ML021010385
| ML021010385 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 04/08/2002 |
| From: | Fine T Tennessee Valley Authority, Winston & Strawn |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A | |
| References | |
| +adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 4273 | |
| Download: ML021010385 (7) | |
Text
'RA-5 4a 73
',I DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2002 APR 10 AM 10: 16 ATOMIC SAFETY AND LICENSING BOARD U
JF Fli i , LSt4W iARY RULEriAKINGS AND ADJUDICATIONS STAFF IN THE MATTER OF ) Docket Nos. 50-390-CivP;
) 50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY ) 50-259-CivP; 50-260-CivP;
) 50-296-CivP
)
(Watts Bar Nuclear Plant, Unit 1; ) ASLBP No. O1-791-O1-CivP Sequoyah Nuclear Plant, Units 1 & 2; )
Browns Ferry Nuclear Plant, EA 99-234 Units 1, 2, & 3)
TENNESSEE VALLEY AUTHORITY'S RESPONSE IN OPPOSITION TO MOTION IN LIMINE TO EXCLUDE DOCUMENTS RELATED TO RONALD GROVER The Nuclear Regulatory Commission (NRC) Staff has filed a motion in limine to exclude documents related to Ronald Grover. Both the Staff and Tennessee Valley Authority (TVA) have listed Grover as a potential witness in this proceeding.
The documents are relevant to Grover's bias and his credibility and should be admitted in the event Grover testifies. This response is submitted in opposition to the Staffs motion which overstates the facts and misapprehends the applicable legal principles.
Grover was first employed by TVA in 1994 in the Corporate Chemistry organization and served as the Manager of Chemistry and Environmental until 1996.
When Corporate Radiological Control was combined with Corporate Chemistry and Environmental in 1996 into a single Radiological Control and Chemistry (RadChem) organization, Grover's position was eliminated, as was Fiser's. At that time, Grover was given a senior manager developmental position and assigned to a term with the Institute for Nuclear Power Operations (INPO). After Grover's return to TVA from INPO, TVA's travel audit group raised a concern to TVA's Office of Inspector General 1
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(OIG) about potential travel fraud. The OIG's investigation led to the discovery that Grover had been conducting an extensive real estate business in Missouri for over six years, that he had been absent from work for more than 100 days without taking annual leave, and that he had used his TVA telephone and TVA telephone credit card to make large numbers of personal long-distance calls. Within days after being provided a draft of the OIG's report, Grover filed a complaint alleging discrimination with the Department of Labor (DOL). During discovery in the DOL litigation, Grover was informed that the OIG had presented the case to the United States Attorney for consideration of criminal prosecution. Grover's TVA employment was terminated for cause in April 2001.
The Grover Documents Are Admissible.
A. The documents are relevant to show bias. If Grover were called to testify in this proceeding, TVA intends to show his potential bias against TVA based on the elimination of his position during the 1996 reorganization, the charges made against him by TVA's OIG in its report and to the United States Attorney, his litigation with TVA, and his eventual termination for cause. The documents TVA intends to offer are clearly admissible to show Grover's bias, i.e., his animosity towards TVA. The Staffs arguments fail to consider the distinction between bias and impeachment.
Potential bias of a witness is always relevant and most often proven by inference from a specific circumstance, extrinsic evidence of which is never prohibited.
3A WIGMORE, EVIDENCE §§ 940, 943 (Chadbourn rev. 1970); United States v. Abel, 469 U.S. 45, 52 (1984) ("the 'common law of evidence' allowed the showing of bias by extrinsic evidence"); United States v. Robinson, 530 F.2d 1076 (D.C. Cir. 1976);
United States v. Brown, 547 F.2d 438 (8th Cir.), cert. denied, 430 U.S. 937 (1977).
"The doctrine of excluding facts offered by extrinsic testimony . . . has never been 2
applied to this subject" (3A WIGMORE, EVIDENCE § 948). The circumstances from which bias may be inferred include: the witness's discharge from the opponent's employment, civil litigation between the witness and the opponent, and the opponent's attempt to procure a criminal indictment against the witness (3A WIGMORE, EVIDENCE
§ 949).
The evidence regarding Grover that the Staff seeks to exclude is highly probative of his bias against TVA and Sam Harvey (who was selected for the position Fiser sought) and in favor of Fiser. Grover was employed in the same organization, and his job was eliminated in the same 1996 reorganization, and in the same manner, as was Fiser's. Like Fiser, his disagreement with the elimination of his job was the subject of litigation. He filed an EEO complaint and a DOL complaint, both of which included allegations about the elimination of his job. During the reorganization and just before the selection at issue here, both Fiser and Grover solicited another employee to file sexual harassment charges against Harvey, a candidate for the same position that Fiser sought. Harvey later made allegations of misfeasance against both Grover and Fiser. Subsequently, the TVA OIG documented charges of serious misconduct against Grover and attempted to procure his criminal indictment. Finally, TVA terminated his employment based on the OIG's investigation. Obviously, Grover has little love for TVA or Harvey. Since the source of much of his dispute with TVA arises out of his employment in the same organization as Fiser, the same reorganization that eliminated Fiser's job, and the same individual, Harvey, who successfully obtained the job that Fiser sought, evidence of his bias is relevant and admissible.
B. The OIG report is relevant to show Grover's lack of credibility. Among other things, the OIG report reflects that Grover charged more than 3,000 unauthorized personal long-distance telephone calls to his TVA calling card and about 2,500 unauthorized personal long-distance calls from his TVA telephone.
It also shows that he was out of state in connection with his personal business on more 3
than 100 days when he was not on leave status from his TVA employment. Further, there was evidence that he submitted falsified leave slips when confronted by the OIG about his use of leave. Finally, the OIG report shows that Grover was conducting his own personal business during TVA work time.
The OIG's report shows that Grover engaged in serious misconduct evidencing dishonesty and the providing of false statements to Federal investigators.
While the OIG report is admissible to show Grover's bias, it is also admissible in this proceeding as it clearly is probative of his credibility and truthfulness. TVA does not intend to conduct a mini-trial on this issue, it seeks only to submit the OIG report, a self-contained document. There is no need to submit the years of phone records which indisputably show Grover's taking of Government property. Moreover, rather than causing a delay in the hearing, the OIG report will expedite the issue of Grover's credibility since it contains his comments and resolution of the issues with which he was charged.
The Staff's argument that the OIG report should be excluded under Rule 608 of the Federal Rules of Evidence is based on the mistaken assumption that the Federal Rules of Evidence rigidly govern the admissibility of evidence at the hearing in this proceeding. However, as the Board noted in the August 1, 2001, Prehearing Conference Order (at 3), "[a]t the hearing, formal Federal Rules of Evidence will not be applied, but such rules may be used for guidance. See Tr. 27-28. Under NRC rules, evidence that is 'relevant, material and reliable,' and 'not unduly repetitious' is admissible. 10 C.F.R. § 2.743(c)." Under the NRC's rules, evidence which would be inadmissible under the Federal Rules of Evidence could be admissible at the hearing if it met the cited standard for admissibility. As the Board ruled: "Hearsay testimony is thus admissible in a proceeding of this type, if it meets the foregoing standard" (id.).
There is no question that the OIG report is admissible under the NRC standard for the admission of "relevant, material and reliable" evidence. It is relevant 4
because Grover's credibility, if he testifies, will be an issue in this proceeding. It is material since it goes directly to his penchant for honesty and truthfulness. Finally, it is reliable since it is based on an analysis by trained law enforcement personnel of telephone records, leave slips, and other documents, as opposed to the subjective testimony of individuals or even hearsay.
Even if the Federal Rules of Evidence were strictly applied in this proceeding, the report would be admissible under Rule 404(b), Fed. R. Evid. That rule expressly allows evidence of wrongs or acts to prove matters such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In this case, the Staff asserts that Grover would have selected Fiser and that he heard certain statements by Dr. McArthur and Mr. McGrath. The report which shows the extensive amount of time that Grover was absent from work or conducting his own personal business reflects on his opportunity to have observed Fiser's and Harvey's relative work performance or to have heard the alleged statements.
The Staff also asserts that evidence of Grover's misconduct would impede the Staff's investigation into Grover's allegations against TVA. The Staff cannot have it both ways. If it opens the door by calling Grover as a witness, his credibility and bias become relevant issues in this proceeding.
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Based on the foregoing reasons and the authorities cited herein, the Board should deny the Staff s motion to exclude documents relating to Grover.
Respectfully submitted, April 8, 2002 Maureen H. Dunn General Counsel Office of the General Counsel Tennessee Valley Authority Brent R. Marquand 400 West Summit Hill Drive Senior Litigation Attorney Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 John E. Slater n _ . - I .
Of Counsel:
David A. Repka, Esq. Thomas F. Fine Winston & Strawn Assistant General Counsel 1400 L Street, NW Telephone 865-632-2061 Washington, D.C. 20005 Attorneys for TVA 003693636 6
CERTIFICATE OF SERVICE I hereby certify that the foregoing response to NRC Staff's motion in limine to exclude documents related to Ronald Grover is being sent by overnight messenger to the Board members and NRC Staff and by regular mail on the other persons listed below. Copies of the response have also been sent by e-mail to those persons listed below with e-mail addresses.
Administrative Judge Administrative Judge Charles Bechhoefer, Chairman Richard F. Cole U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, Maryland 20852-2738 Rockville, Maryland 20852-2738 e-mail address: cxb2@nrc.gov e-mail address: rfclinrc.gov Administrative Judge Dennis C. Dambly, Esq.
Ann Marshall Young Jennifer M. Euchner, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Two White Flint North One White Flint North 11545 Rockville Pike 11555 Rockville Pike Rockville, Maryland 20852-2738 Rockville, Maryland 20852-2738 e-mail address: amyinrc.gov e-mail address: dcdinrc.gov e-mail address: jme~nrc.gov Office of Commission Appellate Adjudication Mr. William D. Travers U.S. Nuclear Regulatory Commission Executive Director of Operations One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike One White Flint North Rockville, Maryland 20852-2738 11555 Rockville Pike Rockville, Maryland 20852-2738 This 8th day of April, 2002.
Attorney for TVA 7