ML20082T504
| ML20082T504 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 04/25/1995 |
| From: | Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#295-16659 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9505040056 | |
| Download: ML20082T504 (57) | |
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L jf,57 00CKETED USHRC April 25,1995 95 APR 27 P4 :26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE 00CrET!MG M w "EIS*T Before the Atomic Safety and Licensing Board UL4 d in t Matter of ) Docket Nos. 50-424-OLA-3
) 50-425-OLA-3 GEORGIA POWER COMPANY, )
l et al. ) Re: License Amendment
) (Transfer to Southern h: lear)
- (Vogtle Electric Generating Plant, )
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION ,
TO STRIKE PARTIALLY INTERVENOR'S PREFILED TESTIMONY I. INTRODUCTION Georgia. Power Company (" Georgia Power") hereby moves to strike portions of the Pre-filed Testimcny of Ailen L. Mosbaugh, which Intervenor provided to the Board and parties on April 4,1995. Mr. Mcesbaugh's remarkably prolix (196 single-space page) testimony advances many claims that are beyond the admitted bases of his contentions, including several allegations that the Board has already excluded. Mr. Mosbaugh's testimony also includes numerous state-ments that are irrelevant, immaterial, not based on personal knowledge, vague, speculative, unre-liable hearsay, or otherwise lacking any probative value. Such statements do not meet the admissibility requirements set forth in 10 CFR 2.743(c) and should be excluded from the evi-dence in this proceeding. Much of the mtimony is also unduly repetitive. The objections to Mr.
Mosbaugh's testimony are discussed in more detail below.
9505040056 950425 @
PDR ADOCK 05000424 0 POR
1 II. PRIOP RULINGS ON SCOPE OF PROCEEDING The scope of the admitted contention in this proceeding has been the subject of dispute on a number of occasions, prompting rulings by the Licensing Board that Intervenor now simply ig-nores. Some background information on scope is summarized here.
In his December 9,1992 Amendments to Petition to Intervene and Request for Hearing, Intervenor pleaded four contentions. Contention I alleget in essence that The Southern Com-pany had illegally transferred control of Plant Vogtle to Southern Nuclear. Contention 2 alleged t that Southern Nuclear does not possess the requisitt, character to become a licensee, and Conten-tion 3 added that, as a result, transfer of the license would represent an increased risk to the health and safety of the public. Contention 4 essentially alleged that The Southern Company lacks requisite character. Amended Petition at 4-5.
After pleading these four cor'.entions, Intervenor specified the bases that he alleges to support each contention. With respct to Contentions 2,3, and 4, Intervenor asserted that South-ern Nuclear's management, knowing that LER 90-006 contained false statements, conspired to submit materially false information to the NRC that was significant to the regulatory process. Id.
at 15-16. Intervenor identified tape recordings and an Office ofInvestigations ("Ol") investiga-1 tion as evidence supporting this assertion. Intervenor further alleged, as a basis for Contentions 2,3, and 4, that Southern Nuclear's management had conspired to submit materially false infor-mation to derail the ongoing OI investigation. Id. at 16-19. In this regard, Intervenor referred to two specific sections of his prior July 8,19912.206 petition: (1)Section I.1 of the 2.206 peti-tion relating specifically to Mr. Mcdonald's statement that Mr. Hairston had not participated in 2
i an April 19,1990 conference call and to Mr. Mcdonald's first-hand knowledge of diesel genera-tor start information in LER 90-006; and (2)Section I.2 of the petition relating to Mr. McDon-ald's response regarding when Intervenor first alerted his management to inaccuracies in the diesel start data contained in the LER. Id. at 18 and n.14-15. Intervenor raised no other issue.
s He made no mention of air quality, the root cause of diesel failures, diesel generator reliability, or the like.
In its February 18,1993 Memorandum and Order (Admitting a Party), the Licensing Board admitted Contentions 1 (in part),2 and 3, and rejected Contention 4. LBP-93-5,37 N.R.C. 96 (1993). The Board consolidated the admitted contentions into a single contention. Id.
at i10. With respect to Contentions 2 and 3, the Licensing Board stated:
As a basis for his contentions, Mr. Mosbaugh alleges that, "SONOPCO's highest levels of management conspired to submit and did submit materially false information to the -
NRC concerning critical safety-related information pertain-ing to a March 1990 Site Area Emergency." In support of this allegation, Mr. Mosbaugh describes evidence that, among other things, implicates Mr. R.P. Mcdonald - an officer of Southem Nuclear -- in material false statements in Licensee Event Report 90-006. One of these alleged ma-terial false statements is the intentional falsification of data on diesel engine starts in order to persuade NRC to permit Vegtle to restart. . .
Mr. Mosbaugh also claims that he made tape re-cordings, currently in the possession of OI, that provide ir-refutable evidence that Mr. Mcdonald swore to a variety of other false statements before the NRC. . . .
Id. at 104-05 (footnotes omitted). I 3
l After the admission of the consolidated contention, the Licensing Boefd held a confer- l ence to discuss the scheduling of the case. At the outset of the conference, Georgia Power stated-its understanding that the scope of the admitted contention related to two matters: (1) the LER and subsequent statements about the LER made by certain company officials, and (2) the alleged illegal transfer of the license. Tr.121. The Licensing Board referred the parties to a decision re-lated to Diablo Canyon, LBP-93-01, which had concluded that the scope of a contention is not necessarily limited to its bases. Id. The Licensing Board cautioned, however, that it would not allow a pure fishing expedition, and consequently, there would be limits on discovery. Id. at 121-22.
In subsequent discovery, Intervenor proceeded to ask in'errogatories and request docu-ments related to topics such as diesel air quality, the FAVA system, miscalculation of shutdown margin, safeguards, and dilution valves.E On July 21,1993, the Licensing Board, on its own motion, issued a Memorandum and Order (Case Management) deciding that at least during an initial phase of this proceeding, discovery would be restricted to matters related to the bases of the admitted contention. LBP-93-15,38 N.R.C. 20,22 (1993).
Intervenor subsequently took the position that the bases for its admitted contention in-cluded all facts set forth in its prior 2.206 petition, including numerous allegations that Georgia Power had violated technical specifications. In a Memorandum and Order (Georgia Power Mo-tion to Reconsider Scope of Proceeding), dated September 24,1993, the Licensing Board held 2
Sss, c.g., Intervenor's First Set ofInterrogatories and Requests for Documents to Staff of the U.S. Nuclear Regulatory Commission (June 24,1993) at I l-22; Intervenor's Secorid Set ofInterrogatories and Request for Docu.
ments to Georgia Power Company (June 27,1993).
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1 that Intervenor's Amended Petition had not incorporated the entire 2.206 petition by reference, and specifically had not incorporated those portions alleging violations of technical specifica-tions. LBP-93-21,38 N.R.C.143,148 (1993). Rather, the Board concluded that Intervenor had voluntarily excluded allegations that were not specifically discussed in his Amended Petition in this proceeding. Id. at 148. The Board ruled that Intervenor would not be precluded from mov- l ing to add additional matters as bases for its contentions, but would be required to demonstrate that the additional matters are relevant and newly discovered. Id. Otherwise, the Board ordered, Matters that were not discussed in the Amended Petition, except by reference to Intervenor's prior section 2.206 peti- ,
tions, shall not be considered to have been raised in the '
Amended Petition and shall not be included in Phase I of this proceeding.
Id. at 150.
On May 9,1994, the NRC Staffissued a Notice of Violation ("NOV") against Georgia Power. The NOV asserted five violations: (1) that Georgia Power's April 9,1990 presentation and April 9,1990 letter were inaccurate concerning the number of successful diesel generator starts; (2) that the April 9,1990 letter was incomplete in stating that it had concluded that the die-sel air system, including dew point control, was satisfactory, and in stating that initial reports of higher than expected dew points had been attributed to faulty instrumentation; (3) that LER 90-006 was inaccurate concerning the number of successful diesel generator starts; (4) that Geor-gia Power's June 29,1990 letter was inaccurate and incomplete in failing to clarify the April 9 letter and in explaining the causes of the prior errors; (5) that Georgia Power's August 30,1990 letter was inaccurate and incomplete in explaining the causes of the prior errors. This NOV 5
- prompted the Licensing Board to modify its prior ruling on the scope of the proceeding. In a Memorandum and Order (Scope of Proceeding) dated May 23,1994, the Licensing Board held that all the allegations in the NOV are important to the admitted contention and should be in-cluded within the scope of the proceeding. LBP-94-15,39 N.R.C. 254,255-56 (1994).
In response to continuing disagreements among the parties prompted by further broad discovery requests by Intervenor, the Licensing Board issued another Memorandum and Order (Scope of Discovery) on June 2,1994. Therein, elaborating on permissible discovery, the Li-censing Board stated:
- 2. Ouestions About the Site Area Fmeroency or Violations of Technical Snecifications. Mr. Mosbaugh has contended that Georgia Power has given to the Nuclear Regulatory Commission (NRC) false representations about the safety of diesel generators. We have interpreted this contention to include all of the communications that are an object of concern in the final report of the Office ofInvesti-gations (Case No. 2-90-020R). Any questions related to whether the representations to the NRC were the whole truth may be raised in this proceeding. In particular, Mr.
Mosbaugh may ask questions about how Georgia Power has attempted to fulfill its safety obligations with respect to diesel generators, including whether problems with diesels should have prevented restarting the Vogtle reactor after the site area emergency. With respect to the diesel generators, he may raise questions about what Georgia Power's safety obligations were, including obligations under the plant's technical specification or its procedures. It may also raise pertinent facts about the diesel generators that were known to Georgia Power or its officials and that would question
.vhether it told the whole truth to the NRC.
On the other hand, Mr. Mosbaugh may not now raise new issues about "any Mosbaugh allegations" that are not related to the diesel generators, such as the granting by the NRC for permission to change Vogtle's mode of opera-tion while Vogtle diesels were both out of service. For 6
b example, Mr. Mosbaugh may not properly advance inter-rogatories about the site area emergency on the ground that those questions are relevant to who was exercising control during the site area emergency. He may expect answers to questions directed to discovering what different individuals learned during the site area emeirney, providing that the !
answers may be expected to relate directly or indirectly to ;
whether Georgia Power told the whole truth to the NRC - j about its diesel generators. 'l
- 3. New Issues. If Mr. Mosbaugh seeks to raise new issues, he may file them as late-filed issues. We will consider whether: (a) those issues should be accepted as late-filed contentions, (b) whether adequate documentation has been presented for us to consider adjudication of the ,
new issue to be necessary for an adequate record on this ad-mitted contention, and (c) whether or not to postpone our determination about admitting new matters until after the pending matters have been adjhdicated.
Id. at 2-4. l 1
Shortly thereafter, the Board set a July 5,1994 deadline for the identification of any addi-tional issues that Intervenor wished to have considered in this proceeding. June 23,1994 Pre-hearing Conference, Tr. 36-37. In response, Intervenor filed Intervenor's Motion to Accept l
I i Additional Factual Bases in Support of the Admitted Contention (July 6,1994). Therein, Inter- l venor raised only one allegation, that the opening of the containment hatch on the day of the site t
l area emergency violated technical specifications. The Licensing Board subsequently decided i l
that this allegation was not meritorious and did not raise a significant issue that needed to be in- l 1
cluded in this proceeding. LBP-94-27,40 N.R.C.103,114-15 (1994). Intervenor has not moved to introduce any other allegations or issues for consideration in this proceeding.
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- Based on these successive rulings, Georgia Power has understood the law of the case in this proceeding is that the scope ofIntervenor's contention is subject to certain limits. It encom-passes those matters specifically raised in Intervenor's Amended Petition, but has also been ex-
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panded to include the communications relating to the diesel generators that were the object of -
i concem in the OI Report 2-90-020R and the May 9,1994 NOV. In essence, the rulings above !
indicate that the primary issues that have been placed in controversy in this proceeding relate to j i
i the accuracy of the diesel start counts contained in the April 9,1990 presentation and letter, the
- dew point statement in the April 9,1990 letter, the diesel start count in the April 19,1990 LER, 1 and the explanations given in the June 29 and August 30,1990 letters.
I Georgia Power relied on these rulings in preparing its prefiled testimony. Indeed, its tes-timony is assembled to address each of these issues in a logical and chronological manner. Geor-
- gia Power has not attempted to provide any in-depth analysis of the root cause of the diesel 1
failure on the day of the site area emergency or to address other diesel-related statements that I f
! have not been raised.
j Nor did Intervenor indicate, during the prehearing conferences after discovery, that he in-i j tended to expand the scope of the issues that had been placed in controversy. To the contrary, In-l tervenor represented, at the October 17,1994 conference, that the diesel generator issues are less i l l important than the illegal license transfer issues, will receive proper public attention in any event, j and might even be the subject of possible settlement. Tr. 664-64. The length and breadth of Mr.
1 Mosbaugh's testimony are not consistent with these prior representations.
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III. OBJECTIONS TO MR. MOSBAUGH'S TESTIMONY The < tandard to be applied when considering the admissibility of testimony in an NRC proceeding is set forth at 10 C.F.R. 2.743(c):
Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted.
As noted above, significant portions of Mr. Mosbaugh's testimony fail to meet the Com-mission's standards for admissibility of evidence and are objectionable on one or more grounds.
Some portions of the testimony are wholly irrelevant to the contention in this proceeding; others raise matters that are outside the scope of the allegations that were raised by Mr. Mosbaugh as the bases for this contention and admitted by the Licensing Board as issues in controversy. Still others are based on speculation and hearsay without probative value, or merely state opinions by Mr. Mosbaugh for which there is no factual predicate and which he is not qualified to give. Such testimony is inadmissible and should be stricken. See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669,15 N.R.C. 453,477 (1982). Much of the testimony is also unduly repetitious and is further excludable on that ground. Consumers Power Co. (Mid-land Plant, Units I and 2), LBP-72-29,5 A.E.C.142,143 (1972).
Admitting this objectionable testimony would be highly prejudicial to Georgia Power.
Georgia Power has relied on the Board's prior rulings as to the scope of this proceeding and has not prepared testimony addressing the new matters raised by Mr. Mosbaugh. Responding to these allegations would require the preparation of substantial additional testimony and might sig-nificantly delay the completion of this proceeding. Likewise, admission of the duplicative, 9
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! irrelevant, speculative, conclusory, and unreliable matters included in Mr. Mosbaugh's testimony would unduly prolong the proceeding without adding any significant facts to the record.
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] In the discussion that follows, the materials that warrant striking are identified with refer-s ence to the captioned sections of Mr. Mosbaugh's testimony in which they appear, and are set l
j forth under the captions used in the testimony.
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! A. "Vogtle Exnerience And Resnonsibilities" b l i .
Lines 7 through 11 on page 3 of Mr. Mosbaugh's testimony refer to the circumstances un-j der which he was relieved of management responsibilities at Plant Vogtle. Lines 12 through 15 on the same page attempt to establish what opinion Georgia Power had of Mr. Mosbaugh's tech-3 i nical and engineering abilities by citing a statement allegedly made by Mr. Bockhold. This testi- l l
mony is apparently intended to suggest that Georgia Power retaliated against Mr. Mosbaugh.
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. Such testimony is irrelevant to the issues in this proceeding. No allegations of retaliation were .
pleaded in Mr. Mosbaugh's Amended Petition, and'Mr. Mosbaugh should not now be permitted 1
l- to use this proceeding as a forum to rehash a subject matter already adjudicated before the De-partment of Labor. -
B. " Accuracy OfInformation" Lines 24 through 38 on page 5 of Mr. Mosbaugh's testimony advance the theory that the j i
allegedly false statements at issue in this proceeding "may have" been averted if a set of proce-dures relating to verification of the accuracy ofinformation in correspondence to the NRC had
. not been canceled prior to 1990. This testimony is irrelevant to the issues in this proceeding and 10 .
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1 i-l is admittedly speculative. The testimony at lines 31 through 32 is panicularly speculative, argu-mentative, and objectionable.
l h C. "1990 Events Prior to Site Area Fmercency"
! 1 This entire section of testimony (pages 6 through 12 of Mr. Mosbaugh's testimony) is ir-I relevant to the admitted issues and should be stricken. It raises a variety of allegations of man-agement misconduct which are said to have occurred prior to the March 1990 diesel generator incident, and which are thus unrelated to the issues in this proceeding.
Moreover, in this section of his testimony, Mr. Mosbaugh raises technical contentions )
(dilution valve issues and the compliance of the FAVA system with NRC requirements) that the Licensing Board previously ruled were outside the scope of the admitted issues. These allega-tions were raised in Mr. Mosbaugh's 2.206 petition, and were therefore known to him when he
' intervened in this proceeding, yet he failed to identify them in his Amended Petition as bases for his contentions. The Licensing Board's September 24,1993 Memorandum and Order held that ,
l Intervenor had voluntarily excluded these issues by not discussing them in his Amended Petition in this proceeding. LBP-93-21,38 N.R.C. at 148. The Board offered Mr. Mosbaugh the oppor-tunity to introduce additional issues in this proceeding upon a~ showing of timeliness and signifi-cance, but (other than the containment hatch allegation) Mr. Mosbaugh did not take advantage of this opportunity. See LBP-94-27,40 N.R.C. at 103.
The testimony in this section is also irrelevant in that it centers on Mr. Mosbaugh's pre-March 1990 complaints of Georgia Power management's alleged misconduct, management's 11
alleged retaliatory actions against him, and the alleged failure of management to act on his con. -
cems. These issues are outside the scope of this proceeding and have not been identified as con-tentions herein.
D. " March 20.1990 Site Fmergency" Lines 5 through 18 on page 13.of Mr. Mosbaugh's testimony, and the accompanying De-monstrative Aid #1, address the weather conditions at the Plant Vogtle site on March 20,1990.
Their intent is to support Mr. Mosbaugh's theory as to what he now alleges was the _" root cause" -
of the diesel generator failure on that day, ir, condensation of water in the Calcon sensor lines due to the low temperature of the lines. This testimony is objectionable both because it raises a new contention never previously advanced in this proceeding and because, even if correct, it does not relate in any way to the management character issues before the Board, since there is no claim that management misled the NRC about what it believed was the " root cause" of the inci-dent at the time it submitted its reports to the NRC in 1990. S.cc also Section 111.0 below.
Lines 12 through 16 on page 14, and lines 1 through 40 on page 15 of Mr. Mosbaugh's testimony address the potential consequences of a hypothetical failure to mitigate a loss of AC power accident. Such failure to mitigate the accident did not take place; the testimony is there-fore irrelevant.
Also irrelevant is Mr. Mosbaugh's testimony on lines 17-33 of page 14 conceming his own activities during the loss of AC power incident. None of the matters described in this 12 e
! testimony serve to explain the accident sequence or relate to the company's investigation of the event and its subsequent conduct.
E. " Diesel Generators" On page 16, at lines 10-11, Mr. Mosbaugh asserts that "[s]ite management began to press for schedule progress on the outage." This testimony is unreliable hearsay, since' the parties al-legedly pressing for schedule progress are not identified and a factual foundation for the assertion is not provided. It is also irrelevant. Management's desire to make progress toward the comple-tion of an outage is not improper (any responsible utility would have such an objective), and Mr.
Mosbaugh's negative inferences have no probative value.
Also, at lines I l-13. Mr. Mosbaugh alleges that the inoperability of both diesels after the i site area emergency violated technical specifications.- This testimony too is irrelevant, since the l
l allegation it makes has not been admitted as an issue in this proceeding. . In fact, it appears to be notung more than a variation of the containment hatch allegation, which the Board has already dismissed.
On page 17, lines 7-12, Mr. Mosbaugh provides inadmissible hearsay testimony about the l
replacement of the Calcon sensors and the repair of the pneumatic leaks, and more specifically, about possible NRC reaction to this activity. He acknowledges that his sole source ofinforma-tion for this testimony are statements made to him by Ken Holmes, another Georgia Power em-L ployee. The reliability of such hearsay statements is not established. Further, this testimony is irrelevant to the accuracy of the specific statements on diesel starts at issue in this proceeding.
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l On page 17, line 17, through page 18, line 11 of his testimony, Mr. Mosbaugh resurrects 1 I a stale allegation about "taking LERs." This allegation was raised in the 2.2% petition but was i
not mentioned in Intervenor's Amended Petition in this proceeding. Therefore, like the dilution valve and FAVA issues, this allegation has not been made part of this case. In addition, the testi- ,
i mony is speculative in that it merely relates Mr. Mosbaugh's personaiinterpretation of what the speaker meant by the statement.. As such, it lacks probative value. Sec Long Island I ichting Co.
'(Shoreham Nuclear Power Station, Unit 1), ASLBP No. 86-529-02-OL, slip op.1987 WL - !
l 109514 (N.R.C.) at *5 (June 9,1987) (testimony stricken as " mere speculation by the witness l
about the motives of others. It is not reliable evidence.") (hereinafter Shorehnm).
On page 18, lines 24-29, Mr. Mosbaugh provides hearsay testimony as to statements l
made at a meeting by unidentified " maintenance personnel" allegedly disparaging the quality of the Calcon sensors and expressing a reluctance to voice their opinions about the sensors.' This testimony is irrelevant to the accuracy of the start count information placed in controversy in this proceeding. Mr. Mosbaugh appears to be suggesting that some additional disclosure may have been required at some point, but he has never moved the Board to admit such an issue for litiga-tion. Mr. Mosbaugh's hearsay testimony is also unreliable. Even if this testimony were relevant, it should be proffered only through cross-examination of the individuals involved in order to as-certain the meaning and context of taped statements.
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F. " Air Ounlity Standards."
The section of Mr. Mosbaugh's testimony from line 5 of page 20 through line 21 on page i 24 raises a new contention alleging that the design of the Vogtle diesel air system violated appli- j cable standards. This entire section of Mr. Mosbaugh's testimony is irrelevant to the admitted is-sues and objectionable for a number of other reasons.
Mr. Mosbaugh has never previously raised this design issue in this proceeding. In fact, his Amended Petition made no reference whatsoever to air quality. While the Licensing Board, on its own motion, subsequently expanded this proceeding to include an air quality issue raised by the NRC Staffin the May 9,1994 NOV, the NOV contained no allegation that design stan-l dards were violated; the NOV merely alleged that Georgia Power should have disclosed historic instances where dew points exceeded the limits that Georgia Power had established. NOV at ' !
3-4?
The testimony also lacks factual foundation. Mr. Mosbaugh provides no reference to how the design was developed, includes no meaningful discussion of the commitments in the FSAR relating to the dew point limits specific to the diesel generator air system, or to the NRC's review and acceptance of those limits. Moreover, Mr. Mosbaugh does not contend that the plant's design is at variance with its licensing basis. Therefore, Mr. Mosbaugh's quarrel with the design would in no even, raise a proper contention suitable for consideration by the Board.
- This violation wa withdrawn by the NRC in the February 13,1995 modified NOV, after further consid-eration and a determination that the statements in question were sufficient in scope and had an adequate technical basis to support a finding that air quality was acceptable. The NRC agreed that historic information was not neces-sary for a restart decision.
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Finally, and most significantly, Mr. Mosbaugh's testimony makes no attempt to link his l claims of flaws in the design to the character of the Vogtle management. Therefore, the allega-tion is outside the scope of this proceeding.
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G. " Psychometry" 1
This section of Mr. Mosbaugh's testimony (from line 22 of page 24 through the end of page 25) should also be stricken in its entirety. This section is again intended to provide the ba- !
l sis for Mr. Mosbaugh's conclusion that the " root cause" of the 1990 diesel generator failure was !
water condensation in the sensor lines.E As discussed in Section III.D above and as further noted I
in Section III.O below, Mr. Mosbaugh's current theory as to the real cause of the incident is tr- l 1
l relevant to the management issues in this proceeding.
H. " Diesel Testing And Problems" Mr. Mosbaugh's testimony on page 26, at lines 7-15, is inadmissible because it is vague and not based on personal knowledge. See Fed. R. Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal E
Mr. Mosbaugh testifies that if warm saturated air from the air receiver were to flow into smaller pipes and tubing, water would form if the temperature of the walls of those pipes or tubings were below the dewpoint. He then refers to the small tubing lines going to the Calcon sensors and suggests that local cooling effects could cause cooling of small lines below the 50 F diesel room design minimum temperature.
In addition to being irrelevant, this testimony is misleading. As Mr. Mosbaugh's testimony acknowledges earlier, the refrigerant dryers reduce to 50' F the dew point of air compressed to about 225 to 250 psig. The lines to the Calcon sensors, however, do not operate at this high pressure. Instead, they use air whose pressure has been re-duced to 60 psig by pressure regulators in the control cabinet. This pressure reduction would reduce the dew point of the instrument air such that, even if some localized cooling effect were to cool a small line to a sensor below 50" F, it would not necessarily car any condensation. Ses Board Notification 95-08, Encl. 2 (C. Casto Memorandum of June 20,1994) at 6.
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knowledge of the matter.")E Rather, it is based on hearsay from unnamed " maintenance" person-nel and " engineers," and there is no way to ensure its reliability. The sources of this information are not even identified.2 Such vague and unreliable hearsay testimony should not be admitted.
l See ALAB-717,17 N.R.C. at 366. On lines I and 2 of page 27, Mr. Mosbaugh refers to a failure to start a Unit 2 diesel generator. The allegations ofinaccurate start counts in this proceeding in-volve the Unit I diesels only. Therefore, this testimony is irrelevant.
The testimony on lines 5 through 18 of page 27 (except for the references to Mr. Bock-hold's calls on lines 9 through 16) should be stricken because Mr. Mosbaugh does not have per-f sonal knowledge of the matters he recounts, such as the statement that "most everything . . . was relayed to the highest SONOPCO corporate representatives." The statements are vague, specula-tive and unreliable since their sources are not identified."" The last sentence, from line 16 l
l through line 18 on page 27, is also unreliable hearsay. The alleged " bragging" of unidentified i l
SONOPCO personnel is not a proper basis upon which to impute knowledge to Mr. Hairston. {
Equally objectionable is the testimony on lines 20-25 of page 27. This testimony is hear-say without any indicia ofreliability. Mr. Hairston's knowledge of what happened during the site
- NRC adjudicatory boards will look to the Federal Rules of Evidence as guidance. Ssg Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 N.R.C. 346,365 n.32 (1983). ]
l 2 The reference to " numerous" air leaks on line 9 is also irrelevant. Mr. Mosbaugh has not alleged in this l proceeding that the NRC was misinformed about the discovery of air leaks. And while Mr. Mosbaugh did make such an allegation in a submittal to 01 in April 1994, the NRC Staff subsequently determined that Mr. Mosbaugh's allegation was based on a mischaracterization of NUREG 1410, and that NUREG 1410, when accurately quoted, demonstrated that the licensee had communicated the scope and magnitude of system air leakage to the NRC.
! Board Notification 95-08, Encl. 2 (C. Casto Memorandum of June 20,1994) at 8.
W In fact, Mr. Mosbaugh has previously testified in this proceeding that he did not witness, and does not l know, the extent of communications at the corporate level. Tr. of January 11,1995 hearing at 2127 28,2135.
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- l. emergency can be established through his direct and cross-examination testimony, or by other di-rect evidence. It cannot be established by hearsay statements about boasts allegedly made by a third party concerning Mr. Hairston's knowledge. In addition, the statement is irrelevant. Mr.
Hairston may have eventually acquired detailed knowledge of the events in the diesel room dur-ing the site area emergency, but this does not necessarily mean that he possessed the same degree i
of knowledge about other matters such as details of the subsequent testing program.
f I. " Findings on the Calcon Sensors" Starting on page 27, line 33, and continuing through page 28, line 6, Mr. Mosbaugh "tes-l l tifies" as to the extent of calibration of the Calcon sensors by quoting from and interpreting notes in another Georgia Power employee's notebook. On page 29, at lines 1-12, he invokes these l l
notes to assert that corporate management had knowledge of the Calcon sensor calibration set points and the actual dieseljacket water temperature during the site area emergency. Mr. Mos-baugh does not allege to have first-hand knowledge of the information contained in the notebook, i
and does not even claim to have discussed the entries with Mr. Ward, the notebook's owner. His testimony is not only hearsay, but is totally lacking in probative value. The meaning of Mr.
Ward's notes should be established through questioning of Mr. Ward, not by Mr. Mosbaugh's
" testimony."
l Also on page 28, at lines 28 to 37, after testifying that dieseljacket water temperatures were below the as-found sensor set points during the site area emergency, Mr. Mosbaugh sug-gests that it would have been extremely improbable for two out of three of the Calcon sensors to 18
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l have actuated simultaneously? This testimony is apparently offered to show that the high jacket water temperature alarm and trip could not have been caused by an actual occurrence of l
high temperatures, or by the sensors having been miscalibrated (ir, by their set point being too I l
low). Again, this testimony seems to be directed at establishing the " root cause" of the diesel generator incident, and is therefore irrelevant to the issues in this proceeding.
l This testimony is also irrelevant because Georgia Power has not claimed that the March 20,1990 failure of the l A diesel generator was valid, or caused solely by sensor set points being set too low in calibration. Rather, Georgia Power initially decided that the probable cause of the l failure was some intermittent failure of the sensors, and following further testing performed by l
Wyle Laboratory determined that the cause was poor calibration techniques and contamination of the Calcon sensors. Therefore, the point that Mr. Mosbaugh is attempting to establish is 1
immaterial.
I J. " Search For The Root Cause" l l
I I
The next section of Mr. Mosbaugh's testimony, which extends from line 14 of page 29 i through line 20 of riage 32, consists of a series of unsupported, conclusory statements that at-tempt to disparage Georgia Power's efforts to identify the cause of the March 1990 incident. For !
example, Mr. Mosbaugh provides speculative opinions as to Georgia Power management's atti-tude towards the NRC investigation (page 29, lines 14-17); gives his interpretation of what Mr.
Bockhold " wanted most" (id., lines 18-25); finds that Mr. Bockhold "seemed content" that no ac-tual root cause for the event would be found (id., lines 26-33); affirms that Mr. Bockhold "was 2 Mr. Mosbaugh provides similar testimony on page 30, lines 15-26.
19
, - ~ - . - - - . . ._ . - . - - _ . -
1 concemed" about the breadth of the NRC investigation (id., lines 34-39); concludes that manage-ment "was willing to accept casual or careless attention to detail when it meant schedule and :
l profit" (page 30, lines 31-36); infers that "the root cause testing did not get support because out-l age activities were given priority" (page 31, lines 1-7); reports that another employee, Cliff Miller, "did not believe that management was dedicated to finding the root cause and was content in not really worrying whether the problem was really fixed or not" (id., lines 19-24); and judges that comments of the site QA Manager, George Frederick, with respect to the Site Area Emer-gency critique were " outrageous," that Mr. Frederick "in effect,' states that Vogtle deserved an
. NRC violation," and that " Frederick realized SONOPCO management was dishonest" (page 32, lines 2-20).
l This section of Mr. Mosbaugh's testimony -- rife with invective, devoid of facts -- con-sists only of speculations as to third parties' views and inadmissible opinions and legal conclu-sions.E Accordingly,it should be stricken. Sgg Shoreham,1987 WL 109514 at *5.
K. "IIT Team Leaves Vogtle" I Starting on page 32, line 24, and continuing on to page 33, line 2, Mr. Mosbaugh testifies as to how Mr. Bockhold allegedly provided incomplete and misleading information on Safety System Performance Indicators. Again, this claim was not raised by Mr. Mosbaugh in his bases supporting the admitted contention; nor did Mr. Mosbaugh ever move the Licensing Board to E
Even where Mr. Mosbaugh cites factual materials, such as his references to transcribed statements on page 31, at lines 26 through 35, he mischaracterizes and disparages the transcribed statements. Moreover, the proffered transcript itself is not necessarily accurate (it has not been stipulated to) or the best evidence of what was said. And .
Mr. Mosbaugh's pejorative commentary adds nothing other than inadmissible opinion.
t
add this issue to the scope of the proceeding. Therefore, this testimony is irrelevant and should be stricken.
On page 33, lines 13 through 19, Mr. Mosbaugh again refers to Mr. Ward's notebook as his sole source for the proposition that Mr. Bockhold told the NRC that "the high dewpoints were a result of a ' bad dewpoint sensor instrument.'" This testimony is inadmissible for the reasons l described in Section III.I above concerning interpretations of Mr. Ward's notebook; here, moreo-ver, the hearsay is multiple in nature and is therefore even more objectionable. . Also objection-able for the same reasons is the testimony at lines 20 through 30 on the same page characterizing certain communications between Georgia Power and the NRC's IIT (in which Mr. Mosbaugh was not involved), and speculating about the effect of such communications on the NRC. The actual communications between Georgia Power and the NRC should be established by transcripts or the testimony of the individuals involved, not by Mr. Mosbaugh's second hand and selective' recitals; and only the NRC is competent to testify concerning its reactions and impressions.
L. "Seekino Permission For Restart" Lines 29 through 38 on page 34 of Mr. Mosbaugh's testimony contain Mr. Mosbaugh's accounting of an oral presentation at a meeting in Atlanta which he did not attend and which is not transcribed. Therefore, it constitutes unreliable hearsay as well as unsupported speculation.
In addition, Mr. Mosbaugh levels conclusory charges of Georgia Power officials providing an
" inaccurate and incomplete picture of the number of diesel starts," "omitted problems related to the root cause of the SAE diesel failure," and a " false account of air quality and the reason for high dewpoint readings." The same charges are made on lines 1 through 8 on page 35. This 21
testimony is conclusory, and the references to root cause omissions are beyond the scope of the issues admitted in this proceeding.
In Lines 23 through 25 on page 35, Mr. Mosbaugh purports to testify as to the issues that i
were "most important" to the NRC in its restart decision. This testimony is totally speculative.
l In Lines 26 through 31 on page 35, Mr. Mosbaugh fmds that "[t]here was a pattern of misleading the NRC on the key issues needed to gain restart. The misleading information came from Bockhold, Kitchens, and McCoy." This is impermissible opinion testimony.S It also con-i
- tains legal conclusions, which are not admissible as evidence. Illinois Power Co. (Clinton Power
! Station, Units 1 and 2), LBP-75-59,2 N.R.C. 579,586 (1975).
s I
M. "I ER 90-006" 1
l l
- Lines 7 through 17 and 32 through 35 on page 38 contain unsupported hearsay statements )
that are not even identified as to source (c&, "a comment was made," "the individual that was i
drafting the LER," "[p]ersonnel from the Technical Support department"). The testimony at lines 32-35 of page 38 also states conclusions not supported by a factual foundation (ir, " Personnel from the Technical Support department . . . determined that the LER falsely stated the diesel start count"). Georgia Power is unaware of any basis for Mr..Mosbaugh's suggestion that the diesel start numbers were recognized as being inaccurate on April 19, and Mr. Mosbaugh provides none. This testimcay is therefore unreliable and should not be admitted. Fed. R. Evid. 602.
r Srs Fed. R. Evid. 701 ("If the witness is not testifying as an expert, the witness' testimony is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.").
22
1 1
. I N. "My Removal From The PRB And Line Mannaement Resnonsibility" l
Starting at line 36 of page 42 and continuing through line 15 of page 43, Mr. Mosbaugh repeats his earlier charges regarding his removal from the Plant Review Board ("PRB") and the termination of his line management responsibilities. As noted in Section llI.A above, this testi-mony is irrelevant. This proceeding is not a forum to rehash Mr. Mosbaugh's Department of La-bor proceeding. In any event,it is also unduly repetitive.
i The testimony from line 28 of page 43 through line 2 of page 44 contains multiple levels i
f of unreliable hearsay: Mr. Mosbaugh relates how he was told by Tom Webb that Mr. Webb had l
been told by unnamed third parties that LER 90-006 was "'up on a shelf and 'not being loobd .
at'." Such testimony has no value as evidence.
O. " Precursors To The Site Area Fmergency - Calcon Sensors"
" Precursors To The Site Area Fmergency - Drvers And Dewnoints"
" Precursors To The Site Area Fmergency - Diesel Failures"
" Root Canse Evidence - Before Restart"
" Post Restart Diesel Failures"
" Statistical Annivsis Of High Dewooints and Diesel Failures" The next six sections (pages 44 through 54) of Mr. Mosbaugh's testimony are discussed together, for they set forth the elements of his new theory that the diesel failure that occurred on March 20,1990 (the site area emergency) was caused by water in the lines running to the Calcon sensors. As explained in earlier sections, Intervenor has never sought to place this new 23 L
r -
. - . - - - . =- . - - . -. .- . - - _ - - _ _ _ _ - _ _ _ _ _
L
. allegation in controversy in this proceeding. Thus, the testinony is beyond the scope of the ad-
- mitted issues and should be stricken in its entirety.8
- Startiog on page 44, line 10, and continuing through page 48, line 9, Mr. Mosbaugh de- - q 1
scribes so-called " precursors" to the March 20,' 1990 diesel failure, which he identifies as indus-try experience with the use of refrigerant dryers, the occurrence of high dew point readings, and prior diesel start failures at Vogtle. From line 9 on page 48 through line 38 on page 52 he makes reference to diesel generator trips and failures to start after the March 20,1990 incident.' He then proceeds to perform his own statistical analysis (on page 53 line 1 through page 54, line 40) to establish a purporte'd correlation between high dew points and diesel failures, and concludes that -
high dew points and mechanical diesel failures are related.
l l
It is not necessary to discuss in detail the many objectionable features of this testimony, o
1 including that it is based on hearsay, it is speculative, it makes conclusory statements without factual foundation, and it propounds expert analyses and opinions that Mr. Mosbaugh is not l qualified to proffer, and which appear to be technically unsound.m In addition to these flaws, the testimony in these sections must be stricken because it suffers from two even more fundamental defects.
8 Elements of Mr. Mosbaugh's new " root cause" theory are presented in a number of passages throughout l Mr. Mosbaugh's testimony, some of which have been identified previously (Lc., page 13, from lines 7 through 18, l discussing site temperature; page 24, line 22 through page 25, line 33, suggesting that cooling of sensor lines would cause water to condense in those lines; and page 27, line 26 through page 29, line 12.) Sag Sections Ill.D,111.0 and Ill.1 above.
I W The NRC Staff has already thoroughly considered Mr. Mosbaugh's allegations and has determined that l they are technically invalid. . Sag NRC Memorandum dated June 20,1994, attached as Exhibit 2 to Board Notifica.
l tion 95-08. The Staff memorandum also concludes that the diesel generator pneumatic control and protection sys-tem does not function in the manner postulated by Mr. Mosbaugh.
l l 24
I Einit, it seeks to raise a new contention, outside the scope of this proceeding, as to the al-i leged reasons for the March 20,1990 event. The alleged inaccuracy of Georgia Power's root l
cause assessment was never raised or identified in the bases that Mr. Mosbaugh pleaded in his l Amended Petition in this proceeding as an indication oflack of management integrity. As noted 1
earlier, Mr. Mosbaugh did not mention air quality in his Amended Petition, did not provide his allegations to the Board and Georgia Power in April 1994 when he submitted them confidentially to OI, and did not ask the Licensing Board to expand the admitted issues to include this " root cause" issue as an additional basis.
Because this contention is both new and outside the issues before the Licensing Board, the testimony is irrelevant and should be stricken.2 Mr. Mosbaugh chose to take this issue to OI rather than to the Board Despite the Board's clear instruction on several occasions that new issues would not be admitted without a showing of timeliness and importance, Intervenor made ' ;
no attempt to move the Board to introduce this issue into controversy. He did not even provide ,
Georgia Power a copy of this allegation until mid July,just before the close of discovery. In I light of this clear pattern of disregard for the ground rules set by the Licensing Board, Intervenor should bear the consequences of his own gamesmanship. Georgia Power shou' 1 not need to ex-pend time and resources at this belated stage of the proceeding in attempting to defend itself against Mr. Mosbaugh's novel theories.
Second. Mr. Mosbaugh does not charge that Georgia Power management's was aware in 1990 of this novel theory of the " root cause" of the March 1990 incident, nor that it took any
- Demonstrative Aid Nos.1, and 3 through 6, which support these sections of Mr. Mosbaugh's testimony, should be stricken as well. .,
25 l
_ . _ _ . , _ . , _ _ . - _ _ _ . , . _ . ~ , . , _ . -
l I- improper actions to suppress the full recognition of the causes that were understood at the' time.
{ In fact, Mr. Mosbaugh acknowledges that even he failed to recognize that the precursor events i
had any bearing on the March 1990 incident. See page 47, lines 2 through 7. He apparently
- came to his current conclusions only last year, when he filed two new sets of allegations to the i'
NRC on April 15,1994. See Board Notification 95-08, and Mr. Mosbaugh's testimony at page I 193, line 2. Mr. Mosbaugh's new and revisionist theories concerning the root cause of March 20, 1990 DG failure are therefore clearly immaterial to the management integrity issues in this j proceeding.
i T
i j P. "NRC - OI Findinas" i i
} This section (lines 1 through 19 of page 55 of Mr. Mosbaugh's testimony) reviews and
$ \
passesjudgment on the findings in the report issued by NRC 01 as a result ofits examination of 1 i Georgia Power's handling ofits reporting to the NRC in connection with the March 20,1990 in-
! cident. This testimony should be stricken because (a) it is conclusory, purporting only to express i
- l. Mr. Mosbaugh's personal opinion of the report, which is irrelevant; and (b) it mischaracterizes
- the findings of the report, which speak for themselves. Further, Mr. Mosbaugh may not intro-duce the OI report or its conclusions into evidence through his testimony. He is not the author of l
- j. that report and cannot sponsor it.
i Q. "4-9-90 Oral Presentation -- Diesel Starts" 1
l This section of Mr. Mosbaugh's testimony (from line 21 on page 55 through line 2 on 1
j page 72) contains his recounting of the alleged "true sequence of events that transpired in e
26 r
. . _ , , . . . _ . , _ , , _ . . - , _ , . - . , , , . . ..m mm ,- , _
l l
preparing the slides for the 4 9-90 NRC presentation" (page 55 at lines 32-33). Mr. Mosbaugh's i attempts to imaginatively reconstruct the events surrounding that presentation -- events in which l
he did not participate and as to which he has no knowledge -- amounts to little more than a fic- l l
tional and speculative account of what took place, and should be stricken in its entirety.2 For example, Mr. Mosbaugh resorts to hearsay and rank specuhtion concerning the tim-ing of Mr. Cash's development of the diesel start list vis-a-vis the preparation of the presentation l slides (page 56, line 27 through page 57, line 9)*; the details of the preparation of the " diesel 4
testing slide" and the rest of the presentation slides (page 58, lines 19 through 26 and 33 through 38 and page 59, lines 1 through 6); Georgia Power management's " review and approval of the presentation slides" (page 59, lines 13 through 23); and the reasons why three slides were cut I
from the presentation to the NRC (page 60, lines 8 through 18). He also proffers factual findings l
and legal conclusions, such as that "GPC personnel, presumably Bockhold, Cash, Hairston and l McCoy and Bailey, had a detailed diesel start data list prior to the 4-9-90 presentation demon-l strating that the data presented at the presentation was false. GPC personnel knew or shou'1 have known that the slide and oral presentation of diesel starts to the NRC was false before the fact" (page 60, lines 20-34).2 2 Demonstrative Aid Nos. 7 and 8 should also be stricken because they support the inadmissible hearsay tes-timony concerning the slide presented to the NRC.
W These assertions are restated on lines 29-44 of page 64. The second statement of these allegations should be stricken in any event as unduly repetitious. Consumers Power Co.. LPB-72-29,5 A.E.C. at 143.
- These assertions are restated on lines 710 of page 64. In addition to again being speculative, this restate.
ment should be stricken in any event as repetitious.
27
t l Mr. Mosbaugh further concludes -- again without factual support -- that "Bockhold's' slide l
j numbers of starts were arrived at with no input from Cash, and Cash did not supply the 18 and 19 j numbers below the line as claimed by Bockhold" which, Mr. Mosbaugh concludes, shows "how i
Vogtle's Southern Nuclear executives are continuing to lie and cover-up their wrongdoing to the NRC and before this ASLB" (page 61, lines 22-40).* Mr. Mosbaugh is willing to make remark-i
, able inferences from snippets, such as the sequence of the creation of files in a Memory-Writer i
typewriter (which says nothing about whether or not such files were later revised to add num-i bers), the last entry in Mr. Cash's typewritten list (which may not have been the same as Mr.
} Cash's handwritten list and is not necessarily inconsistent with a draft COA response letter tele-4
- copied six and a half hours aller this last entry), and the imprecise memory ofindividuals about i
i events that occurred over five years ago. Mr. Mosbaugh's speculative conclusions are made all l the more remarkable by the absence of any evidence of any alternative means by which the num-
) . .
- j. bers of starts listed on the slides were determined. Apparently, Mr. Mosbaugh wishes the Board i ..
! to infer that Mr. Bockhold divined these numbers out of thin air. This contorted speculation has i'
l no place in any reasonable evidentiary record.
i-l Intervenor may be able to make some of these points through cross-examination of wit-
} nesses at the hearing, or through arguments in his briefs. However, it is impermissible to use tes-i timony to present " facts" as to which the witness has no knowledge, which are based on
)
- De testimony goes on to impute to Mr. Bockhold precise knowledge of the number of diesel starts that i took place between April 2 and 9,1990 because "[i]n this period of time the daily diesel starts were frequently dis-cussed"(page 62, lines 35 through 38); to imply that "the successful start count was in the minaof key GPC per-sonnel"; to impute not only to Mr. Bockhold but also to GPC personnel generally a clear understanding as to what
- constituted a successful start; and impute to Mr. Bockhold the knowledge "that the maximum start count he could claim on 4 9-90 for DOI A was 12"(page 63, lines 1-18). His testimony is obviously not only unreliable hearsay j but also inadmissible speculation and opinion conceming the state of mind of others.
i 28 i
N - .- .- . - - - . - - . - .. - _ - . - . - . . - - - , - . . - - -
i unbridled speculation, or which are undisguised legal arguments and statements oflegal conclu-sions. Fed. R. Evid. 701. Hence, Mr. Mosbaugh's testimony in this section contributes nothing to the record and should be stricken.
At page 65, lines I through 4, Mr. Mosbaugh testifies about Mr. Cash's deposition. Inter-venor may not introduce Mr. Cash's deposition into evidence in this manner. Only Mr. Cash can sponsor his prior testimony.
The concluding portion of this section (from page 64, line 1I through page 66, line 19) is a critique by Mr. Mosbaugh of the adequacy of the Vogtle Coordinating Group's Analysis report -
with respect to 01 Allegation #1. This testimony should be s+ricken in its entirety because it is only a recitation of Mr. Mosbaugh's opinion on the validity of the analysis and conclusions in a document that he did not prepare regarding facts as to which he has no personal knowledge. The place for making such an evaluation is in the Board's decision, not in a witness's testimony.
! l i
R. "4 9 90 COA Response -- Diesel Starts
-- I 4
Lines 22 and 23 of page 66 express Mr. Mosbaugh's " agreement" with the evidence sup-porting 01 Allegation #2. Mr. Mosbaugh's endorsement of the 01 report is an impermissible ex-pression of opinion, not fact. Fed. R. Evid. 701. Further, Mr. Mosbaugh's testimony cannot be used to introduce Ol's conclusions into evidence without proper NRC sponsorship.
Lines 24 tnrough 34 of the same page restate Mr. Mosbaugh's previous testimony referred to in Section Ill.Q (iA, his new speculative theory that Mr. Cash was not the source of diesel 29
- . - - - +>,v , , - - ~ -
-, , , , , -, -,-.,e v- ~e
start numbers presented to the NRC on April 9,1990). This testimony is objectionable for the I same reasons stated in section III.Q.
Lines 9 through 15 on page 67 contain a speculative discussion as to whether the lack of j i
PRB review of the COA response "may relate to the cause of the errors in the document." This testimony is guesswork, not admissible evidence.
I On lines 15 through 27 of page 68, Mr. Mosbaugh seeks to es+ablish what Mr. McCoy
- knew about problems with diesel starts and trips. He attempts to do this by referring to the notes of two morning calls taken by a third party (Mr. Shipman) which refer to problems starting the diesels. This testimony is not only impermissible hearsay, but also imputes knowledge to Mr.
McCoy without providing any indication that he was actually involved in any of the conversa-tions cited.
- In the passage from line 34 of page 68 through line 3 of page 69, Mr. Mosbaugh mani-fests his accord with Ol's conclusions on Allegation #2, adding the caveat that "the willfulness extended to McCoy who reviewed the letter, and to Hairston who signed the letter." As ex-plained earlier, thes'e are statements of opinion and legal conclusions, not evidence. Along the l same lines, Mr. Mosbaugh devotes a significant amount of testimony (from page 69, line 21 l
, through line 11 of page 70, and from page 71, line 10 through page 72, line 2) expressing his opinions about the Coordinating Group Analysis' evaluation of Allegation #2. For the reasons given in Section III.Q above, Mr. Mosbaugh's critique of this document is improper testimony, not helpful to the Board, and should be stricken.
30
_ _ -- q I
l l Mr. Mosbaugh also makes several objectionable " findings" as part of his discussion of the Coordinating Group Analysis report. He concludes that Mr. McCoy " knew or should have I known that the statement [in the Confirmation of Action Response that no failures or problems . )
I had occurred during the diesel starts during the period in question] was misleading, inaccurate or l l
l incomplete" (page 69, lines 11 through 14). Again, this is a statement of a legal conclusion, not a 1 I
factual assertion. Later on (page 69, lines 33 through 43 and page 70, lines 1 through 4), Mr. j J
Mosbaugh charges that the Coordinating Group deliberately " ignored" Mr. Cash's detailed list of j slides. He bases this conclusion on his findings that the list was made a presentation slide and - i l
"would have been brought" by Bockhold to the presentation to the NRC; and that " Cash... gave (the handwritten list of diesel starts] to Ken Burr. Burr flew back to Birmingham with the execu-tives on the plane where they revised the COAR in flight'. With Burr and the list, SONOPCO i
personnel had all the necessary expertise and knowledge in house to make accurate statements about diesel starts and to verify those statements." Mr. Mosbaugh had no involvement in the preparation of the revisions to the COA letter and has no perscnal knowledge of any part of the story he tells. Clearly, this testimony does not rise above speculation and should be stricken.
Then, on the portion of the testimony that starts on line 27 of page 70 and continues through line 6 of page 71, Mr. Mosbaugh offers his own assessment of Mr. Bockhold's state of l mind (he "became worried because of Horton's definition in August 1990 of the term " post main-tenance start"), finds that Mr. Bockhold " dismissed Horton's definition," and concludes that Bockhold would want the definition removed so that "GPC could continue to raise as a defense that the trips and problems ... occurred before the diesel ' coming out of maintenance.'" Mr.
31 1'
I l
l Mosbaugh's musings on the state of mind and intent of the Georgia Power officials, and of the l l
company itself, are speculative, non-factual opinions.
I This section concludes (page 71, lines 22 through 40 and page 72, lines' l-2) with a recita- l l
tion by Mr. Mosbaugh of the economic value of restarting the plant and the iniportance of writ-
)
1 ing a COAR that provided "an accurate, complete, and candid basis for the request," which he j contrasts with the alli ged fact that the letter contained " multiple false statements" and its review
" violate [d] normal t eview procedure." This testimony is argumentative and irrelevant, and con- ,
I I
stitutes the type of neerial that one should find in a brief, not in the testimony of a witness. It does not belong in the evidentiary record. ,
l l
S. "4-19-90 LER 90-006 -- Diesel Starts" The next section of Mr. Mosbaugh's testimony is a 12-page discussion of the preparation of LER 90-006. The section opens (page 72, lines 13 and 14) with another inexplicable and in- l admissible expression of Mr. Mosbaugh's " agreement" with the evidence presented by OI with respect to Al!egation #3. This is followed (page 72,line 15 through page 73,line 14; also, lines 29 through 38 of page 73) by a hearsay recasting of what other witnesses said in their deposi-tions. The testimony between lines 16 and 20 of page 73 is also objectionable because it is -
merely Mr. Mosbaugh's opinion as to the significance of cer:ain statements by Georgia Power's i officials, and also because he seeks to divine those officials' "intentiors," and announces his (in- !
correct) conclusion that "GPC is admitting that the LER was knowingly 61se."
32
i i
l' The testimony at page 75, lines 12-36 should also be stricken because it is speculative as - ,
i l to Georgia Power's motives in taking certain actions, and asserts matters that are irrelevant to this i proceeding (iA whether Georgia Power officials knew that Mr. Mosbaugh was a 1
l "whistleblower".)
}
The testimony at page 76, lines 1-6 is again a statement of Mr. Mosbaugh's opinion as to i
his agreement with a conclusion of the OI report. In addition, Mr. Mosbaugh states the following
]
i l legal conclusion: "I find that Hairston willfully made the false statement in LER 90-006 as well 1
as McCoy, Bockhold and Shipman." It is the sole province of the Board to make such findings.
f i
l The testimony between line 18 of page 76 and line 19 of page 77, and later on from line 1
28 of page 82 through line 22 of page 83, is another undertaking by Mr. Mosbaugh to critique the !
l i l NRC's Coordinating Group Analysis report, this time with regard to the report's discussion of OI l )
Allegation #3. For the reasons set forth in the two preceding sections, Mr. Mosbaugh's opinions l on the NRC document are not admissible evidence and should be stricken.
1 i I
j The testimony at page 78, lines 13-19 is also irrelevam in that it addresses Mr. Mos-i j baugh's perceptions as to whether he personally was responsible for the accuracy of the LER, and 1
j in that it raises allegations that management retaliated against him and that he then " blew the j 1-l whistle" on them. These issues are outside of the scope of this proceeding.
i 4
The testimony at page 79, lines 22 in which Mr. Mosbaugh admits that he does not know what Mr. McCoy told the NRC but infers that "since the NRC issued a violation there must
.f not have been a complete and exact understanding" -- is patently speculative.
]
33 L
l i
l T. "6-29-90 Revision To LER 90-006" Lines 34 and 35 of page 83 manifest Mr. Mosbaugh's agreement "with the evidence pre-sented by OI" as to Allegation #4. As pointed out in earlier sections, this testimony is improper and should be excluded.
l The testimony between lines 23 and 29 of page 84 should be stricken because it asserts i
j that on June 8,1990, unnamed members of"McCoy's staff" had a different opinion of what had i
caused the error in the LER than what McCoy and Hairston later ascribed the error to. The testi-j mony is vague and constitutes unreliable hearsay.
l Lines 28 through 32 of page 85, and I through 27 of page 86 of Mr. Mosbaugh's testi-i many contain impermissible hearsay as to the authorship of changes to the cover letter to the l
l LER revision Mr. Mosbaugh lacks personal knowledge to testify to the drafting. His characteri-zation of prior statements is also inadmissible. The prior statements of other individuals should be established either by stipulated transcripis or by questioning of the individuals themselves.
Lines 28 through 38 of page 86 contaia legal conclusions to the etTect that Mr. Hairston l " knew or should have known that [the cover letter) did not clarify the DG start counts reported in the April 9,1990 letter, even though he had personally put that purpose statement in the letter.
This shows willful misconduct." Such statements are mere unsubstantiated opinions and legai i conclusions by Mr. Mosbaugh. The same applies to lines 1I through 15 on page 88.
34
i \
Lines 21 through 27 of page 87 sets forth Mr. Mosbaugh's conclusion that "it was ac--
knowledged by numerous responsible GPC employees that there was an error in the LER." This statement, in addition to being conclusory, is impermissib!y vague.
Lines 16 through 32 of page 88 again contain impermissible hearsay as to statements about third parties made in OI interviews of Georgia Power witnesses. Moreover, Mr. Mosbaugh's characterization of the OI testimony is misleading and takes statements out of context.
The final portion of this section (line 16 of page 88 through line 30 of page 89) is another i
attempt by Mr. Mosbaugh to critique the Vogtle Coordinating Group Analysis report's findings.
1 For the reasons discussed in previous sections, this testimony is inadmissible and should be
]
stricken.
U. "8-30 Letter Correcting COA Resoonse" Mr. Mosbaugh agrees on lines 4 and 5 with "the evidence presented by 01" on Allegation I
- 5. For the reasons stated earlier, this testimony is inappropriate. The same comment applies to 1 .
identical testimony on lines 1 and 2 of page 92 as to Allegation #6, and on lines 12 and 13 of 4
page 97 as to Allegation #7.
Mr. Mosbaugh's testimony concerning Georgia Power's preparation of the August 30, 1990 letter to the NRC (page 90, lines 6 to 18) should be stricken, as it is unfettered speculation.
There is no indication that Mr. Mosbaugh had any role in drafting that letter. In addition, the 4
35
1 i
testimony is impermissible opinion testimony as to what " evidence shows." The judgment as to what the evidence shows is to be made by the Board, not by a witness.
i Mr. Mosbaugh's recasting and characterization of taped conversations among Georgia
]
Power's personnel are unreliable hearsay (page 90 line 34 to page 91 line 10). The best evidence i l
- of the conversations are either stipulated transcripts or the tape recordings themselves. l Lines 20 through 29 of page 91 of Mr. Mosbaugh's testimony contain impermissible opinion testimony to the effect that "GPC was hiding the real root cause of the 4-9-90 errors in
- the 8-30-90 letter and is still hiding the real root cause. McCoy continued the cover-up with his i
- public statement in Exhibit #67A." These are conclusions that should be left for the Board to reach.
l Mr. Mosbaugh's interpretation of Mr. Bailey's notes and his conclusion as to the alleged 1
j- " significance of these notes" (page 92 lines 3 to 15; page 93 lines 8 to 11) should be excluded as
! conclusory, as unreliable hearsay, and as testimony that is not based on personal knowledge. Mr.
i
- Bailey should interpret his own notes. Mr. Mosbaugh's testimony that air quality statements in a l 3
l presentation that he.did not attend were inaccurate, incomplete, and misleading (page 92 line 24 i
i to page 93 line 11) is also based solely on Mr. Bailey's notes. It is likewise conclusory, unreli-
- able hearsay, and not based on personal knowledge.
} Mr. Mosbaugh's testimony on his agreement or disagreement with the conclusions in the 1
l 01 report and the Vogtle Coordinating Group Analysis (page 91, lines 11 through 19; page 93, a
line 29 to page 94, line 22; page 94, line 31 to Page 95, line 14; page 95, line 22 to page 96, line 1
4 1
j 36 I
(
, ___ - - - - - - - , . _ _ _ _ _ . _ _-- ,. ..,..-~v._ 4 .,- -,- - , ,, .,--q - . .,, .-, , , , , .
20; page 97, lines 6 to 9 and 14 th zough I8; and page 98, lines 1 through 21) should be excluded for the reasons pointed out in previous sections. This testimony is also infused with argument and opinions, and can in no way be helpful to the Board in making its decision. It should there-fore be stricken. Mr. Mosbaugh's determination that an alleged omission was " material" (page 96, lines 22 to 30) is a legal conclusion and should be refused on that basis.
The testimony concerning Mr. Bockhold's presentation to the NRC on air quality on April 9,1990 should be excluded (page 92, lines 16 to 33) because Mr. Mosbaugh did not attend j the presentation. His testimony as to Mr. Bockhold's " strategy," as apparently gleaned from Mr.
Bockhold's notes (page 92, lines 19 to 23) should also be excluded. Mr. Mosbaugh should not be allowed to respond to factual testimony of another witness with rampant speculation.
l Mr. Mosbaugh's testimony at various points as to what Mr. Bockhold " knew" (page 93,
! lines 21 to 28; page 95, lines 15 to 21) and whether other people " deliberately withheld" informa-tion (page 93, lines 29 to 37) is a speculative attempt at mind-reading and should be excluded. In addition, Mr. Mosbaugh's assessment that Mr. Bockhold's omission of dewpoint information in l
NRC presentations was " highly material" (page 96, line 22 through 30) is inadmissible as consti-l -
1 tuting legal conclusions, and speculative as to its alleged effect on the NRC's actions. The same l l
l objection applies to the testimony in lines 11 through 16 of page 99 as to the materiality ofinfor- !
mation provided by Mr. Mcdonald. ;
37
( -.
V. "OI Investigative Conclusion" This section, dealing with the conclusions reached by 01 from its review of Mr. Mos-baugh's tapes, includes a plethora ofimproper materials, some of which are repetitions of state-ments already identified in previous sections. These include: a declaration of Mr. Mosbaugh's l
agreement "with the evide , unted by Ol".(page 99, lines 30-32); expressions of l Mr. Mosbaugh's agreement or disagreement with the conclusion reached by.OI and the Coordi- !
nating Group Analysis (page 101, lines 33 through 36; page 102, line 1 through page 103, line 2); vague references to "other statements" and ."many examples" denoting Georgia Power's
" closed, deceptive, adversarial attitude" towards the NRC (page 100, lines 1 through 8 and 39-40); an irrelevant discussion of Georgia Power's treatment of Mr. Mosbaugh (page 100, lines 9-23);m a speculative discussion of the meaning of a statement about "taking LERs" (page 100, l
lines 24-38);* improper and conclusory characterization of taped testimony (page 101, Imes i 3-16); Mr. Mosbaugh's interpretation of what other witnesses meant by their statements (page 101, lines 16-31); and undisguised opinions dispensed with abandon (e.g., page 102, lines 13-20, i and lines 36 through 48 of page 102 and I through 2 of page 103). Because of these flaws, the ;
entire section should be stricken.
This entire section should also be stricken as beyond the scope of the admitted issues in this proceeding. None of the testimony in this section relates to the diesel generators.
2 This material is also covered between line 19 of page 8 and line 33 of page 9 of Mr, Mosbaugh's testimony, and is discussed in Section llI.C above. It should be stricken here as unduly repetitive.
- This material is also covered between lines 17 and 37 on page 17 of Mr. Mosbaugh's testimony, and is dis-cussed in Section !!!.E above. It should be stricken here as unduly repetitive.
38
W. "8. Providing Misleading. Incomolete. And Inaccurate Information About The i Vogtle Diesel Generator Air Ouality And Dewooints Readings In The Letter Of I Resoonse To The NRC's Confirmation Of Action Letter Dated 4-9-90" !
This section of Mr. Mosbaugh's testimony (from line 8 of page 103 through line 32 of page 126) addresses a statement Georgia Power made to the NRC in the April 9,1990 COA re-sponse letter, page 3, item 4, concerning diesel air quality. Mr, Mosbaugh's testimony discusses, among other things, the drafting of the letter, certain measurements taken of dew points of the air in the diesel air receivers, and the accuracy of the measurement instruments. The entire section should be stricken because Mr. Mosbaugh has no personal knowledge of any of the matters as to I which he testifies. Indeed, Mr. Mosbaugh was not involved in the drafting of the April 9 COA response letter. In addition, much of the testimony he proffers is unreliable hearsay; Mr. Mos- i baugh summarizes and characterizes information that he did not gather and interprets documents and records that he had no part in creating.
1 I
i Further, to the extent the testimony attempts to provide a basis for Mr. Mosbaugh's new I theory as to the " root cause" of the diesel failure during the March 1990 incident, it is irrelevant because it is not within the scope of the proceeding. Ssg Section III.O above. Finally, Mr. Mos-baugh asserts in various places what Georgia's Power Management " knew" or was " aware" of, thereby engaging in pure speculation. Specific instances of deficiencies in this testimony follow.
Despite lacking any personal involvement in the drafting of the COA response letter or other personal knowledge, Mr. Mosbaugh tries to explain "the context" in which the air quality statements in the letter were made (page 103, lines 21 to 28). He testifies as to when wording was added to that letter (page 103 line 35 to page 104 line 4), and on who worked on the letter 39
i (page 104 lines 5 through 9). He asserts that the COA response letter was not reviewed for accu-racy based on his interpretation of the sheet "TO NRC LETTER LOGGING FORM" (page 104, lines 12 to 24). Again, this testimony is not based on personal knowledge and is speculative.
On page 105, line 27.to page 106, line 13, Mr. Mosbaugh purports to interpret the terms -
of a Georgia' Power submittal to NRC which he did not draft, and testifies as to commitments made by Georgia Power to the NRC in response to Generic Letter 88-14, even though he has no personal knowledge of how the response to Generic Letter 88-14 was developed. In addition, Mr. Mosbaugh takes a wild stab at interpreting the meaning of phrases in the COA response let-ter, which he did not prepare (page 110, lines 14 to 20).
l l
l On page 106, lines 15 to 24, Mr. Mosbaugh explains how Georgia Power measures dew points to meet the commitments in the Generic Letter. There is no evidence that Mr. Mosbaugh has any personal knowledge of how the dewpoints were measured. His testimony appears noth-ing more than guesswork. Similarly, there is no indication that he has personal knowledge of, or l the ability to sponsor, other testimony concerning dew point measurements (page 107, line I to
! page 108, line 22; page 108, line 36 to page 109, line 2; page 110, line 25 to page 111, line 24:
l l page 115, line 17 to page 117, line 24; page 117, line 32 to page 118, line 27). He is apparently simply interpreting and drawing inferences from summaries of maintenance work orders, without any indication that he had any personal involvement in, or responsibility for, this work. This tes-timony is therefore based on hearsay, appears inherently unreliable and speculative, and l
accordingly should be excluded.8 8 In creating Demonstrative Aides 4 and 10, Mr. Mosbaugh summarized information from maintenance work orders that he did not prepare or have any responsibility for. Page 110 lines 25 to 36; page 125 lines 18 to 29.
40
- _. -.. -_ - = -_. ._.
- Mr. Mosbaugh also asserts in various places in his testimony that the test equipment used to measure dew points was not faulty but reliable (page 110, lines 21 to 24; page 111, lines 1 to 1
- 24; page 111, line 35 to page 112, line 4; page 115, lines 17 to 29; page 116, line 12 to page 117, line 24; page 119, lines 9 to 28).8 Since he did not personally use or test the equipment, or es-l tablish any other basis to sponsor this information, Mr. Mosbaugh has no personal knowledge whether the test equipment used was reliable. His conclusions are based on inferences from re-cords that he did not create or have any responsibility for, and are based on the technical evalua-tion of test equipment that he personally never used. Moreover, his testimony interpreting the test results and attributing " significance" to them (page 115, line 30 to page 116, line 10; page 117, line 32 to page 118, line 27; page 118, line 34 to page 119, line 8) is likewise mere opinion,
. and is based on hearsay and speculation.
Mr. Mosbaugh's testimony on page 117, lines 25 to 31 conceming Georgia Power's re-ceipt of a test instrument from the V.C. Summer plant should 'not be allowed because he admit-tedly has no personal knowledge of the facts (he says that "[a]pparently GPC got an instrument l from the V.C. Summer plant" and goes on to speculate concerning whether the instrument could be used to verify acceptance criteria).
Mr. Mosbaugh also testifies in various places as to what Georgia Power or its manage-ment allegedly " knew"; page 112, lines 5 to 16 ("Did GPC know"); page 113, lines 12 to 16 Such a summary is hearsay and should be excluded.
8 Further, his testimony as to what Georgia Power witnesses did or dic dot say at their depositions (page 104, lines 22 to 24; page 105, lines 9 through 15; 118 lines 28 to 33; page 125 line 37 to page 126 line 6 pages 126, lines 19 to 13) is hearsay; the best evidence of what a witness said or did not say is the deposition transcript, or in the ab-sence of an admissible transcript, the testimony of the witness.
1 41
. - _ - _ - - - _= - __
l
("Was it true that nobody knew"); page 113, lines 17 to 19 ("Then GPC did not initially raise the issue"); page 113, lines 20 to 37 ("I recall that at some point management was actually holding up the outage . . . ."); page 114, lines 15 to 18 ("Would management have been holding up the testing . . . ."); page 115, lines 1 to 4 ("Why did management allow the testing to proceed"); page 121, line 37 to page 122, line 2 ("Was GPC management aware"); page 124, lines I to 8 ("Do you have other information that indicates that management knew about . . ."); page 125, line 37 to page 126, line 7 ("Is there any other way you know that senior management was aware"); page 126, lines 8 to 12 ("Did management believe"). This testimony is conclusory and speculative.
On page 112, lines 5 to 16, Mr. Mosbaugh interprets an entry for a Maintenance Work
- Order. There is no foundation that establishes Mr. Mosbaugh's qualifications to interpret a main-tenance document that he did not prepare or have responsibility for. Further, the testimony on -
page 112, at lines 15 to 16, which states "I recall hearing that this [ Deficiency Card] was rejected by operations, from my co-workers," is unreliaole hearsay that does not identify the source of the information or the circumstances under which the inforuution was conveyed, and in any event is only speculative rumor. There is also no basis for the t:stimony on page 112, lines 23 to 36, as to why a Deficiency Card was rejected. Finally, the opinion testimony on page 112, lines 34 to 36, "I believe that the culture that had developed at Vogtle was to keep this dewpoint problem
'within the family'" is non-factual speculation, and is outside the scope of this proceeding.
I Mr. Mosbaugh's testimony on page 114, lines 12-14, should not be allowed because he does not have personal knowledge supporting this assertion.
42
Mr. Mosbaugh's testimony conceming the alleged waiver of commitments to NRC (page 115, lines 5 to 16; page 123, lines 1I to 40) is irrelevant and outside the scope of the proceeding.
~ See LBP-94-27,40 N.R.C.103,115 (1994). There is no allegation that commitments to the I NRC concerning air quality were waived. >
On page 119, at lines 31 through 38, Mr. Mosbaugh interprets a statement in the April 9 letter. Not only is Mr. Mosbaugh's interpretation irrelevant (the letter speaks for itself), but it ap-pears to intentionally ignore and distort the sentence structure in order to manufacture an inaccu-racy that is not there.5 Having distorted the meaning of the statement in question, Mr.
Mosbaugh then declares it inaccurate. Mr. Mosbaugh continues this misleading attack in his tes-timony on page 120, lines 1 through 8. Since this testimony is predicated on Mr. Mosbaugh's inaccurate reading of the April 9 letter, it too is irrelevant.
Mr. Mosbaugh also proffers testimony on alleged corrosion found in the air receiver (page 120, lines 1 to 21). This testimony is hearsay and is , peculation because it is not based on personal knowledge.
When Mr. Mosbaugh is asked who provided engineering judgment to Bockhold, he an-swers "I don't know." He then goes on to give his impression of how Bockhold would have made the engineeringjudgment. (Page 122, lines 32 to 37.) This testimony is pure guesswork -
and should be excluded.
- Contrary to Mr. Mosbaugh's testimony, the letter s'mply does not say that the air receiver showed no indi-cation of corrosion.
43
. - . . = _
i t
j - On page 123, the second and third sentences of the first response (lines 4-8) should be stricken as conclusory, argumentative, and inadmissible opinion.
j Mr. Mosbaugh also attempts to interpret the notebooks of Mr. Shipman and Mr. Ward (page 124, line 9 to page 125, line 17; page 125, lines 32 to 36). As noted in previous sections, i
4 the appropriate party to interpret a personal notebook is the author of the notebook Mr. Mos .
- 4 I
i f baugh may not testify to matters of which he has no personal knowledge, j
- i 1
i On page 126, lines 21 to 27, Mr. Mosbaugh testifies that the allegedly " misleading, inac -
4 4
- curate, or incomplete" statements in the COA Letter were " material." This is a legal conclusion. l
, 1 s
X. "9. Providino Incomnlete And inaccurate Information To The NRC's IIT Team - 1 Leader Pursuant To His Reauest On 4-9-90. To Provide The IIT With A ' Table Of
- l Dewnoint Results On Unit 1 For The i nst Couple Of Years'"
1 !
! From the top of page 127 through line 29 on page 129, Mr. Mosbaugh alleges that a list j of dew points allegedly provided to the NRC at some unspecified point in time was not complete i
] and inaccurate. This new allegation is beyond the scope of this proceeding. The air quality issue j added to this proceeding by the Licensing Board's May 23,1994 Memorandum and Order related i
- only to the accuracy of the statement in the April 9,1990 letter, not to other unidentified commu-nications. Mr. Mosbaugh has not previously raised this particular issue as a matter to be liti-4 l gated, and it is simply too late to do so now.
1 2
This testimony is also vague and speculative. Mr. Mosbaugh's testimony shows that he
, has no personal knowledge of the precise data requested by the NRC. As discussed before, the i
testimony at page 127, lines 9 to 14 concerning Mr. Ward's notebook is an impermissible l
4 44
1 interpretation of another persons' notes. He also has no personal knowledge of when the data l l
l was provided to the NRC or by whom. The testimony at page 128, line 31 to page 129,line 2 l should be stricken for this reason. He appears to have no personal knowledge whether there was any discussion of the data when it was provided. The testimony on page 128, lines 8 to 14,
. should be stricken as an improper interpretation of conversations on transcripts. The best evi-dence of a taped conversation is either the tape or a stipulated transcript, not Mr. Mosbaugh's construction ofwhat was said. This testimony also lacks foundation. And at page 128, lines 15 to 22, Mr. Mosbaugh again attempts to interpret data from a maintenance work' order that he nei-ther prepared, had responsibility for, or has established any personal knowledge of. I Mr. Mosbaugh's conclusion that the alleged omission of dew point readings was " mate-rial" (page 129, lines 9 to 25) is impermissible opinion testimony and the expression a legal conclusion. ,
i l
Y. "10. Withholdino Information From The NRC About The Discovery Of Water In The Vogtle Diesel Air System" l
This section (page 129, line 10 through page 137, line 20), like many others, relates to Mr. Mosbaugh's new theory as to the " root cause ' of the diesel failure in March 1990. In it he al-leges that there have been findings of water inside the pneumatic tubing of the diesel generator -
control system which, according to him, confirms the Vogtle air quality problem and establishes the true cause of the March 1990 incident. This entire section is irrelevant because the issue of whether condensation inside the lines caused the event is not within the scope of this proceeding.
San Section III.0, supIL 45
This section of Mr. Mosbaugh also suggests that Georgia Power committed an additional material false statement by omission by failing to inform the NRC of water allegedly found in ;
1 the diesel pneumatic control tubing. This new allegation that Georgia Power made an additional . .I l
material false statement is also beyond the scope of this proceeding. Mr. Mosbaugh did 'not raise - 1 this allegation amoeg the bases pleaded in his Amended Petition, and the only air quality issue that has been placed in controversy relates to the accuracy of the April 9,1990 letter.
' Finally, Mr. Mosbaugh himself has no personal knowledge that water was ever found in l
l l the pneumatic control tubing. Although he states at page 129, line 35, through 130, line 2, that he has already testified extensively about the physical discovery of water in the diesel trip lines, his preceding testimony only talks about water in the 2-inch starting air lines (page 47, line 34, to page 48, line 2) and speculation concerning water in an air receiver (page 119, line 31, through l
page 121, line 36). His subsequent testimony is vague and uncorroborated hearsay, with no in- 1 dicia ofreliability? In contrast, the NRC review of this allegation, which included interviews, did not identify any evidence of water in the pneumatic control system. Board Notification 95-08, Encl. 2 (C. Casto Memorandum of June 20,1994) at 6.
The testimony on page 134, line 22, to page 136, line 37, is also irrelevant. There has no allegation made in this proceeding concerning water in the starting air system or in the air com-1 pressor crankcase. Nor is any relationship established between this testimony and the cause of i I
2 For example, at page 134 lines I through 9, Mr. Mosbaugh refers vaguely to depositions he attended, but
'- these depositions have only recently been transcribed and have not yet been reviewed for accuracy. Mr. Mos-baugh's use of these deposition transcripts violates the Board's March 14,1995 Memorandurn and Order.
46 l .. .. - - . . . - -. . _ . .- , .,
i.
l \
the diesel failure on March 20,1990. The testimony on page 136, line 40, though page 137, line l
l 14 conceming materiality is inadmissible opinion and legal conclusion. j l
l Z. "11. Providing The NRC And The IIT Misleading. Incomnlete And inaccurate l
. Information About The Reliability Of The Vogtle Diesel Generators As Measured j
By Safety System Performance Indicators And As Related To The Rest Of The Nuclear Industry" ,
This section of Mr. Mosbaugh's testimony (page 137, line 21 through page 142) argues that Georgia Power provided misleading, incomplete and inaccurate information about the reli-ability of the Vogtle diesel generators. Mr. Mosbaugh alleges that a document prepared by Geor-gia Power (Intervenor Ex. 89) was provided to the NRC IIT tearn on April 2,1990 and that Georgia Power intended to (but never did) provide the document to the NRC Regional Adminis- I trator and use it in its COA response letter to show diesel generator reliability.
I 4 The allegation raised by this section is outside the scope of this proceeding, since it was l never raised previously by Intervenor as a basis for his contentions. The alleged defects in the ,
1 document have never been identified by the NRC as a concern, nor have they been suggested to denote management shortcomings by Georgia Power. Accordingly, this section should be i
stricken as irrelevant. l In addition to being outside the scope of the admitted issues, the testimony on page 142, lines 8-12 is irrelevant and inadmissible opinion, and the testimony on page 142, lines 15-26, is inadmissible legal conclusion.
AA. "13. Providing False Information To The NRC OI Under Oath During A June 1993 Interview Of Pat Mcdonald About The Basis Of The Statements In Foot-note 3 Of GPC's 4-1-91. 2.206 Petition Resoonse" 47
-- - e --,,- , .. m n.w,-, ~~ ~
l I
l "14. Providino Incomnlete And inaccurate Information About The Role Of GPC Executive. Ken McCov. In The Preparation And Review OfI ER 90-006. InA !
Section 210 Department Of Labor Proceeding" "15. Providino incomnlete And inaccurate Information About The Role Of GPC
. Executive. Pat Mcdonald. In The Preparation And Review OfI ER 90-006. In I The Course Of A Section 210 Department Of Labor Proceedino" l
, "17. Providing Mislending Incomnlete And Inaccurate Information To The NRC l i' In GPC's 2.206 Petition Resnonse About GPC's Calls To The NRC Informino '
! Them Of Errors In The LER'"
"I8. Providing False Information To The NRC Under Oath During A June 1993 l Interview Of George Hairston About His Alleged 6-14 90 Call To The NRC Regienal Administrator Informing Him About The Errors in LER 90-006" ~
"19. Making False Statements In GPC's July 31.1994 Resnonse To The NRC's Notice Of Violation About GPC's calls To The NRC Informino Them Of The
^
Errors In The LER" i "20. Making False Statements In GPC's July 31.1994 Resnonse To The NRC's Notice Of Violation And Pronosed Imnosition Of Civil Penalties About ' Post Event Measurements' Of Dewnoints"
, "21. Making False Statements In GPC's August 1.1994 Resnonse To The Demand For Information Letter For Ken McCov Regarding The T ack Of Knowledge By Any Cornorate Representative On 4-19-90 That The 4-9-90 Data Was Incorrect" "22. Making False Statements in ASLB Interrogatory Resnonse About GPC's Definition Of The Comprehensive Test Program" "23.' Making False Statements in ASLB Interroontnry Resnonse To NRC Staff Ouestions About Bockhnid's Instructions To Cash As To The Definition Of A 1 " Successful Start" "24. Makino False Statements In GPC's July 31.1994 Resnonse To The Demand For Information For George Bockhold Regarding Cash's Understandino Of Bockhnid's Instructions To Count Diesel Starts And Cash's Role In Providing That Information To Bockhold For His Transnarency" l I "25. Makino False Statements In ASLB Interrogarnry Resnonse To NRC Staff Ouestions About The Origin Of The 18 & 19 Starts In The Bockhold Transnarency And The COA" 48
?
i These . elve sections, extending from line 20 of page 147 to line 20 of page 153 and from line 8 of page 155 to line 9 of page 177, can be treated together, for they share the same de-l fect: they refer to activities that are outside the time period of events considered within the scope I of this proceeding, and are also outside the scope of the contentions raised herein. Most of these sections question the validity of statements made by Georgia Power officials in post-1990 inter-l views, requests for information relating to the 2.206 Petition filed by Mr. Mosbaugh, the Com-pany's response to the NOV, or this licensing proceeding; two (Sections 14 and 15) are even more remote, since they relate to statements made by company officials in a Department of La-bor proceeding brought by Mr. Mosbaugh against Georgia Power. Mr. Mosbaugh seeks to turn these statements into additional management allegations, but he has not previously identified any of these issues either in his Amended Petition or in any motion to the Board to add new bases to the issues in controversy.
In addition to being out of scope, several of these allegations are also impermissible be-cause they contravene one of the basic tenets of the U.S. legal system,ir, that participants in a contested adjudicatory proceeding are immune from liability for the statements made during dis-covery in the defense of their rights. Briscoe v. La Hue,460 U.S. 325,330-31 (1982); Auti-emma v. Montgomerv,860 F.2d 273,278 (7th Cir.1988), cert. denied. 492 U.S. 906 (1989);
Hoover v. Van Stone,540 F. Supp. I118,1122-23 (D. Del.1982). Thus, testimony such as Mr.
Mosbaugh's, which seeks to create liability for statements made by Georgia Power in the course of defending against Mr. Mosbaugh's own claims, cannot be considered. In essence, Mr. Mos-baugh is attempting to " boot strap" new allegations from the proceedings he has spawned and fault the Company for making statements in its own defense. This tactic is unseemly.
49
d l
In the alternative, this testimony is also repetitive of the allegations of misconduct set l forth in earlier sections of Mr. Mosbaugh's testimony and adds nothing to the record.
- - If the Board accepts that sections 13 through 25 of Mr. Mosbaugh's testimony are in
~
whole or part within the scope of the admitted issues and proper for adjudication, the Board 1 should still strike those portions that are inadmissible for other reasons. 'In particular, the Board
- 1 should strike the following testimony because it is inadmissible opinion, speculative, or not '
j based on personal knowledge: Page 144, lines 13-23; page 146, lines 24-26; page 149, line 24, ;
i to page 150, line 4; page 150, lines 11-12 (last sentence); page 151 lines 1-5; page 154 hnes 31-33; page 156, lines 22-25; page 160, lines 4-11; page 162, lines 3-4; page 167, lines 19-24; ;
page 167, lines 34-37; page 168, line 20-24; page 173, lines 8-9; page 174, lines 40-41; page l
175, lines 15-20; page 177, lines 17-25; page 180, line 10; page 180, line 31; page 181, lines j 9-14; page 181, lines 17-23; page 182, line 34, to page 183, line 6; page 187, lines 17-19; page
)
190, line 5, to page 191, line 9; page 191, lines 25-34; page 193, line 29; page 193, line 30, to l page 194, line 29. In addition, the following testimony should be stricken as inadmissible legal )
! conclusions: Page 147, lines 5-15; page 151, line 7; page 153, lines 14-16; page 154, lines 7-9; 4
i i page 155, lines 2-7; page 160, lines 14-23; page 164, lines 21-23; page 168, lines 26-32; page i 171, lines 19-24; page 175, lines 10-13; page 176, line 31, to page 177, line 5; page 189, lines
, 30-38; and page 196, lines 27-29. !
I l
BB. "26. Providing The NRC IIT Mislending. Incomplete. And Inaccurate Informa-1 tion About The Root Cane Of The Diesel Generator Failures Durino The Vogtle i Site Area Fmergency Of 3-20-%"
I l In the section of his testimony that extends from page 177, line 10, through page 181, line i
23, Mr. Mosbaugh asserts that Georgia Power provided inaccurate and incomplete information to ,
I l the NRC concerning the root cause of the diesel generator failure on March 20,1990. This is 4
again a restatement of Mr. Mosbaugh's new allegation as to the " root cause" of the failure of the diesel generator during the March 20,1990 incident. For the reasons discussed in Section 111.0, 1
i 50 l i
a
sunta, this testimony is outside the scope of this proceeding and irrelevant, and should accord-ingly be stricken. It is also unduly repetitive of Mr. Mosbaugh's earlier assertions.
! CC. "27. Failing To Recogni7e Conditions Adverse To Ouality And Failing To Take Appropriate Corrective Actions For The Root Canc.e Of The Diesel Failures Dur-ing The Site Area Fmergency" From page 181, line 24, through page 189, line 19, Mr. Mosbaugh faults Georgia Power .
for having failed to recognize the "real" root cause as a condition adverse to quality. This section f in reality is still another rendition of Mr. Mosbaugh's new theory as to the " root cause" of the l March 20,1990 incident, and should therefore be stricken as repetitive, as well as for the reasons discussed in Section 111.0 above. To the extent, however, that Mr. Mosbaugh is attempting to
, add a " quality assurance breakdown" contention to the issues to be considered, this section of his testimony must also be stricken as an attempt to file an unauthorized and untimely new conten-tion without observing the procedures established by the Board in this proceeding, and by 10 CFR 2.714(a); see Sacramento Municinal Utility Dist. (Rancho Seco Nuclear Generating Sta-tion), CLI-93-12,37 N.R.C. 355,362 (1993).
DD. "28. Onerating Plant Vogtle For Over 4 Years In An Unure Condition As A Re.
suit Of Not Having Pronerly Addressed Or Taken Adequate Corrective Actions To Prevent Recurrence Of The Diesel Failures" i
- "29. Demonstrating A Disregard For Public Safety And Disniaying An Unwillingness To Reevaluate The Canc.e Of The Diesel Failures During The 4 9-90 Sue Area Fmergency After New Information And Allegations Were Brought To Light" These two sections of Mr. Mosbaugh's testimony, from page 189, line 21 to the end of page 194, can be considered together, for they raise essentially the same issue and are equally 51
appropriate for striking.2 The first section, from page 189, line 21 to page 193, line 12, asserts that Plant Vogtle has continued to operate in an unsafe condition for the last four years due to Georgia Power's failure to recognize and take measures to address the " root cause" of the March 1990 diesel failure; and the second section, from page 193, line 14, through 194, faults Georgia Power for exhibiting a disregard for public safety in not having reevaluated in 1994 the root cause of the March 20,1990 diesel failure after Mr. Mosbaugh brought his new allegation to '
i light.
These two sections once again repeat the new " root cause" theory now espoused by Mr. Mosbaugh and should therefore be stricken as repetitive, and also for the reasons seiforth in -
Section III.0, suga In addition, these two sections should be stricken because: (a) they are based on allegations of misconduct that lies, both as to timing and nature, outside the scope of this proceeding; (b) they present no factual information, but consist of conclusory judgments and ~
opinions by Mr. Mosbaugh as to Georgia Power's alleged dereliction ofits public safety obliga-tions; and (c) they attempt to inject a contention about the safety of continued operation of Plant Vogtle that is clearly outside the scope of this proceeding.
EE. "30. ' Providino False Information To The Denanment Of Justice About The Par-ticinants On The 4-19 90 I ate Afternoon Phone Call" The last section of Mr. Mosbaugh's testimony (contained in pages 195 and 196) chastises Georgia Power because of statements made by its counsel to the U.S. Justice Department in a December 1992 letter regarding'Mr. Mosbaugh's participation in the April 19,1990 conference l
l E Demonstrative Aid Nos.11 and 12, proffered by Mr. Mosbaugh in support of his testimony on Section 28, should be stricken as well.
(
l 52
- -me- g- -
--t--+t' " 6 4 er , , . , g
call on LER 90-006. This section, too, should be stricken because it makes allegations of mis-conduct that lies, both as to timing and nature, outside the scope of this proceeding. In addition,
- the extent of Mr. Mosbaugh's involvement in the development of the information that Georgia Power presented to the NRC is irrelevant to the corporate character issues to be decided. Finally, the crux of Mr. Mosbaugh's allegation is that Georgia Power's counsel provided the information l "to undermine prosecution by the Department of Justice, my credibility, and my first hand knowledge of GPC's actions" (page 196, lines 27-29). Such allegation isjust another speculation by Mr. Mosbaugh as to the intent of Georgia Power and its counsel, and is devoid of factual con-tent or probative value. Like so many other portions of Mr. Mosbaugh's filing, it should be re-moved from the record.
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IV. CONCLUSION For all of the reasons stated above, the portions of Mr. Mosbaugh's testimony identified in this motion should be stricken.
Respectfully submitted, A
Ernest L. Blake, Jr.
David R. Lewis SHAW, PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
. Washington, D.C. 20037 (202) 663-8000 James E. Joiner I
John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216 (404) 885-3360 Dated: April 25,1995 IJ 16:22141/ DOCSOCl 1
54 !
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! 00CKETED :
April 25,yggC UNITED STATES OF AMERICA g APR 27 P4 :26 NUCLEAR REGULATORY COMMISSION l l ~~
REIARY )
l Before the Atomic Safety and Licensing Board
{fFI 0C h, emCE l 9RimCli l l
In the Matter of ) Docket Nos. 50-424-OLA-3
) 50425-OLA-3 l l GEORGIA POWER COMPANY, ) l
! et al. ) Re: License Amendment l
) (Transfer to Southern Nuclear) i (Vogtle Electric Generating Plant, ) !
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 1
CERTIFICATE OF SERVICE ,
l l I hereby certify that copies of " Georgia Power Company's Motion to Strike Partially 1
Intervenor's Prefiled Testimony" dated April 25,1995, were served upon the persons listed on l
! the attached service list by deposit in the U.S. Mail, first class, postage prepaid, or where l
l indicated by an asterisk by hand delivery, this 25th day of April,1995. l 1
l l
- \ j l David R. Lewis l Counsel for Georgia Power Company 944 H-42 / DOC 3::C1 I
l l
4.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l l Before the Atomic Safety and Licensing _ Board l
I In the Matter of ) Docket Nos. 50-424-OLA-3 i
) 50-425-OLA-3 GEORGIA POWER COMPANY, ) l l ctal. ) Re: License Amendment j ) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, ) .
i Units I and 2) ) ASLBP No. 93-671-01-OLA-3 SERVICE LIST I
Administrative Judge Director,
- Peter B.' Bloch, Chairman Environmental Protection Division l Atomic Safety and Licensing Board Department of Natural Resources !
U.S. Nuclear Regulatory Commission 205 Butler Street, S.E., Suite 1252 Washington, D.C. 20555 Atlanta, Georgia 30334 l
Administrative Judge Stewart D. Ebneter James H. Carpenter Regional Administrator, Region 11 l Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive 101 Marietta Street, N.W., Suite 2900 Oyster Point Atlanta, Georgia 30303 Sunset Beach, N.C. 28468 Administrative Judge Office of the Secretary
- Thomas D. Murphy Att'n: Docketing and Service Branch l Atomic Safety and Licensing Board U.S. U.S. Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- Michael D. Kohn, Esq. Office of Commission Appellate Adjudication
! Kohn, Kohn & Colapinto U.S. Nuclear Regulatory Commission 517 Florida Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20001 1
i
- Mitzi A. Young, Esq. Carolyn F. Evans, Esq.
- Charles Barth, Esq. U.S. Nuclear Regulatory Conunission
- John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 U.S. Nuclear Regulatory Commission Atlanta, Georgia 30323-0199 -
Office of the General Counsel One White Flint North, Stop 15B18 11545 Rockville Pike Rockville, MD 20852 Adjudicatory File Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 084H 04 / DOCSDC1 9
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