC.
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1 Issue B. Issue C, then, sought to focus on the plant 2 operation for the South Texas project. It added to the 3 Issues A and B the questions dealing with the organization 4 for the South Texas project, and in the course of the 5 proceeding that was interpreted by the Board and by the 6 parties to refer to organization and staffing for 7 operations. And the Staf f's testimony and the Applicant's 8 testimony all dealt, under Issue C, with respect to the 9 organization and staf fing for operation, and the Board,
, 10 when it issued its partial initial decision, discussed 11 organization and staffing with respect to Issue C. Not 12 past activity, not remedial activities, it dealt with 13 organization and staffing.
l 14 And then, when the Board, in its partial initial 15 decision, indicated why it was reserving, stated: Well, 16 we've looked at organization and staffing but we've looked 17 at it in 1982, years be fore the plant is going to go into 18 opera tion , and the re fore sometime later on in this 19 proceeding, by the time we ge t closer to operation, we will 20 get an update with respect to organization and sta f fing.
21 And that is all that the reservation dealt with. It dealt 22 with the organization and staf fing for operation of the 23 South Texas project, and the a f fidavits that we have filed 24 and that the Staff has filed deals with the organization O) x_ 25 and staffing for operations. It does not deal in any ACE. FEDERAL REPORTERS, INC.
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O 1 fashion with respect to drug use questions or anything of
! 2 that kind; nor does it need to do that, beca use that is not
- 3 the subject of the reservation by the Board at that time.
J 4 JUDGE BECHHOEFER: Do you need a specific 5 re fe rence to drug use? There is an allegation that
- 6 staffing for operations tolerates drug use -- does not that i
7 affect their qualifications to operate the plant?
i
(
8 MR. AXELRAD: Mr. Chairman, that is not the 4
9 allegation the Intervenors have raised. The Intervenor l 10 specifically in the response to interrogatories, indica ted 1
j 11 his view that because of actions taken by the company as a +
1 i
12 result of drug investigations last year, that the company (1) 13 does not have the character to ope ra te the plant.
)
4 i 14 It is exactly the kind of question we have been i 15 talking about be fore . He is raising a character question.
16 The Board did not, under Issue C, by asking us and the j 17 Staff to update information with respect to organization 18 and staffing, ind ica te that it was going to reopen and f
19 reconsider under Issue C any action or any activity which l
j 20 anybody wanted to raise which somehow dealt with the
- 21 character of the company.
j 22 JUDGE LAMB: How do you view the word I
3 23 " commitment"?
j! 24 MR. AXELRAD: Those are the ultimate conclusions.
i'
() 25 What I have tried to explain, Mr. Chairman, we have words h
i
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v 1 of that kind in each of these contentions, but there's a 2 s te p , by step progression and the Board cannot conceivably 3 have intended by asking for further information with 4 respect to organization and staffing -- what it meant to 5 look at was every aspect of what constitutes the type of 6 thing you look at in de termining the character in the 7 company and its commitment to safe operation.
8 If that was the point intended, it didn't close 9 out anything in the partial initial decision. It did not 10 decide Issuo A, it did not decide Issue B, it did not 11 decide Issue C. Because if there were any further 12 questions that came up with respect to the Applicant's O
k/ 13 activities in the intervening years, and those could have 14 come up under Issue A, and under a reopening of Issue A if 15 that was sought, then that could automatically, under the 16 question you just raised, be brought up under the word 17 " commitment" in Issue C.
18 The only thing that was reserved was 19 organization and staffing. I can point you to the exact 20 words in the partial initial decision as to what you asked j 21 people to upda te .
22 JUDGE BECHHOEFER: Clearly, to me , organiza tion 23 and staf fing relates to the commitment issue. The only way 24 we are in te re s te d in an organization and staffing is to
() 25 show incompe tence and incommitment.
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i 26292.0 15847 f-sBRT 1 MR. AXELRAD: You will take into account the 2 organization and staf fing with respect to your ultimate !
3 decision about the ' ability to operate the plant safely, but i 4 you are not going to take another look at everything else 5 that came in under Issue A or B. You did not indicate at 6 the time you issued your. initial partial decision that by 7 the time we came to your decision that we would reexamine 8 everything in A, B, C, D and E, beca use that somehow deals 9 with the Applicant's ability to safely operate the south 10 Texas project. You did not issue a meaningless decision in 11 phase 1.
12 JUDGE BECHHOEFER: Suppose I tell you that at 13 least I don' t consider the alleged drug - allegations as 14 falling under A or D. And even as subject to consideration 15 under A or B.
16 MR. AXELRAD: If it doesn't come under A and B, 17 it sure as hell doesn't come under contention C. If it's a 16 new contention Intervenor has to raise , then he's got to 19 ra ise it. But Issue C, and the reserved portion of the 20 Issue C, dealt with organization and staffing. Ilow can you 21 look any other way at the 'words of your own decision?
22 JUDGE BECHHOEFER: Aren't you getting a 23 challenge to the qualifica tions of some of the Sta f f ?
24 MR. AXELRAD: I don' t believe so. I don't
() 25 believe so. It's a character question that he raised.
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i 1 JUDGE BECHHOEFER: 'on't -- aren't there some D
2 character requirements f or the staffing?
L 3 MR. AXELRAD: Character of management, character 4 of the individuals who decided to allegedly give ,
5 pre fe ren tia l treatment to operational personnel. That's 6 what he's raising, character of the company, not the 7 character of the operator in the c'ontrol room.
8 JUDGE BECilHOEFER: How about the character of ,i; j i l 9 the managerial personnel who are taking allegedly. , ,
10 preferential actions?
11 MR. AXELRAD: That's the character of the 12 company -- the character of the people within the company 13 who have the ability to make decisions. That's what --
14 when we talked about the managerial competence of character, 15 under Issue A and Issue C -- Issue B, we we re n ' t ta lking 16 about just the individual at the top of t he totem pole .
17 Obviously, we are talking about people in management e i
18 positions.
19 JUDGE BECHHOEFER: The way I diewed this 20 continued issues is on A and B, basically with occurrences 21 under construction and how that af fected the character, and 22 then C dealt with operation, t
23 MR. AXELRAD: I'm sorry, Mr. Chairman, could you 24 re pea t that?
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1 dealt with operation. And A and B are construction 2 deficiencies and how they were or were not remedied, as the 3 case may be. We found in terms of the ma' ters that we were 4 examining under A, there wasn' t a character problem; save 5 the Quadrex. But that would make A and B rather dif ferent 6 from C, and would give a little meaning to C.
7 MR. AXELRAD: Mr. Chairman, let me say one thing.
8 I don't think that a company has two dif ferent characters, 9 one to construct and one to operate. Okay? The company 10 has management and individuals, and the individuals have a 11 character and a commitment to satisfy NRC requirements.
12 I'm not sure to what extant you would parse n
A/ 13 Issue A so as to have it refer only to construction 14 deficiencies. It says: "Without regard to remedial steps 15 taken by HL&P, with the record of HL&P compliance with 16 Commission requirements" -- et ce tera -- that could 17 reasonably be read: compliance with requirements in ef fect 18 up to the time the Board has to reach its decisions, j 19 whether they dealt with the steps that the company was I l
20 taking at that time as the Board has put it, construction, 21 or with respect to these alleged activities that came up 22 during the construction phase that dealt with the alleged i 1
23 preferential treatment of operating personnel. l l
24 I think it's a close question whether Issue A )
() 25 can be read that way or whether Issue A should be read more l
)
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, O l 1 narrowly to talk about those particular construction
, 2 deficiencies. !
i 3 -
But Issue C adds nothing to Issue A or B, .A and 4 B, other than the. planned organization for operation of the 5 South Texas project. It does not raise a new or dif ferent 6 kind of character question. And, if the intervenors are 7 not going to seek to reopen Issue A, or, herhaps more t
j 8 portinently because Issue B -- because their argument, as I 4 understand from their answers, is that we violated i
, 10 criterion 16 of Appendix B by failure to take proper 11 corrective action when we found out about the problem, that
] 12 sounds to me like an Issue B problem, we didn't take I 13 sufficient remedial steps. However, if the'y are not',
l 14 seeking to reepen Issue d or B, then what they are going to j 15 have to do, and I think they are already too late to do f 16 that, is to file for a new contention.
i 1
- 17 But, wha te ve r it is that their remedy is, it
] 18 does not rise under. Appendix C, because that talks about 19 the planned . organization and staffing. That's all that the 20 Board heard under Issue C, in phase 1,- and no one alleged
+
21 anything else was'next. The Board made a decision with 1
22 respect to Issue C, and le f t a very narrow window open for 23 reopening, and what Mr. Sinkin is now opening does not come 24 within that narrow window. And of course he never alleged
() 25 it does eithed\ He's on' the mistaken basis that he's i m o
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26292.0 15851 sBRT 1 talking about an Appendix B requirement and he belongs 2 under Issue F. I t 's t he Board that is giving him an 3 opportunity to change his argument in midstream.
4 JUDGE SHON: Mr. Axelrad, of course , I wasn't on 5 this particular Board when the decision at issue was 6 written. But I no te that in the opinion on Issue C, the 7 Board said, and I'll read it, the last paragraph, in the 8 section on Issue C:
9 "For these reasons and those more fully set 10 forth in our findings, we conclude that there is now 11 reasonable assurance that HL&P will have the compe tence and 12 character as well as the requisite commitment to safe ty to
(~)
k/ 13 ope ra te STPs safely. This conclusion is based solely on 14 information currently of record and will be subject to any 15 upda ted information added to the record in phase 3."
16 That's rather broad, as far as "any updated 17 information."
18 MR. AXELRAD: No, no, but look two paragraphs 19 above that. Two paragraphs above it it sa ys , "The NRC 20 Staff, in its review of HL&P plants for operation, has 21 concluded that HL&P's plant management and operating 22 organizations meet the requirements of the applicable NRC 23 rulings and regulations. Although this was preliminary in 24 nature, we find no reason at this time to disagree. We
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26292.0 15852 C-)sBRT 1 1 the Applicants will update information bearing upon the 2 organization and personnel nor operation and the Staff will 3 review the updated information. At the time we considered 4 Issue F, phase 3, we expect the Applicants and Staf f will 5 supplement directly with such updated information."
6 The Board stated that for phase 3, we will 7 upda te the information bearing upon organization and 8 personnel and that's exactly what we have done and that's 9 exactly what has been left, is the organization and 10 personnel que stion.
11 There is another place in this decision where 12 the Board also re fers to its expected updating. I could 13 find for you the other place where the Board has referred 14 to what is le f t open.
15 MR. REIS: In order that the record may be 16 comple te at this place, at this point I suggest that you 17 look at finding 246, also.
18 ( Discussion of f the record.)
19 MR. AXELRAD: At page 668 of the procedure, the 20 Board specifically says -- at the conclusion of part one of 21 its decision, on page 668 of the printed copy, in the last 22 sen te nce it says: "We also expect that during the 23 consideration of Issue F, QA operation in phase 33, the 24 Staff will update as appropria te the testimony dealing with j
() 25 Issue C, dealing with HL&P's organization for operation."
l l
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(:)"*' i 1 That is exactly what the Board was talking about in Issue C, 2 and that is what has to be updated, the operation for 3 organization. That's exactly what has to be dealt with.
4 There was nothing else -- don' t misunderstand me, Mr. Shon.
i 5 I'm not suggesting that if problems came up between then 6 and now the Intervenor doesn' t have the opportunity to 7 raise that as a new question, whether it dealt with new 8 issues, which means he has to reopen -- he has the ability 9 to file those documents and it will be ruled' on by the 10 Board as appropriate. All we are saying is what he has 11 raised does not come within Issue F, and it does not come 1 12 within the organization and staf fing matters which we are 13 left with in Issue C. What he wants to do is clearly a +
14 reopening on the character question or something else.
15 It's not what is before the Board right now.
16 ( Discussion of f the record. )
- 17 JUDGE BECHHOEFER
- I guess at this stage - .have 18 the Applicants finished on this issue?
i, i 19 MR. AXELRAD: Yes, your Honor.
20 JUDGE BECHHOEFER: Let's hear what Mr. Reis has 21 to say?
22 MR. REIS: Mr. Chairman, I certainly had 23 interpreted the Board's decision as Mr. Axelrad had.
24 Particularly when I look at Issue C, and I look at it, it
() 25 says "in light of," and gives two things: one is the ACE-FEDERAL REPORTERS, INC.
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4 26292.0 15854 BRT 1 planned organization for operation and that is organization 2 for operation that we are talking about; and two is alleged 3 deficiencies in HL&P's management.
4 Well, that one refers back of its own terms to A 5 and B and deals with character. So we are only dealing 6 with organization for management. And the organization for 7 management is the organization for management talked about, 8 both in the printed opinion in 19 NRC at several places at 9 the -- on page 668, where they talk about what you talked 10 about as being expected for phase 3 -- updating for phase 3, 11 which is, again, QA for operation, organization for 12 ope ra tion , and in that se n se , if you look at page 698, 13 Mr. Axelrad pointed to tha t , particularly there, I think 14 that's the strongest place where it says that what it's 15 looking for is organization and personnel, not what we have i
16 been talking about, of what is going on at this time in 17 organizing the plant, but the paper organization, the 18 charts.
19 That is what was looked at to be brought in at
! 20 this time. The FSAR, and the fact that you could lean on 1
21 the -- rather -- I misspoke.-- the SER, the Staff's SER, 22 and that that material would be in at this stage and that 23 you could work on that.
! 24 Further, in finding 246, it also essentially
() 25 says the same thing that the two other citations I gave did.
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1 That begins on 786 and goes over to page 788.
2 In essence, I don't want to take a lot of time 3 repeating, but it is clear throughout the opinion what we 4 were talking about in issue -- the updating of Issue C, was 5 the updating closer to operation of the material that would 6 be in the SER, as to the organization for operation of the i 1
7 plant. l 8 JUDGE SHON: Mr. Re i s , I haven't had a lot of 9 time to go over the material that has been submitted in the 10 update, but I notice that the Applicants submittal, at 11 least, included a good deal of material on individuals, 12 that is, background and things of that sort, about the crew.
\J 13 Educa tion , experience and things like that, all of which 14 are impor tan t to this point. But, suppose each and everyone 15 of them had a stamp on the bottom of his biography that 16 said: " Excluded from drug testing program." Would tha t be 17 an important point, too? Would that be included, if he 18 were excluded from it? This is somebody we are never going 19 to look at.
20 MR. REIS: You know, I have not had an 21 opportunity to consult with my technical staff on that 22 question. But no doubt we do look at the education and the 23 qualifications of the se people who will have key positions 24 for the licensing of the plant. And if it did come to our O
(,) 25 a t ten tion that somebody was unreliable for wha tever cause ,
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26292.0 15856 l BRT 1 yes, it would be hard to say. I don't have the ANSI 2 standard be fore me , and this is the answer see standard for t 3 these key people in the plant -- I don't have it right 3
4 before me -- but if they aren't thought to be reliable i
5 people, I can't sit here and say: No, there's nothing 6 wrong with that. We are going to go ahead and license a 7 plant. All I can say is, what you are saying, though, I
} 8 want to make very clear, is a hypothetical and not the 9 allegations that we have in connection with Issue F, and 1
10 it's not what we have in this situation. 7 11 JUDGE SHON: It's rather close to what the i 12 allegation to which the Intervenor has brought for this, as
( 13 I see it: that these people , regardless of what their l
14 behavior may be , are being shielded from the ef fects of a 15 drug testing program. Is this not essentially what --
j j 16 MR. REIS: No.
17 JUDGE SHON: Mr. Sinkin, isn't that essentially 18 what you are driving at?
j 19 MR. SINKIN: .Yes.
20 JUDGE SHON: While the allegation -- I'm not '
j 21 making any suggestion about its truth or lack thereof, but, '
22 in ef fect, Mr. Sinkin alleges that these people are not 23 being examined according to the usual standard drug testing
- 24 program that the company itself feels. is riecessary.
() 25 MR. REIS: No. That is not so. It is not shown
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1 that these are people that are the ones -- where we have 2 the organizational chart fleshed out, there is no 3 indication that they are. That would be in the 4 organization chart that is fleshed out.
5 JUDGE SHON: That's a question. The te rm 6 " operations group," was used. The Applicant has pointed 7 out several times there is no such thing as an operations 8 group. There is, of course, that de tail, just who the 9 people are of whom the Intervenor is alleging is shielded 10 from the consequences of drug use. That is obscure, I must 11 admit, and would have to be clarified.
12 MR. REIS: In the SER we do pass upon the 13 qualifications of certain key positions. It is considered 14 in the SER. We do look at that.
15 What we see he re , we can ' t -- I don' t see the 16 allegations here -- even what's in the answer to the 17 interrogatories here -- that goes to that and shows they 18 don't meet those qualifications of the ANSI standards, 19 which are essentially what we evaluate against in our SER.
20 JUDGE BECHHOEFER: I guess it's your turn.
21 MR. SINKIN: Thank you. First of all, in 22 relation to --
23 JUDGE BECHHOEFER: First, do you even claim that 24 what you allege does fall under what we have asked be
() 25 updated under Issue C?
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! 1 MR. SINKIN: First of all, I was perfectly 2 comfortable with it being under Issue F.
l
- 3 JUDGE BECHHOEFER
- Assume for the moment that we 4 would not accept it under F, take that as a given from my 5 que stion --
4 6 MR. SINKIN: As a possibility. Right.
7 I think given the wording of Issue C, that it 8 does deal with the organization and staffing for operations 9 and whether there is a reasonable assurance that HL&P will 10 have the compe tence and commitment to safely operate the STP, 11 I think certainly the allegation I provided sounds in Issue 12 C, particularly on the issue of their commitment to safely 13 ope ra te the STP. If what we are talking about is 14 protecting the operations group from the consequences of 15 drug sale and/or use , then that does not demonstrate the 16 kind of commitment to safely operate STP that we would 17 expect to find in an Applicant for an operating license.
18 I think it's taking a slightly different view of 19 the allegation and it does fit there as well as it fits in 20 Issue F. It is looking at a different face t , looking at it 21 from a different perspective, and it could easily go into 22 Issue C.
23 I do want to clarify one thing raised by Judge 24 Shon. The phrase used by the caller was " operations group."
() 25 There is something called a nuclear plant operations 1
i l
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,v 1 department. I don't think operations department, J
2 operations group are that much different. I assume that 4
3 there was -- that that is who the caller had in mind, I
j 4 particularly given the nature of the allegation.
a 5 I noticed in the opinion that was quoted , the f
6 Board actually spoke to Issue C, and included competence ,
7 character and commitment in the opinion.
l 8 I think the dif ference between character and 9 commitment is commitment is one aspect of character. So I 10 think it is called out in Issue C, in the commitment to 11 sa fely operate .
12 JUDGE BECHHOEFER: That portion of our I 4
13 discussion -- would you character that reference to 14 character only insofar as item 2, with the potential to 15 discuss the character questions?
16 MR. SINKIN: I'm not clear on your question.
j 17 JUDGE BECHHOEFER: Well, we have two types of I
18 "in light ofs." The second incorporated peculiarities in 19 Issues A and B. So, re fe rring to character in our 20 conclusions, would that not have been related to the second 21 item, Issue C --
22 MR. SINKIN: You are referring to the alleged l I
23 deficiencies as the second i tem? Is that what you mean by )
l i 24 "the second item"? !
i
- () 25 JUDGE BECHHOEFER
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1 incorporates the A and B matters by reference.
2 MR. SINKIN: Quite possibly the character i
, 3 elemen t in the opinion emerged from item 2. However, the
, 4 overall reasonable assurance deals with competence and
)
5 commitment to safely operate , and that's based on both 6 i tems .
t :
7 All I'm saying is that I think the term 8 " commitment is not all that much different from character,
! 9 and that if you wanted to include -- issue two -- I mean, 10 Issue C gives you the opportunity, I think, to include not 11 only the allegation but all character aspects of the 12 allegation that come out. It's perhaps more comprehensive
.I 13 than Issue F.
14 Over and over again both the Applicants and 15 S ta f f have said that the updating was on organization and
, 16 staffing. Well, essentially we are updating, too, on 17 staffing. We are updating on' the management attitude
- 18 towards the staf f of the operations group; and that is, 19 that they are a protected group who does not face the same 20 disciplinary reaction as other groups when found to be in
] 21 violation of project programs.
22 JUDGE BECHHOEFER:'~ That's Judge Shon's 23 hypothe tical . I say that was Judge Shon's. hypothe tical.
24 MR. SINKIN: Right.
() 25 I don't think we are looking -- it seemed to.me d
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1 that Mr. Reis was saying we are looking only at the pa pe r 2 organization, and I don't think we were looking only at the 3 paper organization. We were looking at'the qualifications 4 of the personnel who were involved, or to be involved in 5 ope ra tion s . And the wording of Issue C, the -- those are
- 6 aspects of the competence and commitment issue which is in 4
7 Issue C.
8 So, on the whole we find the allegation does fit 9 into Issue C, and perhaps better in the sense of Issue C 10 being more comprehensive than Issue F, including commitment; 11 but we would still argue that F deals with' whether you are 12 going to adequately implement the quality program, and you 13 are not going to unless you have the commitment. -There's 14 case law about quality assurance has the te rm " comm i tme n t . "
J 15 Do the Applicants have the commitment to implement it?
! 16 That's the issue.
17 All I'm saying is Issue C is a little more 18 explicit than Issue F, as including commitment in there, 19 but I don' t see Issue P not including commitment just 20 because the word isn't there.
21 (Discussion off the record.)
22 JUDGE BECHHOEFER: Does anybody have anything 23 further that -falls into C. Then after we finish that, I i 24 think we'll take a short break after that. Why don't you
() 25 -- let's finish on Issue C.
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V 1 MR. AXELRAD: Fine. Just a couple of points.
2 One is I want to ma ke sure that there was not any 3 misunderstanding as to the argument I was making with 4 respect to Issue C. I'm not sugge s ting that the words 5 "compe tence" and " commitment" in Issue C don't include 6 within them as what has been talked about as character.
7 Issue C took all the information from A and B, and said 8 when you look at all that information plus HL&P's planned 9 organization for operation of the South Texas project, do 10 you still find whether or not they have the compensa tion ,
11 commitment, character to operate the plant sa fe ly? Issue C 12 was very, very broad. What I was saying was with the
(~
(_)) 13 narrow issue that was left to be upda te d , did not deal with 14 past de ficiencies, only with the prospective planned 15 organization for operation.
16 Mr. Sinkin has clearly raised a question not 17 with respect to the future organization and staffing. He 18 has raised a question with respect to the character of the 19 Applicant based upon his actions in 1985, his alleged 20 pre feren tial treatment of people.
21 He has not raised, explicitly said he was not l
22 talking about the adequacy of the drug detection program, 23 whe the r it mee ts the standards. He is not arguing at all 24 with the fact that we now have a program in ef fect which (n) 25 tests every individual, including all operations staf f, ACE-FEDERAL REPORTERS, INC.
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l both upon hiring as a base line with respect to past 1
2 employees that there will be random testing of all 3 employees including operation group personnel, that the s
4 program is fully adequate .
5 What he is raising is only an allegation based i 6 upon a past action. And that's what I say the reserved
- 7 issue under Issue C does not include.
i 8 JUDGE BECHHOEFER: Le t 's ta ke a 15-minute break.
9 When we come back we have a number of questions to ask, 10 Mr. Sinkin particularly, about what he is actually alleging.
i 11 (Recess.)
12 JUDGE BECHHOEFER: Back on the record. At this 13 point the Board would like to-find out in a little more
- 14 detail, if we can find out in more detail, what exactly 15 CCANP would offer in the nature of a basis for litigation, t
j 16 whe the r wha t we ' ve read in the responses to in te rroga torie s i
17 are all that we would find, or not?
18 MR. SINKIN: As the answers to interrogatories 19 set forth, Mr. Chairman, the allegation was an anonymous 20 allegation received by CCANP, that was communicated to the
, 21 NRC and other investigative agencies. The essence of what 22 we were told is in the answers to interrogatories. There s 23 isn't any more that I can provide.
1
.l 24 JUDGE BECHHOEFER: Do you know the name of the
() 25 individual who made the telephone call? It's anonymous to
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._s BRT 1 us. Do you know the name? Could you provide us the name?
2 MR. SINKIN: Mr. Chairman, in phase 1 of this j 3 proceeding Intervenors were required to reveal their confidential sources, and as a result of that, we adopted a 4
5 policy that anyone calling us was instructed that if they 6 had any information to provide to us, they should not give 7 us their name. They should call us and we could either 8 assign a code name or they could just call whenever they 9 wanted to call and we would not inquire as to their name.
10 In the case of this allegation, I think I 11 recognized the voice. I would not care to speculate as to 12 the identity of the caller. The allegation was provided
(,,
s- 13 anonymously. There was no name given when the allegation 14 was given.
15 JUDGE BECHHOEFER: If we were to indicate that 16 we might feel free to go ahead and litigate it, what, 17 exactly, would we have to litigate?
18 We could not, I don't think, just put into the 19 record that you have an anonymous call to that effect.
20 Could you indica te now to the Board, for instance, the name 21 -- and I'm saying right now -- could you tell the Board, 22 alone, the name of the person, some idea that he's at all 23 familiar with the facts that are being alleged and whe ther 24 he would be willing to testify if we were to go to the
,~.
(_) 25 hearing?
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i 1 MR. SINKIN: Are you saying provide it directly 2 to the Board but not to the other parties?
3 JUDGE BECHHOEFER: Well, maybe as a first s te p .
4 I'm not saying it would never go to the other parties. It 5 would have to go to the other parties.
6 MR. SINKIN: That's what I thought.
7 JUDGE BECHHOEFER: I'm saying how could we 1
- 8 litigate your claim? If we should decide it fit under some 9 category or other, how would we litigate this?
10 MR. SINKIN: First, grant my motion to compel so 4
11 I could get some discovery. Then we pursue that and we ;
12 gather the evidence that you'll need in order to resolve
{O 1
13 the issue. i 1 i 14 JUDGE BECHHOEFER: Are you asking us to say that ;
15 an anonymous telephone call that you supplied under oath is 16 sufficient as a basis for us to initia te -- to , in effect --
17 whether you call it accepting a contention or not -- but is 18 that a suf ficient basis to litigate a particular issue?
19 MR. SINKIN: I guess I would point out that in 20 the Applicant's pleadings they have filed-various
! 21 af fidavits and statements that there were , in fact, i
1 22 polygraph tests given during the time period that we are i
23 alleging. We have newspaper - stories that there were, in 24 fact, people fired that do link -- they have mentioned the
( )- 25 Wackenhut inve s tiga tion ; the newspaper stories do link the i
.i i
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26292.0 15866 sBRT 1 stories to the Wackenhut security guards; there are items 2 that indica te that the allegation is coming from a real 3 base of an event.
a 4 JUDGE BECHHOEFER: The person might have read 5 the newspaper.
l 6 MR. SINKIN: The person might have read the 7 ne wspa pe r . I don't know whether the person read the 8 newspaper or not. But the allegation that was provided was i .
9 that more was going on here than met the eye .
j 10 JUDGE BECHHOEFER: What I'm trying to say is:
11 How could we judge whether there was any substance at all 12 to that? Or whether it's even worth inquiring further b
Ns/ 13 about?
14 MR. SINKIN: It's a difficult problem. I don't 15 have the answer to that.
16 I think the seriousness of the allegation I 17 warrants at lea st permitting us to engage in the discovery 18 we've tried to engage in and then to respond to a motion 19 for summary disposition when we've had a chance to conduct 1
- 20 some discovery.
21 JUDGE BECHHOEFER: Can we even -- do we even 22 have enough, assuming this were just an initial contention 23 and we were supplied with allegations that an anonymous
- 24 phone call had revealed certain information, would we have
() 25 enough even to say that the basis was adequate to admit a i
)
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] 1 contention and to permit discovery? We would have to at i
- 2 least have reached the point of view that there's an j 3 adequate basis for whatever was alleged before we even
}
j 4 allowed any discovery to occur.
1 5 MR. SINKIN: I'm just trying to refresh my mind, l 6 Mr. Chairman, on the original allegations submitted by 7 CCANP. It seems to me we filed contentions that there had I
8 been intimidation and harassment of quality control j 9 inspectors and that that information had been provided to I
i 10 us but we were not required to reveal the source of that i
1 11 information at that time. We filed it as a contention that i
i 12 we intended to litigate and it was accepted. The _ basis was 13 information we had from inside the plant.
14 JUDGE BECHHOEFER: I can't remember whether you 15 revealed the name of Mr.'Swayze or not. We knew about him 16 a long time ago.
! 17 MR. SINKIN: I think that was a lot later than i
} 18 the acceptance of the contentions, but I'm just not real 19 clear in my own mind.
20 I think there's a policy question here ,
21 Mr. Chairman, where we are in the position where this Board 22 has previously ruled that we have to reveal our 23 confidential sources so we have adopted this instruction as 24 a way to protect people who want to provide information,
() 25 and they have provided it to us without a name. So we then 4
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. BRT 1 bring the information to the Board and the Board is le f t 2 with that as a basis: We think the information is credible, 3 we think the pe rson is credible and the nature of the 4 information they provided seemed credible.
5 MR. NEWMAN: You don't know who it is.
6 MR. SINKIN: That's the best we can of fer.
4
- 7 JUDGE BECHHOEFER
- Weren't we at least told
- 8 earlier in phase 1 that quality control inspectors had i 9 alleged that they were being harassed? Thut you had. direct 4
10 -- I can't remember the early stages --
11 MR. SINKIN: I don't either.
't 12 JUDGE BECHHOEFER: It tells me that an 1
13 unidentified source with no apparent relationship to the l
14 plant at all -- somebody that might have just read the i
l 15 newspapers and be opposed to the plant saying: I ' ll be t l 16 Mr. Sinkin would like to hear an allegation of this sort.
l 17 MR. SINKIN: Wo '; 1, Mr. Chairman , we took the i
18 allegation first to the of fice of investigations and asked ,
- l l 19 them to inve stiga te it.
, 20 JUDGE BECHHOEFER: I'm aware of that. l I
1 21 MR. SINKIN: We did not bring it Board at that l
22 time because we wanted to allow a chance for OI to !
23 investigate before we brought any information to the poard.
24 When it became clear that our discovery time was
() 25 going to run out and they were too busy to conduct the 1
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] 1 investigation, we were forced to go ahead with discovery 4
2 and reveal the allegation through answering interrogatories 3 and through our discovery inquiries. I hope that some day 3
4 the of fice of investigations will look into this matter.
5 Until that time, the only way we have to pursue it is i
6 through discovery.
i 7 JUDGE BECHHOEFER: I inquired yesterday. OI.is ;
8 going to give you a response. They haven't got* it yet --
9 fairly shortly.
- 10 Did you convey to OI the substance of what is in j
11 this response to an in te rroga tory? Are- they even looking 12 into alleged preferential treatment of various personnel?
13 Or are they, instead, only looking at the question of 14 whether Region 4 was kept informed or the NRC was kept 15 informed of drug use, drug control programs at the _ s i te ?
16 MR. SINKIN: In the oral, conversation on October i
17 25, 1985, I communicated to the of fice of investigations l 18 that we had the allegation that there had been an internal i
i 19 investigation at the plant into the use or sale of drugs; 20 that investigation had identified numerous personnel, 21 through the use of lie detectors, who apparently had
[ 22 engaged in the use or sale of drugs; that some of those i
23 personnel were fired, some of those personnel were not
- 24 fired; that those that were not fired were not fired 4
() 25 because they would implica te the operations group; and"we l
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1 discussed at that time that there was a pending issue l l
f 2 be fore the Licensing Board as to the quality assurance l
3 program for operations which we said we thought this was i
4 relevant to and it would be nice if there could be a speedy
- 5 investigation on that grounds; and that there -- and that j 6 we were aware that the NRC did not normally investigate 7 drug use but that if it was an operations group that was )
l' 8 involved in drug use there was a clear quality concern that 9 might bring the NRC into such an investigation and that i
., 10 protecting that group would be something that would be 11 obstructing the NRC. And we agreed that we would provide 12 to the of fice of investigations in writing the allegation 13 about the preferential tre a tmen t ' -- the drug use by
]
14 opera tions, excuse me , and that we would provide to the-i 15 Justice Department the allegation of obstruction of the 1 16 NRC's investigation responsibilities.
i 17 We did provide to the office of investigations I
- 18 the allegation just as it is set forth. It may not be word 19 for word. It's the same allegation.
20 JUDGE BECHHOEFER: I see. That was my. inquiry, 21 do they have before them essentially what's being brought 22 be fore us. Did you give them a name?
f 23 MR. SINKIN: No. No. It was provided to them 4
24 as an anonymous allegation. And they agreed to investigate j 25 it.
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26292.0 15871 sBRT 1 JUDGE BECHHOEFER: If we were to determine to 2 start a question for litigation that we would need 3 something more than that, would there be any way for you to 4 really supply more, if we should determine that in order to 5 ef fectively litigate something we would need at least a 6 starting point? In litigation we would probably need a 7 witness to come in and say, at least say what he apparently 8 told you.
9 MR. SINKIN: Mr. Chairman, I think that's a very 10 different standard than is applied normally to matters to 11 be heard before a licensing board, that a witness has to be 12 produced to the Licensing Board to te sti f y to the ma t ter 13 before the Licensing Board accepts it for litigation. You 14 are going into the merits.
15 JUDGE BECHHOEFER: To some extent that may be 16 true. But is it not true that there has to be at least 17 enough basis to know whether there is something behind the 18 contention? Wouldn't the adequacy of the basis depend in 19 part on who the individual was, or the likelihood of the 20 Licensing Board ever being able to u se that information?
21 MR. SINKIN: We did not intend to rely on the 22 testimony of the alleger in proving the case. I intended ]
23 to rely on discovery and being able to prove the case )
24 through the questions and documents that we are seeking to
() 25 have answered by the Applicants. And we do find ourselves l ACE-FEDERAL REPORTERS, INC.
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! 1 in the situation of essentially conducting an investigation J
2 that no one else has taken the time to conduct for whatever r
3 reason.
i
! 4 JUDGE BECHHOEFER: What is your point of view of, .
! 5 I'll call it the alternative type of discovery which was 6 outlined in one of the Applicant's papers that was filed 7 recently. Would that -- if that were the case , would that 8 serve your purpose?
]
9 MR. SINKIN: I assume you are referring to j 10 something about numbers. I seem to remember them referring 11 to that.
12 JUDGE BECHHOEFER: I am referring to that, yes.
13 MR. SINKIN: I would have to re fer to that, 14 Mr. Chairman. I don't even remember where that was.
15 MR. AXELRAD: In the response to the motion to
{ 16 com pe l . Page 14 of the Applicant's response to the motion
- 17 to compel.
i 18 MR. SINKIN: No. We don' t find tha t adequa te ,
1 l 19 Mr. Chairman. There may be an intermedia te ground in l 20 between wha t we ' ve asked for and what the Applicant's have j 21 augge s ted .
i 22 For example, if we can have the person tested by I >
23 polygraph identified by a letter or a number to start with,
! 24 with the employer of that person, their position at the f
i
() 25 project at the time they were te s ted , and the reasons i
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d 1 provided for why they were tested, the questions -- I don't 2 want to be held to this of f-the-top-of-my-head list, I am 3 trying to move to some middle ground -- if they want to 4 know the questions asked -- if the problem was the l
5 revelation of names, we perhaps can get around that by 6 assigning them some identifying number as long as we are i
j 7 able to relate the name to the specific organization or the i
I 8 number to the specific organization of that person, the ir 1
} 9 position, employer, how the allegations provided by that 10 person were treated, follow-ups, results of investigations,
! 11 that kind of thing, that might give us enough to resolve
! 12 the issue without going into the actual identities of the i
l i
O 13 persons involved. That is not to say we don't also want
] 14 the actual programs and procedures for the drug program, 15 I'm just talking about the problem of identifying people.
16 And all of that can be under a protective order, too. We 17 don't have any objection to protective orders being 18 fashioned that prevent the unauthorized release of any of 19 this information we receive.
20 JUDGE BECHHOEFER: I would like to ask -- I 21 would like to go to the other parties for a moment. Assume 22 for the moment that we were to -- if we were to decide that 23 this issue fit under C, that it wasn't a new contention as 24 such, would we have authority to require. an additional
, () 25 development of a basis?
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1 For instance, the matters I talked about, the 2 name of the individual, his position or the means by which 3 he acquired whatever knowledge that was transmitted by the 4 anonymous phone call, and his willingness to testify.
5 Would we have a basis? Would we have legal basis for 6 imposing those requirements before we permitted the 7 con te n tion , litigation of the contention or issue or 8 whatever it might be called to proceed any farther?
9 I don't need the answer to this under, if we 10 consider it a late-filed contention because I think under 11 the third of the criteria , we clearly could require it then.
12 My question is: If we consider it under -- as falling 13 under an existing contention, such as C, or even F for that 14 matter, could we require, be fore we allowed it to be 15 li t iga te d , the additional showing that we outlined?
16 MR. AXELRAD: Mr. Chairman, let me parse that 17 question in two different fashions because you put a lot la into it. With respect to Issue F, we have . filed a motion 19 for summary disposition of Issue F, and the Intervenor has 20 to respond to that motion for summary disposition and 21 presumably the Board is going to rule as to whether or not 22 the se ma t te rs -- s in ce that's an issue that is specifically 23 raised under our motion for summary disposition and all the 24 parties have to respond, _the Board will rule on that
() 25 question. And presumably it will use the standards with ACE FEDERAL REPORTERS, INC.
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i 26292.0 15875 wBRT 1 respect to summary disposition. We don't think the 2 Intervenors have raised any issue under any matter of j 3 material fact under Issue F which would preclude the grant j 4 of a motion for summary disposition. So let me put F aside.
5 JUDGE BECHHOEFER: Put F aside for the moment.
6 We may decide that almost as a matter of law as it is set 7 up. But be that as it may -- assume --
l 8 MR. AXELRAD: And I think you would under our I 9 motion for summary disposition or even earlier if you I
- 10 wanted to. 1
- 11 Now, under C, the question is whether this I
i 12 matter comes within the area that was reserved by the Board i'
13 under Issue C.
- 14 JUDGE BECHHOEFER
- I'm saying if you assume for
{ 15 this question that we find that it does, could we, prior to 16 allowing it be li tiga te d , require the additional 17 specification that we have outlined, legally require?
18 MR. AXELRAD: What I was going to say is the i 19 answer to that question is based upon what the Board i !
) 20 intended when it permitted -- when it required updated 1
i 21 information and indicated that issues could be raised with 22 re spec t to updated information.
23 With respect to the information, the similar 24 circumstance that we had previously as to the reserved
() 25 information under Issue B, the Board, in essence , treated i
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! 26292.0 15876 BRT 1 that as the equivalent of a motion for summary disposition.
2 The Applicants and the Staff had filed affidavits, and the 3 Intervenor, in order to be permitted to litigate anything 4 with respect to the re se rve'd 'i s s ue wa s , in essence, 5 required to satisfy the equivalent of the standard for a 6 motion for summary disposition and he did not raise any,
- 7 issues or material fact that was proper for litigation.
8 Similarly, in these circumstances it would seem 9 to me that if the Intervenor is trying to reserve this i 10 under the reserved matters under Issue C, as opposed to a 1
11 new contention or reopening or something of that kind, he I 12 would have to submit sufficient information in order to be 13 able to withstand the motion for summary disposition. He
]'
14 would have to submit some factual information.
15 Whether the particular information would have to
- 16 be the name of the individual and how you acquire the
. 17 information about his willingness to testify or whether l 18 some other kind of specific information would do- it, I'm 19 not certain. But clearly there has to. be something other
- 20 than an anonymous allegation; anonymous allegation has l
i 21 never been enough to permit litigation of any matter before
- 22 the agency. There has to be , as the Board has pointed out l l
4 23 be fore , at the very least what would be required under a 24 contention, which is something filed with suf ficient
() 25 specificity and basis and with suf ficient particularizatien 1 ACE-FEDERAL REPORTERS, INC.
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\_)
1 to know that there is a matter here that deserves 2 litigation. A bald allegation -- there are cases dealing i
3 with this -- a bald allegation without any support is just 4 no basis to conduct any kind of proceeding at all. ,
5 It is very clear what the Intervenor is trying 6- to do. He is trying to conduct a fishing expedition ,
7 through discovery based upon an anonymous telephone call.
i 8 He says he doesn't know who this individual is, and yet he 9 considers the information to be credible. He doesn't know ,
10 anything about the information. He doesn't know anything
{
11 about this so-called preferential treatment of operating
- 12 personnel. What he knows is what he has been able to read i
/"
13 in the newspapers.
l 14 Yes, there have been guards terminated. Ye s ,
15 Wackenhut, who was a contractor that provides security 16 services, has a policy under which anyone who is implicated 17 in use of drugs on site or off site can be terminated under ,
l 18 Wackenhut policy. That was not the policy of the company 19 prior to January 1 of this year.- The company now has a .
20 policy under which anyone can be terminated for any drug 21 use of f site as well as on site.
22 If there were any project employees who were I 23 implicated with respect to of f-site use be fore this, they 24- were not terminated because that was not the ' company policy 2
() 25 up to that time.
1 1
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1 There were no allegations of on-site use by 2 project personnel. The so-called preferential treatment 3 that Mr. Sinkin is referring te s is obviously either 4 Mr. Sinkin's confusion of what the anonymous individual
.i 5 told him or what' the anonymous individua' l's confusion was l 6 as to what the various policies were as applied to projecti 7 employees versus guards working for Wackenhut. ,
8 What we have here is a whole concoction based 9 upon an anonymous telephone call.
l l 10 JUDGE BECHHOEFER: You are saying if it was a l
11 Wackenhut guard that called in the complaint that somebody l
12 else who was a HL&P employee wasn' t terminated, that would 13 be expected by the way the program was set up at that time?
( 14 MR. AXELRAD: No one knows who called Mr. Sinkin 15 and what his knowledge or what his motivation was. But the 16 whole thrust of everything that we are hearing here is that 17 all that Mr.-Sinkin has is an anonymous telephone call 18 without any specifics whatsoever, and that provides no 19 basis for Utnit sion of a contention or for the Board's 20 considect ve s it for litigation. And by whatever-
+
\
21 s.tandard, whether he uses it as a standard, standard for a >d 22 new contention , sta dard for a contention for the first 23 time, standard for redpening a proceeding, if-it's a 24 standard for a late-filed contention, there is no standard O 2s et e11 ino1edino tse eteederd for e meeion for eemmerv ACE-FEDERAL REPORTERS, INC.
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- O 1 disposition. Under none of these standards would there be 2 for litigation at a proceeding something based on a bald 3 allegation from an anonymous source.
4 JUDGE BECHHOEFER: Would this apply as well if 5 it were purely a new contention at the beginning of a 6 proceeding?
7 MR. AXELRAD: Yes.
8 JUDGE BECHHOEFER: Would you apply the same 9 standard?
10 MR. AXELRAD: Well, certainly you'd have to have 11 specificity and basis and there has to be sufficient 12 particularization as a part of the requirement to show O 13 there's something worth looking into.
14 Mr. Sinkin has said he's the only one interested 15 in investigating this matter. That may be his curiosity,
- 16 but that has nothing to do with what comes up before the 17 Board. Maybe he properly acted by going to OI, and OI is 18 looking into it; and if, as a result of OI's investigation, 19 something comes up that does need to be reviewed and he 20 gets the investigation, maybe at that time he 'll have 21 something to file. Or maybe OI, on the basis of what the y 22 are looking into, will bring to the attention of the Board 23 there's a matter that deserves the Board's attention. But 24 as the Board is well aware , the fact that there 's a pending i
() 25 investigation in itself is clearly not a basis for allowing 4
1 9
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, BRT 1 a con te n tion . There was an explicit Commission decision 2 just recently.
3 JUDGE BECHHOEFER: They said that -specifically.
4 The Commission said that in the context of reopening the 5 record. But there may be some overall implication of what
- 6 they said to other cases as well. Because they did say 7 tha t -- the Commission outlined some of the reasons why OI ,
8 conducts investigations. I think that was Waterford, J
9 earlier in January, something like that.
j 10 MR. REIS: Yes.
11 MR. AXELRAD: Yes. But in essence, what i 12 Mr. Sinkin is saying to the Board is what he really needs j 13 to do is conduct discovery in order for him to be able to 1
14 find out whether he really has a matter to bring to this i
15 Board for litigation. And that is clearly not permitted.
16 The regulations are very . specific on that point. You .ge t a i 17 contention admitted only on the basis of the information 18 that you as an intervenor have. You are not entitled to i 19 discovery in order to be able to have a contention l 20 introduced, and Mr. Sinkin clearly does not have even the 21 beginning of enough factual information in order to get a i 22 contention admitted, and what he's telling the Board: Well, j 23 you let me have discovery and I'll prove to you tha t I' ve i 24 got enough for a contention. That is not the way the
() 25 system works.
I !
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- 26292.0 15881 1
! 1 Mr. Sinkin is going to have to rely upon the 2 system as it exists and not upon the system he would like
- 3 in his world.
4 JUDGE BECHHOEFER: Mr. Re is?
5 MR. REIS: I think the Board has ample power to 6 do what it says, generally under .718 on.the chairman's 7 powers to control the course of proceedings.
8 I agree with you that Waterford dealt with 1
, 9 reopening a hearing. But the reasoning of the Commission.
i j 10 in Waterford is applicable here.
l j 11 There , we not only had an allegation -- we had- <
12 an allegation, of course here, tha t OI -- I&E -- or -- OI 13 was looking into. And they said that wasn' t enough . to 14 reopen a record or to start things going. And I think that
- 15 is very important.
i 16 Further, they also pointed out that newspaper 17 articles -- which is something similar here to what we have l
18 here, unnamed, anonymous sources coming'in, it's not enough 19 to open a record.
20 Further, we don' t know whether this unnamed
! 21 source, this anonymous source, whom we can't tell here has 22 firsthand knowledge or second-hand knowledge or third-hand 23 knowledge.
24 Thirdly, in Catawba, the Commission Catawba caso,
() 25 I think it's at 833.-- it's an ' 8 3 or ' 84 ca se , the j
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'26292.0 15882 BRT 1 Commission talked about it. It's reasoning is instructive:
2 When things come up late in a proceeding the tests are 3 harder. The later and the longer the proceeding has, the
- 4 more you need in the nature of showing something tantamount 5 to evidence in crder to reopen.
l 6 We just don't have anything along that line here.
7 JUDGE BECHHOEFER: Given the 15 months or so l 8 that we' have until projected fuel loading, would this be
. 9 considered late in the proceeding? Do you.look toward the 10 end or toward the beginning?
i e 11 MR. REIS: Oh, I think you look toward the
, 12 beginning of the proceeding, and I think that was so in the i
{
-- 13 Catawba case, where there was talk. about new contentions 14 and whether they had to await final Staff documents or
'1 15 whe ther things were alleged on the knowledge of that time.
16 The talk was definitely the later in the 17 proceeding it is, and if it isn't just the beginning of the 18 proceeding, the more you need to have more specificity and 19 more basis, the more you need allegations or information 20 tantamount to evidence.
f 21 I think the Commission's reasoning is, in both 22 the Catawba Gas, which was '83, CLI83-19, 17 NRC 1041. And i 23 in the Waterford case , which was decided in January 30th of 24 this year, I think these things are needed.
() 25 When I look at what the Intervenor has done here l
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26292.0 15883 BRT ss) 1 in order not to give us the name, what he says he did, he 2 instructed people not to give their names so he could make 3 faceless allegations to the Board and now, on the basis of 4 the se faceless allegations, he wants to bootstrap himself 5 into a hear ing? That's what I just heard.
6 He told people who called him up, don' t give me 7 your name because I'd have to turn it over, therefore I 8 won't have information to give to the Board. I don't think 9 we can conduct business this way. And so I say on the 10 basis of what is said in his answers to interrogatories and 11 what is the polic ie s indicated in these cases, and also in 12 the statement of policy by the Commission on the conduct of 13 proceedings and the need to move them ahead and see that 14 there are real issues set out, in 13 NRC as well -- in 13 15 NRC, statement of conduct on litigation proceedings, or 16 something like that -- all the se things ind ica te that: Yes, 17 you have the power to require definite sta tements of wha t 18 is there to see whe ther the re is a basis to litigate these 19 new things la te in the proceeding.
20 It is true, if they are shoe horned into a 21 present contention maybe the rules on raising new 22 contentions need not apply. But they are new issues, and j 23 to the same extent in embarking on looking at new issues, I
]
1 think you have to follow the Commission's reasoning and 24
() 25 find that you need some definite material tantamount to ACE-FEDERAL REPORTERS, INC.
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26292.0 15884 BRT 1 evidence before even discovery is allowed.
2 JUDGE BECHHOEFER: If we should require further 4
- j. 3 specificity or further delineation of the basis, would we
< 4 be engaging in what the Appeal Board said' was not proper, 5 in, I think it was Allen's Creek, some time ago? The f.
i 6 biomass case.
1 7 MR. REIS: In the. biomass case, what was a part 8 of the contention and basis of the contention was an of fice 9 of technology report on biomass that said, in essence:
i 10 Well, this looks like a very feasible technology. What we 11 had in that case was the question of whether there was an 12 alterna te source of energy from biomass. And an Office of 13 Congressional report said there was.
1 14 This was spelled out in the contention of I 15 Mr. Alexander in that case. Therefore, that case did not 1 16 deal with what we have here. We had a basis in that case.
I t 17 The Board went on in that case and said: Oh,
( 18 this doesn't look real to us and we'll dismiss it because i
19 it seems of f the wall. But there was a basis. And if you 4
q 20 read the Appeal Board and you read the Board below and what 4
l 21 was submitted with that contention, that contention had a 22 _ basis. It wasn't that some scientist at some point said 23 maybe there was, or said there was the ability to have i
-24 biomass from sea farms and convert that to -- the biomass 1
() 25 to electricity and thus substitute for the need for the l ACE-FEDERAL REPORTERS, INC.
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4 26292.0 15885 ;
BRT 1 Allen's Creek nuclear plant. .You had a definite basis in a 2 report by the Congressional' branch of the of fice of i
3 technology. Further, it was at the beginning of the case.
4 JUDGE BECHHOEFER: Is that different f rom the i
5 sworn statement of an individual? A pa.ety, a lawyer --
1 j 6 MR. REIS: Very different. I ' believe - there are
! 7 cases of la te -- and I think it was also in Waterford ,
8 though not in this opinion -- where the Board said -- the 1
9 Appeal Board in that case I believe it was -- that the i
10 statements of attorneys do not create issues of fact. It 11 must be a statement or representation -- must be a i
! 12 statement of the one with personal knowledge.
1 13 JUDGE BECHHOEFER: I was referring to the 14 statement of an attorney as recording the substance of an 15 anonymous call.
16 MR. REIS: No. That is not enough. Be cause in 17 the Wa terford case -- and that was the Appeal Board
. 18 Waterford case just prior to this, late last year I think i
19 -- the Appeal Board said the af fidavits of attorneys that f
20 the re is information that somebody told me something, that 21 there is a reason to go forward, is not enough. It must be 22 the af fidavit of the one who can give testimony in this 23 court.
24 Essentially the reason in that case that was j
4
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1 evidence in the rule -- I forget which rule it is -- which 2 governs evidence, which says it has to be compe tent.
3 JUDGE BECHHOEFER: 743, I think.
4 MR. REIS: If it is 743, that's fine. But 5 whichever.
6 Essentially the Board said this was not
? competent evidence so it could not be tantamount to 8 evidence.
9 The same thing, Mr. Sinkin's sta tement, no 10 matter how true it is and how accurately he reported what 11 was told to him, was nothing but hearsay and does not 12 provide a basis to go forward.
~- 13 JUDGE BECHHOEFER: Mr. Sinkin, do you have a 14 re spon se or reply?
15 MR. SINKIN: I may have misunderstood the 16 Board's question. I thought the Board asked me how can we 17 litiga te this matter if we don't have more than a anonymous 18 allegation and I responded: By allowing me discovery so we 19 can have evidence to resolve the matte r. I didn't pe rce ive 20 the question: How do we accept this allegation for 21 litigation? I didn't realize that's what you were asking 22 me. I was asking you how we go forward with li t iga t ion .
23 JUDGE BECHHOEFER: I see.
24 MR. SINKIN: The information provided just now (3) ,
25 by the Applicants, that Wacke nhut has a policy of anyone on ACE-FEDERAL REPORTERS, INC.
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26292.0 15887 esBRT 1 site or of f site is fired and the Applicant's have , or had 2 a different policy until recently -- I think that's in some 3 of their pleadings, that there may be some confusion on the 4 policies -- the se are arguments to the merits. They want 5 to represent what the policies are without allowing 6 discovery on the policies. They want to say there's 7 confusion on the policies without allowing any discovery as 8 to what the policies were at various times.
9 Also, too, as I understand the allegation that 10 was made, it's saying that there were people who were not 11 fired who would have implicated the operations group. Now, 12 the group of people who were fired were apparently
(
~ 13 Wackenhut guards.
14 So, as this is becoming clearer, as I'm getting 15 some information, at least through the Applicant's 16 affidavits and other things, it would appear that there 17 were people fired and Wackenhut guards were the people not 18 fired beca use they would implica te the operations group 19 people.
20 So, if there was a preferential application of 21 the Wackenhut policy of firing people on or off, for on- or 22 off-site use, that may be the heart of this whole 23 allegation that there was preferential treatment given 24 within the Wackenhut organization in order to protect the ,
() 25 HL&P operations organization.
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O 1 JUDGE BECHHOEFER: HL&P, did they have any 2 control over how Wackenhut ran its program?
t 3 MR. SINKIN: We don't have any discovery yet, I
4 your Honor, whether they did or didn't. I t 's the ir --
l l 5 security contractor and the decisions made by their
! 6 security contractor are their responsibility. If they 7 didn't exercise the responsibility, then that's another 8 issue.
9 (Discussion off the record.)
4 10 JUDGE BECHHOEFER: Actually, the Board has 11 reached several decisions in conjunction with the drug i 12 allegations.
l 13 He have determined -- and we'll spell this 'out j 14 in more detail later -- but basically we have determined j 15 that the allegations do not fall under Issue F. Basically,
! 16 that is shown by the programmatic practices that the NRC s
- 17 has engaged in in requiring OA programs and the existence i
l 18 of the rulemaking, which shows to us that the Commission i
19 doesn't consider that it falls under Appendix B, but is
[
20 considering an alterna te rou te . So we do not think that it 1 21 falls under F.
22 Secondly, we ' ve de termined that the existence of j 23 the rulemaking does not bar litigation of the allegations 2
24 under -- either under Issue C or as a new contention. But, 1 25 third, we have not yet reached a decision as to whether or-ACE FEDERAL REPORTERS,.INC.
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i 26292.^ 15889 BRT 1 not the allegations would fall under Issue C.
1 2- Fourth, if we were to litiga te the allegations J
3 as a new contention we would have to consider - the five 4 factors set forth in 2.714 for late-filed contention.
i i 5 Now, we have determined that in any event, we 6 will not accept the allegations for litigation unless we 3
7 have considerably more detail as to really what the i 8 allegations are and what the basis for the claim or 9 contention is. We had thought that the name of the 1
i 10 individual, the basis for his or her - information, the J
. 11 willingness of the individual to testify would be factors 12 that would at least assist us in determining whether or not
! 13 something should be litigable. We will not say that if we 14 had that we would li tiga te it. But we will say that we 15 would have to have that or an equivalent degree of
) 16 particularization before we would be willing to litigate it.
l 17 Next, sixth, we believe that assuming CCANP j 18 desires to litigate this contention, it should submit 19 information such as is outlined above, that we just spelled 20 out. If it chooses to consider it as a new contention, it i 21 also should submit information which will allow us to 22 evalua te the other factors of 2.714-A. We believe the i 23 information of the type we ' ve requested would , a t the very i
! 24 least, fall into the third criteria under 714, the ability
)
l
() 25 to contribute to the record , or wha tever it says.
I i
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!. 26292.0 15890 BRT 1 Now, we will give CCANP the option. If CCANP 2 wants to rely on whether or not we feel it falls into 3 conten tion C --
4 MR. SINKIN: I didn't hear you, sir.
i 5 JUDGE BECHHOEFER: We'll give you the option.
- 6 If you believe that you will take a chance as to whether we 7 believe it falls under C, which we have not decided, you 8 don't have to submit the 714 information, although we still j 9 would require the other type of information such as the 4
10 name, basis and willingness to testify, that type of thing. ;
11 W'e still would require that.
l 12 If you would wish to have it considered either
- 13 alone or alternatively as a new contention, you should then j 14 include also the 714 arguments, the various factors; and in 1
j 15 either event, the other parties will have a chance to 16 respond before we decide whether a certain thing is 17 litigable. And until we decide an issue is litigable, we l 18 don't think we would authorize discovery.
I 19 So, insofar as the motion for protective order
, 20 is based on whether the allegations fall into Issue F, I 21 guess we grant that. I don't think we are granting all
. 22 aspects of it; we are not agreeing to all the ' claims as to
- 23 rulemaking and that type of thing. I guess we will grant 24 the motion for protective order, insofar as it is --
() 25 insofar as it relates to the allegations as an aspect of i
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1 Issue F, which is, I g ue s s , all that is really set forth.
2 We a re not necessarily ruling that similar 3 discovery would not be permissible under some other issue 4 or contention, but we are not authorizing it yet until we 5 decide whe ther there is another issue or contention.
6 Finally, if CCANP desires to submit the name of 7 the individual plus his or her qualifications and 8 willingness to testify, if that is a basis for our 9 willingr.ess to accept the basis for contention, we will 10 permit Mr. Sinkin to file that solely with the Board; and 11 then if we decide that the information creates enough --
12 creates enough of an issue that we would otherwise consider 13 it for litigation, we would then work out some sort of a 14 protective order so that the information -- assuming the 15 individual desires confidentiality --
16 MR. AXELRAD: I'm sorry, I didn't hear the 17 beginning of that. Did you say submit the name of the 18 individual only to the Board?
19 JUDGE BECHHOEFER: That's correct.
20 MR. AXELRAD: Not the information. Just the 21 name of the individual.
22 JUDGE BECHHOEFER: I'm not sure. To the extent 23 that the in forma tion would include the basis for knowledge 24 -- the basis of the individual's knowledge of the
() 25 a llega tions , I think all of that could be submitted only to ACE-FEDERAL REPORTERS, INC.
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1 the Board; and then if we reject the contention or the 2 issue, we don't think it ever has to be submitted to any 1
{ 3 other party. The other parties -- their position is not 4 being eroded.
5 If we decide perhaps it does create the basis
! 6 for another i ss ue , we would not rule on it.until we turned i
7 over all the information to the other parties under some 8 sort of protective order which we would work out at that f 9 time.
l 10 What we are saying is you won' t be -- your 11 positions will not be eroded without our giving you a
! 12 chance to respond. But we are also saying that if the 13 individual reveals his name only to the Board and if we
?
i 14 decide that that person doesn' t have any basis for any
\
] 15 allegations he's making, we may return the material to I
i 16 Mr. Sinkin and just not reveal who it was. No one would I
1
! 17 know. I think it's really a privacy consideration which, l
j 18 if it developed -- we believe to effectively litigate this a
19 question, at least the source of the information and
) i i 20 perhaps the likelihood of the individual or the willingness i
I 21 of the individual to make known the allegations is 1
22 important.
i
- 23 I'm not sure, unless Mr. Sinkin comes up with i
24 some other basis for the same contention or some alternate i
() 25 allegation -- alternate basis for the same -- for the i
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1 allegation, I'm not sure that we should even get into 2 litigating this.
3 So, basically what we are saying is we need more 4 information. We would like to try to set a schedule for 5 this.
6 Mr. Sinkin, probably if he supplies information 7 to us in camera, you could send just a cover letter to the 8 other parties saying that you supplied the information.
9 You don't have to reveal the information until we decide 10 what it's worth. They ought to know that you have supplied 11 us information.
12 To the extent you don' t object to having them
\ -) 13 have the information, you can put it in whatever you send 14 them.
15 Mr. Sinkin, what would be a schedule under which 16 you could de termine -- I assume at the very least you would 17 have, to the extent you were going to rely on a person's 18 identity, you'd have to contact them and discuss it with 19 them, so you'll need a little time on that.
20 Do you have any suggestions as to timing?
21 MR. SINKIN: Mr. Chairman, I'm almost certain we 22 will simply drop the allegation, but if we could have a 23 week, that's fine.
24 JUDGE BECHHOEFER: I want to make sure you have fm
(_) 25 enough time beca use if you decide you may make the ACE-FEDERAL REPORTERS, INC.
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1 allegation -- if you have to discuss it with the individual, 2 I want to give you enough time to do that and prepare any 3 paper you might want to file.
4 MR. SINKIN: I can almost assure you, l 5 Mr. Chairman, that the individual will not want his name 1
6 supplied to t he Board under these conditions. But I will '
i 7 certainly call and ask the individual and I don't think l 8 that will take me more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. I'm saying a week 9 because that will give me a few extra days.
10 JUDGE BECHHOEFER: Okay. We'll set by March 28, 11 you will file something, either with us, confidentially 12 with copies of whatever you can reveal to the other parties; N- 13 or alterna tively, if you are dropping allegation, you can 14 tell all the other parties.
15 I think another thing we ought to resolve today 16 is -- you have an opportunity -- whe ther you have an 17 opportunity to further respond to the Issue C affidavits.
18 MR. SINKIN: I did want to address before we get 19 into that, the point that you raised about the option. It 20 seems to me if the Boa rd -- the Board has all the arguments 21 presented by the pa r tie s on whe the r the issue falls under 22 Issue C or not. If the Board is going to find it does fall 23 under Issue C -- and I understand there's a question, do I 24 have a chance to respond to the materials filled on Issue C.
(O
_j 25 Assuming I have a chance to respond on the materials filed l
l l
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, 3 contention if the Board is going to rule it falls under C,
) 4 and I shouldn't be given an option of either filing a i
5 motion for new contention or risking whether the Board will l 6 say yes on C. I think I should be given the option of i
7 waiting to see what the Board does on C, and then'if they i ,
l 8 say no on C, then it would be a signal that they consider 9 it to be a matter for a new contention.
j 10 JUDGE BECHHOEFER: We were trying to save a 1 11 little time.
1 12 MR. AXELRAD: Mr. Chairman, perhaps I was
! 13 confused, but it was my understanding that the type of i
14 information the Board has asked Mr. Sinkin to supply, the 1
15 Board said it would need either under Issue C or as a new
! 16 contention: The name of the individual, the basis for the l
{ 17 information. Am I confused about that?
{ 18 JUDGE BECHHOEFER: But the alternative was -- we i
j 19 would need that in any event. We would also need the other l 20 --
that goes to the third item of 714.
l 21 MR. AXELRAD: I understand, Mr. Chairman. But
] 22 if Mr. Sinkin is saying he will probably drop the i 1
l 23 allegation because he doesn't want to provide that i 24 information to the Board, then what dif ference is there
() 25 whe ther it's under Issue C or under a new contention?
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l MR. SINKIN: It would be in the eventuality I 2 was not dropping allegation. I wanted to go back and 3 clarify.
4 MR. AXELRAD: I see. I was confused.
5 JUDGE BECHHOEFER: Maybe the option is unfair.
6 Maybe we should wait. If you come forward with the 7 information, then we can ind ica te to you how we come out on 8 that and give you an opportunity to file further, assuming 9 you filed within a week and then we would be able , probably 10 by that time, to decide fairly rapidly whether we fe lt it 11 fit under C or not.
12 (Discussion off the record.)
13 JUDGE BECHHOEFER: What we've decided, you can 14 file by next Friday. We are not saying it has to be in our 15 hands by next Friday, but you have to file it by Friday.
16 We should be able , even assuming the mails may be slightly 17 slow, we should -- if you decide to pursue the issue, we 18 should be able to decide by, I'd say approximately the 19 following Friday, maybe the Monday af ter that, whether we 20 think it should be a new contention or not. And then we 21 would give you --
22 MR. AXELRAD: Mr. Chairman, can you speak up, 23 please?
24 JUDGE BECHHOEFER: I was saying I was going to O
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- 1 contention, if the information gave rise to enough of a 1
2 question to create a new contention or create a litigable 3 issue, how much fur ther time might you need to address the i
4 714 factors?
i
! 5- MR. SINKIN: I would not need more than a week,
} 6 I'm sure, to do the 714. But there's another problem that t
- 7 has come to my mind at this point. The Board is ordering 8 us to take certain actions or risk losing this contention i
j 9 a l toge the r . I think we are entitled to a written order
} 10 ~ f rom the Board and an opportunity to appeal that decision I ,
11 to the Appeal Board before making a final decision on 12 whe ther we will comply.
13 JUDGE BECHHOEFER: I don't think that's 14 a ppe a la ble . You'd have to get directed certification.
15 MR. SINKIN: I make a motion for directed j 16 certification.
1 j 17 JUDGE BECHHOEFER: We are going to put this out ,
18 in a prehearing conference order, but I think the record of i
! 19 this proceeding could serve.
l 20 MR. SINKIN: I don't think your microphone is on.
1
{ 21 JUDGE'BECHHOEFER: Oh. You are right.
i 22 Well, the ruling which will eventually be in a I
23 prehearing conference order -- we are not going to get it ,
I l 24 out today, possibly car. get it out Monday or Tuesday. But i
() 25 I don' t think that's -- I know that's not appealable as a l
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-sBRT 1 matter of right. And I think the Appeal Board would say 2 that this is -- will be equally appealable af ter the 3 issuance of an initial decision in phase 3 initial decision.
4 So that my guess is that the Appeal Board would not grant 5 directed certifica tion. But I can't, obviously, predict 6 everything they are going to rule on. But we think we can 7 know, assuming you file by next Friday, whether you wish to 8 pursue that. And you can be assured that we will not 9 reveal -- if you file a name, we are not going to reveal it 10 to anybody until we discuss it further with all the parties.
11 MR. SINKIN: Okay.
12 JUDGE BECHHOEFER: If you want, you could even 13 hand-deliver it to me and I'll put it in our safe af ter I 14 read it. No one is going to have access through us, anyway.
15 And if we decide not to accept it, we would, if you wish, 16 return everything you sent to us.
17 MR. SINKIN: Okay.
18 JUDGE BECHHOEFER: Whether we need a further 19 prehearing conference or whether we would work out a 20 protective order on the telephone or not, I'm not sure.
21 But you might want to try it on the phone.
22 There are some precedents for protective orders 23 so tha t -- we will issue a prehearing conference order, but 24 I think that we want the o f fective da tes to precede that.
() 25 Just given the fact that we would very much like, if we ACE-FEDERAL REPORTERS, INC.
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1 ever hold a hearing at all, we want to make sure it would i
l 2 be a f ter the summer.
j 3 It's clear to me that we will not have a- hearing 4 starting May 6th, I think it was, no matter what we rule on I 5 all those issues. If we do admit some issues, there is 6 going to be some discovery and, well, I just think we could 7 announce now that there won' t be a hearing starting May 6, l
) 8 I guess the date was.
i
- 9 At the very least it should -- we have to i 10 proceed so that if there should be a hearing, it will be i ,
11 held this summer, I think.
i 12 Concerning your response to the Issue C i
j O
v 13 af fidavits, we have heard something from all the parties.
14 Does anybody have anything further to say on that be fore we 15 decide? I gather the Applicants don't think Mr. Sinkin j 16 should have any further opportunity, or if any, limited to i
17 new information on the Staf f affidavit.
18 I gather the Staf f would not put those limits on
} 19 it. Am I correct?
} 20 MR. REIS: The Staff would not put those limits ,
21 on it, but the Staf f does believe that it is limited -- of 22 course the question is how broad Issue C is. The j 23 Applicant's affidavit and the Staf f's af fidavit only went .
, 24 to the organization and we feel that Mr. Sinkin should be
]
() 25 responding to that.
i i
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1 We filed our material on the 14th. I gue ss ,
2 looking at the time, Mr. Sinkin would have until the 21st 3 or whenever.
4 JUDGE BECHHOEFER: We figured two weeks, I think.
5 Tne 28th.
6 Will you mail or hand-serve it?
7 MR. SINKIN: Mail.
8 JUDGE BECHHOEFER: 28th, plus five days, 9 whatever that is.
10 MR. SINKIN: I think I figured it as April 2nd, 11 but I could be wrong.
12 MR. REIS: That sounds reasonable.
13 (Discussion off the record.)
14 MR. AXELRAD: Mr. Chairman, I don't want to be 15 arguing over just a few days, but the record should reflect 16 that the Intervenors had our af fidavit for 28 days by the 17 time the da te was due ; secondly, they had the draf t SER 18 well be f ore , which is basically very similar to the 19 information now contained in the attachment to the 20 affidavit that was submitted by the Staf f; thirdly, the 21 Staff's affidavit, by and large is very similar to the 22 information that was contained in the Applicant's affidavit, 23 so there isn't really, I don't think, any significant new 24 information in there, and two weeks from March 14, it would
() 25 seem to me to be ample. This is particularly true, I think, ACE-FEDERAL REPORTERS, INC.
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! 1 in view of the Board's indication, which we fully share, l 2 that if there is going to be -- if there is going to be any i 3 phase 3 hearing, it 'should be held this summer; and f 4 therefore, if there are going to be any matters that have 4
5 to be litigated, they should be identified as quickly as i
! 6 possible.
j 7 If the Intervenors had responded to at least the
] 8 Applicant's affidavit, we could at least have argued those l
9 questions today and we would know what matters, if any, we 10 were going to have to litigate on that basis.
11 Since that did not happen, and the Staf f i
! 12 obviously will need some kind of opportunity to respond to t
2 13 whatever the Intervenors raise before the Board rules and, 14 therefore, there's going to be an extra step involved in i 15 that chain. So that has to be taken into account.
i j 16 Secondly, I think it is very important to make i
17 sure that the Intervenors understand that the information r i
18 or whatever it is they do file in response to those 19 affidavits, similarly to the practice that the Board i
- 20 adopted in connection with the Issue B upda te , the i tems i
j 21 that they identified, that they believe they should i
22 li tiga te , they should provide enough information as if they 1 23 were responding to a motion for summary disposition so the ,
24 Board would be sure that anything that is going to be
]
() 25 litigated there is something specific that does deserve
}
i t
1
)
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C-) 1 1 litigation.
2 (Discussion off the record.)
3 JUDGE BECHHOEFER: The Board will accept a 4 filing as late as April 2nd, but it should include enough 5 of the details so that we can evaluate whether there is a 6 genuine issue of fact to try.
7 That filing should not include anything about 8 the drug issue. You don't have to spend time repeating i
9 that. We have gotten all the information we need on the 10 drug issue plus what you are going to file in the future, 11 on the 28th. So we don't want to hear further arguments 12 whether or not drugs fall within contention C. I think I
13 we've got enough on that.
14 This other affidavit -- doesn't have to be an 15 a f f idavit , but it should be information which would at 16 least enable us to determine whether there's another 17 legi tima te issue under Issue C.
18 MR. SINKIN: I just want to be clear on one 19 thing, Mr. Chairman. Does that mean that the Board is, sua 20 sponte , considering the allegation as possibly falling 21 under Issue C? I can certainly ask you today to please so 22 consider it.
23 JUDGE BECHHOEFER: No. We have considered that 24 you have asked that. You can put that one sentence in.
() 25 What I'm saying is: I don't want to hear a reiteration of ACE-FEDERAL REPORTERS, INC.
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I all the arguments we have heard today. The Board is not 2 raising this sua spon te , but the Board thought it could 3 conceivably fall under that. We haven't so ruled. We 4 haven' t decided one way or the other. But since we may be j 5 asking you to file the information, if we concider it only 6 as a new contention, you'll have to file something la ter ,
7 but we will try to keep into account all the varied filing 8 dates, varying responsibilities. But, anyway, for March 9 28th you'll file information on drugs, and on April 2nd, 10 you'll file any further information on the Applicant's and 11 Staff affidavits.
12 MR. REIS: Mr. Chairman, there is one thing, one 13 other da te . You mentioned that you canceled the hearing 14 for May 6, I take it, or indicated you were canceling the 15 hearing.
16 JUDGE BECHHOEFER: I don't think anybody is 17 going to be ready to go to hearing on May 6th.
18 MR. REIS: There is also a testimony filing date 19 of April 14th, and I think ought to make it clear that we 20 don't have to file testimony on April 14th.
21 JUDGE BECHHOEFER: That's equally clear for all 22 pa r t ie s .
23 If any party foresees anything to go to hearing 24 on on May 6th, then those dates would still hold. But I
() 25 don't think anybody has described to me any issue tha t we ACE FEDERAL REPORTERS, INC, 202 347-3700 Nationwide Coverage 800-336-6 4 6
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1 could go to hearing on on May' 6th. Correct me if I'm wrong.
2 MR. AXELRAD: Mr. Chairman, if we could go back 3 to Issue C, if the In te rvenors file by April 2nd, 4 Applicants would like until April 14 to respond and suggest 5 that the Staff have until April 17th to respond. April 2nd 6 is a Wednesday. April 14th would be a Monday. -: And April-
- 7 17th would be a Thursday.
8 JUDGE BECHHOEFER: The Staff usually wants five ,
w 9 days.
i 10 MR. REIS: I would prefer five days. The 1st 11 would be fine, if that's a Monday. It would be -- make it i
12 the 21st, instead of the 19th.
i '
j 13 (Discussion of f the record.)
i j 14 JUDGE BECHHOEFER: I guess we will set April as i
j 15 the date CCANP will file; April 14 the.(da te Applicants will i >g 16 file; and we'll go to April 21st for thet Staff response.
i 17 MR. AXELRAD: There's obviously the possibility
! 18 that as a result of all of this there will be nothing to 1
l 19 li t iga te .
1 i 20 JUDGE BECHHOEFER: That's correct.
- 21 MR. AXELRAD: And also the possibility there 1
+
22 will be something to litigate. l 23 In view of the summer schedule for a hearing, 24 and in order that people be able to plan ahead of time,
() 25 could we at least tentatively set a period of time for the l
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1 hearings this summer so that we will know how to plan 2 accordingly?
3 JUDGE BECHHOEFER: I wanted to raise one other 4 question which may or may not produce further litigation.
5 First I would like to inquire of Mr. Sinkin, for 6 the record , are you going to submit anything on the -- or 7 have you submitted anything on the hurricane design matters 8 that we thought had to be suppleme n ted?
9 MR. SINKIN: No. We have not submitted and do 10 not intend to submit anything on the tornado missile issue.
11 JUDGE BECHHOEFER: With respect to the hurricane 12 issue, the issue is still open for construction -- whether
,Q
(/ 13 the facility has been adequately constructed to withstand 14 hurricanes. We did not grant summary disposition on that.
15 We held that open pending issuance of the SER, and so far 16 l the SER hasn't been issued. Do we have any latest estimate 17 on the SER?
18 MR. REIS: Best estimate we have right now is 19 early April.
20 JUDGE BECHHOEFER: Early April?
21 MR. REIS: Early April.
22 JUDGE BECHHOEFER: I believe we had originally 23 considered that CCANP should have about 30 days to look 24 over the SER. I can't remember if t ha t wen t into an order
() 25 or not. It may have.
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, BRT 1 MR. REIS: I don't recall it, your Honor. I 2 don't recall it at all. Nor do I recall that it's common 3 practice to give any general time after a SER to comment on
) 4 the SER at all.
i 5 MR. AXELRAD: I assume --
6 JUDGE BECHHOEFER: This would be a response -- I
)
j 7 thought, in ruling on the hurricane issue we had put a j 8 footnote in or something saying that while we wouldn' t i 9 accept new information concerning design,' we would consider 10 construction information and any information filed within 11 l 30 days would not be untimely. But maybe we didn't say e 12 that. I sort of recollected we might have . '
I l 13 MR. AXELRAD: It seems to me , Mr. Chairman , that 14 reviewing the portion of the SER that deals with hurricane 3
15 or tornado protection would not require 30 days, and that
] 16 could clearly be done by Intervenors within a period of a j 17 week from when the SER issues.
18 JUDGE BECHHOEFER: Do any of the parties have a 19 copy of our sixth, prehearing conference order? I can't 20' remember if I put a time in there or not.
21 MR. GUTTERMAN: I have the order right he re ,
22 Mr. Chairman. I'm just turning through it. If it would be 23 faster to hand it up, I'll be happy to do that.
24' Le t 's see -- I ' m re ad ing the footnote at page 6 l () 25 of the sixth prehearing confe'rence order. There the Board ACE-FEDERAL REPORTERS, INC.
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l j 1 says, "Any filing by CCANP within 30 days after the release f 2 of the ' SER, a discussion of this subject will not be 4
l 3 subject to timeliness objections as long as the information .
j 4 relied on stems from the SER."
5 JUDGE BECHHOEFER: Tha t ' s wha t I had recollected.
6 MR. REIS: Mr. Chairman, if this hearing is 7 going to go on for more than another five minutes, I have
! 8 to make a phone call for a personal reason, right now.
l y
9 Otherwise my wife will kill me. ,
10 (Laughter.)
1 .
j 11 JUDGE BECHHOEFER: I think we will hold to the 12 30 days, and also, at least today, we won' t set a date for 13 summer. We will try to discuss it shortly and maybe have a j
j 14 conference call. Or we may want to see whether there are 1 15 any matters that are even open for litigation before we try 16 to se t a time frame for litigating that. There may not be .
i 17 I might say on the hurricane matter, 18 construction matter, there was one newspaper article that ,
j 19 we were supplied by Mr. Sinkin some time ago, which raised j 20 questions as to the construction of the HVAC system, and 21 the adequacy of that to withstand tornadoes. We may ask 22 the parties for some comments on that af ter the SER issues.
23 This was supplied to us. last summer as part of an article 4
24 that dealt with the cooling pond, I think.
I
() 25 There was another statement in there concerning I
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(1sBRT 1 construction -- something having to do with the HVAC system 2 not being constructed adequately to withstand hurricanes.
t 3 I'm not sure whether it has any validity, but we may ask 4 the parties to tell us what they have on this subject. I i 5 haven't looked it up ye t. But I'll put you on notice that l 6 we may do that.
' 7 Also, newspaper articles supplied to us during 8 the hearings last summer. We may at least request -- it 9 was not specific enough for us to really know what portion l 10 of the HVAC system was being referred to, and whether it 11 will be covered in the SER or not. So we may ask the 12 parties to try to identify what that was, whether it has 13 any implications for construction to withstand hurricanes.
i 14 MR. REIS: Mr. Chairman, I would apprecia te it 15 if you would send me a copy of the newspaper article. I 16 have no idea whether I ever even received it or where it 17 might be today, if it was just a newspaper article handed 18 out that was not formally served. I have no idea of what 19 this is all about or what we are talking about.
20 JUDGE BECHHOEFER: It was formally served. In 21 fact, in my initial draft of PID 2, I referred to it, but 22 we may want to put it out earlier because I don't know when 23 PID 2 will come out.
24 MR. REIS: If it was officially served, I'm sure 4
() 25 I can get it.
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i 26292.0 15909 RT 1 JUDGE BECHHOEFER: I will call you Monday, I 2 g ue ss , or if you come downstairs, I'll even give you the
, 3 reference. I'll give the other parties the reference, too, 4 if you need it. But if you want to just look at it, you 4 5 can.
6 MR. REIS: Okay.
7 JUDGE BECHHOEFER: I can certainly give you the 8 reference and the day it was served on us because I 9 referred to it.
10 Do we have anything further? I gue ss we have j 11 nothing further. Any other party want to raise anything?
j .
12 I know Mr. Reis is in a hurry now.
j
- 13 MR. AXELRAD
- I do want to make sure that I note 3
14 a couple of things.
15 One, we received today a motion from Mr. Sinkin, 16 a motion to compel document production. I assume that 17 since that dealt with the drug use questions that similarly 18 we don't have to answer that motion because that is no
! 19 longer within Issue F? Am I correct, Mr. Sinkin?
i 20 MR. SINKIN: That's correct. Having not read 21 the motion, I assume that's correct --
, 22 , That's correct, yes.
23 MR. AXELRAD: We have a pending motion for 24 summary disposition of Issue F.
^
() 25 MR. SINKIN: I assume there's no need to respond 1
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1 to that since it has been ruled that the allegation doesn' t 2 fall under Issue F.
3 HR. AXELRAD: I believe the only thing 1
4 Mr. Sinkin was raising under Issue F was drug use and it's 5 not under there. Of course, we submitted a lot of material 6 with our motion for summary disposition. I just don't want I
7 the Staff to have to answer that needlessly, or Mr. Sinkin, 8 if in fact, in essence , Issue P is no longer with us.
9 I think it's up to --
10 (Discussion of f the record. )
i 11 JUDGE BECHHOEFER: I think that although he has 12 said he doesn' t have anything to litigate under Issue F, if 13 Mr. Sinkin should respond -- motions for summary 14 disposition have to be satisfactory on their face. I 15 haven't looked at it, so I don't want to preclude him from l
16 filing a response.
17 Certainly I would say if Mr. Sinkin doesn't 18 respond, and the Sta f f certainly doesn' t have to respond --
i 19 MR. REIS: The trouble is on a motion for
- 20 summary disposition, the Staff's reply is due at the same 4
21 time. All replies are due at the same time.
22 JUDGE BECHHOEFER: You are right.
23 MR. SINKINi Why don't we handle that one this i
24 way: Let me look at it tomorrow, over the weekend,
() 25 wha te ve r , talk to Ed early next week and notify the parties t
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1 26292.0 15911 RT 1 if we intend to respond. If we don't intend to respond, 2 nobody needs to respond.
3 MR. REIS: That would be fine.
f 4 JUDGE BECHHOEFER: I think that's satisfactory.
- 5 I have skimmed it, but I haven't really read it in enough 6 detail to know whether it is satisfactory or not.
7 MR. AXELRAD: The only other thing I wanted to 1
8 ask the Board is whether you would have any ability to give 9 us any kind of an estimate as to when you might be ready to 1.
10 rule on the pending motions to reopen phase 2; when you 11 might issue the decision on phase 2; and when you might 12 rule on your order to show cause to Mr. Sinkin?
O. 13 (Discussion off the record.)
2 14 JUDGE BECHHOEFER: It's hard for me to predict.
15 I would say at least another month.
16 MR. AXELRAD: On all three?
17 JUDGE BECHHOEFER: Pardon?
18 MR. AXELRAD: On all three i tems?
19 JUDGE BECHHOEFER: Yes. I can't predict exactly.
20 Is there anything further? If not, the hearing 21 hearing confererice will be adjourned. We'll issue an order 22 as soon as we can.
23 (Wheceupon, at 5:35 p.m., the hearing was 24 adjourned.)
() 25 ACE-FEDERAL REPORTERS, INC.
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CERTIFICATE OF OFFICIAL REPORTER
\vl This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: HOUSTON LIGHTING & POWER COMPANY, et al.
(South Texas Project, Units 1 & 2)
DOCKET NO.: STN 50-498 OL; STN 50-499 OL PLACE: BETHESDA, MARYLAND l %
DATE: FRIDAY, MARCH 21, 1986 I
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt
_ [
(TYPFh
, JOEL BREITNER Official Reoorter ACE-FEDERAL, REPORTERS, INC.
Reporter's Affiliation p' V
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