ML20205D730
| ML20205D730 | |
| Person / Time | |
|---|---|
| Site: | San Onofre, 05508347  |
| Issue date: | 10/18/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#488-7430 88-577-02-EA, 88-577-2-EA, EA-88-164, TAC-68699, TAC-68700, NUDOCS 8810270194 | |
| Download: ML20205D730 (63) | |
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UNITED STATES O
NUCLEAR REGULATORY COMMISSloN In the flatter of:
PREHEARING CONFERENCE )
) 55-08347
!!AURICE P . ACOSTA, JR. ) 88-577-02-EA (Operator License No. 6010-2 )
EA 88-164) )
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DATE: October 18, 1988 LOC ATION : San Diego, California PAGES: 1 through 62 mommmmmmmmmmmmmmmmmmmmmmmummmmmmmmmmmmmmmmmmmmme" Tb d l b\ '
O HERITAGE REPORTING OjIndef Kgnereer CORPORATION 1228 L Serest. N.W., Sets det 0010270194 001039 PDR ADOCK 05000206 PDH
1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 ATOMIC SAFETY AND LICENSING BOARD
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5 In the Matter oft Docket No. 55-08347 6 MAURICE P. ACOSTA, JR. ASLBP No. 88-577-02-EA 7 Operator License No. 6010-2 EA 88-164 8
9 10 Tuesday, October 18, 1988 11 Classroom 2C, Second Floor 12 California Western School of Law 350 Cedar Street 13 San Diego, California 92101 14 The above-entitled matter came on for hearing pur-
, 15 suant to Notice, at 9:30 a.m.
i B. PAUL COTTER, JR., Chairman j $6 BEFORE:
Chief Administrative Judge g
17 Atomic Safety and Licensing Board Panel 3
U. S. Nuclear Regulatory Commission is Washington, D.C. 20555 g
h 19 JUDGE IIARRY FOREMAN j 1564 Burton Avenue
- 20 St. Paul, Minnesota 55108 21 JUDGE KENNET!! A. MC COLLOM E 1107 West Knapp Street y 22 Stillwater, Oklahoma 74075 5 -
23 24 25
.q 2
g i APPEARANCES:
2 On behalf of the Nuclear Regulatory Commission:
3 JANICE E. MOORE, ESQ.
Counsel, NRC Staff 4 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 5
On behalf of the Appellant:
6 MAURICE P. ACOSTA, JR., Pro Se 7 193 Santa Maria Court Vista, California 92083 8
9 Also Present:
10 CARL WOOD, President Utility Workers Union of America 11 AFL-CIO, Local 246 10355 Los Alamitos Boulevard 12 Los Alamitos, California 90720 13
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3 1 P_ R Q { E E E I_ N_ g 1 2 CHAIRMAN COTTER: Good morning ladies and gentlemen.
3 First I want to thank Dean Ernest Friesen of the California 4 Western School of Law for making these facilities available 5 to us. As some of you know, Atomic Safety and Licensing 6 Boards are somewhat like the old circuit judge, and it is 7 frequently difficult to find facilities in which to conduct a hearings.
9 This is an enforcement proceeding which arises because to on June 15, 1988 the Executive Director of Operations issued 11 an order to slow cause and suspended the license of Maurice 12 Philip Acosta, and gave him an opportunity for a hearing.
13 The license in question, Number 6010-2, was issued by NRC on g 14 July 1, 1986.
, 15 By letter dated July 1, 1988 Mr. Acosta appealed the decision and requested a hearing. I might note that Mr.
l 16 3
17 Acosta's appeal was not received by the Licensing Board until l 18 August 22. After we were notified in the middle of August, 3
$ 19 this Board was appointed to hear Mr. Acosta's appeal on i
h 20 August 18, 1988, 21 I'm the Chairman of the Board. My name is B. Paul t
22 Cotter, Jr. To my right is Administrative Judge !!arry Foreman, 23 and to my left is Administrative Judge Kenneth McCollun. By
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24 professional training I am a lawyer, Judge Foreman is a medical 25 doctor, and Judge McCollum is an engineer.
4 1 Let me ask the parties to enter their appearances 2 for the record at this time. Ms. Moore?
3 MS. MOORE: Your lionor, my name is Janice E. Moore.
4 I'm counsel for NRC Staff. With me today is a paralegal from 5 our office, Mr. Philip Michael !!arrison.
6 CilAIRMAN COTTER: Thank you. Mr. Acosta?
7 MR. ACOSTA: My name is Maurico Philip Acosta, Jr.
8 I'm the licensed operator who had his license suspended.
9 CIIAIRMAN COTTER: And you noted that you have with 10 you a representative from the Union?
11 MR. ACOSTA: This is Mr. Carl Wood, the President 12 of Local 246 of the Utility Workers Union of America.
13 CIIAIRMAN COTTER: Thank you.
14 I think to begin it might be most officient if I ask
, 15 both of the parties to generally state their position with 3
j 16 respect to this appeal, and I will begin with counsel for the 3
17 NRC Staff. I would like, if you would, in your statement of 18 position tc address or describe any controlling law or regula-
{ 19 tion or guidelines that you see bearing on this proceeding, k
$ 20 what facts you see as undisputed, and what facts may be unknown n
E 21 or in dispute.
t j 22 Ms. Moore, would you proceed.
23 MS. MOORE: Yes, Your lionor. An stated in the order s'
24 of June 15, 1988, it is the Staff's position that Mr. Acosta's 25 license, which was in effect at that time, should be suspended
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5 g 1 and the application for renewal of that license, which was 2 pending before the Commission at that time, should be denied.
3 The reasons for the cuspension and denial, as set forth in 4 the order, were the failure of licensee to conform to Southern 5 California Edison's prohibition against illegal drug use, a 6 policy with the purpose of protecting the public health and 7 Safety, as demonstrated by the third positivo drug test for a marijuana use.
9 The Commission believes that this behavior demonstrates to a disr'ogard for the important obligations of a reactor operator ,
it and the Commission no longer has reasonable assurance that 12 the licensee will continue to carry out his license duties 13 with sufficient alertness and ability to safely operate San 14 Onofre Nuclear Plant, and to comply with all applicable, and g
, is observe all applicable requirements, regulations and procedures .
1s The regulatory requirements which the Commission has l
3 17 cited in its order are those contained in Part 55 of the j 18 Commission's regulations, those being, with respect to the i
l 19 suspension of the license, 55.61; and with respect to the t
20 denial of the application for renewal, Section 55.57.
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} 21 It in the Commission's belief that the case law in i
j 22 the Federal Court supports its position that a reactor operator 23 operating a facility is involved in the kind of occupation
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24 with which marijuana use is incompatible.
25 CHAIRMAN COTTER: Do you have citations in any of g
\ f 1
I 6
g 1 those cases, Ms. Moore?
2 MS. MOORE: Yes, Your Honor, we do. If you'll give f 3 me a moment, I'll get them for you.
4 CHAIRMAN COTTER: Certainly.
5 (Pause.)
6 MS. MOORE: The first case that we would --
7 CHAIRMAN COTTER: Excuse me, Ms. Moore. Could you 8 speak up just a little bit?
9 MS. MOORE: Sure.
10 CHAIRMAN COTTER: Thanks.
11 MS. MOORE : The first case that we would point to 12 is a case which, while it does not involve the dismissal of 13 a reactor operator, does express the concern we have raised 14 in this order about the compatibility of drug use with safe g
7 15 plant operation, and that is Rushton v. Nebraska Public Power 3
It's 1988, j 16 District. It's 844 F.2d 562.
s 17 The Staff would also rely on a case of an air traffic 18 controller, and the case name is Borsari v. FAA. Borsari is 19 spelled, B-o-r-s~a-r-i. The citation is 699 F.2d 106. That's
{
1
} 20 the 2nd Circuit and it's 1985 -- '83, I'm sorry.
21 There is also -- Excuse me one moment. Let me check i
j 22 one thing here.
5 a 23 (Pausa.)
}
24 There is also another case that involves the nuclear 25 industry which dealt with a security guard in the nuclear
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7 1 industry who challenged drug testing. The case is Smith v.
2 White. It's in the Eastern District of Tennessee and it's 3 1987. The cite is 666 F.Supp. 1085.
4 CHAIRMAN COTTER: I'm sorry? 66?
5 MS. MOORE: 666 F.Supp. 1085.
6 JUDGE FOREMAN: Could you pull the microphone a little 7 closer to you, please.
8 CLAIRMAN COTTER: That's not a loudspeaking system; 9 it's a recording system.
10 A MS. MOO'E: I'll just shout.
11 The Staff would also note that this is an area where 12 there has been a great deal of litigation, both concerning 13 the constitutionality of drug testing, and there have been 14 cases which have dealt with drug testing in different indus-
, 15 tries and the results of drug testing, such as disciplinary 16 action. One that we believe suppor'_s the Staf f 's position,
{t 3
17 though it isn't related to a nuclear plant, is Shoemaker, o
j 18 which is -- I'm sorry, I don't ht.ve this written down -- but 3
19 it is a New Jersey case. It's the 3rd Circuit, and I'll get
} 20 you the cito. Shoemaker v. Handle, 795 F.2d 1136 (1986).
} 21 Those are the cases that we believe would support i t j 22 the Staff's position.
=
> 23 CllAIRMAN COTTER: Thank you. Could you address the 5
24 question of the undisputed facts that you're aware of at this 25 point, that you feel would be undisputed?
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8 lg 1 MS. MOORE: Okay. We believe that the undisputed 2 facts are as follows: That Southern California Edison has 3 a drug and alcohol abuse policy which prohibits drug use on 4 or off-site. We believe that it is undisputed that Mr. Acocta s has, in March and May of 1986 and May of 1988, tested positive 6 for marijuana use. Those are the facts at this point that 7 we believe are undisputed.
8 CIIAIRMAN COTTER: Do we understand from the order 9 to show cause that the initial test that showed positive was to subsequently confirmed?
13 MS. MOORE : Yes, sir.
12 CilAIRMAN COTTER: Any facts that you see in dispute, 13 Ms. Moore?
14 MS. MOORE : According to Mr. Acosta's response, as
, 15 I understand his response, his concern is that his performance 16 should govern whether or not his license should be renewed, l
17 and that really is more of a legal question. The Staff is 3
not disputing at this point Mr. Acosta's perforraance, so I h
2 18 ig would add that as a fact that's not in dispute. Ilia past
{
t h 20 performance as an operator in terms of his technical ability
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} 21 is not in dispute, r
22 I believe the order does state that we have concerns 5
23 about his past performance which related to the previous past 3
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p4 positive drug tests.
25 CIIAIRMAN COTTER: Did Southern California Edison take n
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r 9
1 l 1 any action following the '86 positive test, do you know?
2 MS. MOORE: It is my understanding that Mr. Acosta 3 was counseled -- again based on the order -- that Mr. Acosta 4 was counseled about the possible disciplinary consequences 5 of continued use of drugs after the '86 test. Perhaps he could 6 address that for us.
7 CilAIFGULN COTTER: Is there anything you'd like to 8 add, bb. Moore?
9 MS. MOORE: No, I don't believe so, sir.
10 CliAIRMAN COTTER: Thank you very much.
11 Mr. Acosta, you can start with facts or law, whichever 12 appeals to you more.
13 MR. ACOSTA: Well, the NRC made allegations in their 14 order that I was a person who had not the capacity to use sound
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15 judgment in the performance of my job as a nuclear reactor 2
j 16 operator, that I was a person of suspect character, and that 3
17 I was a person who continued to use illegal substances.
18 The results of the test have been disputed by me,
{ 19 through my Union, as to the validity of the teste.
}
CilAIRMAN COTTER: What's the status of that dispute?
) 20
?
) 23 MR. ACOSTA: If you may allow, I'd like Mr. Wood to 1
22 comment on it.
3 23 Cl! AIRMAN COTTER: Certainly.
! If I might take a moment, perhaps I can 24 MR. WOOD:
25 describe the state of the general litigation between Utility x-
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10 1 Workers Local 246 and the Southern California Edison Company 2 over this subject, and also the status of the particular l 3 grievances that Mr. Acosta has fjled.
4 Cl! AIRMAN COTTER: I'm not sure of the relevance, but 1
5 this is a preliminary hearing, so I think it might help if 6 we allow more latitude, so go ahead. l l
7 MR. WOOD: Thank you. I wasn't familiar, prior to 8 coming here, with what procedure would be folloeed, or even 9 what would be accomplished at this hearing, so I didn't prepare l l
10 as I might have had I known that, but I'll --
11 CIIAIRMAN COTTER: Well, let me interrupt for a moment 12 to reassure you that we are not taking evidence at this point.
13 We're just trying to get a feel for what the case is about.
14 We would contemplate that we would proceed in the ordinary
, 15 course, to a regular trir.1, which would be conducted under i.
j 16 cath and with written and oral testimony, and then ultimately 4
17 would issue a decision. But we're trying to find out now the 18 scope of what 's involved here, and the bases, both factual
., 19 and legal, for the parties' positions.
t 20 MR. WOOD: I see. Thank you, h
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) 21 In 1984 Southern California Edison Company unilaterall y r
3 24 implemented a drug-testing program at San Onofre for unre-5 That
, 23 stricted access to the protected and vital areas.
3 24 occurred, I believe, on September lat.
25 JUDGE MC COLLOM: dhat does unilaterally mean?
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11 g 1 MR. WOOD: That means that this was implemented 2 without negotiation with the Union, although we are the certi-3 fied bargaining agent for some 900 employees at San Onofre, 4 many of whom are red-badge qualified. We believe that our 5 contract mandates that the employer negotiate changes in terms 6 and conditions of employment, of which this certainly seems 7 to be one.
8 As a result of this action we first made a demand 9 on the company that it suspend this action and negotiate first 10 with the Union. The employer refused to do so. The Union 11 responded by filing a grievance under our labor agreement, 12 and also filing a charge with the National Labor Relations 13 Board.
g 14 That charge was deferred to arbitration by the Board,
. 15 as the Board judged that this was a subject which did properly a
j 16 come under the -- or at least appeared to come under the 1
i 17 collective bargaining a greement.
18 CHAIRMAN COTTER: I'm sorry, when you say, "The NLRB I 19 deferred it," what do you mean?
I MR. WOOD: Well, this is a common practice of the
) 20 t
[ 21 National Labor Relations Board, that if a charge deals with f
3 22 a subject matter that appears to be something that can be 23 resolved through the arbitration process under the collective 5
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24 bargaining agreement, the Board will frequently defer the 25 matter until the arbitrator issues an opinion. At that time 4
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,y 12 1 one party or the other can ask the Board to review the arbitra-h 2 tor's decision in light of the applicable law.
3 CHAIRMAN COTTER: Is that still the status?
4 MR. WOOD: That is still the status of the labor 5 chwrge. The issue has been arbitrated, at least the hearings 6 iMve been completed and the post-hearing briefs have been sub-
? mitted by.both sides. We're presently awaiting a decision 8 on that issue from the arbitrator, Mr. Tom Roberts, who you 9 may have heard of; he's a prominent arbitrator.
to Subsequent to this the employer modified the drug-11 testing policy, in December of 1986. Again, tr.is was done 12 unilaterally, without negotiating with the Union. At that 13 time the substance of this change was to both speed up the g 14 disciplinary aspect of the policy, and also to impose random,
, 15 rather than scheduled, drug testing.
i At this time the Union filed another grievance and j to 17 went into State Court asking for a restraining order, which ic we did receive, restraining the company from instituting random f
1 5 19 drug testing. Tr.c company had the case moved into Federal t
i 20 Court before Judge Harry Hupp, and in February Judge Hupp e
} 21 issued --
t j 22 CllAIRMAN COTTER: February of '88?
23 MR. WOOD: February of '87.
24 CHA1RMAN COTTER: '87.
25 MR. WOOD: Judge Hupp issued a preliminary injunction, p ,
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13 1 basically having the sane effect - the state temporary rec-h 2 training order.
3 Since that time, earlier this year, as a result of 4 appeals from both sides, of Judge Hupp's order, we appealed 5 it on the basis of the narrowness of the grounds of the action.
6 The company, of course, appealed it trying to get the injunc-7 tion dissolved. The Ninth Circuit, a panel of the Ninth 8 Circuit, a three-judge panel of the Ninth Circuit, issued an 9 opinion that the injunction was improperly issued. That has to been appealed by the Union to the full Ninth Circuit. he've 11 asked that the Ninth Circuit hear it in banc, and at the pre-12 cent time the injunction is still in effect; it has not been 13 dissolved.
14 That injunction was issued in support of arbitration, g
, 15 and the arbitration over that issue has in fact also been held.
i j 16 !!cre again, we are awaiting an opinion from the same arbitra-3 17 tor, Mr. Roberts.
3 18 There are numerous other grievances that have been 5 to fi'ed during this period dealing with specific cases of persons i
i 20 receiving disciplinary action, or many cases of people who E 21 were not t( sted positive but filed grievances alleging that r
22 the testing was either improperly done or violated their 3
23 rights. Theae are all in various stages of the grievance pro-24 cedure.
25 Mr. Acosta's grievance is presently being processed
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14 1 through the grievance procedure, and if we follow our normal h
2 practico between the Union and the company, after it has 3 e>hausted tPe discussion steps of the grievance procedure, 4 the parties will probably agree to pend it or hold it in 5 abeya ce until we roccive Arbitrator Roberts' ruling so that 6 we can have some basis for socing which way the grievance 7 should be dealt with.
8 Cl! AIRMAN COTTER: Mr. Acosta's grievance, what was 9 the nature of the grievance'r 10 MR. WOOD: Perhaps Mr. Acosta can speak to that better 11 than I can.
12 (Pause.)
13 JUDGE MC COLLOM: I'd like to clarify something just 14 before you start. If you've found the material, then I'd like g
, 15 to ask a question, because it's about what you said about h
j 16 testing. I think you indicated that the random testing was i
17 implemented but very shortly was -- well, as you said, it was 3
a 18 suspended or restrained, court restrained?
I 19 MR. WOOD: That's correct. I believe the --
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i 2n JUDGE MC COILOM: What I really am getting at is, h
r I 21 the three tests that are pertinent in this hearing were all 1
22 done in a scheduled sampling, pre-announced testing?
3 5
> 23 MR. WOOD: No, they were done under the so-called 24 scheduled drug 'esting program, but what that provides for 25 i' ' At there will be annual scheduled testing, and after a
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15 single failure there will be unannouned testing from time to
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) 1 2 time. If my understanding is correct, the two subsequent 3 failures were both of unscheduled or, if you will, random 4 tests.
5 JUDGE MC COLLOM: Okay. Now the random test, thaugh, 6 is just the person who has failed once?
7 MR. WOOD: That's right.
8 JUDGE MC COLLOM: In other words, then they come back 9 and make random tests of any individual who has failed?
10 MR. WOOD: That's right. It's called a periodic 11 monitoring program, I believe.
12 JUDGE MC COLLOM: Thank you.
13 JUDGE FOREMAN: That's different from your grievance, g 14 when the company changed its policy and said they'd have randor
, 15 testing on everyone?
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0 16 MR. WOOD: That's right. We did not take to court 3
} 17 the issue of the periodic drug monitoring af ter a single test a
h 18 failure.
3 MR. ACOSTA: One of the grievances, I felt, was based
{ ig 2
20 on that the threuhhold for declaring a test positive was too h
Y 2 21 low, that the levels were low enough to where if a person had r
j 22 been subjected to secondary smoke, then that person could be
! 23 declared positive for his drug-screen test, even though there 1
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24 had never been any direct inhalation by the testee.
JUDGE MC COLLOM: Excuse me, but do you have that 25 v]
s' .
16 i level there handy in that grievance?
g 2 MR. ACOSTA: Well, Southern Ca',ifornia Edison says 3 that they use 50 nannograms per milliliter.
4 JUDGE MC COLLOM: Fifty?
5 MR. ACOSTA: Five zero, yes sir. Fifty. I haven't 6 boon able to find Federal sta.4dards on this, but I believe 7 they are 100 nannograms per milliliter. The Human Resource --
8 CHAIRMAN COTTER: Wait a minute. The test threshhold 9 is 50 milligrams per milliliter?
10 MR. ACOSTA: Nannograms per milliliter.
11 CHAIRMAN COTTER: Pardon ma?
12 MR. ACOSTA: Nannograms.
13 CHAIRMAN COTTER: Oh, nannograms. Okay. And then 14 did you say that the test results were 100 nannograms?
g
, 15 MR. ACOSTA: No, sir. I was saying that I believe
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3 j 16 the Federal standards from the Human Resources Services state t* I believe the military also 17 that 100 should be the level.
is uses 100 nannograms per milliliter.
! 19 CHAIRMAN COTTER: Is that the Call'arnia Human
! Resources?
- 20 21 MR. WOOD
- Let me address that.
t 22 MR. ACOSTA: Okay.
3 5
> 23 MR. WOOD: This might not be the time to enter too
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24 deeply into this, because I think it goes in the order of 25 evidence rather than just describing arguments, but the issue c
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17 g 1 of trhat an appropriate cut-off level is is a very controversial 2 one. There is a lot of expert testimony tnking all kinds of 3 positions. Various Federal agencies have come out with cor-4 tain recommendations. I think what Phi.l may be referring to 5 is some information from a booklet called, "Fitness for Duty 6 in Nuclear Power Industry: A Review of Technical Issues,"
7 which was prepared for the Nuclear Regulatory Commission.
8 CHAIRMAN COTTER: By whom? In the upper right-hand 9 corner it must have a citation, to MR. WOOD: Yes, it does. The citation is NUREG/
11 CR-5227, PNL-6652, BHARC-700/88/018.
12 (Pause.)
13 CHAIRMAN COTTER: All right. So the first ground 14 for the grievance was that the threshhold for a positive
, 15 finding is too low?
i MR. ACOSTA: Yes, sir.
j 16 17 CHAIRMAN COTTER: What else, or was there anything 18 clse?
I 19 MR. ACOSTA: Also the validity of the tests. I h 20 don't have the rest of my grievances here with me. I for some e
! 21 reason didn't feel I would need them here. I can get those r
22 later.
3 3 Let me interrupt here, if you would.
3 23 JUDGE FOREMAN :
5
^
24 MR. ACOSTA: Yes, sir.
25 JUDGE FOREMAN: And you're saying that you tested
18 1 below what was considered the standard by other --
2 MR. ACOSTA: From what I understand, you sir.
3 JUDGE FOREMAN: Okay.
4 MR. ACOSTA: I understand that, like I said, I 5 believe the Department of Defence, when they test the military, 6 uses 100 nannograms por milliliter.
7 JUDGE FOREMAN: And you tested below that?
8 MR. ACOSTA: Yes, sir.
9 Also, from the research that I've done and from some 10 of the letters, or one of the letters I've seen from the NRC, n it appears that the NRC did not follow any established rules 12 or regulations or procedures when they took their action against 13 me. The license is my license, and the company, Southern 34 California Edison, basically supplies two pieces of informa-
, 15 tion. One is an NRC Form 396, which is a medical form, and 2
3 16 also they provide the information to the NRC if there is still 7
} 37 a need for me to have a license for my job. Southern Californi a l is Edisen did not submit an NRC Form 396 that declared I had a 1
l 39 medical condition that precluded me from handling license S
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go duties, nor did they inform the NRC that there was no further
} 21 need for my license, t
22 I did not fully agree with SCE's request not to 5
23 renew my license, therefore I believe that NRC, like I said, 5
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24 from the research I've done, they didn't follow -- there are 25 n established rules, regulations or proecdures that they could A]
f i
19 llgg i have used to take this action against me.
2 Let's sec. Also --
3 JUDGE FOREMAN: Can I interrupt again?
4 MR. ACOSTA: Yes, sir.
5 JUDGE FOREMAN: Did Southern California Edison ask 6 the NRC to have your license suspended? Did you say that?
7 MR. ACOSTA: They asked that the renewal for applica-8 tion -- The words used by the vice president was, he said that 9 he thought it was prudent at this time nc to renew my license to until the company had had a chance to evaluate me psycholo-11 gically and medically, and after a period of evaluation, if 12 they felt that I was still capabic of being able to handle 13 my licenso duties, then they would request my license again, 14 I do have a copy of the letter that Mr. Charles gg
, 15 McCarthy did send to the NRC, and I can give you a copy of e'
16 it if you'd like to see that.
3 17 CHAIRMAN COTTER: Has SCE followed up on that by h 18 taking any further action with you in terms of evaluating your 19 performance? l 1 l to MR. ACOSTA: When I came back from my suspension I j
}
i was given a letter by Southern California Edison stating that f 21 l
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t y 22 they would not start any of the evaluations until after the ,
I 5
y 23 matter with the license had been determined.
l
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24 CHAIRMAN COTTER: Until after this proceedir.g? !
25 MR. ACOSTA: Yes. But less than two weeks ago I was
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l l
l l
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20 1 given an MMPI psychological evaluation. I was given forms 2 to fill out for a background investigation. Yesterday I gave a another urine sample for analysis and was scheduled for today 4 to have an interview with a psychologist on the psychological 5 ovaluation. So for some reason the -- Well, that was another 6 part that I wanted to talk about too.
7 CHAIRMAN COTTER: Sofore you go on, I take it that 8 SCE suspen. i you for a certain period of time?
9 MR. ACOSTA: Yes. There was a 30-day suspension to without pay or until I had finished a 14-day in-house rehabi-11 litation program that was certified by Southern California 12 Edison.
13 CHAIRMAN COTTER: Have either of those requirements 14 been satisfied?
, 15 MR. ACOSTA: Yes.
16 CHAIRMAN COTTER: When was the suspension initiated
! 37 and when was it terminated?
a 18 MR. ACOSTA: Let's see if I can find it. Okay, on i
f, 19 June 27, 1988 is when I returned from disciplinary suspension.
20 I believe it was June 2, 1988 when the suspension started.
h l 21 JUDGE FOREMAN: I don't understand those dates. What E
22 huppened on June 27th?
3 23 MR. ACOSTA: June 27 was the day I came back, returned 24 to work from disciplinary suspension.
25 JUDGE FOREMAN : Oh, I see. That's when the suspension
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21 1 ended?
2 MR. ACOSTA: Yes, sir.
3 JUDGE FOREMAN: Okay.
4 CllAIRMAN COTTER: But you did not actually return 5 to work because of the NRC action, is that correct?
6 MR. ACOSTA: Pardon?
7 CllAIRMAN COTTER: But you in fact did not return to 8 work because of the intervening NRC action on June 15th?
9 MR. ACOSTA: Well, I'm not doing license duties on 10 shift, no sir.
11 CllAIRMAN COTTER: I see.
12 MR. ACOSTA: I'm working over in the training depart-13 ment.
14 JUDGE FOREMAN: In other words, you were back on the g
, 15 payroll?
16 MR. ACOSTA: Yes, sir.
f 1
17 (Pause.)
o I 18 CllAIRMAN COTTER: I take it marijuana is an illegal 1
{ 19 drug in California?
3 g 20 MR. ACOSTA: Yes, sir.
E 21 MR. WOOD: People from outside California are never Y
22 sure what the state of law is here, i
j 23 MR. ACOSTA: It's a misdemeanor for possession of
- s i 24 less than an ounce of .v.rijuana in Califorr.ia. I've got a 25 release form from the Rehabilitation Center. I was going to 1
f, 3
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22 g 1 ,give the dates --
2 CHAIRMAN COTTER: I'm sorry, I did not hear you.
3 MR. ACOSTA: I have a release form or letter from 4 the Re.1abilitation Center. I was going to give you the dates 5 that I had gone through rehabilitation.
6 CHAIRMAN COTTER: Is that Southern California Edison's 7 Rehabilitation Center?
8 MR. ACOSTA: Well, they gave me a list of six 9 different inpatient programs, and I had to select from those to six.
11 CHAIRMAN COTTEft: I'll take your word for it, Mr.
12 Acosta, at this time.
13 MR. ACOSTA: Okay. What happened is, I got tuspended 14 and it took me a week trying to get a rehabilitation program
, 15 under my own medical plans, but Soitthern California Edison 3
j (6 wouldn't allow that, because they, in their evaluation of me, t
- didn't determine that I had serious enough a problem that 17 a
h 18 required inpatient treatment. They said that I could have 3
$ 19 outpatient treatment, but Southern California Edison insisted 4
j a) that if I wanted my job back, then it would have to be an E 21 inpatient treatment center that they had, you know, that they r
3 22 had recommended.
3 3 23 CHAIRMAN COTTER: That is that you were resident?
)
24 MR. ACOSTA: Yes, sir.
25 CHAIRMAN COTTER: Were you a resident 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day l
l l
l
23 1 or just during the work day?.
h 2 MR. ACOSTA: No, it was 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day for 14 days.
3 JUDGE FOREMAN:- And that's common practice of the 4 Southern California Edison?
5 MR. ACOSTA: Yes, sir. As a matter of fact, they've 6 even changed their policy to where I believe for the first 7 test fail you're required to undergo 14 days inpatient treat-8 ment. The second test failure would result in job termina-9 tion.
10 JUDGE FOREMAN: And how long had that been going on?
11 MR. WOOD: It actually hasn't come into effect yet.
12 MR. ACOSTA: Oh, it hasn't? Well, it will go in 13 offect November 7th, I believe is when the policy will yet g 14 change again at Southern California Edison.
. 15 JUDGE FOREMAN: I guess what I'm driving at, Mr.
5 j 16 Acosta, is that this has been applied by SCE in other circum-17 stances?
MR. ACOSTA: Yes, sir. As a matter of fact, I am 18 I 19 the fourth licensed operator at San Onofre to have failed I
i 20 three drug tests, yet I'm the only one that the NRC took any 5
21 action against.
l 22 JUDGE FOREMAN: And had SCE suspended the others?
S 5
23 MR. ACOSTA: Yes, sir. I believe they all went s
)
24 through the 14 days inpatient at the treatment centers, and 25 one of them still hasn't gotten his red badge restored, his a
i
24 l
1 un-escorted ^ access to the plant. The company is still perform-2 ing evaluations on him. Another resigned from his job nere 3 and took a job with another utility, and I'm not sure what 4 the status of the third one is.
5 One of the questions I have is, how and when can I 6 file a complaint or a request for investigation about the NRC 7 attempting to intimidate my witnesses? The 28 people who 8 wrote letters for me, I believe, feel that the NRC has been 9 taking action through Southern California Edison in an attempt 10 to intimidate these witnesses or lessen the imp &ct of their 11 testimony.
12 The basis for this request is that Mr. McCarthy, the 13 vice president at San onofre, held some re-education meetings g
14 with people who had written letters for me, that I submitted
, 15 as part of my written reply to the NRC's order. During one 9
j 16 of the meetings Mr. McCarthy stated something to the effect 1
17 that the NRC Region 5 office told him that if I could get 28 18 people to write letters for me it was obvious to them that
- l
{ 19 Southern California Edison had been negligent in properly i ;
20 educating the workers at San Onofre in the true meaning of l f !
21 the purpose for the drug-testing policy. j 22 As a result of the call from the NRC, Mr. McCarthy l 3 1 3
g 23 chaired re-education meetings for the people who wrote the 2
24 letters. At the closing of one of these meetings Mr. McCarthy l l
25 summari cd by saying he felt it was true that the people who j l
l
(\\ )
_- j l
l l
25 l
1 wrote the letters didn't fully understand the trustworthiness g
2 aspect of tho drug-testing policy, and because of the training 3 and the teamwork concepts given to the operators, these letters 4 were written in an attempt to. simply protect a buddy, and 5 because of the special attention paid by Mr. McCarthy to these 6 individuals, I contend the NRC cither coerced SCE to take this 7 action, or that NRC and SCE worked in conspiracy to attempt 8 to lossen the impact of this testimony and intimidate my 9 witnesses.
10 Also, after I returned to work following my suspension 11 I was given a letter, which I have a copy here, frem Southern 12 California Edison. The company stated, "The medical release 13 form to return to work, as described on the SCE MD-2 form, is 14 obtained from the San Onofre Health Care Services," which was
~
15 onc of the requirements that I had to go through in order to 2
4 16 get back on the Job site, and they also further went on to 1
17 say, "Other reinstatement requirements that are customary is in these circumstances, eg., background check, MMPI, et l i
19 cetera, will not be initiated at this time pending the final f) h 20 disposition of the order issued you by the NRC concerning your 21 reactor operator's license."
r
. 22 As I was saying earlier, less than two weeks before
{$ 23 this hearing was to begin, for some reason or other the compan)
!3 24 changed their mind and I've aircady gone through, started with i
25 the MMPI testing, the drug screen testing, the backqround ,
1
/\
k \
L) f I
26 1 check, and when I asked the Operations Manager, Mr. Russ 2 Kreiger, why the company had changed their position on this, 3 I was told Mr. McCarthy just felt it was a good time to begin 4 them. I feel this was also an attempt by the NRC and/or the 5 company to try to find a way to discredit and to intimidate 6 me prior to the beginning of this hearing.
7 Based on this information I would like to file a 8 complaint or to request an investigation to see if the NRC 9 is trying to intimidate my witnesses.
10 CHAIRMAN COTTER: There are various mechanisms for 11 doing that, and we can talk about that afterwards, but I think 12 we ought to proceed with this right now.
13 MR. ACOSTA: Yes, sir.
14 Also, as I was saying earlier, I for one could not
, 15 find any established rules, regulations or procedures that k
j 16 the NRC could use to take this action against me. The denial 1
17 of the re-application for my license was not handled per any 3
18 of their procedures, and I feel that the NRC are the oncs who
$, 19 were not using sound judgment when they decided to take this r 20 action against me.
5 21 I feel that the NRC is not only attempting to assure r
22 that there is no one impaired or unfit for duty, which is a 3
A s 23 major concern in a nuclear facility, but I also feel that
.i 24 they're attempting to insure that no one is living what they 25 would consider an unfit lifestyle. Based on those feelings
<> ^
1
27 1 I feel that NRC l's impacting my Fourth Amendment rights, and 2 I also feel that because of my performance record over the 3 past eight years at San Onofre as an operator, that the NRC 4 removing me from the control room is not necessarily something 5 that would be an increase or a positive impact on nuclear 6 safety. According to performance standards uet forth by the 7 company, I'vn exceeded those standards and am considered one 8 of the best licensed reactor operators at San Onofre, and I j 9 don't see where the NRC removing me from those licensed duties 10 is going to have a positive impact on nuclear safety.
11 CHAIRMAN COTTER: Do I recall correctly, that per-12 formance evaluations are annual or are they biannual?
13 MR. ACOSTA: Biannual, sir.
14 CIIAIRMAN COTTER: So you would not have been
, is scheduled for another performance evaluation until August of I 1989?
t 16 17 MR. ACOSTA: I can't remember when the last one was 18 performed.
CllAIRMAN COTTER: I believe it was August of '87.
{ 19 2
20 MR. ACOSTA: '87. Other than that, I'm not really h
- /
f 21 sure what other information you want to hear, or what I should r
g 22 be giving at this time.
5 23 MR. WOOD: May I make a statement as to what I think g 1
~
24 are some of the issues involved in this? Perhaps I can focus 1 25 on it a little bit.
(' q
\
l l
_ ~
28 1 CHAIRMAN COTTER: Does that make you sort of acting 2 as counsel for Mr. Acosta?
3 MR. WOOD: I suppose in the absence of a lawyer, I'm 4 it.
. CllAIRMAN COTTER: Well, it may help. Go ahead.
6 MR. WOOD: Thank you.
7 CilAIRMAN COTTER: But I would warn you that there'd 8 be some question, if we proceed to hearing, as to whether you 9 could act in that capacity.
10 HR. WOOD: Yes. I'm not sure that Mr. Acosta would 11 want me to represent him in a hearing, but I think it might 12 be useful at this point anyway.
13 Cl! AIRMAN COTTER: All right.
14 MR. WOOD: I think a major underlying issue here is
. 15 whether test failures, even if one grants, which of course 5
j 16 we don't, that the testing methodology is valid and that the 17 test results actually would show that there had been use of 3
$ 18 an illegal substance, the issue is that we think that there
) i is is no demonstrated correspondence in the scientific literature i 1 j 20 between test failures and an inability to meet or exceed the I 21 standards of job performance, reliability and trustworthiness.
r 3 22 CllAIRMAN COTTER: Is that regardless of when the 1
23 illegal substance is used?
g 24 MR. WOOD: We think that the scientific literature 25 does show, with regard to positive results from marijuana, p
r-29 1 there is no way to indicate through n urine test at what time 2 an individual actually used the substance. To my knowledge 3 there isn't, and there never has been, any allegation that 4 Mr. Acosta ever came to work under the influence of any sub-5 stance, or that his ability to perform his work was at any 6 time impaired by any kind of chemical intoxication.
7 CilAIRMAN COTTER: Do you know how long after use 8 marijuana CE.n be detected through urine testing?
9 MR. WOOD: I've heard expert testimony on that sub-to ject, and here again there's also some controversy, but the 11 estimates range from, for a single use, a very light use, the 12 evidence might disappear within a couple of days. For a heavy 13 user, over a long period of time, it might take 90 days or 14 six months for the metabolites to clear the person's system
. 15 because of the fact that TilC metabolites are stored in the i
kv 16 body fat and are very slowly released over a period of time.
1 17 So certainly -- Again, I've heard expert testimony is to the effect that there is no correspondence between the
{ 19 appearance of TilC metabolites in urine and any psychoactive 4
j 20 effect at the time that the urine sample is submitted.
21 I've also heard expert testimony contradicting that, j 22 so I think clearly it's an issue that isn't resolved in the 5
23 literature or among experts.
1 2
24 MR. ACOSTA: While I was going through the rehabili-25 tation, during one of my lectures I was told that it can take
30 1 up to 18 months for all of the THC that's within one's body 2 to finally get expelled.
3 JUDGE MC COLLOM: And that is to get below a point 4 where the test --
5 MR. ACOSTA: No, sir. That would be to have all k
6 traces of THC.
7 JUDGE MC COLLGM Well, we're talking about tests 8 here.
9 MR. ACOSTA: Oh, testing?
10 MR. WOOD: That's controversial, to the best of my 11 knowle6ge.
12 JUDGE MC COLLOM: Did the testing involve other than 13 urine testing? Were there any blood tests?
14 MR. ACOSTA: No, sir. Just urine only.
, 15 MR. WOOD: A second issue, which is related to the i first, is that we believe that the public health and safety j 16 3
17 with respect to nuclear power plants is not well served by 2
j is heavy reliance on drug testing as a means of guaranteeing the 19 reliability and ability to perform, the fitness for duty, in I
h 20 other words, of licensed operators.
} 21 CHAIRMAN COTTER: llow would you do it?
r 22 MR. WOOD: Well, most experts believe that the best l 3
23 way to insure reliability is through observation, by super-24 vision and by co-workers, and by having, especially supervisiori ,
i 25 well-trained and disciplined to both recognize indications I l
7 x 1
, 1 l
_/
l l
l l
31 1 of unfitness for duty, whether they are because of substance 2 abuse or any other reason, personal problems, emotional pro-3 blems, physical illness, whatever, and --
4 CHAIRMAN COTTER: I personally would have trouble 5 with that, because it sounds a little bit to me like waiting 6 for an accident to happen.
7 MR. WOOD: I don't believe so. There's a tremendous 8 amount of day-to-day or even hour-to-hour interaction between 9 workers in a nuclear poWor plant and their supervision. If 10 an individual comes to work after a sleepless night, for 11 example, and a supervisor perceives that the person is not 12 able to give his or her full attention to the job, the super-13 visor, I think, would be well advised to send that person home, 14 because he or she is unfit to perform that job.
. 15 JUDGE FOREMAN: And does that happen?
3 4 16 MR. WOOD: It does, occasionally, yes. I'm more i familiar with that happening in fossil fuel generating plants 17 j 18 where there aren't overtimo guidelines, and hence the problem
! 19 of not getting enough rest comes up more commonly than in 3
- 20 nuclear plants. Since the NRC has issued guidelines on over-21 time restrictions and the company han issued procedures to r
i 22 implement those, I think that the problem has diminished 5
y 23 considerably.
?
24 JUDGE FOREMAN: I guess I'm asking whether a super-25 visor has the right, and does, and has sent operators home
32 i because they felt they weren't adequate to do the job at that g
2 time, for whatever reason?
3 MR. WOOD: Oh, yes. Unquestionably the company has 4 that right.
5 JUDGE MC COLLOM: But do they do it, is what he's 6 asking?
7 MR. WOOD: Yes, they do it. I can't comment on the 8 frequency of that occurring at San Onofre. Perhaps Mr. Acosta 9 might have a better idea of that.
10 MR. ACOSTA: I'm not sure how often it happens either, 11 becauso we're talking not only just operators, but we're 12 talking maintenance personnel, et cetera.
13 MR. WOOD: It's not common, I would say, but it cor-14 tainly is a possibility. It's something that supervisors are
, 15 trained to do when they perceivt that it's necessary.
16 CHAIRMAN COTTER: Have you ever done it yourself, ty Mr. Acosta?
o is MR. ACOSTAt Yes sir, I have called in during this ig one period of time during plant start-ups, where we were t
,1 20 having excessive amounts of overtime, and the only problem
} 21 is that I didn't call in fatigue, because at that particular f
22 Point in time supervision wasn't really receptive to someone 3
23 calling in as far as saying, "I'm just too tired to come in.
24 I've worked too much overtime," so I've called in on a cold 25 or some other illness or whatever.
g i
33 lgg 1 CHAIRMAN COTTER: How many people have you supervised?
2 MR. ACOSTA: At one time, as a control operator that 3 number can get up.to between 15 and 20 people.
4 CHAIRMAN COTTER: Have you ever sont someone home 5 for physical inability to perform?
6 MR. ACOSTA: Well, I can make those recommendations 7 to my supervisors, but I'm not in a supervisory position. I J am in a bargaining unit position, but I can make those 9 recommendations.
10 CHAIRMAN COTTER: Have you ever done it?
11 MR. ACOSTA: There's been a few times. I'm trying 12 to remember the specifics.
13 CHAIRMAN COTTER: Well, it's a random way to approach 14 the issue. It's not necessary that you --
g
, 15 MR. ACOSTA: I have made those recommendations. You 5
j 16 know, I usually check out the operators who are working for 17 me on the shift at the time. We have a pre-shift brief and 2
I check to see the ones who are, especially the first couple
)
3 18 19 of days of graveyard, which ones seem to be alert and which
)
h 20 ones are not.
o
} 21 JUDGE FOREMAN: Is it your intention to have experts 22 on marijuana appear at this hearing?
3 3
s 23 MR. ACOSTA: No, sir. I wasn't going to bring any 24 expert witnesses in.
23 MR. WOOD: It might be that Mr.Acosta would want to
34 1 submit transcripts of expert testimony that the Union has 2 solicited during the course of our arbitrations over these 3 issues.
4 Let me --
5 MS. MOORE: Mr. Chairman, I don't want to interrupt 6 here, really, except that that statement concerns me a littic, 7 and I think we have to make it clear that the Staff might 8 object to that procedure, without the right to cross.
9 Cl! AIRMAN COTTER: Yeah, I don't want to get into how 10 we're going to try the case just yet. We're still in the back-11 ground phase.
12 MS. MOORE: Yeah, that's what I thought. I just j j
13 wanted to make that point, that we need to be concerned about l 14 that, and also we need to clarify Mr. Acosta's representation i
, is at some point pretty early in the proceedings.
16 CilAIRMAN COTTER: Well, you'11 have an opportunity 3
17 to respond after we get finished with the --
MS. MOORE: That's fine. I just wanted to make that h
3 18
$ 19 point. Sorry.
1
- l. po MR. WOOD: In response to your questions about sending 21 P00Pl c home because they're excessively tired, I'm an electri-r 22 cian at San Onofre. I'm presently on leave of absence, but 3
5
, 23 in my personal experience I have worked with people who were
}
24 excessively fatigued at night, and normally what would happen 25 is that either that person, or perhaps one of the co-workers,
35 1 would go to the foreman and say, "Look, put this guy sweeping 2 the floors here or cleaning up the shop, because he's not 3 thinking clearly ennugh to go out and do any useful work."
4 That's frequently the way that it's actually dealt with, in 5 a less formal manner.
6 Cl! AIRE \N COTTER: You've mentioned two issues, Mr.
7 Wood. Do you have a third?
- 8 MR. WOOD: Yes. We think that evaluation by super-9 Visors and co-workers should be given great weight, and the 10 documents which have been submitted on Mr. Acosta's behalf, 11 which are letters from his co-workers and supervisors, 12 referring to his reliability, his performance, even during 13 the times that he had tested positive, should be given consider -
14 abic weight. !!e's a remarkably good control operator, remark-
, 15 ably reliable, and indicos that are used as symptoma of drug
.) 16 abuse, such as absentecism, tardiness, and so forth, simply 1
- do not appear in his record.
17 o
j 18 Finally, we think that the handling of Mr. Acosta's a
19 case is counter-productive in terms of protecting the public 1
20 health and safety. The action suspending his license was h
21 followed very quickly with a press release, and his name was 2
3 22 SPl attered all over the front pages of all the newspapers in g 23 Southern California the next day. The reaction at San Onofre
?
24 among his fellow operators was one of shock, and think that 25 the way that this whole issu- was handled, rather than going
36 g
1 through due process and going immediately to the press, taking 2 immediately the most draconian actions, is an approach which 3 will discourage other operators who actually do have substance 4 abuse problems who may not have been detected up until now 5 from voluntarily coming forward and submitting to rehabilita-6 tion and treatment as a way of correcting their problems, 7 I tl. ink that the effect has been to intimidato people 8 from voluntarily coming forward, and certainly the public 9 health and safety is not served by that type of approach.
10 That's all that I have.
11 CilAIRMAN COTTER: Is there anything else you wanted 12 to add, Mr. Acosta?
13 MR. ACOSTA: No sir, I don't.
14 Cl! AIRMAN COTTER: On the two times in '86 when you
. 15 tested positive, did I understand you to say that the tests 16 were below the 100 nannograms per milliliter?
f I
17 MR. ACOSTA: The first test, that's true. I believe 18 the second one may have been above that. I've got copies of
$ 19 those test results here. On the first test that was collected t
h 20 on 3/6/86 all I have is the -- I don't have the screen test
.c
$ v1 results here, but the gas chromatography / mass spectrometry r
22 results were 17 nannograms por milliliter, and I haven't been 3
3
> 23 able to obtain the screen test results, which are an EMIT-type 5
24 test, from the company. I don't know if they just don't have 25 the records anymore or what, but I've asked for them time and
37 1 time again.
2 JUDGE FOREMAN: I didn't understand what you said.
3 Did you say you don't have a number for May 28, 1988?
4 MR. ACOSTA: The only number I have is the one that 5 was tested by gas chromatography / mass spectrometry analysis.
6 There's two types of toets. The first one is the screen test, 7 which is referred to as the EMIT test, and if it shows a cor-a tain level, they.use a confirmation test by using this GCMS 9 test. The EMIT test always roads higher than what the GCMS to test does.
11 MS . MOORE : Your !!onor? l 12 CIIAIRMAN COTTER: Then the GCMS is the confirmation 13 test?
14 MR. ACOSTA: Yes, sir.
15 MS. MOORE: Your lionor, excuse me. I may have mis-3 3
j 16 understood, but I thought Mr. Acosta said that was the first t
17 test in '86.
3 CllAIRMAN COTTER: That's correct, the March 6, '86 f 18 L i 5 19 test. l
! l
- 20 MS. MOORE
- Yes. Dr. Foreman said '88, and I wanted I f 21 to just clarify the record, t
j 22 CilAIRMAN COTTER: Let's take them one at a time.
5
- 23 JUDGE FOREMAN
- I'm having trouble hearing, and I 3
24 didn't know whether he was speaking to the 1988 test or not.
l 25 That's why I raised that. j t
38 1 MS. MOORE: I believe that one was the March 6, 1986 2 test.
3 MR. ACOSTA: Yes, 3/6/86 was the day they collected 4 this one that was 17 nannograms per milliliter, the GCMS test 5 results.
6 CliAIRMAN COTTER: That was the first one?
7 MR. ACOSTA: Yes, sir.
8 Cl! AIRMAN COTTER: hhat about the# second?
9 MR. ACOSTA: Well see, this one was for some reason to another sample analyzed by two differont laboratories. One 11 laboratory did the screen test, which was 129 nannograms per 12 milliliter, and the confirmation was done by another one, and 13 it came out to 45 nanno7 rams por milliliter.
JUDGE FOREMAN: Was this on the same urine sample?
3 14
,(!
, 15 MR. ACOSTA: No sir, this was the second ene. This 16 one was collected 5/12/86.
l 1
17 Cl! AIRMAN COTTER: Which, the 1297 3
l 18 MR. ACOSTA: That was the second failure, yes.
3 k 19 Cl! AIRMAN COTTER: The 45 nannograms result was from
)
} ,o 5/12/86?
21 MR. ACOSTA: Well, there are two test results that j 22 I have, sir.
Cl! AIRMAN COTTER: Yes, I want to know what the dates 23 24 of them were with respect to the sample, 25 MR. ACOSTA: The same sample was analyzed by two
39 x 1 separate laboratories.
2 CllAIRMAN COTTER: Right. What was the date of the 3 first analysis?
4 MR. WOOD: It looks like they're both reported in 5 May, two days after the collection.
6 MR. ACOSTA: Yeah.
7 MR. WOOD: It appears that they're both tested two e days after collection of the aarple on May 14th.
9 JUDGE FOREMAN: But on the same sample? They're two to different results on the same sample. That's what I'm 11 inquiring.
12 MR. WOOD: That's right, because of the use of two 13 different methodologies, yos, 14 MR. ACOSTA: The information on the sheet here says
. 15 it was collected on 5/12/86. They receivad it 5/12; they 5
j 16 reported it 5/14/86, so sometime betwoon the 12th and the 14th 8
17 was when the actual analyses were performed.
13 CHAIRMAN COTTER: Both the screening and the confirm-
{ is ing tests?
I MR. ACOSTA: Yes, sir. One of them was up in Tartana, g ;o h 21 California, and the other one is down h?re in San Diego, t
22 CHAIRMAN COTTER: All right, and what about the third 1
23 test?
g 24 Mn ACOSTA: Okay. On the third test I had to submit 25 three samples, because by this time in the process they had 8
40 1 started to check for specific gravity, and all three of the 2 samples failed the specific gravity test. That's th. e o on 3 why I had to submit three samples on the same day.
4 JUDGE FOREMAN: Are these 24-hour urine collections 5 they require?
6 MR. ACOSTA: I'm sorry, sir?
7 JUDGE FOREMAN: Do they require 24-hour urine collec-e tions, or just spot samples?
9 MR. ACOSTA: Yes, sir. What the procedure is, is to when someone from the Substance Abuse' Department calls over; 11 they talk to a supervisor who then will escort me right over 12 at that particular point in time, or have someone else.
13 JUDGE FOREMAN: Okay.
14 MR. ACOSTA: The GCMS results, those three tests, 15 from sample one to sample three, were 17 nannograms, 15 nanno-1 j 16 grams, and 13 nannograms per milliliter. I'm trying to find 17 the --
is CHAIRMAN COTT6R: I'm sorry, Mr. Acosta, what was i i k 19 the date of that?
6 MR. ACOSTA: Oh, it was collected on 6/1/88 and they !
[ :o 21 reported that on 6/8/88.
I MR. WOOD: This is the date entered. The date i 22 3
> 03 collected was 5/28. ,
24 MR. ACOSTA Oh, I'm sorry. The date collected was 25 5/28/88. The day they reported back wat. 6/8/88.
i I
41 1 CIIAIRMAN COTTER: Okay.
2 MR. ACOSTA: I did get EMIT test results from the
- 3. company on these three, and it's Just a matter of shuffling 4 through these to find where they are.
5 JUDGE FOREMAN: One question. One thing that we will 6 want o know is -- that standard for 50 nannograms per ml. --
7 is the method for that testing indicated?
8 MR. ACOSTA: That's the EMIT. test, sir. And the ccmpany says if it's 50 or above per the screen test, which 10 they used to say was.their EMIT test, then they'll confirm 11 in any level detected by GCMS, is enough for confirmation.
12 JUDGE FOREMAN: So on'the sarke sample the two methods 13 don't necessarily give the name results?
14 MR. ACOSTA: No, sir. That's correct. And I don't
. 15 have the paper in fiont of me, but I remember that the screen Ij 16 test on those werc 70, 60 --
k 17 CIIAIRMAN COTTER: I'm sorry, the screen test on which?
3 18 MR. ACOSTA: The last sample date I had, the three h 19 samples.
2 h 20 CHAIRMAN COTTER: Okay.
h 21 MR. ACOSTA: And those EMIT screen tests were 70, t
22 a 50, and I believe the second test was either 60 or 65 3
s 23 nannograms on the screen.
8 JUDGE FOREMAN: Could you spell that, EMIT: Spe '.1 24 25 the name of the screen test?
F~
4 42 1 MR. ACOSTA: E-M-I-T.
2 MR. WOOD: It's an amino assay technique.
3 JUDGE FOREMAN: Okay.
4 MR. ACOSTA: I think that may even been a --
6 MR. ACOSTA: It may even be a registered trademark 7 name.
8 JUDGE FOR'EMAN: That'slall.right. At this point this 9 is the only -- at least for me -- that's the only information to that I'm curiousLabout.- i 11' MR. ACOSTA: But I do remember positively that sample 12 one on the 5/28 screen test was. 70, and I remember that the 13 third sample I gave on that date, it's test result was 50, 9 14 The only one I can't remember off the top of my head is the G 15 second one, and it was around 60 or 65.
5 j 16 JUDGE FOREMAN: Why do they take three samples on 3
17 the same day?
Is MR. ACOSTA: Like I said, at this point in time, over
{ 19 the ensuing two years, they started testing for specific gra-
)
,1 20 vity of the urine, and for some reason or other, actually all
} 21 three samples failed the specific gravity test. If you fail i
j 22 the first one, you've got 'o get a second one, and about four 5 or five hours later i guess they got tired of seeing me over
- 23 o
24 there.
25 CllAIRMAN COTTER: Is there anything elso you want
43 1 to add, Mr. Acosta?
2 MR. ACOSTA: No, sir.
3 CilAIRMAN COTTER: Thank you. Ms. Moore, do you want 4 to add anything?
5 MS. MOORE: I just have a few things to add. As I 6 stated in my opening remarks, the procedures governing .or 7 actions, we believe, aro c9ntered around Part 55. There is 8 a question which arises.in this case -- Mr. Acosta alluded 9 to it -- and that is that'the utility did write a letter to 10 the Staff which' stated that it withdrew a portion of the cer-11 tifications required by'the regu[ations for Mr. Acosta's 12 application. ,
13 There is a q'uestion whether that rendered the applica-f[4
- 14 tion incomplete, and the effect that that would have on the
%l
. 15 timeliness of the application. I'm informing the Board of 16 that potential issue, but the Staff does not intend to pursue f
3 17 that issue. We wanted to make that clear. We are not now 1g saying the application was incomplete, since we have taken i
action on it; we have denied it. But that withdrawal does
! 19
$ 20 bring into question the completeness of the application, e
} 21 because the utility did in fact say that they withdrew a por-22 tion of their certification.
f 23 Cl! AIRMAN COTTER: But you're not saying that's an s'
24 issue before us?
25 MS. MOORE: No. We're raising it to inform the Board 9
o.
44 l 1 of it, but we're not raising it as an argument or an issue 2 before the Board at this time, and we don't intend to.
3 JUDGE FOREMAN: The implication is that the license 4 would have been suspended and the renewal denied whether the 5 information had been there or not, is that what you're saying?
6 MS. MOORE: I'm sorry, I missed what you said.
7 JUDGE FOREMAN : I'll speak a little louder. Sea how 8 hard it is?
9 MS. MOOl<E .Yes.
10 JUDGE FOREMAN : You're saying that the license could ij have been suspended and the; renewal denied whether that infor-12 mation had been provided by SCE or not?
13 MS . MOORE : 'Whether the~'-- Let me see if I can rephras a 14 your question and answer it. The Staff position is that per-
, 15 haps SCE's withdrawal of a portion of their certification, 3 16 which is required under Part 55, would have rendered Mr.
1 17 Acosta's application incomplete, and it's possible chat the 0
application could have been denied on the grounds of incomplete -
)
18 39 ness, as opposed to the grounds used in the order. It would i
20 have been an additional ground for denial, but we're not h
n
} 21 asserting that additional ground, t
22 This was a point of information which the Staff requested that I make clear to the Board, that we are not --
f 23
?
24 that it was a potential additional ground, but we are not 25 asserting it in this caso, p
\
a
)
45 1 Cl! AIRMAN COTTER: Thank you.
2 MS. MOORE: Okay. And what made me think of it was 3 Mr. Acosta's mentioning the fact of the withdrawal. There 4 were two letters from the utility, the first letter notifying 5 the. Staff of Mr. Acosta's suspension, and a later August 31st 6 letter, which clarified the utility's position on the applica-7 tion for renewal. That letter was August 31, 1988.
8 JUDGE FOREMAN: Excuse me a m'.nute. I just want to 9 speak to --
10 CilAIRMAN COTTER: All right. Let me get back to that.
11 Judge Foreman raises the question. Assun/ng that the decision 12 went in favor of Mr. Acosta, would the NRC then continue to 13 refuse the license for incomplete filing?
14 MS. MOORE: There is a problem. The answer is that
, 15 the utility would still -- I believe the utility would still i
j 16 have to submit its certification. There is a certification 17 that we are still lacking under Part 55, but our grounds for la denial could not be the drug-testing issue, and the question 19 would como up as whether we would require the utility to sub-t h 20 mit that certification.
I V 21 It seems to me under Part 55 we have to have that i
g 22 certification from the utility.
23 Cl! AIRMAN COTTER: The certification going solely to I
24 the drug issue?
25 MS. MOORE: No. The certification is a general
/
46 1 medical certification. It's Form 396 --
2 CilAIRMAN COTTER: Oh, all right. Okay.
3 MS. MOORE: -- and 398 are two forms the utility --
4 I believe those two forms must be submitted by the utility, 5 and it's our understanding that the utility has withdrawn at 6 least a portion of its certification by the letter of August 7 31, 1988.
8 C11 AIRMAN COTTER: All right. Thank you.
9 MS. MOORE: <The other concerns which Mr. Acosta's to presentation have raised, I mentioned briefly before, and that 11 is his representat'on. The Staff would request that that item 12 be cleared up early in the proceedings so/that we can deal 13 directly with Mr. Acosta or his represenaative.
\ >
-?x 14 I would point out that under 2713 of the Commission's l )
regulations, an individual can appear pro se, that is, on hic
\
,~
15 I 16 own behalf, or be represented by an attorney. We think that 17 the exact nature of who will represent Mr. Acosta needs to o
18 be made clear for the efficient conduct of the proceeding,
.f 19 for everybody's sake. It will make things a lot easier if i
h 20 we know exactly who will represent him.
?
} 21 Cl! AIRMAN COTTER: All right.
l 2 y 22 MS. MOORE: And the next concern that Mr. Acosta's 23 presentation presented to me at this point is the question 24 of the validity of the tests, and perhaps this was something that I did not understand from the presentation. Is Mr. Acosta 25
47 1 challenging the three specific tests which were taken of him?
2 Are there procedures that he's challenging? I realize that 3 can be gained through discovery, but there was some unclarity 4 in my mind as to whether he was challenging drug testing in 5 general, or the validity of the three specific tests which 6 were administered to him. I believe that needs to be clarified 7 for us.
8 CHAIRMAN COTTER: Can we do that right now?
9 (Pause.)
10 MR. WOOD: Mr. Acosta is challenging the reasonable-11 ness of using the very low ~ levels that are reflected in his 12 drug test results as grounds for any type of action against 13 him.
14 CHAIRMAN COTTER: All right. Then I take it he is
, 15 not challenging the test results themselves?
16 MR. WOOD: Not unless some evidence appears 6. hat would I
17 cause him to question that.
18 JUDGE MC COLLOM: An example of that might be that
{ 19 it's universally accepted that 50 nannograms is acceptable, 20 or even 20 nannograms per milliliter is acceptable. I would h
21 assume then that you would get a little concerned and would use r
$ 22 that as a challenge to the experts in the area that say that 5
g 23 that's an acceptable level to check for?
o
^
24 MR. WOOD: Well, I'm not aware that that's universally 25 accepted. My understanding is that there is quite a bit of l
48 1 controversy in this area. I suppose that one of the issues 2 is, what is a test result indicative of. It may -- If it's a 3 valid test, then perhaps it reflects the presence of TIIC 4 metabolites in the system, but whether there's any correspond-5 ence between that an any unfitness for duty, I think is a major 6 question.
7 I think, as I stated before, one of the issues that a we think is important is whether more evidence of the presence 9 of TilC metabolites in the brine has any relationship, in and to of itself, to the applicant's fitness to perform the work, 11 or his trustworthiness and reliability.
12 JUDGE MC COLLOM: That appears to me to be a challenge ,
- 13. though, to the fundamental generic idea, .no't to the particalar 14 samples and the levels of which they came out from Mr. Acosta.
, 15 CifAIRMAN COTTER: I think that's what they're saying.
3 j 16 They're not challenging the test results; they're challenging, 17 ine , that the threshhold for finding a test failure is too j tr low, and two, that even given the test failure results, that a
19 there's no correlation between the presence of that level of
{
h 20 TilC in the samples and fitness for duty.
} 21 JUDGE FOREMAN: Or may not be. There may not be.
I j 22 MR. WOOD: That's right. At this time we have no a 23 reason to challenge the actual testing procedure, for example 5
24 the chain of custody procedures, because we're not aware of 25 any lapse there. I suppose if we became aware of something,
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then we might.want^to. introduce that as'.'an;' issue, butiup until, 1
~ 2. .now. we1. don' t' have' any reason for challenging 't! hat. '
[ . ,- 3 . JUDGE FOREMAN:~- Correct myEimpression,-thatith'e:
vali'dity. of SCE's setting tihe standard '.is in abeyance. pending --
.4
.v '
5 the; ruling.of the arbitrator and'the' National Labor. Relations' 7 l 6' Board? '
7; MR. WOOD ' CCE is; proceeding ~with their drug-testing:
, 8 procedures, standards, procedures and so forth',7without regard 9 ,to- the: challenges at the present time. They've just'gone.
10- ahead and done'it. Presumably, if we get an arbitrator's
~
11 ruling in favor of t[he' Union,. then thN company.will stop~ and negotiate with us i>efore proceedingt A ButLat the present time 12' 13~ they are proceeding, .. so.. it.'s not' in abeyance.i It's not being L
y ;q ( .~ ;
held in aboyhn'ce.i .'
i 3 14 15 JUDGE FOREMAN: .No, i g ( .' - ~
the decision as to whether that U . s standard is okay. That's what I'm saying.
[ 16 a"
17 MR. WOOD: Oh, okay. The issues in the arbitration
'3 One is whether the company has the obligation d 18 really are two.
3 19 to bargain with us, and the'second is whether, in and of them-I h 20 selves, the procedures and standards are reasonable. It'.s e
l 21 Possible that the arbitrator may rule on one or the~other,
.f.
22 but not both 'f those questions. !!c may, for. example, rulo 3
8
, 23 that that the vmpany has to nanotiate with us, and leava'it
.8 24 up to the parties to negotiate.what is a reasonable standard 25 and what are reasonable procedures, or he may say the company
(
i.
50 1 is not obligated to bargain with us, but that the standards g
2 and procedures they've set up are not reasonable, or he may 3 rule that what the company has done is legal and reasonable 4 dnd that the Union does not have a good case.
5 JUDGE FOREMAN: Is there any indication as to when 6 a decision might come out on that?
7 MR. WOOD: We've been expecting one any day now for 8 at least the last month or two. This is the same arbitrator 9 who ruled on the baseball owners' collusion to deny free to agency and also on drug testing and baseball players' contracts .
11 He's very, very busy, and he's the President of the National 12 Academy of Arbitrators. 'He's kind of notorious for being late 13 getting out decisions, but both parties have sent him a letter 14 requesting that he expedite a decision, so it could come just 15 any day, we hope, f
16 JUDGE FOREMAN: And that information will be imme-1 diately transmitted to the Staff and to us?
17 18 MR. WOOD: We will see to it that that happens, yes.
3 CHAIRMAN COTTER: Is there anything else, Ms. Moore?
{ 19 p 20 MS. MOORE: I don't believe so, Your Honor. May I k 21 have a moment?
t 22 CHAIRMAN COTTER: Certainly.
5
! 23 (Pause.)
?
24 MS. MOORE: Your Honor, 7 do have one last point, 25 and it's somewhat similar to the point I raised on completeness
( ('
1 u .J I
l
51 1 of application, but it's slightly different. I just wanted 2 to make it clear to the Board that, assuming this issue is 3 resolved, and even assuming this issue is resolved in Mr.
4 Acosta's favor, we must remember that there are other conditions 5 for the renewal of Mr. Acosta's license, which the Staff would 6 have to rule, or the Commission would have to rule have been 7 met, and those aren't before the Board either.
8 CilAIRMAN COTTER: Which conditions are they?
9 MS. MOORE: The conditions, for instance, of whether 10 he's completed a requalification program.
11 CIIAIRMAN COTTER: Uh-huh.
12 MS. MOORE: I believe there are -- or that whether 13 he would need to take an examination, a requalification exami-14 nation. These are conditions which would_be looked at in the i ,, 15 normal course of a renewal application, but those are not 16 before the Board either. The only issue is whether the Staff's i
order denying his license due to the three positive drug tests 17 18 and his failure to abide by SCE's policy is sustainable.
i
! 19 CilAIRMAN COTTER: I see.
?
- 20 MS. MOORE
- That's all I have.
s h 21 (Pause.)
r 22 Cl! AIRMAN COTTER: Is there anything further that you 23 would like to add at this point, Mr. Acosta?
- 4 MR. ACOSTA
- Just to let you know that I did find 25 the results of that second test on the last day of sample,
52 g
1 and it is 65 for the screen test.
2 CHAIRMAN COTTER: Sixty-five?
3 MR. ACOSTA: Yes, sir.
4 CHAIRMAN COTTER: Thank you.
5 MR. ACOSTA: So it's 70, 65 and 50.
6 JUDGE FOREMAN: Those are on the gas --
7 MR. ACOSTA: The screen test.
8 JUDGE FOREMAN: Oh, on the screen?
9 MR. ACOSTA: Yes, sir.
10 CHAIRMAN COTTER: We'll go off the record for a 11 moment.
12 (A discussion was held off the record.)
13 CHAIRMAN COTTER: Back on tho' record.
14 As Chairman of the Board I have just recited some
, 15 of the concerns that I see at this point, without consulting 3
j 16 in any great detail with my colleagues, concerns regarding i
the strengths and weaknesses on both sides of the parties' 17 o
l3 18 Positions, and I have suggested to them, and they have con-19 curred, in the usefulness of taking a 45-minute recess to dis-t 20 cuss whether or not there is any possibility for settling all h
} 21 or a part of these issues.
5 g 22 Accordingly, unless someone has something further 5
23 to add, we will adjourn for 45 minutes, which will take us g
24 to, rounding it off, roughly quarter to 12:00. If the parties 25 feel that they don't need that much time, they can advise us, pm
\
53 1 or if they need more time, they can advise us.
2 All right, then, we will adjourn until quarter to 3 12:00 pending notification from the parties.
4 (A short recess was taken.)
5 CIIAIRMAN COTTER: Back on the record.
6 We are reconvened at approximately quarter to 12:00 7 to have a report fror the parties as a result of their dis-8 cussions. Ms. Moore?
9 MS. MOORE: Your lionor, the results of our discussions 10 at this point are inconclusive, and that is, the parties have 11 given each other their positions and have discussed these 12 positions and possible terms of agreement. Ilowever, the 13 Commission is not prepared at this time to reach a settlement 14 agreement.
, 15 My suggestion would be, and I believe Mr. Acosta 3
j 16 agrees, that we proceed as if going to hearing, and we will 3 17 continue to talk, the parties will continue to attempt to 18 negotiate an agreement, and I will commit to provide a status I 19 report to the Board on the results of the negotiations by r
- 20 November 4, 1988.
$ 21 Cl! AIRMAN COTTER: Any comment, Mr. Acosta?
r 22 MR. ACOSTA: No, sir.
S I Cl! AIRMAN COTTER: Very good. Then the only thing g 23
?
24 remaining on my agenda is to establish a schedule for reaching 25 hearing. The first item on the schedule will be November 4,
54 1 did you say, Ms. Moore?
2 MS. MOORE: Yes.
3 CHAIRMAN COTTER: November 4, report on settlement 4 efforts. The second item would be a cut-off date for comp-5 pleting any discovery that's necessary. Ms. Moore, do you 6- have any --
7 MS. MOORE: Yes. The Staff drew'up a schedule just a briefly, and I suggest 60 days for discovery to end December 9 19, 1988. That end of discovery would include the filing of to all answers to interrogatories and the completions of any and
't1 all depositions, so that the party filing and serving the 12 interrogatories would have to leave the requisite number of 13 days before that date to get answers in within the regulations, 14 such as 19 days from service of interrogatories for answers,
, 15 and 30 days, I believs it is, for document request g is so all discovery would be finished and complete by 17 December 19th.
3 18 Cl! AIRMAN _ COTTER: Mr. Acosta?
I
{ 19 (l'au s e . )
4 h 20 MR. WOOD: Mr. Acosta doesn't have any objection to
} 21 a 60-day discovery period, but he would propose that it be t
22 from November 4th. Because of his limited means, he's reluctan b 3
23 to engage an attorney and begin the preparation for this until 5
24 he knows for sure that it's going to be necessary.
25 CilAIRMAN COTTER: So I take it he would propose
,r
\
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55 1 January 4 rather than December 19 for completion of discovery 2 by counting it from the November 4 date?
3 MR. ACOSTA: Yes, sir.
4 CHAIRMAN COTTER: Any objection, Mrs. Moore?
5 MS. MOORE: The Staff has no objection.
6 CHAIRMAN COTTER: All right, January 4 for completing 7 discovery.
8 The next step would be a date for filing pre-trial 9 testimony.
10 MS. MOORE: Your Honor, I had envisioned a date for 11 possible motions for summary disposition.
12 CHAIRMAN COTTER: Let's explore that a little. I've 13 always been of the view that motions for summary disponition, 14 as a generalization, have a success rate of about five percent.
, 15 Do you think it's worthwhile making that effort in thin case?
i j 16 I make that outrageous statement because it seems to me that 8
17 there are factual, or there may be significant factual issues a
18 here.
h.
{ 19 MS. MOORE: Yes.
I 20 CHAIRMAN COTTER: I mean, we're really talking about h
r k 21 experts' opinions and that sort of thing, to some degree or r
j 22 another.
8 Well, we inserted it 23 MS. MOORE: That's correct.
because it is a vehicle that we could use to shorten the A
24 25 hearing process in some way. Actually, it extends our schedule s
1 1
1
.a Y
y 1
.z 56 R . , L1 - quite'afbit., ThefStaff was. prepared to leave'that open.:Of' course, we' could, if we ~ decide or:Mr. Acosta ' decides not t'o'
~
2 '~
- 3 file. one, then the . schedule could move 'up, but
- we1could leave.
^4 dates in the' schedule'for~it. '
. 5 Cl! AIRMAN COTTER: . All Ilght. Mr.'Acosta?; Would you r,
.6 contemplate filing a motion for summary disposition?.
'i- 7 MR. WOOD: !Not being an attorney, it's-difficult for s
8 me tofanswer that definitively, but I doubt very much that'
- 9. Mr.'Acosta.would proceed with that, both the expense that's- , t to- .' involved, and also.our. experience'in this type of proceeding, _
_i 11 that,the success. rate would be exceedinply low. l
, .12 Cl! AIRMAN COTTER:- I.may have'~ overstate'd it. Now, 13 I don'.t want to prejudico your. response any more- than 'I already:
14 have. 3 , ,
, . 15 MR. WOOD: It'might'be 'useful', however, to have a j
16 date there just in case, if he. retains an attorney, the
~
attorney feels. thatl that'? s a'n,' appropriate. path to ' follow.
17
+, t 3 '
J' 18 Cl! AIRMAN COTTER: All right. What date did you have e ;
j j 19 in mind for filing"motions ,for, summary disposition, Ms. Moore?
W$11,itwasJanuary13th,butsincewe're 4
Ih 20 MS. MOORE: j i 8 ,.
j l 21 ending discovery on the 4th of January, I would suggest the !
,r j
~3 22 19th, provided that's not a weekend. ,
i 23 .Cl! AIRMAN COTTER: I can tell you in a moment.
L I" d'
24' MS. MOORE: I don't have a calendar.
25 JUDGE MC COLLOM: It is not. January 19th is a ;
I I e
l i
57 1 Thursday.
2 MS. MOORE: I would suggest January 19th.
3 CIIAIRMAN COTTER: Do you agree?
4 MR. ACOSTA: Yes, sir.
5 CilAIRMAN COTTER: All right. Let me add a caveat a to that. The Board would like to know a week earlier, by 7 January 12, whether or not the parties are going to file a motions for summary disposition. That way we can, if the 9 parties are not, then we can adjust the schedule accordingly.
10 When I say January 12, whenever I put a'date in here, I mean 11 received by the Board.
12 I might, as an aside, Mr. Acosta, advise you, in any 13 pleadings that you file, or any papers that you file with the 14 Board, you should attach to it what's known as a certificate
, 15 of service. That certificate of service informs the Board 5
^ 16 that you have also sont copies at the same time, I guess to 17 Ms. Moore would be the only other -- I'm sorry, let me correct 18 that. Do you have a copy of the notice of appearance filed
{ 19 by Ms. Moore?
20 MR. ACOSTA: Yes sir, I do.
h 21 Cll AI RMAN CO'i f ER : Well you'll see on the back of that, 1
22 attact.ed to it, a certificate of service.
3 5
g 23 (Pause.)
O 24 MR. ACOSTA: Okay. On the notice of appearance. I 25 see it.
58 1 CHAIRMAN COTTER: And you are obligated by the 2 Commission's rules to send copies to everyone on that certifi-3 cate at the same time.
4 JUDGE MC COLLOM: Including Janice Moore.
5 MS. MOORE: Yes.
6 JUDGE MC COLLOM: She is not listed specifically on 7 there, but you have to put her name down on there as well.
8 JUDGE FOREMAN: I wonder if it would be appropriate 9 to comment that perhaps the Staff, in the case that Mr. Acosta 10 docan't use a lawyer, could help him with the nicetico of 11 legalities so that he isn't at a handicap, because he might 12 fall through on some trap or other, if you might notify him 13 that this and this should be done, et cetera. Is that appro-14 priate?
, 15 CHAIRMAN COTTER: Ms. Moore, that's the comment of 5
j 16 a non-lawyer to those among us who are lawyers.
3
- JUDGE FOREMAN: In the interest of fairness.
17 18 MS. MOORE: I will undertake to notify Mr. Acosta i
of procedural events that are required. I have to be very
{ 19 h 20 careful, of course, not'to provide legal advice.
} 21 JUDGE FOREMAN : That's right. Well, I'm not asking 1
22 for that.
23 MS. MOORE: Yeah.
5 24 CIIAIRMAN COTTER: Mr. Acosta, do you have a copy of 25 the Rulen of Procedure of this panel?
i
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l
59 1 MR. ACOSTA: No sir, not unless it was sent to me.
2 I did make copies of the Atomic Energy Act that was referenced.
3 CHAIRMAN COTTER: That's a bit remote from specifically 4 what we're doing here.
5 JUDGE MC COLLOM: Are those the Rules of Procedure 6 there?
7 (Pause.)
8 CHAIRMAN COTTER: What you need is a copy of Title 9 10 of the Code of Federal Regulations, Part 2.
10 (Rules of Procedure provided to Mr. Acosta by NRC.)
11 CHAIRMAN COTTER: He needs one he can keep.
12 JUDGE FOREMAN: Are you providing that for him to 13 koop?
14 MR. ELIN: Yes, that's an extra c7py.
, 15 CHAIRMAN COTTER: Thanh you.
i j 16 What was the next date that you had, Ms. Moore?
I 17 MS. MOORE: The next date is responses to motions o
I 18 for summary disposition, which is governed by 2749, and it's i
{ 19 20 days if Mr. Acosta is responding to our motion, and it a
j 20 would be 25 if we were responding to his.
21 CHAIRMAN COTTER: So that if you filed a motion on i
22 January 19th, Mr. Acosta's responso would be due an February 3
, 23 8th?
5 24 MS. MOORE: Yes.
25 CHAIRMAN COTTER: And if he filed on January 19th, 1
l l
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60 g 1 your response would be due on February 13th?
2 MS. MOORE: February 13th, yes.
3 MR. WOOD: Are the responses due earlier if the 4 motion is filed earlier than the 19th?
5 MS . MOORE : Yes.
6 CHAIRMAN COTTER: Yes. In Mr. Acosta's case, nis 7 response is due 20 days after he receives the motion.
a What's next, counsel?
9 MS. MOORE: I very graciously left you 20 days, I 10 believe, for a ruling. Oh, 25.
11 CllAIRMAN COTTER: That was considerate of you, and 12 we'll accept that under advisement. So that that would mean 13 that the Board's ruling would be targeted to issue by March 14 13 at the latest.
, 15 MS. MOORE: Yes.
I j 16 CIIAIRMAN COTTER: Whoops, I just made that 30 days, l 17 didn't I? It's a natural instinct. The target date would 3
1 18 be March 3.
3 19 JUDGE MC COLLOM: That's for the Board to rule on I
i
?
20 the r;ummary disposition?
} 21 CIIAIRMAN COTTER: Yes. Next?
f 22 MS. MOORE: The next date was pre-filed testimony.
23 It was to be 15 days after the Board's ruling.
5 24 CliAIRMAN COTTER: So the target date there would be 25 March 18th?
o
61 1 MS. MOORE: Yes.
2 CHAIRMAN COTTER: That's a Saturday, so we'll make 3 it March 20. Next?
4 MS. MOORE : The hearing commences 15 days after the
, 5 filing of the testimony, which would be April 4th.
6 Cl! AIRMAN COTTER: Well, we'll make that April lith, 7 and start on it on a Tuesday, April 11, to commence hearing.
8 Now I note for the record that in the event no 9 summary disposition motions are filed, all dates following to the completion of discovery on January 4, 1989 could be moved 11 up earlier.
12 I would also ask the parties to submit a joint stipu-13 laton of undisputed facts. Mr. Acosta, that means that you 14 would get together with counsel for the NRC, and the two of
, 15 you would agree on those facts which you don't dispute. You i
j 16 could submit it to the Board and it would not be necessary 17 to hear testimony on it.
j 18 I suggest that that be done by March 3, 1989. Did 3
you have anything else, Ms. Moore?
{ 19 t
MS. MOOREn- No, Your !!onor. I left the filing of
} 20
} 21 proposed findings and conclusions to be done according to the r
22 regulations, 2.754.
23 Cl! AIRMAN COTTER: That's fine. Any comments or o'
24 additions, Mr. Acosta?
25 MR. ACOSTA: No, sir.
F 62 t
Cl! AIRMAN COTTER: Is there anything else that we need l 1 2 to address?
3 MS. MOORE: The Staff has nothing further.
4 MR. ACOSTA: I have nothing else.
5 CHAIRMAN COTTER: All right. Thank you very much 6 for your information. I appreciate your cooperation, and I 7 would urge you to continue to discuss and negotiate a resolu-8 tion of the matter. Otherwise, we will proceed according to 9 the schedule. This preliminary hearing is adjourned.
to (Whereupon, at 12:02 p.m., the hearing in the above-11 entitled matter was adjourned.)
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