ML20205H894
| ML20205H894 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 08/10/1983 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20084D328 | List: |
| References | |
| OL, NUDOCS 8601300007 | |
| Download: ML20205H894 (72) | |
Text
-
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00CMETED
- g. UNITED STATES OF AMERICA USilRC
,- NUCuAm RIGUI.ATORY COMMISSION
'84 APR 30 A10i43 .
O I,a the matter of:
CO.9tONWEALTH EDISON COMPANY
. Docket No. 50-4 54 OL (Byron Nucleah Power Station, 50-455 OL Units 1 & 2)
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! IN' CAMERA EX PARTE HEARING WITH THE
~\ ~~
OFFICE OF INVISTIGATIONS Location: Rtekford, Illinois Pages:
7611.1 - 7611.71 Date Wodnesday. August 10, 1983 , l 6
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(' TAYLOR ASSOCIATIS CourtAspenam i 142$ 1 Susse. M.W. Seine lege Wednessee.D.C. Meet
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@' 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
3 3EFORE THE ATOMIC SAFETT & LICENSING SOARD 4
- - - - - - - - - - - - - - - - - - - -x 3 :
In the matter. oft
" ** ** ~
COMMONWEALTH EDISON COMPANY (Byron Nuclear Power Station, t 8 Units 1 and 2) 9 . . . . . . . . . . . . . . . . . . . -x 10 Courtroom 270 Il Federal Building 211 South Court Street 12 Rockford. Illinois 13 Wednesday. August 10 1983 1
ws 14 15 IN CAMERA. EX PARTE HEARING WITH THE y 0FFICE OF IN7ESTIGATIONS l 16 1 17 BEFORE:
e 18 JUDGE IVAN SMITM.
! n Chairman. Atomic Safety & Licensing Board.
- 19 JUDGE A. DIXON CALLIMAN, 20 3 ember. Atomic Safety & Licensing Board.
I 21 JUDGE RICHARD COLE.
Member. Atomic Safet/ & Licensing Board.
I 23 1
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1 AFFEARANCES:
2 STEVEN GOLDBERG. ESQ.
MITZI YOUNG, ESQ.
3 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission 4 Washington. D.C. 20555 S Appearing on behalf of the NRC Staff.
6 NRC FARTICIPANTS:
7 David M. Galanti e
Roger Fortuna 9
Robert L. Segal to D.W. Hayes 11 Kevin Connaughton 12 William Forney 13 b
IS 16 17 10 19 20 21 22 23 24 2S e
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1 P R0C EED INGS 2 JUDGE SMITH: Centlemen, may I administer the 3 cath to you?
a Whereupon, 5 DAVID M. GALANTI 6 and 7
ROBERT SEGAL e
were called as witnesses and, having been first duly sworn, 9
were examined and testified as follows:
10 MR. FORTUNA: I am Roger yortuna. Deputy 11 Director of the NRC Office of Investigations.
12 I an here chia afternoon because as we all-13 know, this ,is a matter before thia Board and the Commission ,
la has taken a considerable interest in it from a generic'
, 15 perspective, in that a task force has presently been j 16 constituted so that the Commission can make a policy I
o 17 determination as to how its employees, including the Office l 18 of Investigations and the Regions and the Boards and what-1 19 have-you, should conduct themselves in the dissemination, I 20 p
review, and what-have-you of sacerial which is presently l l 21 under investigation and/or inspection, yet of interest to g 22 sitting Board or Boards.
I 23 As your Honors are certainly aware, this I 24 probably won't be resolved for several months; hopefully 25 more quickly. And.in the meantime, the Commission, the L
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h29-6 rett.o .
1 Soards, and all of us have to go about our business. But 2
what we are endeavoring to do today is to resolve issues 3
in the meantime.
4 I as here for several reasons. The first S
reason I an here is to try to provide the Board. in the 6
best manner I can, information that we think may be relevant 7 to your efforts, e
I also wish to let the record reflect that it is 9
up for grabs in the Office of Investigations because we are 10 a Commission office. We are not subject to the judicial 11 oversight of the Boards and Panels, so that we come here 12 voluntarily today.
13 We also feel it is important for us to be here !
la today so that if at a later date this matter - the issues IS involved -- are sent up topside to the Commission. sent le to the Appellate Court, the Supreme Court of the NRC, that 17 they have before them not only the concerns of the Office is of Investigations from a theoretical or hypothetical view, l'
but have it from a real-case situation, and by that I 20 sean quite simply in our view going to the Consission with 21 what we view may be potential harm if information is 22 released, even in a restricted disclosure posture. It is 23 auch easier to discuss if we have a real-life situation 24 before us.
2S So the Office of Investigations has struggled j
at:9-5 7611.5 I
with this issue and tried to do the right thing, and we 2
believe the right thing to do is take the risk of 3
providing to the Board on this one particular occasion d
information regarding an investigation which has been 5
recently initiated by this Office, providing this Board with what we have to date in the form of oral testimony or 7
information by the two investigators. Mr. Segal and Mr.
8 Galanti, who are presently assigned to this task, and then bu-12: urge the Board to carefully weigh and consider their
'O information and carefully weigh this and make a decision that such information need not be provided to the general 12 public under unrestricted disclosure, or even to the parties
'3 of this hearing with limited disclosure.
- 14 We realize we are running the risk that you may 15 3
rule adversely on our petition and may make a determination
{ '*
that some sort of unrestricted disclosure is necessary.
II e We would hope that we could " win at the trial is level". If we did not, then we'd have a more expansive record which would allow the Commission to read about what 20 we are doing, and allow them to read it on a real-time i 21 basis rather than in the abstract.
I 22 So what I sa saying is by appearing here today, 8
23 we do not wish to imply or suggest to the Board or the 24 Commission at the time they aske a final ruling about how 18 this may be handled that we will do this today, but we feel
, , , .. . i
.. -= ** -* . ' ' *
- or29-6 7611.6 3
I it is important to do this today, so the Commission has 2
before it a transcript which speaks about real instances 3 rather than hypotheticals.
4 If it is appropriate before the investigators S
that are assigned to the case make their oral presentation 6
as to where we are and where we might be going on this 7
particular case.'I wish to spend a few minutes with your 8
Honors describing to you what our general concerns are regarding the provision of information related to ongoing to investigations to the Boards in camera; and additionally '
11 to parties in a restricted or unrestricted setting.
12 JUDGE SMITR Certainly we want to hear that.
13 Again, anything that you can tell us which can be told t'o 14 the general public should be separated, if you can. For 13 example, your reasons for coming here today are really not 16 secret.
You know, they are sound management decisions.
17 and we sort of have a commitment to the parties and really 18 to the regulations of the Consission to use this very l'
unusual procedure only where it is essential, to address to the probles.
21 In other words, give us what you wish us to 22 know, but either withhold unnecessary information or be 23 prepared to make public the information which is not secret.
24 We should not be privy to any information from anybody in 25 this session which does not have to be secret.
1 MR. FORTUNA: Could you repeat that, your Honor?
2 JUDGE SMITH: This is a rare and unusual procedure 3 where the parties aren't even present and we have to restrict
. i 4 it to only secret information. You heard our conversation .
I 5 with Mr. Hayes as he speaks about the safety significance. I 6 MR. FORTUNA: I think what your Honor is 7
suggesting so far as my general comments regarding theOfficej i
8 of Investigations regarding positions on this generic issue, 9 there are no secrets, therefore let's =4ke sure that when 9 to I begin those comments and finish those comments, that I l Il clearly indicate that which we have no concern about release 12 of.
I3
,, JUDGE SMITH: Right. And we would like to 3,o N Id farther than that. We would like to explain to the public 15 and the parties that those comments were made.
. We have i
l 16 promised everyb'ody, we promised the court. the press and i 17 the parties when we go into a secret session it will be only 8
18 that which is necessary to be secret.
I' MR. FORTUNA: I see.
I 70
,3, JUDGE SMITH: We are not supposed to be sitting j 21 around talking about lawsuits with people in private. We
[ 22 only do it for the purposes of protecting the information 8
23 and following the Commission's guidance and following 2.744, 24 It 's complica ted.- You want to give us your background, and 25 it should be. On this point you are correct.
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ir29-3 S 1 We also ask when you give us information which 2 does not have to be secret that'you also make it public.
3 MR. FORTUNA: In our view?
-4 JUDGE SMITH: Right.
5 MR. FORTUNA: But isn't the court going to be o making a determination once they accept the information
- 7. about that which.should or should not be?
8 JUDGE SMITH: The point I was getting at. for 9 example, you are going to tell us generally now why you 10 don't want to reveal to the parties secret information.
11 MR. FORTUNA: Restricted or unrestricted 12 disclosure?
13 JUDGE SMITH: I would imagine that information 14
- you would not mind having given to the general public 15 this morning.
16 MR. FORTUNA: I understand, and I agree.
17 JUDGE SMITH: However, then you might come into 18 circumstances where there are people you don't. trust and 19 you have reason not to trust them. That belongs in this 20 room and only in this room.'
21 MR. FORTUNA: I believe, as I understand -- and 22 perhaps as I elaborate on that which I have no concern to 23 share with the world.
24 JUDGE SMITH: What we might do is when we get 25 done with this in camera session, we will get the transcripts, 9
'ar29-9 7611.9 I you pick out the. parts that you think can be made public 2 and simply make them public. That will take care of it.
3 MR. FORTUNA: Thank you.
4 Back to my general comments.
5 Essentially the Office of Investigations' 6 position, absent guidance by the Commission -- which 7 hopefully be forthcoming pretty soon, and I imagine it is --
8 is that we want one~ thing only, and I.will elaborate on it 9 and approach it from different angles:
10 Investigations historically are conducted in 11 as private an atmosphere as is possible. On the other hand, 12 the results of investigations, be they hearings, trials, 13 and what-have-you, are conducted according to due p r o c e,s s ,
L Id the Constitution, and the Anglo-Saxon heritage of law that 13 we have in an open and public manner.
3 C
16 The concern that the Office of Investigations g
17 has is that information that is collected during the o
18 collection process should remain, as much as is humanly 1
E 19 possible, within the confines of the investigative -- I I
g 20 don't dare speak for the Region or the Staff -- perhaps the 21 inspection apparatus or function. At such time as an E
g 22 investigative effort is completed, then clearly action 8
23 may have to be taken by the decisionmakers of this particular 4
1 24 agency, including yourselves.
23 At that point in time the Office of Investigations i I
l
r29-10 ,voo. -, -
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I clearly understands and appreciates that the product does 2
no one any good if it's held secretly and can't be addressed 3 and litigated.
4 So my comments today pertain to information 5
collected, about to be collected.-allegations, impressions o gained by investigators, directions that individual 7
investigators should be going in during the course of 8 an investigation, j
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to 11 12 l
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14 15 16 17 18 19 20 21 22 23 24 25 ye e *
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' 31 50'l-7611.11 If 1 It's quite simply the position of our office that 2 such information is inappropriate for sharing by boards, 3 parties, what have you, durin.g the ongoing process. And 4 there are reasons for this.
5 First off -- and your Honors correct me if I 6
misunderstand the role and the function that we're playing 7
in this setting here -- I believe it was my understanding that a the information that is to be acquired will allow the Board 9
to make a determination as to whether or not you should to pursue particular issues that are presently contested or you 11 =ay reopen and allow to be contested.
12 JUDGE SMITH: Yes, that's probably the most 13 important purpose, yes. ..
CL M MR. FORTUNA: So, my argument would be -- or'the 15 position that our office is advocating is that perhaps that' 5
g to decision that you make'would best be. served by the receipt.of I 17 information in its final incomplete form, and that any 0
l 18 information that we can offer you as we progress through a 1
E 19 given investigation is, of necessity, preliminary, incomplete,.
t 20 and that there may be other people or other documents to I e
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21 review, and that any impressions, opinions, what have you g 22 gained'by the particular investigator or investigators who 8
23 are working on that product may be ephemeral and disappear 24 once all the facts are in.
25 Now, once all the facts are in -- and I.can
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.30-2 I understand how different people feel -- that all the facts are 2 in sooner or faster, depending on the perspective that you 3 have -- we feel it's perfectly legitimate at that point in d time to take that product, to look at it and examine it, .
5 question it, what have you.
6 I'll continue. -
7 See, the problem, gentlemen -- and not JUDGE SMITH:
a just you, Mr. Fortuna, but everybody -- is what's going to happen ~if the Byron plant sits there idle while we wait for-
'O the results of investigations that come out to be of not much
' moment anyway -- and what we're trying to find out is isn't 12 it possible that maybe some of these investigations and.
13 inspections simply don't mattar, and we'd go ahead with pur decision anyway.
'S This is one of the things we're tryfng to look at.
36 If you're investigating child molesting out thern l
37 at that plant, or something of that nature, it may be outside 18 our jurisdiction and we'll go ahead with the decision.
IF on the other hand, if you're investigating deep-20 rooted corruption in the quality assurance program, it may 21 very well be that, notwithstanding the fact the plant will 22 have to sit idle, we'll simply wait and get the results. We 23 have to make some kind of judgment. We have to decide whether 24 the issues that are subject to the pending investigations are 25 so serious that we will take the responsibility of delaying a l
l l
l h
.ji 30-3 7611.1.
I decision and keeping the plant idle, if that's where it turns l 2 out to be. We will take that responsibility.
l 3
Or we can say, "Well, there's a middle ground."
d Or we can say, "None of it matters. Just go ahead with the 5 decision."
6 But we have to lock at it enough to know if those 7 circumstances prevail.
8 MR. FORTUNA: I understand you point.
9 JUDGE SMITH: And no one, the Commission or 10 anyone, is stepping down and offering to relieve us.of that 11 responsibility.
12 '
The Commission makes it quite clear: "You decide 13 OL-the issues put before you, and you do it damned fast." That's j 14 what they're telling us. 'And they have not ever said anything i 15 to the contrary.
{ 16 MR. FORTUNA: Moving along in my presentation, I 17 n your Honors, we have another deep, abiding concern. And that U- ,- is 1
~
, is, quite simply, information which may be relayed, either
- 19 I restricted or unrestricted, that may, for however or whatever j 20 reason, make itself known and become aware of, by subjects, e
.]E 21 the targets, or whatever you want - people, individuals, 22 3 corporations, or entities on the wrong end of an allegation.
8 23 And we are looking at it from the prophylactic
.24 approach, which, quite simply, is if nothing is said about it, 25 then, quite sbnply, nothing possibly could go wrong to cause --
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- 30-4 7611.14 .
, I D 1 nothing could go wrong.and therefore jeopardiza the 2 investigative process.
3 From the Office of Investigations' perspective, 4 quite simply, if we can give the decisionmakers in this 5 agency a product which we feel was in no way tainted by the 6 potential for witnesses, subjects, what have you, to have been 7 in a position to tailor testimony, destroy documents, what 8 have you -- well, think dark thoughts for a moment -- then, 9 we think we've delivered a better product.
10 We,also have a concern that if this type of 11 information, in whatever form, that sits way out of the inner 12 recesses, to barely in the recesses of an investigative 13 process, until it's complete, it will be very difficult,for i
14 you or for us to know whether or not that investigation that is we performed was untainted or unharmed.
16 It's very difficult in many instances to establ'ish I'7 that an individual destroyed documents knowing that he or 18 she was the subject of an investigation and perhaps an -
19 allegation unless this individual historically destroyed or 20 doctored documents when the investigators arrived'on site.
21 JUDGE SMITH: We think you have just persuaded us 22 of that point of view so thoroughly that -- I mean, we 23 understand that you simply cannot warn the people you're 24 investigating. You just can't do it. We recognize that.
25 MR. FORTUNA: The point I'm making -- and I'm reall;
?
7611.15
, ji 30-$
l 1 beginning to focus my energies and my comments on -- for 2 even restricted disclosure is not that there may be anything -
3 on the record, not that there may-be anything that one could d establish that parties under affidavits of disclosure may or 5 may not give out.
6 What we're saying, quite simply, is: Is it worth 7 running the risk that that might happen even under a protectiv s order, talking sanctions and all those things which may
' enhance the ability of --
10 JUDGE SMITH: Mr. Fortuna, do you read our 11 memoranda and order denying the motion for a stay?
12 MR. FORTUNA: No, I have not. -
, 13 JUDGE SMITH: The Nuclear Regulatory Coatmission,
(~ l' in decisions and statements of consideration, is even willing 15 to risk special nuclear material to safeguards -- I mean to ,
16 protective orders.
I 17 We have a body of law and tradition in the a
18 Commission, which the Commission.is yet to change, which 1
A 19 directs boards, directs us. We must comply and assume the I '
- = 20 protective orders and affidavits of nondisclosure do their l 21 job, absent some particular information, even though you're 22 talking.about safeguarded information.
~E 8
23 MR. FORTUNA: Excuse me. I am familiar with that.
.g 24 When you elaborated, yes, I am aware of.what you'ra speaking 25 to, mO -.-
-- ~.'.---- ,. . s, --... . - - . . . - - - . ..
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r30-6 7611.16 .
1 JUDGE SMITH: On a need-to-know basis. l 2
MR. FORTUNA: And the only point -- and this is, 3 again, for the record --
4 JUDGE SMITH: It would be very helpful to us, l 3 when you make your arguments to us about the necessity to 6 risk disclosure under protective order, if you recogni::e the 7 responsibility we have to comply with the commission's a
previous orders to even risk special nuclear material.
MR. FORTUNA: I do. And I hear exactly what 10 you're saying.
33 I I believe what you're saying, stating it for 12 myself, very simply, is you work under certain rules and 33 regulations. And until told otherwise, you are obligat,ed, Id l as the Commission implied, to adhere to that.
13 JUDGE SMITH: I'm telling you we simply don't have to the authority to allow you to convince us that, as a 37 general principle, protective orders and affidavits of non-Is disclosure are inadequate. We don't have that author (ty to l'
even let you convince us of that, because the Commission has 20 said, in its official rulings, that they are a'dequats.
21 MR. FORTUNA: I understand youripoint.
22 JUDGE SMITH: And it may very well be that each of 23 us, personally and philosophically, don't believe what the 24 Commission has said. But we are judicial officers, and we 25 have to comply with that anyway.
l l . . . . . _ . . . .. ., ... ~.
ji 30-7 7611.l~
N' i MR. FORTUNA: And perhaps, your Honor, I'm speaking 2 to the Commission, rather than you. So,.rather than elongate 3 that horrible process, I will direct my comments to you and, 4 more particularly, to the record.
3 And I'll wrap it up by saying if one does, in the 6 Office of Investigations' view, a cost-benefit analysis, 7 the withholding, if you will -- and that has a negative a connotation which I don't agree with -- temporarily of
, information from a board or parties on either restricted or to unrestricted disclosure, it may be, in our view, it's out-n weighed by the potential for a disclosure,which would 12 compromise the outcome of an investi.gation and would not give 13 you as good a data base as you otherwise would have. ,
i4 Quite simply, the tradeoff of a month or two of
~
15 waiting to get a complete report, in our view, is far 36 outweighed by th'e potential that u- the occasich that we -"
I 17 may compromise.
n
$ 18 End of story.
t
$ 19 JUDGE SMITH: Now, you're talking to us in .
I g end 30 20 language that would be very helpful.
e l 21 I
I 22 I
l 1 24 25 l
1rgl 7611.18 D 1 MR. FORTUNA: In our view again, subject to the 2 Commissi.on wishes, we would argue that the risk is far 3 outweighed by the potent-ial benefit.
4 MR. GOLDBERC: Roger, before you proceed with 5 your presentation can I address a'few remarks?
6 First of all, Mr. Fortuna's policy arguments 7 parallel those.the Staff advanced in its directed certifi-a cation motion and still adheres to.
Although we have submitted to this procedure, we 10 do not feel that it's an advisable one for reasons which we II indicated in our initial motion papers.
12 JUDGE SMITH: Which procedure is this?
13
\
MR. GOLDBERG: The procedure whereby NRC inppector:
14 provide substantive information concerning pending inspection:
15 to Boards exclusive.ly or to parties restrictively or the ,
16 public unrestrictively. There is --
17 JUDGE SMITH: You've never addressed the procedure 18 we are following today in any papers that I've read.
19 MR. GOLDBERG: We took the inicial position that 20 ve should.not provide any infermation at present to the 21 l Board regarding the subject of pending inspections and that n
j Board inquiry should and could await the completion of the 23 G" j Staff investi/ationand' report, and only on receipt of the
- 24
- l Appeal Board decision and the policy did the Staff alter its 25 position and move for a reconsideration and. alternative
)
3
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- 31rg'2 7611.19 I
f I presentation of the information for the Board's exclusive 2 review in camer2.
~
3 JUDGE SMITH: I am really concerned about what's. i 4 become a g e n e c a .*. argument on the merits of the case ~ and I !
5 think actually, so far we can probably resolve the problem o by simply serving a transcript of this discussion -- and 7 we'll give you a chance to read it -- of this general dis-8 cussion on the parties.
9 MR. GOLDBERG: I want to address one or two of 10 the point; you have made about affidavits of nondisclosure.
11 I don't know if :here's ever been an instance in which partie.
12 to an NRC adjudication have been privy to this type of in-13 formation regarding pending inspections or investigatis'ns.
14 There certainly have been instances in which parties have 15 been provided safeguards and other types of information under u
16 protective order.
.a 37 One can argue about.the character of that'infor-O e 18 mation is somewhat static. The plans are as stated in the 1 ,
S l' document. We are talking here about a nonstatic investiga-I g 20 tory process from which preliminary opinions and not facts e
l 21 have been drawn and it is'that kind of op$nion information I
g 22 that may, as Mr. Fortuna indicated, prove ephemeral at the 23 conclusion of the-inspection a'nd at least in the' case.of 24 the identities of confidential informants.
25 In the South Texas ease, the Appeal Board has
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7611.20 (rg3
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1 concluded that even providing that information on a restricte I l
2 basis under affidavits of nondisclosure is unacceptable be .
1 3 cause knowledge on behalf of would-be informants that their l d identities cannot be confined to NRC sources would have a 5 chilling effect on the access of the NRC inspection to infor-6 mation received in that form.
7 JUDGE SMITH: I think that's a problem that we 8 certainly would be very sensitive to and we can get around 9 that.
10 I was think about Mr. Hayes' problem, '*e . can ap-11 prove a s'tatement how you can either have a situation where 12 you received allegations and you. don't mention the informant 13 .and this was the result that it may be as Mr. Hayes poi,nted Id out, as in the case with that the allegation 15 would identify M so that wouldn't work.
16 So maybe then I would expect that we would approve 1
17 a presentation that would say -- that. would eliminate refer-1 l
18 ences to allegations, because allegations become irrelevant 19 when they have been inspected and the results of the inspec-l 20 tion are known.
21 I think we have to take it on a case by case 22 i
basis, but we.are aware of.the vital need to. protect the 23 identity of informants. And I think we have the authority 24 to go to great lengths to protect informancs and I think we 25 can use some imagination on how to go about it.
31 r g *, 7611.21 1 And in this particular case I just don't see that-2 there's.any problem.
3 MR. GOLDBERG: I guess we're also suggesting that 4 law enforcement investigative privileges is perhaps of 5 co-eqqa1 importance in terms of accomplishing the inspection 6 and enforcement program and function of'the Agency that has 7 been entrusted to various other offices within the Agency.
8 And in no prior NRC case have I seen that p rivile ge 9 asserted and approached as directly as it is in this case.
10 I understand that these are arguments that probably we will 11 revisit, but addressing myself to the Board's understandable 12 dilemma about its knowledge of a pending inspection and its 13 need to reach a decision. I would say it's probably the, rarity 14 .in comtemporary NRC licensing that there is not a pending 15 inspection of one type of another regarding a plant nearing 3
< 0 v
16 completion that also happens to be the subject of a licensing i 17 proceeding.
18 And I think as the Board has correctly indicated 1
! 19 a'ad Mr. Fortuna, that it does require a balancing of the t
3 20 need for disclosure regarding the substance of those in-r l 21 spections prior to their completion and the primarily E l g 22 schedular concerns about advancing a decision'date if the 3 F#4 23 Bo a rd o r pa r t ie s ee66... tha t eed- a n inspection could. bear on 24 the outcome.of the decision.
25 Typically, inspections have been reported and Q* m e -e== , 4.: ,,e ,,3 .=e
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1 Boards or parties have -- it has prompted Boards or parties 2 to inquire further. It has not been the case to my knowledge 3 where the pendancy alone of an inspection has led to its 4 pre-completion litigation.
5 JUDGE. SMITH: Its what?
2.
6 MR. GOLDBERG: Where the pend /ncy of an inspection 7 bas led to a pre-inspection completion litigation of the 8 matters under investicar. ion, as ma e one of the courses 9 under consideration by the Board.
10 JUDGE SMITH: I really regret the general argu-11 ment that you are making. -The sama arguments'that were made 12 with the Appeal Board and to us, and we promised everyone 13 involved that this would be a session that deals with secret .-
Id information. I think it will be harmless when we serve the 15 parts of the transcript of this session that can be made 16 public, but we are somewhat familiar with Commission law and 17 precedent and we are aware of what you're telling us.
1 1s MR. GOLDBERG:_Your Honor, perhaps at this point 19 in time, it would he appropriate to proceed with the factual 20 presentations or the oral presentation of the NRC Office o'f l 21 Investigation investigators and that we should at this point l
l 22 clearly indicate for the record this.would be, as you've 23 dubbed it, the secrecy part of this transcript, okay, with 24 one exception. -
25 JUDGE.SMITHi . I think.* phat;it may'very. well. be possible to stab
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31rs.t 7611.23
( 1 the beginning of Mt. Fortuna's presentation up until this 2
very moment and serve it on the parties except that we have 3
to delete my re'ference to 6 To honor our commit.-
d ment to the parties n o t. to go into matters that we don't 5
have to go into, but if you are done, if you are completed 6
giving us a.-textual background, fine. If you think we have 7 to know more about it, go ahead. But we know Commission ,
8 law, we've read Co= mission cases.
9 k*e read your briefs carefully before the Commission 10 and I do think that we are required under the circu= stances Il now, to make a preliminary inquiry into the significance of 12 the pending investigation.
13 So, with that, unless you have anything more.to l
14 say, let's go into the details or the substance of the infor-
, 15 cation.
C 3 16 MR. FORTUNA: All right, we will now begin our I 17 presentation by the investigators but I'll just repeat one 0
g 18 3
more time for the record, so that it's close to the comments O
- 19 that these investigators are about to make, Mr. Segal and t
g 20 2
Mr. Galanti, that this is a one time thing in our view, l
I 21 and the Office of Investigation's view.Because we're here 22 j today does not necessarily mean that in the future we'd be 8
23 villing to make a similar presentation in the future.
g 24 Mr. Segal, I wonder if at this time you could 25 discuss with -- or Mr. Galanti, as you see fit.-- what we
~
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- 1
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1 MR. FORTUNA:
i 2 ~' - - - - '- -
m ,
5 6
MR. FORNEY: .This might be an occortune time for 7
me to interject something. l i
! a I know a lot of times there is some question as to 9
the rationale or are all allegations processed. And in that 10 regard, I'd like to add this point. We don't make any :
il judgment when we get an allegation of the validity. We do 12 go through that process I illuminated yesterday. I never 2 13 met with Mr. Hughes or the other allegers that there wasn't k 14 a considerable of drinking going on at the time.
15 And also, during one of the sessions, Mr. Hughes 16 l l has told us specifically when he had falsified records when l
I 17 working for a Department of Defense contractor for rotors o
j 3
18 of helicopters. And even having all of this kncwledge, we l j 19 go through exactly the same process. We do not let any of l 5 l
j 20 that detract from or give a free opinion as to the validity l 21 of any of the allegations.
I g 22 I just thought this would be a good time'to 8
23 interject that.. .
24 MR. GALANTI:
25
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10 11 JUDGE SMITH:
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! 13 Id MR. GALANTI:
- ! 15 . MR.'FORNEY
16 i
17
20 Your Honors, just one final comment and-I'm ,
- 21 finished,.unless there's any other questions" -- at least I 22 hope we are.
l 23 A couple of things I hope -- I don't know if we've 24 been successful in giving you a general overview where we are, 25 realizing that we're in a preliminary stage and we're going l
l l .
1 . -. -. .. . .
l l
jl 35-7 7611.55 i to try to work through this thing as rapidly as we can. I 2 will be perfectly candid with the Board, this was an effort 3 to show you -- I don't know, maybe you know -- if these 4 kinds of things aren't of any value to you, then thats a 5 decision that, I guess, you can make.
6 Another concern, just from a manpower perspective, 7 OI presently has in its employ a total of 38 people,.20 of a whom are assigne d to the different regional offices. and
, co-located with the regions, which means that we have minus to supervisors in the field -- 20 supervisors. That's 10 teams.
it I guess it's not a concern of yours. But for 12 whatever it's worth, I will go to confession to you for a 13 minute. If we're involved in these types of hearings.qn an i4 interim status basis, it really cuts into our time and is is another practical r'eason why the Office is advocating can jv to you hold up and get it from us in the end and talk to us one I 17 time?
4 1 18 JUDGE SMITH: When we ruled on the Staff's motion 1
$ 19 for a stay, we made it that the efficiency of the inspectors
, I, 20 was a legitimate concern and interest. And prematurity is s
l E
21 legitmate.
g 22 We don't want valueless evidence. Those issues 0
23 were never put before us before squarely. And we will listen I to that, and we want to know about.that.
i 24 j j 2s The difficulty that we have this afternoon is -- at
, , - ,--,n
5-8 .
7611.5(
I least'as I perceive it -- your investigators have indicated 2 i
-- and we heard yesterday from I&E that'they like to approach l 3
these investigations with openmindedness, and they don't d
assume in advance that somebody is credible or incredible.
3 And they look at them all.
6 So, I don't think we can have a discourse.with 7
you in which we might express to your people our view of the a
credibility of any of these people. I don't think that's appropriate.
10 MR. FORTUNA: I purposely-today directed both 11 of the OI staff members to offer up that kind of opinion 12 information, so that, again, if this record is ever. certified 13 topside, the people that are in the perilous situation,, in the Id catbird's seati can see if they like us talking about these 13 things or should we stick with, in our view, fact, fact, fact, 16 fact, fact, fact, fact, and you folks decide whether it's 37 credible or not. And if you really want the ultimate test, is bring them in under a subpoena. But that's another thi'ng I'
we've purposely built in this time so we could see what it 20
- rui 35 look like when it went up topside, if it does.
21 22 23 24 25 ,
l
l arl 7611.57
'.' 425
. I l
i MR. GOLDBERG: Can we confer before this ;
2 portion is done? !
3 (Parties conferring.)
t4 4 JUDGE SMITH: Anything further?
5 MR. FORTUNA: That's it.
[
l 6 JUDGE SMITH: Are you all done? .
4 7 MR. FORTUNA: Yes, your Honor.
8 JUDGE SMITH: I guess I only have one question.
9 I ' 'd like to ask it of the I&E people, too.
10 In your inquiries, have you had the full 11 cooperation of Commonwealth Edison?
12 MR. HAYES: Yes, I certainly have.
. 13 JUDGE SMITH: Have you seen any signs of any
'G id effort on their part to frustrate your inquiry into Hatfield?
l .
15 MR. HAYES: No, .I haven't. I have been dealing w
16 primarily with.two individuals, Dick Tuecken and Mr.
g 17 Klinger, and I have had full cooperation from both of 8
4 18 those individuals. ~
I 19 JUDGE SMITH: How.about you gentlemen in the h
{E 20 Office of Investigations?
21 MR. GALANTI: l 22 ..._w,,--. _.__ _ _ % .
8 l 24 25 JUDGE SMITH: #~- -
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15 16 MR. GALANTI: l l
17 MR. FORNEY: May I make some observations?
18 On occasions when I.had referred to about 19' taking a member of the Commonwealth Edison organization 20 with me when I would go talk to the QA manager from Hatfield, al that was generally Mr. Klinger. And when I would tell them
(
22 the NRC position and what we expected should be done, Mr.
23 Buchanan typically would look to Mr. Klinger and say, "Should 24 I or shouldn't I?" And Mr. Klinger would tell him to do it 25 immediately, there was no hesitation.
l i
ir$6-3 7611.59 1 I guess the second observation that I would 2 make was when we were -- had advised Commonwealth Edison 3 that there were allegations in the Hatfield area of 4 different ones, and through the process of different 5 inspectors, Mr. Ra ove and myself and Kevin looking into
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15 weren't particularly happy -- they being Commonwealth w
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t j 20 So I personally believe that, to answer your 4 t l
E 21 question, Mr. Klinger and Mr. Tuecken both want to see
\
! 22 the job done and done correctly.
.=
I8s 23 JUDGE SMITH: Then there is another area that 8
24 the Board was discussing. Let's assume that we feel that '
25 all of the inspections, or the inspections and investigations,
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1 or at least the ones we referred to, are premature -- I 2
mean it's premature for us to receive ~ evidence on them, but 3
we feel that they' raise issues that are important. Can .
d' the technical staff give us what might be a worst. case 5 scenario? That is assuming that the allegations are o
valid, what is the significance of it, and give us a 7
basis, if there is any, to proceed with the licensing, and 8 leaving the whole --
perhaps with a condition -- and leaving 9
the whole matter to ultimate resolution to the Staff?
10 But we simply don't think we should be in the 11 position of just sitting around waiting for investi8ations 12 which may not develop into anything and making the utility 13 pay that price when perhaps there is a middle ground. -
Id Maybe we can -- I don't know, just what is the '
15 worst that can be evolved?
16 MR. HAYES: On a time frame?
17 JUDGE SMITH: No. Let's assume --
the safety.
18 Is it a seismic consideration?
19 MR. HAYES: Yes, it would certainly be a seismic 20 consideration. I think that would be the one event that 21
.would test the welds the most, that would put the highest 22 stress on them. If they were going to fail, they.would 23 fail under those conditions.
24 JUDGE SMITH: So certainly when we are talking 25
'about seismic, we are talking about a long term problem. '
e e ,- w as e s -o- .e o e,. p a e es e
, e l
,dr36-5 7611.61 I
ff' i You are not talking about any,immediate safety concern if i 2 we should license the plant or permit the plant to be 3
licensed?
4 MR. HAYES: Right now our best guess, just 5 finishing the reinspection progra,a and the-resampling that 6 has been necessary based on the results so far to date. -
7 they have had to resample -- they expanded the sample size 8 and we are not to the end of that with Hatfield yet. They
, could very well expand to nearly 100 percent, particularly 10 in the weld area.
33 And then, depending on our evaluation, their 12 evaluation first and our evaluation of the~ adequacy of 13 their review of it, it could result in a significant number 34 of welds being replaced, which would be a fairly long term 15 job. Months.
I 16 JUDGE SMITH: And that would impact upon I 37 operations?
o l ig MR. HAYES: Yes, it would delay the fuel l'oad 1
o j, and start-up of that plant.
I* Now, right now, just on the -- what we know l
20 1
lI 21 today, it appears that they cannot finish all phases of 22 chis reinspection program involving Hatfield until 3 approximately December. -
23 1 Now that'may change, you know. It's a moving 24 25 target we're looking at. Sometimes.these things fall away L
v k
. 1 cr36-6 7611.62 -
j l
1 and sometimes they get bigger. I don't know if it would be 2 appropriate -- you're assuming a fuel load date of December, 3 and I can give you my -- which is -- is not going to be 4 December. I can say that very posit,1vely.
5 JUDGE COLE: Because of the reinspection program 6 or for other reasons?
7 MR. HAYES: Because of the reinspection program 8 alone, but there is a lot of things yet to be done at that 9 plant, and my best estimate is April to June of next year.
10 JUDGE SMITH: Would you be.willing to make that 11 observation on the record?
12 MR. HAYES: I certainly would be. I have made 13 that observation to NRR in a meeting with Commonwealth.'
Id Edison. They have some control over this, but they don't 15 .have all the control, you know. You can throw a lot of l 14 people or a lot of workers and move things along, but there l 17 is a limit because there is a space limitation. You can 18 only get so many workers in a confined space. And I have 19 supervised th~e planning group, I have been involved in a 20 number of these caseload forecast panels, and so I am not 21 unexperienced in this area of estimating what it's going to 22 take to finish up.
23 JUDGE SMITH: We~sure thought we saw a lot of 24 people out there when we toured the~ place.
25 JUDGE CALLIHAN: Is this reinspection program on a i
.e
. ar36-7 7611.63 ff- 1 two-shift basis or one-shift basis now? This thing that 2 you say that is not going to get done until December.
3 MR. FORNEY: I believe it's six ten. Six 4 cen-hour days. Six days at 10 hour1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> a day shifts.
5 I guess one other observation I'd have to make, o given that the allegations prove to be substantiated, that 7 probably what the region would like would be 100 percent 8 reinspection of all welds, less chose that have been 9 reinspected by the reinspection program.
10 So definitely I would say the population would 11 significantly increase. When the caseload forecast panel 12 was at the site, the resident officer, as well as Mr.
13 Hayes' observations were we really believed an April-to-June k~- Id date. That was back in January, I believe is when the 15 caseload forecast panel was there. And since that time 5
g 16 there has been even additional problems that have been 8
- 17 surfaced: the weld problems found during the' reinspection 8
18 program, which in my estimation makes it look more like g
19 June than April, t
g 20 JUDGE COLE: Maybe that's why Mr. Miller didn't r
[ 21 scream too loudly when the possibility of delay was brought t
j 22 up.
8 23 ' JUDGE CALLIHAN: ~You just said reinspect -all g
24 welds, and you're still limiting that to Hatfield?
25 MR. FORNEY: Yes. These are the Hatfield C
.v-. -
4 36-8 7011*04 '
- 4 .
I allegations. These would be relative to those welds and 2 that would be typical of the' Region's position that we 3 imposed at the Zimmer site 100 percent reinspection, and 4 that was as a result of allegations that proved there was 5 falsification and reason to doubt --
6 JUDGE SMITH: Is this still private information?
7 MR. FORNEY: Yes, sir.
Bd 36 8 9
10 11 12 13.
14 15 le 17 18 19 20 ,
21 22 23 24 23
s (page i611.65 withheld)
e;? 7611.66 -
2 3
4 But we find that we seem to have a pattern here 5 as we approach the licensing and going into hearings, that 6 these people seem to flush out of.the walls and there is 7 advertisements in t he paper and things so they.are encouraged 8 And you have to correlate that with layoffs and reduction of 9 workers and things like that.
10 And so there is always that possibility.
11 MR ,. FORNEY: Judge Smith, may I make one more 12 comment, that I didn't quite finish on the schedule?
t 13 My belief is that Commonwealth Edison has been 14 less than candid with t,his Board on scheduling. I be,lieve 15 internally they understood a number of times that they could 16 not meet the schedules, that --
17 JUDGE SMITH: Are you willing to say this?
18 MR. FORNEY: Yes, sir, I.' v e told it to them. I 19 ' understand where they. .a re coming from and --
20 MR. GOLD 3 ERG: You're looking at me. If they are s
~
21 asked under oath, thea.they give sworn testimony.
22 MR. FORNEY: I managed the Nuclear Overhaul 23 Subcommitte for a number of. years and we used the same 24 scheduling technique ~. Je never told anybody what we really 23 believed because people being what they are, if you say we i
l l
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- 37fgD
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fI 1 are going to be done in January, people not being a hundred 2 per cent productive, they'll meet January, so you meet a 1
3 later date, and I believe that's what vhey are playing with 4 you.
3 Staff never'was asked directly what our position 6 was relative to their ability to make any of these dates.
7 JUDGE SMITH:. .Sometimes it helps us to have a --
8 ve have resource problems too.
9- All right, defer that information and maybe we'll to bring it up. In fact, maybe it will come up when you testify..
i Il The Board with respect to. Office of Investigations.-
12 listening to the nature of the allegations, our own awareness
~13 of the allegers and the accused, the state of the investiga-
.[ Id tions; that is, how far along they are -- we don't believe 15 that an evidentiary presentation would be of any benefit C
i 16 to us now. So we won't ask for that unless y.ou want to give i 17 it.
8 18 You know the Commission's order is -- it goes both a
a l' ways. if you think it's information we ought to.have in I
20 public, we'll hear you, but we don't think'that under pro- 1 I
e 1 21 tective order or otherwise that the information that/you 22
! have is helpful. We don't think that the quality of the l 8
23 evidence that you have to present to us is such that we 24 can use it in our decision-making.
25 This is not a question of the seriousness of it 4
7 ., .....---ee . . e . ~ . , . , ,
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7611.68 '
l . . .
k I or anything else, this is the quality. Because it's pre-2
( mature and because of the n a.t u r e of i t ,. it's just. not con-i 3
crete enough and we know something about the backgrounds d-l and the way that people talk.
5 So, as f ar as we are concerned the Office of 6
- Investigation has nothing that they can help us in the? Byron l
l 7 case now. Of course, the information that you are developin 8
is important and the conclusions of your investigations should'be, if possible, part- of our record.
10 Now, this doesn't mean that maybe six months down 11 the road, we still haven't. heard anything and we still have 12
, a decision to get out, we may not come back and ask you ,
13 what is happening, but the wayyyou have presented it* co Id us now, we just don't think that you can he of any help to 15 us.
16 MR. FORTUNA: Understood,.Your Honor.
17 JUDGE CALLIHAN:
i.
19
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20 MR. FORTUNA:
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6 . _ . - . - . - L -- %... - - -
w._ ;,. , y Qey 8 JUDGE SMITH: You should not infer from anything 9 this Board has to say that we have a request as to priorities 10 We're aware if we ask for a priority here that 11 somebody else. suffers and we have no authority nor interest 12 in having you place greater priorities in this case as to 13 another.
Id MR. FORTUNA: " Understood, Your Honor..
15 JUDGE CALLIHAN: I hope that wasn't inplied in 5-16 my question.
3
= 17 -
MR. FORTUNA: I don't believe it was, Your Honor.
8 i y 18 JUDGE SMITH: I-don't believe it was either but 3
, e j g, 19 ve've talked about schedules, schedules, schedules and you l 1g 20 might infer from our. remarks that've are asking you to 3
2 21 hurry and we certainly are not.
E g 22 MR. HAYES: We also plan to have our end of it 8
i 23 done by December'and Kevin and I, even if we have to approach
' . ~
24 it a little bit d.ifferently than we would like t &, are i
25 doing a lot of it ourselves and we are going to make every 1
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7611.70 ,,
(3 7 r,g 5 I effort to get these allegations investigated.
2 That doesn't mean the corrective action will be ;
1 3 done, but we will have investigtions so we'will know where f i
4 we are by December. l 5 JUDGE SMITH: Okay, now, one final thing: when you get the transcripts of the in camera, would you go over
~
6 l 7 them and try to make an effort to identify pages of them that 8 can be served on the public record as much as you can?
9 Anything further?
10 MR. GOLDBERG: I guess before we conclude, when 11 can we expect.a decision on the information given by Region 12 III?
13 JUDGE ~ SMITH: I think that we'll have to confer 7
14 but I don't think that we can -- I don't know.
15 (Laughter.)
16 We don't know what to do.
17 MR. GOLDBERG: You have indicated that you would 18 give an opportunity to be heard on your prospective arrange-19 men t s ..
20 JUDGE SMITH: Realizing that would be the case, 21 I can'c'see any possibility that this week we would be asking 22 you to begin a discussion among the lawyers about how we're 23 going to approach evidence, even if we should think that 24 evidence is appropriata, yet. We are still trying to explore 25 different ways to satisfy- the interest of,everybody involved .
s
_ ____._ _ _ _ _ _ _ _ ,- - _- - . _ . . . . - _ ._-,.__r_ , . ._,c.. _ _ _
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'#37237 7611.71 Y .
o n. 'W 3 MR. GOLDBERG: There may be another occasion to 2 explore this, but we believe that the present posture of 3 the Region III inspection is comparable to the posture of 4 the OI investigation and I hope you are able to draw the 5 same conclusions about the concreteness of any evidentiary !
'6 presentation, that being it would be largely opinion rather 7 than factual and that opinions are subject to change once 8 all the facts are garnered. ,
9 And I won't recount other problems I would say to in a present in camera adjudication of the pending inspection 11 but I would .- I would like to do so if that is a course ;
12 the Board seriously is considering.
13 JUDGE SMITH: Okay. .
.C. ~
14 All right, anything further?
~
15 All right, thank you very much. We appreciate e
f 18 your courtesy in coming, gentlemen.
I 17 (Whereupon, at 5:50 p.m., the hearing 8
6 18 was adjourned, to reconvene in the morning i 1
a Wednesday, n 19 {n open session at 9:00 a.m.,
I l g 20 August 11, 1982.)
.I' 21 g 22 s 23 1
24 25 i
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