ML17303A243

Responds to Allegations Discussed in Coalition for Responsible Energy Educ Petition Filed Under 10CFR2.206 on 861020.Petition Based Upon Fundamental Misunderstanding of Polygraph Exams & Control Questions

ML17303A243
Person / Time
Site:	Palo Verde
Issue date:	01/20/1987
From:	Gibbs M ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR, SNELL & WILMER
To:	Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
References
2.206, NUDOCS 8701280343
Download: ML17303A243 (34)

Text

REGULATOR NFORNATION DISTRIBUTION; EN (RIDS)

ACCESSION NBR: 8701280343 DOC. DATE: 87/01/20 I NOTAR ZED: NO DOCKET 0 FACIL: STN-50-528 Palo Verde Nuclear Station> Unit 1> Arizona Publi 05000528 STN-50-529'alo Verde Nuclear Station> Unit 2> Arizona Publi 05000529 STN-50-530 Palo Verde Nuclear Station> Uni t 3> Arizona Pub li 05000530.

AUTH. NANE AUTHOR AFFILIATION QIBBS> N. E. Snell 8c Wilmer QIBBS> N. E. Arizona Nuclear Power Prospect (formerly Arizona Public Serv REC I P. NANE RECIPIENT AFFILIATION TAYLOR> J, N. Office of Inspection 5 Enforcement> Director (Post 820201)

SUB JECT: Responds to allegations discussed in Coalition for Responsible Energy Education petition filed under 10CFR2. 206 on 861020. Petition based upon fundamental:misunderstanding of polygraph exams 5 control questions.

DISTRIBUTION CODE YE03D COPIES RECEIVED; LTR ENCL SI ZE:

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FRANK I SNCLL MARK WILMER~ JOSEPH T. MCLCZCR. JR. LAW OFFICES EDWARD JACOBSON FREDERICK K. STCINCR. JR. JOHN J, BOUMA JOHN P. PHILUPS RICHARD MALLERY JON S. COHEN ARTHUR C. 4EHR ROBERT C. BATCS THOMAS J. RCILLY H. WIUJAH FOX LORCH W. COUNCC. JR.

WARREN C. PLATT SNELL 6 WILMER OUY 4. 4CLBRON JAY D. WILEY WILLIAMA HICKS. III 4CORBC H. LYONS PCTCR J RATHWELL DAHIELJ. MEAVUFI'C BRUCC D. PIN4RCC STCVEH M. WHECLCR DONALD D. COLBURN 3IOO VALLEY BANK CENTER MICHAEL D. TERRY MARY J. LCADCR DOUBLAS W, SCITZ 4RC4 R. NIELSCN ROBERT J. DEEHY 4ERARD MORALES JOSEPH T, MELOZCR III MICHACLS, MILROY PHOENIX. ARIZONA 85073.3IOO WILIJAM R. HAYDFN JAMES W, RCYHOLDS ROBERT J. 41BSON ROBERT B. HOI'FMAH BARRY O. HALPCRN LAWRCHCC F. WINTHROP CHARLES A. BISCHOFF (602) 257-72II THCRCSA A. OABALDOH~~ JOCI Pi HOXIC CHARLES H. TRAEBCR. III JAMES R. CONDO LONNIC J, WIUJAMS. JR. RICHARD W. SHCFFICLD VAUBHNA, CRAWFORD RICHARD C. UNDERWOOD THOMAS J. KENNEDY SUZANNC MFCANN WILIJAM D. FCARNOW ARTHUR T. ANDERSON PETER 4. SANTIN JOHN BFRRY JOYCE KUNC WRI4HT SHIRLCY J. WAHI DAVIDA. SPRCNTALL ISASCI LC T. MORRIS TELEX I 65088 JAMES P. MUCHLBCRBER KIMBERLYJ. 4RABFR ROBERT H, OBCRBKJJ4 TELECOPIERS:

MARBARET I STEINCR STCPHCH C, NEWMARK DORA THOMAS WILLIAMA. CLARKC TIBOR HABY, JR. JAM CS O. MILLER MANUAL (602) 257 72II MATTHEW P. FCCNCY REBECCA WINTCRSCHEIDT JAM CS J. SIENICKI LOIS P SAVABC VICTOR SOTOMAYOR JAMCS O, CHINBER AUTOMATIC (602) 256.2735 (0 BRVCE P. WHITC JOSEPH A. KCNDHAMMER CILCCN J. MOORC OCORBE J. COLEMAN MARLAN C, WALKER PATRICK C. HOOD J CI'I'RCY B. MCSSIN4 OORDON M. WASSON BRYANT D. BARBCR

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YVCTTC C. CONCH DOVBLAS H, ALTSCHULCR MICHACI U RHCCS JODY K. FALK CRAI4 K. WILIJAHS JAMES J. OSBORHC SCOTT'A, HOLCOHS Direct, Line: 257-5233 JEREMY D. MUSSMAH TERESA DAVIDSON CHERYL A. IKCBAMI DAVID R. BOSSC MARTHAL 41BBS THOMAS R. HOECKER ERIC M. CASPER STCPHCN 4. SMYTH ANNC I LEARY ROBERT W, HASKIN, JR.

~ J. STEPHEN HUFFORD DAVID C. VIEWE4 ROBERT J. ROSCPINK CONNIE R. DEARMOND January 20, 1987 JANCT E. THOMAS MALADAS 4UPTA STCPHCH M, HOPKINS P)M DARY I JONES JOYCE A. KRVCZCK TIMOTHY4. O'NCILL KCVIN J PARKER HFJDI U M%NFJL DONALO H, SMITH I <<t'L7 JAMCS H. MARBURBER CAROLYN C. STOCKTON KATHERINC M. HARMCYCR HD DAVIDWM. T. CARROLL PCTCR M, WITTCKIND THERESA M. CRAI4 IoQ NEIL J. HARRINBTON TFRCSA I BUTLER I~

DONALD P. RIES

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'N ~ ~ON LEAVC OF ASSDICC O(Z.'A mo.e Mr. James M. Taylor Director, Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Arizona Public Service Company, et al.

(Palo Verde Nuclear Generating Station, Units 1, 2 and 3), Docket Nos. 50-528, 50-529, 50-532

Dear Mr. Taylor:

By letter dated December 17, 1986, you requested 4

that Arizona Public Service Company (HAPSN or the."Licensee" ),

as the operating agent for the Palo Verde Nuclear Generating Station (" Palo Verde" ), respond to the allegations set forth in a petition of the Coalition for Responsible Energy Education I

("CREE") dated October 20, 1986. That petition, filed with the Office of Inspection and Enforcement of the U.S. Nuclear Regulatory Commission (the HNRCN) pursuant to 10 C.F.R. g 2.206, requests that certain actions be taken with respect to the licenses for all three Palo Verde units because of the responses of several APS employees to control questions asked in poly-graph examinations conducted as part of a security investigation p0~

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SMELL & WILMER Mr. James M. Taylor January 20, 1987 Page 2 at Palo Verde. This letter constitutes the Licensee's response to the Director's request.

As explained more fully below, the CREE petition is based upon a fundamental misunderstanding of the nature of both polygraph examinations in general and control questions in particular. As a result of the fatal flaw, CREE's vague and speculative allegations of document falsification are groundless and its attacks upon the Licensee's integrity are utterly baseless. Because CREE has not set forth any facts or presented any evidence sufficient to raise a substantial issue concerning the public health or safety, the petition should be denied in its entirety. Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 176 (1975)-

The polygraph examinations of APS employees refer-enced in the CREE petition were conducted in early 1986 as part, of the Licensee's investigation of a possible unauthorized disclosure of safeguards information. That security investiga-tion was undertaken by APS after consultation with Region V of the NRC. See Attachment A, Portions of the Deposition of Roy Zimmerman. All APS personnel who had access to the safeguards information involved were asked to voluntarily submit to a poly-graph examination. All such personnel except one did so. Those persons examined included Mr. E. E. Van Brunt, Jr., Executive

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SN'ELL & WILMER Mr. James M. Taylor January 20, 1987 Page 3 Vice-President of APS, and other management'evel employees of the Licensee. The independent polygraph examiner who conducted the examinations concluded that none of .those persons examined had been responsible for an unauthorized disclosure of safeguards information.

The APS employee who did not take the polygraph exam-ination later raised the issue of the alleged discriminatory use of polygraph tests at Palo Verde in a complaint filed with the Department of Labor under section 210 of the Energy Reorganization Act of 1974. (DOL Case No. 86-ERA-27.) The deposition of the polygraph examiner was subsequently taken by the complainant's attorney in the course of the Department of Labor proceeding.

During that deposition, Ms. Cannon, the polygraph examiner, testi-fied concerning the questions she had asked Mr. Van'runt and the other APS employees in their polygraph examinations. It is the "control" questions asked by Ms. Cannon, and her evaluation of the responses given by the .examinees to those questions, that apparently caused CREE to file the instant petition. An under-standing of the purpose and use of "control" questions in poly-graph examinations is thus important to an analysis of the CREE petition.

In determining what questions are to be asked in a polygraph examination, it is first necessary to decide exactly what the purpose of the test is i.e., what information the test is intended to ascertain. In this case, the polygraph exam-

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S NELL & WILMER Mr. James M. Taylor January 20, l987 Page 4 inations were intended to determine if the examinee -had disclosed safeguards information to an unauthorized person. A short list containing three different types'f questions is then prepared.

The first, type, the "relevant" questions, are those which per-tain to the reason for..the test, i.e., to the possible unauthor-ized disclosure of safeguards,.information. A, second type of question, termed "irrelevant," is merely designed to give the .

examinee a short breathing space between the other questions.

Such a question might ask the examinee to confirm what day of the week it. is.

The third type of question, called the "control" question, is used as the basis for judging, the examinee's responses to the relevant questions. The control question is thus an "assumed lie." In other words, the examiner asks the examinee a question that is unrelated to the actual subject matter of the test for the purpose of eliciting a deceptive response. The responses to "control" questions are then compared to the examinee's responses to the "relevant" questions. If a relevant response is stronger than the control response, a deceptive answer to the relevant question is;.indicated; if a control response is'tronger than the relevant response, a truthful answer .to 'the relevant question is indicated. Thus, in conducting a polygraph examination, it. is imperative that the examinee provide a deceptive answer to a con-trol question. If there were no deceptive response from the examinee, the examiner would have no basis for comparing the

ti S NELL & WI LMER Mr. James M. Taylor January 20, 1987 Page 5 examinee's responses to the relevant questions and it would be impossible to conduct a valid polygraph examination.

The polygraph examiner discusses the questions with the examinee in a pre-test interview that is conducted before the examinee is attached to the polygraph equipment. During that interview, the examiner discusses the relevant questions with the examinee in detail to ensure that the examinee is fully apprised of, what the relevant questions ask. It is necessary to the proper conduct of the test that the relevant questions be specific and narrowly drawn. The oppositeis, true of control questions, however, for they are intended to be quite broad and all-encompassing. This breadth is design'ed to ensure that the examinee will give .the deceptive response that is needed to provide a benchmark for comparing the answers to relevant questions.

The CREE petition errs in ignoring these'asic princi-ples .of polygraph examination procedure and assuming that it is possible to draw meaningful conc'lusions from an examinee's responses to control questions". That..is simply not the case.

The polygraph examinations at issue here were'specifically designed to determine whether there had'been unauthorized dis-,

closures of safeguards information. The examiner determined 1(

that none of the persons tested had been responsible for such an unauthorized disclosure. That is the only valid conclusion that, can be drawn from the tests.

I S NELL & WILMER Mr. James M. Taylor January 20, 1987 Page 6 To assume, as CREE does, that any valid conclusions about the subject matter of the control questions, as opposed to relevant questions, can be drawn from the examinee's responses is to make a quantum. leap in logic. If the .purpose of the test had been to ascertain information about the subject matter of the control questions, an entirely different set of relevant and control questions would have been designed. The answers to the control questions do not have any independent significance.

Polygraph examinations, ,by design, have a very limited application and usefulness. They are not designed to reveal the truthfulness or .any other character trait, of the individual being tested. Indeed, they cannot be used to establish. any factual matters other than whether or not. an answer given to a precise, narrowly-defined question is truthful. The purpose of polygraph examinations is to provide a tool to aid in focusing further investigation upon relevant matters. This purpose, however, can be achieved only with respect to the precise, narrowly-.defined relevant questions. Answers given to intentionally broad and general control questions can only be interpreted as equally broad and general answers that are essentially meaningless. The only function of control= questions is to provide-a benchmark for-inter-preting the examinee's responses to precise, narrowly-defined relevant questions.

Because CREE's petition is premised solely upon the answers given by APS employees to .certain control questions aske'd

S NELL & Wl LMER Mr. James M. Taylor

'anuary 20, 1987 Page 7 in the course of polygraph examinations, the petition has no valid foundation whatsoever. In the absence of the factual basis required to be demonstrated by a petition under 10 C.F.R. g 2.206(a),

the Director need take no actiont on the CREE-petition., See 1

Electric Co. (Limerick Generating Station, Units 1 and 2), DD-85-11, ating Station, Units 1 and 2), DD-.82-13, 16 tNRC 2115, 2121 (1982).

If the Director, notwithstanding the lack of factual support for the petition, does choose,to look at CREE's "issues," it is readily apparent that those issues" are devoid of any substance.

At page' of its petition, CREE. sets forth three "issues" that are supposedly raised by the deposition of the polygraph examiner. The first, of those "issues" charges that there has been "apparent falsification of company documents for personal gain" by APS management officials. CREE,. however, has submitted no information showing that any company documents were falsified for personal gain. Apart from references to the answers to cer-tain control questions, which are completely meaningless when taken out of the context and. used for the, purposes attempted here, CREE has not come forward with any facts demonstrating that, such t,

"falsification" took place. Moreover, in order to state a request that would be cognizable under g 2.,206, CREE would have to show that the alleged falsification of documents for personal gain

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S N ELL & Wl LM ER Mr. James M. Taylor January 20, 1987 Page 8 raised substantial health or ~safet issues. See CLI-75-8,

~su ra; DD-85-11, ~su ra . Nothing in. the petition, however, even suggests any nexus between the alleged falsification and health or safety issues. Because. CREE has not met its burden of coming forward with facts sufficient, to show any falsifi-cation of documents for personal gain; much less a falsifica-tion that, would raise substantial health or safety issues, the petition is deficient and the action requested should be denied.

CREE's second "issue," that "serious questions" have been raised concerning "the honesty of the above-named APS management officials during their polygraph exams," is even more ill-founded than the first. (CREE Petition at 4.) As explained above, a polygraph examination is not some type of psychological test from which one may draw conclusions about an examinee's character. Moreover,,all of the APS employees who took the polygraph examinations were found to have. been truthful in answering the relevant questions -- i.e., they had not released safeguards information to unauthorized persons. The second allegation is thus nonsensical and further demonstrates CREE's ignorance of both polygraph examination procedures and the interpretation of the results of those .examinations.

CREE's final "issue" is a confused statement that appears to accuse the Licensee',s management of "bad faith" con-cerning the use of polygraph examinations and of being "incompe-tent to judge Safeguards Information issues." (CREE Petition at

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S NELL & WI LMER Nr. James N. Taylor January 20, 1987 Page 9 at 4.) To the extent that the "bad faith" aspect of the "issue" raises the question of the allegedly discriminatory use of polygraph examinations at Palo Verde, that "issue" is already the subject of a separate CREE g 2.,206 petition that was filed on July 16, 1986. The Director has decided to await the out-come of the pending Department of Labor proceeding referenced above before ruling on that petition. See Letter of James M.

Taylor to Barbara S. Bush dated November 24, 1986. Because the "bad faith issue" is already pending'before the Director, CREE should not be allowed to raise that matter here. Cf. DD-85-11,

~su ra, 22 NRC at 159 n.5,. 171 n.14. The. charge of "had faith,"

moreover, appears to be nothing more than .another example of CREE',s misunderstanding of the-nature of both polygraph examin-ations and control questions. Finally, the fact'hat the APS management officials agreed to take the polygraph examinations refutes any notion of "bad faith."

The remaining part of the third "issue," which concerns the alleged lack of competence to judge safeguards information matters, also appeases to be based upon a misunderstanding of cer-tain of the questions asked during the polygraph examinations.

Because the purpose of the test was to determine if the examinee had released safeguards information to an unauthorized person, it was necessary to ask a predicate question in order to ascertain that the examinee did, in fact, understand what was. meant, by the term "safeguards information" and understand that such information

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S NELL & Wl LMER Mr. James M. Taylor January 20, 1987 Page 10 was only to be released on a "need to know" basis. If an examinee did not profess to have such an understanding, the relevant questions in the test would have been rendered meaningless. Nothing in. the answers to those questions pro-vided by the examinees indicated any lack of "competence to judge Safeguards Information issues." Moreover, it was Region V of the NRC that initially determined that there may have been an unauthorized release of safeguards information and concluded that an investigation was necessary. See Attachment A.

For the reasons set, forth above; the CREE petition does not state facts raising any issues, much less substantial issues, pertaining to public health or, safety. In addition, that part of the petition that alleges discriminatory use of polygraph examinations at Palo Verde is covered in a previous petition of CREE now pending before the Director. In the absence of any substantial health or safety issue, the petition and all of the relief requested therein, should be denied.

Very truly yours, Martha E. Gibbs Attorney for Arizona Public Service Company MEG:dkm

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UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATION LAW JUDGE

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In the matter of )-

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BLAINE P. ) 'o

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THOMPSON'RIZONA Complainant, )

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) 86-ERA-37

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PUBLIC SERVICE )

COMPANY/ARIZONA NUCLEAR POWER ) '

PROJECTS

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Respondent. )

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DEPOSITION OF ROY ZIMMERMAN Phoenix, Arizona October 14, 1986

. 1<30 p.m.

Pm~aad FDR:

VOSS 6 ASSOCIATES (NC COURT Rf pORTERS Wc Eas~ Ca~albick William R. Hayden - Suin 7b0 Phockix, ARIIOHi 85012 Attorney at Law (602) 2b54000 (copy)

Carol Kelly Reill, RPR ATTACHMENT A

DEPOSITION OF ROY RIMHERMAN commenced at 1>30 p.m. on October 14, 1986, at the offices of Snell & Wilmer, 2900 VBC, Phoenix, Arizona, before CAROL KELLY REILL, a Notary Public in and for the County of Maricopa, State of Arizona.

10 12 APPEARANCES s 13 For the Complainant:

14 Government Accountability Project Mr, Stephen H. Kohn Ms. Beth Payne 16 Coalition for Responsible Energy Education Hr. Myron Scott

.17 Ms. Lyn McKay 18 For the Respondents 19 SNELL & WILMER Mr. William Hayden 20 Ms. Becky Winterscheidt 21 For the Nuclear Regulatory Commission:

22 U, S NUCLEAR REGULATORY COMMISSION Mr. Chuck Mullins 23 Also Present:

24 Mr. Blaine Thompson 25

I ~

12 Q. Do you recall whether you were advised by region 5 personnel in Walnut Creek that these events that you have described gave rise to a concern within the region as to whether Safeguards information may have been disclosed to an unauthorized source2 A. I recall very well that the region had a concern based on the specifics that were relayed to them from Mr. Staggs. They were concerned what the disclosed source was that allowed the information to be passed to 10 the media. And based on the specifics that were provided, they were concerned whether Safeguards information may 12 have been released and the information given to the media.

13 They requested that I return a call to Mr.

Van Brunt and advise him of that concern, and make Mr. Van 15 Brunt aware that we are interested in determining what the 16 source of the information was, and for them to conduct an 17 .investigation to assure themselves that Safeguards 18 information was not provided, and if it had been provided, 19 to take the necessary compensatory measures so that the 20 security program at Palo Verde was not compromised.

f 21 I advi sed Mr. Van Br unt of those concerns.

22 Q. Then it's appropriate to move to that 23 subsequent conversation.

24 Let me ask you one more question with respect 25 to your communications with the Walnut Creek regional VOSS 6 ASSOCIATES'NC.

lii 13 office. In those discussions were you advised as to whether Mr. Staggs in communicating with the region had given any indication whatsoever as'o where his source of information had come from?

A, No Q. Now, I think you have already testified that you were directed by the regional office staff to contact Hr. Van Brunt. I believe you have already testified that you did so.

10 A. That's correct.

Q. Did you do so on the same day that he 12 initiated the call to you?

13 A. Nithin several hours.

Q. So do you have any recollection today of approximately what time of the day the second conversation 16 with Mr. Van Brunt may have occurred?

17 A. Again, I can't be exact but I would say 18 somewhere in the neighborhood of i>00 or 2<00 in the 19 afternoon.

20 Q. Do you recall whether am I correct that 21 you initiated this phone call? Thief 22 A. The second phone call, that's correct.

23 Q. Do you recall whether this was to a car phone or an office phone?

A. Again, I am not sure but I believe he was

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14 back in his office. I don't believe it was to the car phone.

Q. This may be, I apologize, somewhat repetitious, I think you have already given us a feel for what you were directed to advise Mr. Van Brunt. What did you advise Mr. Van Brunt in this conversation2 A. I advised Mr. Van Brunt that based on my discussion with region 5 we had a concern that information r

'9 had apparently been provided to Mr. Staggs based on our association with our inspection findings, and due to the level of detailed knowledge on

'N his part, it raised a 12 concern with us on whether the security plan may have been 13 compromised by Safeguards information having been 14 improperly provided to Mr. Staggs.

I then informed Mr. Van Brunt that we felt it 16 necessary for APS to evaluate the source of the 17 information and provide an investigation that would allow 18 them to determine whether the security plan had in any way 19 been compromised. If the investigation determined that to 20 be the case, to take the appropriate compensatory 21 measures.

22 Q. Is that a fair characterization of the entire 23 content of that conversation2 24 A. Mr. Van Brunt acknowledged my statement and said that he intended on doing that.

l Q. Do you know if you read it on the day it came

.2 out?

A. I don't recall. I don't know. I can' answer it. I don't recall.

Q. , At the time you had this conversation with region, did anyone mention this article?

A. No, I don', believe so.

8 Q. During your conversation with region, who told you what to say to Van Brunt?

'10 A, Mr. Scorano.

What were his instructions to you?

12 A. To inform Mr. Van Brunt that the information 13 that Mr. Staggs possesed was not provided to him by region 14 5 personnel to the best of his knowledge and that we had a 15 concern that the information was apparently provided by 16 ~nother source. And based on the level of detail that Mr.

Staggs had, we were concerned whether the potential 18 existed that Safeguards information may have been 19 improperly provided to Mr. Staggs. And we wanted the 20 licensee to conduct an investigation to determine whether 21 we felt there was a prudent action for the licensee to

'2 determine whether Safeguards information was in fact 23 provided to people without a need to know. And if in fact 24 their evaluation determined that to be the case, we would expect they would evaluate the compensatory measures that

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43 needed to be implemented and they would do so.

Q. Did anyone on that call say that they had 3 asked Staggs what information that h'e had received2 A. Could you repeat that again2 Q. Did anyone say that they had questioned Staggs about what the exact information was that he had received2 A, Not that I am aware of, Q. Did you ever think about. giving Staggs a call 10 and asking him what information he had received2 A, Did Z2 12 Q. Yes.

13 A, No. I was just serving to pass the 14 information on from Mr. Van Brunt to the region and then relay region 5's message to Mr. Van Brunt.

16 Q. Was that ever reduced to writing what you 17 oralLy transmitted to Mr. Van Brunt2 A. Not by myself< no.

19 To the best of your recollection, was there 20 any written correspondence asking APS to look into this 21 matter 2 22 A. No.

Do you know if-APS ever formerly notified the 24 NRC concerning the results of this matter2 25 A, No. As far as the investigation goes?

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