ML20087K280
| ML20087K280 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/14/1995 |
| From: | Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#395-16989 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9508230178 | |
| Download: ML20087K280 (44) | |
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DOCKETED .,
USNRC .i Augusti14, 1995) .f 1
UNITED STATES'OF AMERICA 95 AUG 16.P.1;;517 ,
NUCLEAR ~ REGULATORY COMMISSION ATOMIC SAFETY- AND LICENSING BOAgpFICE OF SECRETARY- I
-00CKETING & SERVICE; i Before Administrative Judges: BRANCH !
Peter B. Bloch, Chair i Dr. James H.- Carpenter ;
Thomas'D. Murphy '{
) -l
'In the Matter of ) i
) Docket Nos.-50-424-OLA-3 i
GEORGIA POWER COMPANY ) SG- 4 25-OLA-3 j at ab, .
)
) -Re: License AmendPant (Vogtle Electric Generating ) (transfer to Southern Nuclear).
Plant, Unit 1 and Unit 2) )
) ASLBP No. 93-671-01-OLA-3 ,
INTERVENOR'G-RESPONSE TO GEORGIA POWER COMPANY'S MOTION TO EXCLUDE ADMISSION OF OI CONcTESIMR- j 1
L INTRODUCTION !
Intervenor, Allen Mosbaugh, hereby requests this honorable Licensing Board to' deny Georgia Power Company's Motion to Exclude 1
Admission of OI Conclusions (" Georgia Powar's Motion"). The .
.)
conclusions of the OI Report are admissible because they are
-reliable. The inherent reliability of a governmental: report makes sponsorship unnecessary. -Licensee is free.to-impeach the conclus' ions contained in the OI Report and this is the normal and most appropriate safeguard available. I
. IL BACKGROUND The Licensing Board provisionally admitted a number of ..
conclusions from the OI Report and gave Georgia Power the !
opportunity to submit a brief on this issue. Tr. 9325. Georgia Power submitted its brief on July 28, 1995. Intervenor takes this opportunity to respond.
9508230178 950814 PDR ADOCK 05000424J G PDR
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- H I
i III.. ARGUMENT '!
A. The conclusions _of the OI Report Are Admissible i Factually based-conclusions are not excluded from the scope of_ Rule 803(8)(c) merely because they contain opinions or conclusions. Beach Aircraft Corn. v. Rainev, 488 U.S._153, 162
, - (1988). Rule 803(8)(C)'" explicitly _ excepts public records and .f
^
reports 'resulting from an investigation made pursuant to authority granted by law', from exclusion under the hearsay rule, because official reports contain inherent indicia of trustworthiness." Clark v. Clabauah, 20 F.3d 1290, 1294 (3rd Cir. ;
1994). The Supreme Court extended the application of Rule 803(8)(c) to include portions of investigatory reports which [
contain factually based conclusions, and are otherwise admissible when they satisfy the Rule's trustworthiness requirement.
Complaint of Nautilus Motor Tanker Co.. Ltd., 862 F.Supp 1251, '
1253 (D.N.J 1994). The following nonexclusive factors are to be considered when evaluating trustworthiness:
- 1) Timeliness of investigation;
- 2) Investigator's skill or experience; l
- 3) Whether a hearing was heldt
- 4) Possible bias when reports are prepared with view to ;
possible litigation. :
Beach Aircraft, 488 U.S. at 167, n. 11.
{
To exclude evidence which falls under this rule,'the !
Licensee must make "an affirmative showing of untrustworthiness, beyond the obvious fact that the declarant is not in court to I 2 l r , .m .. - .- y-- w
a I
testify. Nautilus, 862 F.Supp. at 1254-55; Sgg Clark, 20 F.3d at 1295 ("the party challenging the validity of a official report admitted under 803(8)(C) must come forward with some evidence which would impugn its trustworthiness"). It is also important to note that no one factor is dispositive. Nautilus, 862 F. Supp.
at 1254-55. Georgia Power has failed to make an affirmative showing or put forth any evidence sufficient to impugn the trustworthiness of the conclusions contained in the OI Report.
Therefore the conclusions of the OI Report are trustworthy and admissible and it is up to the trier of fact to give whatever weight it deems appropriate to the conclusions set forth in the i report.
- 1. The OI investigation was timely.
The NRC Office of Investigations conducted a timely investigation of the allegations contained in the OI Report. The OI investigation was halted by the NRC when it transferred its jurisdiction to the U.S. Department of Justice ("DOJ") in 1991.
The Office of Investigations was unable to resume its investigation until the late 1992-93 time. frame when jurisdiction was returned to the NRC. The resulting delay was unavoidable and not the fault of OI. The OI incurred a reasonable delay and i therefore the investigation was timely. Additionally, Mr.
Robinson had inquired into some of the issues contained in the ;
allegations during the Operational Safety Inspection in 1991 and I was therefore able to include these interviews in the OI Report.
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o.
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The fact that criminal investigations are under way provides a logical explanation for a delay in a government investigation. }
l Nautilus, 862 F.Supp. at 1255. In Nautilus a shipping vessel )
grounded in 1990 and the investigative report was not completed ,
until 1993. The investigator was able to gather some evidence in ,
1991 and therefore the Court found that "not all material i
contained within the report was necessarily untimely" and that j the delay was reasonable. Id. Furthermore the Licensee provided i no evidence that the time within which the NRC OI conducted its ;
investigation was out of the ordinary, given the complexity of the investigative record or "that the delay was of such a degree as to permit an inference of untrustworthiness with respect to ,
the resulting report." Taylor v. Bouchard Transoortation Co.,
Inc., 1991 WL 107219 (S.D.N.Y. 1991), page 3 (not reported in [
F.Supp). The.OI Investigation was timely commenced and the delay f resulting from a U.S. Department of Justice review does not ;
impact on the reliability of the OI Report. .
- 2. Mr. Robinson is a highly skilled investigator.
Larry Robinson-is a Senior Investigator, Grade 14, GG-14. i Deposition of Larry Robinson taken November 8, 1994 at 4 (hereinafter " Robinson Depo."). He has worked as an investigator for the Office of Investigation of approximately 11 years.
Robinson Depo. at 8. Mr. Robinson's prior experience includes three years with the Federal Bureau of Investigation and five years as a special agent investigator for the Veterans Administration. Robinson Depo. at 5-7.
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)
i W3 thin the NRC's Office of Investigations, Mr. Robinson was l
highly respected. This view was held by Mr. Ben Hayes, the then Director of the Office of Investigations. Deposition of Ben Hayes taken March 17, 1995 at 6, 24 (hereinafter " Hayes Depo.").
Mr. Hayes stated, "In the Georgia Power case, we had a very, very competent investigator. I was very comfortable with. Larry on [
this case . . . Larry is probably the most experienced agent in l
the regional office. So it was natural that he would get probably one of the biggest investigations that office had ever undertaken." Hayes Depo. at 24-25.
According to Mr. Hayes, the investigation undertaken by Mr. :
Robinson was major. "[T]his was not a run-of-the-mill !
i investigation. This is one where senior members of the NRC staff ,
I were briefed, were shown slides, were given two or three j opportunities to ask questions, different opportunities at ,
different briefings." Hayes Depo. at 39-40. Mr. Robinson spent ,
I more time with Mr. Mosbaugh than typically spent with normal, ,
average allegers because "this was a much more complicated issue i than . . . normally encounter [ed) in OI's investigative work. '
I l This was a very sensitive, complicated matter with lots of facets to it." Id at 160-161. Mr. Hayes did not have the impression i that Mr. Robinson spent more time than what a competent field {
investigator would spend on such an investigation. Id at 81. ]
Moreover, in comparison to the hundreds of OI Reports that !
Mr. Hayes has reviewed in his career, he concluded that OI Report !
II-90-020R was "an outstalding effort by a very competent,
)
5 ,
i
l professional investigator." Hayes Depo. at 253. In fact, Mr.
Mr. Robinson was apparently named agent of the year. Id. Mr.
Hayes had no doubts about Nr. Robinson's integrity or competency.
Id. He stated that at no time during the course of NRC's review of the report were there "any questions as to its lack of authenticity or attempt to mislead or anything like that." Id.
It should also be noted that Investigators craig T. Tate and I James D. Dockery of Region II also participated in the investigation.
The burden to show an investigator lacks skill and experience rest squarely on the party who opposes the admission of the official report. comolaint of Munvan, 143 F.R.D. 560, 565 (D.N.J. 1992). Licensee merely seeks to cast a black cloud over Mr. Robinson reputation merely because it disagrees with the conclusions of the report.
Additionally, in Tavlor, Supra., the Court also held that I
concerns regarding trustworthiness due to the lack of experience ,
1 of an investigator were lessened by the signature and approval of !
k his superior. Id. Not only was Mr. Robinson a highly skilled investigator but he was also supported in his findings by Mr.
James Y. Vorse, Director of OI's Region II Field Office, and by Mr. Hayes, Director Office of Investigations, both of whom approved and signed the OI Report after careful review. The OI Conclusions are therefore trustworthy and should be admitted.
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- 3. Georgia Power waived its right to a hearing. l Licensee contends that it was not offered.the opportunity I
during the investigation to respond to any of the OI conclusions !
prior to the release of the Report. Georgia Power's Motion at 7. l l
Licensee had the opportunity after the Notice of Violation was !
i issued to request a hearing. It did not. Instead, it negotiated I with the NRC and reached a settlement as to the final Notice of l Violation. :
.l Licensee further argues that Mr. Robinson did not take into !
account documents it provided to OI in October 1993. Id. n. 3.
The investigator is not required to make use of all available materials in order to compile a trustworthy report for the purposes of Rule 803(8)(C). Nautilus, 862 F. Supp. at 1254-55; ;
citing'Tavlor, 1991 WL at 3. f The absence of a hearing does not require finding the OI
, Report to be untrustworthy. Munyan, 143 F.R.D. at 565. ,
" Requiring that the government report of an investigation be !
based on an evidentiary hearing providing an opportunity for cross examination would rob Rule 803(8)(C) of any practical i 3
i utility." Taylor. 1991 WL at p. 4., citing In re Jananese ;
i Electronic Products, 723 F.2d 238, 268 (3rd Cir. 1983). A formal i
- hearing is not "a sine qua non of admissibility under Rule -
- i. ;
803(8)(C) when other indicia of trustworthiness are present. !
Munyan, 143 F.R.D. at 565. Further, the mere lack of a hearing, !
in the absence of any other convincing indication of lack of I
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trustworthiness, does not in and of itself create evidence of untrustworthiness." Tavlor, 1991 WL at p. 4.
Licensee has failed to show that a evidentiary hearing is normally provided during an OI investigation or that it requested
. one. The lack of a hearing alone does not indicate the OI l
conclusions are untrustworthy. Therefore the OI conclusions are admissible. >
l 4.- Mr. Robinson's investigation was not bias.
Licensee contends that Mr. Robinson was partial to and had a close relationship with the Intervenor in this matter, Mr.
l Mosbaugh. Licensee cites to the fact that Mr. Robinson and Mr.
Mosbaugh have had extensive contact with regard to the allegations in this case. Licensee states in particulars that the contacts were so extensive that Mr. Mosbaugh would brief Mr. j Robinson "sometimes daily" about information from depositions in this case. Georgia Power's Motion at 9. However, Licensee fails to point out that the OI Report was issued December 20, 1993 and that the diesel generator depositions it refers to occurred after the report was issued (summer of 1994). Moreover, NRC would be remiss in its duty to safeguard the public if it did not allow allegers to freely provide information.2 Larry Robinson's initial contact with Allen Mosbaugh occurred when he:
interviewed him as a witness in'a case previous to the diesel generator case. For lack of a better term, we'll call it the dilution valve case. At that point in time, . . i
.. I sensed that he might have wanted to tell me - give me more information than what he was saying in that interview, J so I gave him my card after the interview and told him that 8
The relationship and interactions between Mr. Robinson and Mr. Mosbaugh may be characterized as that of an investigator and alleger. While Mr. Robinson stated that this case was unique in terms of the number of hours he devoted to it, he does not claim that his interactions with Mr. Mosbaugh were unique with respect t
to other allegers or confidential informants. Robinson Depo. at 219. '
When questioned about whether special precautions were taken to guard against a relationship with Mr. Mosbaugh that was not objective and unbiased, Mr. Robinson stated that he believed that I he took care and that his interactions with Mr. Mosbaugh were not inconsistent with an investigator conducting an investigation with an alleger. Robinson Depo. at 220. Moreover, when asked if he had occasion to socialize with Mr. Mosbaugh, Mr. Robinson unequivocally claimed that he did not. Idz The meetings that occurred at Mr. Mosbaugh's residence may be characterized solely as working meetings. Id. Moreover, at no time did Mr. Robinson share confidential information with Mr. Mosbaugh. Id at 221.
i Mr. Mosbaugh characterizes his relationship with Mr.
Robinson in the following manner:
I've been a confidential informant and, you know, an alleger and it's been a relationship of an alleger with i the NRC. I mean, it's a professional relationship.
if he wanted to talk to me, any other information that - -
to feel free to do so." !
Robinson Depo. at 9.
9
T /. 10,501 (8/8/95). Mr. Mosbaugh does not socialize with Mr.
Robinson and does not know details of his personal life. Tr. 10, 502 (8/8/95).
There are procedural safeguards to protect against biases and prejudices in conclusions drawn by OI investigators. First, the OI manual dictates that an OI manager, including the field office directors or the director, does not have the authority to change an investigator's conclusions. A disagreement is documented and sent to the Office of Investigation's headquarters office to be reviewed by the OI director staff and then by three separate OI directors that are not involved with the investigation. All subsequent conclusions are documented and included in the record. The ultimate responsibility for the findings rests with the Director of the Office of Investigation.
Hayes Depo. at 32-33. Mr. Robinson's conclusions were accepted at the regional level and subsequently at the OI headquarters without changes or alterations. Id at 33-34. All persons involved with Mr. Robinson's report agreed that this was the appropriate finding based on the evidence obtained during the investigation. Id2 at 34. Second, there are built in checks to ensure that OI investigators do not lose objectivity.
Headquarter staff review of the evidence protects against biases.
Id at 85. "The report is going to speak for itself, and it is going to stand or fall on the merits of the evidence in the final analysis." Id at 86.
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Furthermore, the fourth factor in the test for trustworthiness is the possible bias when reports are prepared with view to possible litigation. Mr. Robinson has no interest in the proceeding at hand. In Clark, the Court held that while the investigators interviewed persons who were parties to the litigation and incorporated their statements into the report, "the bias of those interviewed does not render the... Report itself inherently untrustworthy, and such bias cannot be imputed to the investigating officers." Clark, 20 F.3d at 1295. The Court further stated that the investigators had interviewed persons from all factions involved and had thus " achieved some measure of balance between opposing perspectives. Id.
Additionally, the fourth factor is to focus on the motives of the investigator and not the witnesses who may have made statements. :
Munyan, 143 F.R.D. at 565. "The fact that some of the sources of information in a report may be biased, does not, in and of itself, render the report untrustworthy so long as the public l official who prepared it considered other sources of information l
and was not biased himself. Id., citing Taylor, suora. l Unsupported allegations of bad faith are often made against regulatory agencies to hinder investigations and such attempts to undermine the enforcement process should not be tolerated.
Scannaus v. Federal Election Commission, 641 F.Supp. 1520, 1533 j (S.D.N.Y. 1986). "Where a regulatory agency is legitimately and l 1
properly conducting an investigation or otherwise exercising its statutory authority, the burden of showing the agency's actions 11 1
l 2
are motivated by bad faith or an improper purpose is on the party being investigated." Id. The OI Conclusions are therefore trustworthy and should be admitted in this proceeding.
- 5. The OI Report is a final report.
A fifth factor has developed in which there is a consideration as to the finality of the report. Taylor, 1991 WL at p. 3. It is within the Courts discretion to admit or exclude reports that are interim or incomplete. Meriwether v. Couchlin, 879 F.2d 1037, 1039 (2nd Cir. 1989). The Court in Tavlor stated that the fact the investigator's superior approved and signed the report was convincing evidence of the report's completeness and finality. 1991 WL at p. 3.
The OI Report is the final report of the Office of Investigations on the allegations. The fact that Messrs. James Vorse and Ben Hayes approved and signed the OI Report is evidence of the report's completeness and finality and therefore the OI Conclusions are admissible. ;
B. OI Report Admissible Without Sponsor l
To exclude evidence which technically falls under a hearsay j 1
exception "providing that reports and statements of public offices. . . setting forth factual finding resulting from an !
investigation made under authority granted by law there must be ;
an affirmative showing of untrustworthiness, beyond the obvious fact that declarant is not in court to testify." Bradford Trust !
Comoany of Boston v. Merrill Lynch, 805 F.2d 49, 54 (2nd Cir.
1986). The weight to be given to government reports admitted as 12 u
i exceptions to the hearsay rule.is to-be determined by.the trier of. fact. Id. The Court in Bradford' Trust explained that to ;
1 ignore a' report simply because the preparer is unavailable for j cross-examination: -l
...is just'another way of saying'that the report [is]
. hearsay. . Ignoring it on this ground is inconsistent I with the notion of having exceptions to the hearsay l rule.
Id. at 55. Furthermore, in determining admissibility, the court must only consider whether the report was compiled in a way that indicates that its' conclusions could be relied upon, not whetherl ;
i the court agrees with the conclusions. Nautilus, 862 F.Supp. at 1255. The admission of the conclusions of the OI Report are i
" subject to the ultimate safeguard--the opponent's right to l i
present evidence tending to contradict or diminish the weight of ;
those conclusions. Beech Aircraft, 488 U.S. at 168. Therefore l they should be admitted into the record.
C. Admission of the OI conclusions is Necessary ;
once again it is the trier of fact who determines the weight to be given t'o an investigatory report and in determining admissibility, the court must only consider whether the report was compiled in a way that indicates that its conclusions could j be relied.upon, not whether the court agrees with the conclusions. Nautilus, 862 F.Supp. at 1255. j No other investigative reports have been admitted to the f
record of this proceeding and so the OI Report and its findings 1 1
would not be cumulative. The Board, as'the trier of fact, will.
1 determine the weight it will give the OI Conclusion. Licensee is 3
13
_ __ _- _ _ _ . . . .. _ _ __ .. _ - _ ~.
free to submit evidence which contradicts the findings of the.OI Report. Hence the OI conclusions should be admitted. ;
IV. CONCLUSION For the reasons stated above the conclusions of the OI Report should be admitted to this proceeding and any such conclusions that have been provisionally admitted as related '
testimony should remain in the record.
Respectfully submitted,
,j s S Il y g u u LUthuTTt t /x)y :
Michael D. Kohn Mary Jane Wilmoth KOHN, KOHN & COLAPINTO, P.C.
517 Florida Ave., N.W.
Washington, D.C. 20001 l (202) 234-4663 ,
CERTIFICATE OF SERIVCE I hereby certify that the above document was served via hand i delivery upon the persons on the attached service list on this 14th day of August 1995 at the Telfair Inn, Augusta except as indicated by "*".
LN GU (( , ilVu lt$t
! Pi I
Man dane Wilmoth / gg, 14
w I w:L l
< 00CKETED i
UNITED STATES OF'ANERICA. USNRC ,
' NUCLEAR REGULATORY CONMISSION :
ATOMIC SAFETY AND LICENSING BOARD- -
% AUG .16 P1 :52 !
) !
In the: Matter of )
"E
) Docket Nos. ETARY GEORGIA POWER COMPANY ) b. ERVICE 3.t AL., '
-) !
) 'Re: License Amendment (Vogtle Electric Generating- ) (transfer to Southern Nuclear)
Plant,. Unit 1-and Unit 2) ) 1
) ASLBP No. 93-671-01-OLA-3 1
)
SERVICE LIST .
Administrative Judge Peter B. Bloch, Chair- j
' Atomic Safety and Licensing Board j U.S.' Nuclear Regulatory Commission j Washington, D.C. 20555 ;
Administrative' Judge Mitzi Young / Charles'Barth Thomas-D.' Murphy Office-of General Counsel
-Atomic Safety and Licensing Board U .S . lf.]R. C U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge-James H. Carpenter
-Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ernest L. Blake, Jr.
David R. Lewis SHAW, PITTMAN, POTTS &TROWBRIDGE 2300 N; Street, N.W.
Washington, D.C. 20037
- Office of the Secretary
' Attn: ' Docketing and Service U.S.-Nuclear Regulatory Commission Washington, D.C. 20555
- Office'of Commission Appellate Adjudication
'U.S. Nuclear Regulatory Commission
^ _ Washington, D.C. 20555
- Service via First Class Mall.
Cs\FIL38\201\csa?.L18 p
'h, N Not Reponed in F.Supp. FOUND DOCUMENT DCT Page 1991 A.M.C. 2423 (CITE AS: 1991 WL 107279 (S.D.N.Y.))
Joseph TAYLOR, Plaintiff, v.
BOUCHARD TRANSPORTATION CO., INC. and Tug Evening Tide Corp., Defendants.
No. 89 Civ. $965(PKL).
United States District Court, S.D. New York.
June 12,1991.
Friedman, Biondi & James, New York City (Bernard D. Friedman, of counsel), for plaintiff.
Frechill, liogan & Mahar, New York City (John J. Walsh, and Romas M. Canevari, ;
of counsel), for defendants.
OPINION 'AND ORDER LEISURE, District Judge:
- 1 Ris action is brought by plaintifiseeking damages under the Jones .
Act,46 U.S.C. s 688, for personal injuries he sustained in an accident while employed as a deckhand aboard defendants' tugboat the Evening Tide. He United States Coast Guard (the
- Coast Guard") conducted an investigation following the accident and compiled a report indicating its findings, including the apparent cause of the accident. Defendants now move the Court to preclude the admission of the repon into evidence, asserting that it is inherently untrustwonhy and thus the hearsay exception embodied in Federal Rule of Evidence 803(8)(C) is inapplicable. Defendants also move to dismiss the second claim in plaintiffs complaint on the ground that plaintiff has reached the maximum possible cure with respect to his injuries, or, in the alternative, to preclude plaintifT from introducing evidence as to future losses, pain and suffering. Finally, although not mentioned in defendants' notice of motion, defendants' moving brief demands that plaintiff submit to physical therapy as part of plaintiffs duty to mitigate his damages.
Background
he instant action arises from an accident aboard the tugboat the Evening Tide on August 13,1989, in which plaintiff Joseph Taylor suffered alleged bodily injury. Plaintiff served as a deckhand aboard the Evening Tide and was performing his duties when he sustained his injuries in the accident.
Defendants are Bouchard Transportation Company, Inc. and the Tug Evening Tide !
Corp., the owners and operators of the vessel involved in this action.
At the time of the accident, the Evening Tide was attempting to bring a barge alongside the tug by bringing in the slack of the eight inch stern line that connected the barge and the tug. Ordinarily, this task would be accomplished by putting the eight inch line on a capstan. However, plaintiff alleges that the stern capstan suitable for the task was not operable on the Evening Tide ,
the day of the accident. He eight inch line was instead to be drawn in by a towing machine. De line, however, proved to be too wide to negotiate the level winder of the towing mechanism through which it needed to pass. The eight inch line was then attached to a five inch line, which was rigged to an operable capstan at the bow of the tug, with the intention that the five inch line would force the eight inch line through the level winder. The accident occurred upon activating the towing mechanism, at which time the five inch line paned and struck plaintiff, severely injuring his thigh. Plaintiff was attended to by one of the crew members before being evacuated from the tug by the Coast Guard. He received emergency medical treatment and has since been
declared permanently unfit to resume his duties. -
Plaintiff has commenced this Jones Act suit seeking damages stemming from his personal injuries. A crucial issue to be determined in this action is whether Captain Joseph Carey, the captain of the Evening Tide, ordered the eight inch line to be attached to the five inch line and drawn through the level winder in ;
the manner aescribed above. ;
'2 On December 12,1989, defendants officially reponed the accident to the Coast Guard on a CG-2692 form. He Coast Guard subsequently began an investigation of the accident, conducted by Lieutenant Commander Charles F.
Barker of the Coast Guard ("Conunander Barker"), pursuant to 46 CFR s 4.07-1, requiring the Coast Guard to investigate naarine casualties. Commander Barker reported the findings of his investigation in the form of both facts and ;
opinions on portions of the CG-2692 form submitted by defendants (the
" Report"). [FNI] Under the portion of the Report marked " Description of Casualty," Commander Barker stated:
- 1. He stern capstan on the tug Evening Tide was inoperative on the day of the accident, in order to make up to a barge, Mr. Carey, the person in charge of the Evening Tide, ordered a 5" line to be spliced to an 8" line, and the 5" line led to the bow capstan. The path of the 5" line took it through a 5" level-winder. A deck hand was stationed at the bow capstan, Carey was on the bridge, and Taylor was at the stern. The bow capstan was energized, and the 5" line was brought up. When the 8" line reached the 5" roller, it would not pass through. Carey yelled to the bow capstan operator to stop, but the 5" line strained and parted. He 5" line recoiled and struck Taylor in the left thigh.
- 2. Here is no evidence that drugs or alcohol played a part in this accident.
Affinnation of John J. Walsh, Esq., sworn to on March 12,1991 ("Walsh Aff."),
Exhibit C. Commander Barker concluded in the Report that the apparent cause of the accident was:
an error in judgement on the pan of towing vessel operator Carey, in that he thought an 8" line would pass safely through a 5" roller. Contributing to this -
accident was that the operating company permitted the Evening Tide to work i without an operable stem capstan.
Walsh Aff., Exhibit C. The Report was completed by Commander Barker on July ,
9,1990, and approved by his superior, Captain Murdock, two days later. j Discussion :
Defendants first move the Court to preclude admission of the Report into I evidence, asserting that the Report is untrustworthy within the meaning of Federal Rule of Evidence 803(8XC). Rule 803(8XC) provides that:
[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant ,
to authority granted by law, unless the sources of information or other j circumstances indicate lack of trustworthiness. l Fed.R.Evid. 803(8XC). "This rule is premised on the assumption that public oflicials perform their duties properly without motive or interest other than to submit accu ate and fair reports." Bradford Trust Co. v. Merrill Lynch !
Pierce, Fenner and Smith, Inc., 805 F.2d 49,54 (2d Cir.1986). "To exclude i evidence which technically falls under 803(8XC) there must be 'an affirmative showing of untrustworthiness, beyond the obvious fact that the declarant is not in court to testify.' " Bradford Trust, supra, 805 F.2d at 54 (quoting Kehm v. Proctor & Gamble Manufacturing Co.,724 F.2d 613,678 (8th Cir.1983)).
'3 Four nonexclusive factors have traditionally been applied by courts in
g _
determining whether a document sought to be introduced under Rule 803(8XC) is untrustworthy. Rese factors are: "(l) the timeliness of the investigation; (2) the investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation." Beech Aircraft Corp. v. Rainey,488 U.S.153,167 n.1I (1988)(citing Advisory Committee's Notes on Fed.R.Evid. 803(8)). "As with any exception to the rule against hearsay, Rule 803(8XC) is to be applied in a commonsense manner, subject to the district coun's sound exercise of discretion in determining whether the hearsay document offered in evidence has
[ sufficient independent indicia of reliability to justify its admission."
City of New York v. Pullman Inc.,662 F.2d 910,914 (2d Cir.1981), cert.
denied,454 U.S. I164 (1982). "A wide variety of public documents have been admitted pursuant to Rule 803(8XC)." Gentile v. County of Suffolk,129 F.R.D. 435,448 (E.D.N.Y.1990) (citing cases).
Defendants argue that under the Beech Aircraft factors the Report is untrustworthy and should be excluded from evidence. Defendants first address the issue of timeliness. Defendants argue that the Coast Guard investigation was conducted in an untimely manner, assening that Commander Barker did not request a CG-2692 form from them until December 1989, and that the investigation itself did not begin in substance until February 1990. However, the pertinect law and regulation required that defendants report the accident within five days ofits occurrence using the CG-2692 fonn; the Coast Guard had no duty to send defendants the form. See 46 U.S.C. s 6101 and 46 CFR s 4.05-10(a). Bus the delay, to the extent there was a delay, was partly the result of defendants' failure to comply with the law. Moreover, there is no evidence that the speed with which the Coast Guard conducted its investigation was any less than is usually the case, or that the delay was of such a degree as to pennit an inference of untrustworthiness with respect to the resulting Report.
Defendants next argue that the investigator's lack of skill and experience renders the Report untrustwonhy. Although they concede that Commander Barkt-had been employed by the Coast Guard for over ten years at the time of the accident, defendants note that Commander Barker had only four months experience in the field of marine casualty investigations, ney funher argue that in carrying out his investigation, Commander Barker failed to consider certain sources of evidence. His level of experience is not disputed by plaintiff.
Rather, plaintiff contends that Commander Barker's level of experience is largely unimpostant to the issue of trustworthiness, given his supervisor's signed approval of the Report.
Although the Court does not agree that Commander Barker's prior experience is irrelevant, the presence of Captain Murdock's signature of approval lessens the Coun's concern that the Report is somehow untrustworthy. In addition, although defendants list several omissions on the part of the investigator, they make no attempt to show that these omissions have any bearing on the Report's trustworthiness. Here is no requirement that an investigator make use of all available materials in order to compile a trustworthy repon for the purposes of Rule 803(8XC). ne relevant case law considers the completeness and finality of the document at issue to be the imponant question. For example, Judge Weinstein in Gentile, supra,129 F.R.D. at 458, includes
" finality of findings" as an additional consideration to those enumerated in Beech Aircraft See also United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737,742-43 (2d Cir.1989) (it was within district coun's discretion to exclude government reports in part because of their interim or inconclusive nature). But see Meriwether v. Coughlin,879 F.2d 1037,1039 (2d Cir.1989) (admitting into evidence the last page of an interim report). He
approval signature of Captain Murdock on the Report is convincing evidence of the Repon's completeness and finality.
- 4 Defendants' final argument under the Beech Aircraft case is, in effect, that the Repo t must be untrustworthy because no hearing took place prior to its issuance. The absence of a hearing, however, does not require finding the Report to be untrustwonhy. As Judge Weinstein has noted,
" '[rjequiring that the government repon of an investigation be based on an . !
. evidentiary hearing providing an opponunity for cross examination would rob Rule 803(8)(C) of any practical utility ' " Gentile, supra,129 F.R.D. at 456 (quoting in re Japanese Electronic Products,723 F.2d 238,268 (3rd Cir.1983)). In the case at bar, the mere lack of a hearing, in the absence of any other convincing indication of lack of trustworthiness, does not in and of itself create evidence of untrustwonhiness. [FN2]
Defendants' remaining arguments are unconvincing. Defendants argue that the ,
Report was incomplete, and that it was prepared for purposes other than those that it would serve at trial. The issue of completeness has already been discussed above, and will not be repeated here. ' As for the remaining issue, !
the Coud believes that the fact that the original purpose of the Report was not to establish fault does not in any way suggest the Report is
]
untrustworthy. The relevant regulation specifically provides that Coast Guard .'
investigations "are not intended to fix civil or criminal responsibility."
46 CFR s 4.07-l(b).' Nevertheless, the same regulation requires that such investigations:
determine as closely as possible . (3) Whether there is evidence that any ;
act of misconduct, inattention to duty, negligence or willful violation of the i
law on the part of any licensed or certificated man contributed to the casualty ... [and] (4) Whether there is any evidence that . any . . person caused or contributed to the cause of the casualty.
46 CFR s 4.07-1(c)(3) and (4). By carrying out these purposes, the Report is directly relevant to the issues in this case, and certainly no inference of untrustwonhiness may be drawn therefrom. 1 Accordingly, having failed to make the requisite " affirmative showing of ;
untrustworthiness," see Bradford Trust, supra,805 F2d at 54, defendants' i motion to preclude admission of the Report into evidence, pursuant to Federal Rule of Evidence 803(8)(C), is d nied. [FN3] It is important to recall that, as with any piece of admitted evidence, the ultimate determination of the !
Report's trustworthiness will rest with the jury. "The weight and credibility extended to government reports admitted as exceptions to the hearsay rule are i to be determined by the trier of fact." Bradford Trust, supra,805 F.2d at j
$4. Defendants will have ample opponunity to call witnesses at trial in' order 1 to attempt to establish the untrustworthiness of the repon.
Future Loss, Pain and Suffering Defendants next move the Court to dismiss plaintiff's claim for maintenarice and cure, or, in the alternative, to preclude plaintiff from introducing evidence of future losses, pain and suffering. " Maintenance and cure" is the right, under general maritime law, of a seaman injured in the service of a ship to wages, subsistence, lodging and care to the point where the maximum attainable cure has been reached. See Rodriguez Alvarez v. Bahama Cruise Line Inc., 898 F.2d 312,314-15 (2d Cir.1990); Staffer v. Bouchard Transportation Co., Inc., 878 F.2d 638,644 (2d Cir.1989).
- $ Both plaintiff and defendants agree that plaintiffs maximum medical cure was attained on August 21,1990. Plaintiff agrees that he is not entitled to maintenance and cure beyond this date. Accordingly, plaintiffs maintenance and cure claim is dismissed to the extent that it represents a claim for damages beyond the agreed date of maximum medical cure.
Mitigation of Damages Finally, defendants argue that plaintiff has a duty to mitigate damages and is therefore required to submit to physical therapy. Plaintiff agrees that he has the duty to mitigate his damages, but argues,that physical therapy has not been recommended by any physician and is not an appropriate measure.
The Court notes that, in a trial by jury, it is not the duty of the Court to appraise the measures taken by the panies in an effon to mitigate damages.
" Ordinarily, it is left to the jury to detennine whether plaintiff in the exercise of ordinary care and at reasonable expense could have mitigated defendants' damages." Fisher v. First Stamford Bank and Trust Co.,751 F.2d 519, 524 (2d Cir.1984). Thus, whether or not plaintiff has failed to mitigate his damages is a question for the jury to resolve, and this Court will not require plaintiff to submit to medical treatment he does not believe is in his own best interest.
Conclusion For the reasons set fonh above, defendants' motion to preclude introduction of the Repon into evidence on the ground that it is untrustwonhy is denied.
Defendants' motion to dismiss plaintiffs claim for maintenance and cure is granted, to the extent said claim is for damages for maintenance and cure beyond the date of maximum medical cure, i.e., August 21,1990. Defendants' motion to compel plaintiff to undergo physical therapy is denied. This action will be placed on the trial ready calendar.
SO ORDERED.
FNI. Defendants claim that they are uncertain as to which report plaintiff wishes to introduce as evidence, owing to the alleged existence of various versions of the CG-2692 form. However, only one report, included in defendants' moving papers as Exhibit C, bears the final approving signature of Captain Murdock of the Coast Guard. This report is the version discussed in plaintiffs papers in opposition to defendants' motion, and is -
clearly the report at issue.
FN2. Defendants concede that they have no evidence of any bias on the part of Commander Barker. Therefore, the founh Beech Aircraft factor weighs in favor of admission of the Report. Beech Aircraft, supra,488 U.S. at 167 n.11.
FN3. In reaching this conclusion, the Court finds it unnecessary to refer to, or rely on, a statement of deckhand Arthur M. Tonnesan submitted to the Court by plaintiff.
END OF DOCUMENT 5
(Tv plM #n ', A-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
3, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
In the Matter of )
5
~ ) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY, ) 50-425-OLA-3 6 et al. )
7 (Vogtle Electric
) Re: Licensee Amendment
) (Transfer to Generating Plant ) Southern Nuclear) 8 Units 1 and 2) )
9 10 11 DEPOSITION OF 12 LARRY L. ROBINSON
'13 14 November 8, 1994 15 8:40 a.m.
16 '
17 18 United States Nuclear Regulatory Commission 101 Marietta Street, N.W. j Suite 2900 1 19 Atlanta, Georgia 20 l
21 Teresa A. Irons, CCR-B-1218, RPR 22 23 BROWN REPORTING, INC.
24 1100 SPRING STREET, SUITE 750 ATLANTA, GEORGIA 30309 25 (404) 876-8979
s o .
4 1 look through your resume and tell me whether you 2 believe it's still accurate?
3 A. Well, my current title is senior 4 investigator. Current grade is 14, GG-14. It's 5 basically correct. I've taken some additional 6 computer courses since that time.
7 Q. Okay. But otherwise, all the information 8 here is accurate --
9 A. Regarding law enforcement background, 10 that's correct.
11- Q. Following your service in the Marine 12 Corps, which ended in 1968, I read here that you 13 worked for Firestone Tire and Rubber Company from 14 1968 through 19767 15 A. That was -- no. That would have been 16 through 1973. That's a mis --
'73 to '76, I was 17 with the FBI. And then '68 to '73, I was with 18 Firestone Tire and Rubber Company.
19 Q. With respect to the Firestone employment, 20 the second sentence is unclear to me. Could you 21 explain it?
-22 A. Oh. That should be "solda rather than
- 23. " solid". Sold steel wheels and rims to truck and !
24 trailer manufacturers. l 25 Q. What was the reason that you left
p-e
- , 5 L
'l Firestone?
2 A. Because I had app]ied for a-job with the ji 3 Bureau.and'was accepted by the Bureau, FBI, Federal )
4 Bureau of Investigation, and I decided-to --
since I r
5 had the acceptance by the Federal Bureau of f i
6 Investigation, I decided to terminate my employment
~!
7 with Firestone. .'
8 Q. You decided while you were at Firestone i 9 to make this career change and apply to the FBI?
10 A. Right.
11 Q. You're with the FBI from '73 to '76?
12 A. That's correct.
13 Q. And what was the reason for leaving the 14 FBI-in 1976?
l 15 A. I decided that I wanted to pursue a 16 career outside the government at that point and get 17 into the sales field, and there was an opportunity l
18 available with Medtronic Pacemaker Company.
19 Q. You were with them for approximately one
.l 20 year?
21 A. Right.
l 22- Q. It says " sold and assisted.i'n the 23- surgical implantation of heart pacemakers"?
24 A. Yes. !
25 Q. Did you actually assist in surgery?
l l
I
o 6 ,
k 1 A. I was present in surgery. I didn't 2 actually do any surgical procedures, but while the i
3 surgeon was implanting the pacemaker, I was !
4 required --
at the point in time when he thought he 5 had the lead properly implanted in the base of the '
6 patient's heart, I had a re-ecstatic electronic 7 device that was able to measure the amount of 8 electricity, the amount of amperage required to ,
9 stimulate the heart, so that when he attached the 10 permanent pacemaker to that end of the lead, we knew 11 that the lead position was correct in the heart so l 12 that that --
the electrical power of the permanent i i
13 pacemaker would be sufficient to stimulate the 14 heart.
15 Q. So you didn't actually touch any surgical 16 tools in this process?
17 A. No.
18 O. Okay. And what was the reason for your 19 leaving that position?
20 A. I basically did not --
two reasons. One, 21 Medtronic Pacemaker Company went through a recal) 22 process where their pacemakers, a small percentage 23 of their pacemakers, were found to suddenly cease 24 power rather than in their normal design --
25 normally, their rate that was assigned to the
... 7 1 pacemaker would decrease by ten percent when there 2 was approximately two weeks or a month remaining in 3 the power of the pacemaker, which would give the 4 patient time to --
there was a small -- and we 5 had --
there was a small number of pacemakers that 6 were found to suddenly cease power, which obviously ;
7 could be severely traumatic to the patient.
8 And dealing with that particular !
9 situation, the cardiologists and thoracic surgeons 10 and heart surgeons weren't real anxious to see the 11 Medtronic representative coming in, that plus the 12 fact that my exposure to the hospital background, I 13 wasn't --
I found that I didn't really like the 14 exposure to the hospital arena.
15 And leading to the next issue, the --
I 16 was called out of the blue by a member of the !
i 17 Veterans Administration who indicated that there was 18 an investigator in town that was looking for 19 temporary investigators, and I told him I wasn't !
20 interested in a temporary job, but that I'd talk to 21 him about a permanent job, and it appeared to be 22 attractive enough that I got back into government 23 investigative work. i 24 Q. This problem with the pacemakers, was it 25 one that you discovered?
i i
I l
' ^
c oi a i
i
,o' 8 s
1" A'. No.
l 2 Q. Or -- l l
1 3- ,A. ' N o ..
rQ. Or you.just' learned about' it afterLthe <
5 fact, I suppose?, .
61 A. ILlearned about'it'after'the fact,. right.
f 7 Q. And you were with the Veterans. !
'8 Administration then as a special agent for five i 9- years? ' ;
i
_10 A. Right. '!
1 11 Q. Or'approximately five years. .And then" i 12 went'to Region II here and havelbeen here~ever 13 since? ,
14 A. Right. That's approximately 11 years,- a 15 little over 11 years. $
16 0 Were any of the departures from these !
'17 positions, Larry, under unfavorable circumstances? '
18 A. 'No. ,
19 Q. Larry, you'll remember back inJ1990-Allen i 20 Mosbaugh contacted you with respect tolthe diesel 21 generator statements issue, which is addressed in i 22 your December-1993 OI report, and.I'd like you'to-23: just.give me your general recollection of the !
24' circumstances of Mr. Mosbaugh's initial contact with 1 i
25 OI,= including as best as-you can recall the dates I
i
.I l
l
)
1 a- . . ,
i 219 1 the situation here is just that the conversation --
2 the internal conversations of Georgia Power i 3 management were documented on tape and exposed. ,
4 MR. LAMBERSKI: I'm not going to touch
.5 that one.
6 MR. SHAPIRO: Thank God.
7 Q. (By Mr. Lamberski) In your career with 8 OI, Larry, is this case unique in terms of the 1 9 number of hours that you devoted to it?
10 A. Yes.
11 Q. And I'm focusing on the diesel starts.
.2 A. Yes.
l 13 Q. And as well as unique in the nature of 14 the interaction that was required with the 15 intervenor in this case? i 16 A. I wouldn't say in my entire investigative I 1
17 career that my --
that the interaction with 1 18 Mr. Mosbaugh was unique with respect to interaction 19 with other allegers or confidential informants at 20 some point in my investigative career.
21 Q. Well, I mean, with respect to in 22 particular the number of hours you are required to 1
23 spend with Mr. Mosbaugh in interpreting tapes and I 14 analyzing documents and what have you, would you 25 call this unique? !
i
)
.- ._ _ ._. . _, - m . . . ,
l i
220 i i
11 A. 'This amount of time in doing those type f
2 of activities'was' the first time that I've spent l f
3 'that muchi time in doing that in --
of the cases ~that l l
- 4. I've had in the various investigative agencies. !
i j
5; Q. 'Did.you take any special precautions to i
6 . guard.against a relationship with the intervenor )
7 that was not. objective and unbiased?
8 A. 'I believe that I did. I don't believe f 9 that my interactions with Mr. Mosbaugh are 10' inconsistent with an investigator conducting an 11 investigation-with an alleger.
22 Q. Do you have occasion to socialize with
" 13 Mr. Mosbaugh?
14' A. No.
15 Q. No?
16 A. No.
17 Q. Do you --
18 A. I had meetings at his house. If you call 19 them --
they weren't social --
20 Q. I would characterize that as a working 21 meeting.
22 A. Absolutely.
'.23 Q. Do you believe Mr. Mosbaugh~ views his 4 actions against the company with respect to the 25 diesel starts issue as an investment?
a.
l[
221 1 A. I can't really answer that.
2 Q. Did he ever discuss it with you in terms 3- of an investment in the future?
4 A. No.
5 Q. Have you shared any information that is 6 typically treated as confidential within OI with 7 Mr. Mosbaugh?
8 A. No.
9 MR. LAMBERSKI: At this point, I need 10 to take a break because I need to use the 11 rest room.
12 (A recess was taken.)
' 13 Q. IBy Mr. Lamberski) The next area of ,
14 questioning I have is with respect to the interviews -
15 that you conducted of NRC personnel in connection 16 with the investigation, and I've brought the --
if 17 you need to refer to any of them, I've brought the 18 OI exhibits, and they are apparently separated into 19 a number of different exhibits from 18 through what
- 20. looks to be 26. Let me just keep them here if you 21 need to refer to any one of them as we go through. l 22 These interviews were not transcribed 23 interviews; correct? !
I 4 A. Correct. !
l 25 Q. My understanding is that you took notes j i
4 i
i
T 4' ;
.[
1
..:-~
,. i
'E l' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD 4
In the Matter of )
5 ) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY, ) 50-425-OLA-3 ;
6 et-al. ) 1
.) Re: Licensee Amendment I 7 (Vogtle Electric ) (Transfer to Generating Plant ) Southern Nuclear) !
8 Units 1 and 2) ) ?
9 10 l
11 DEPOSITION OF I 12 BENNY BILL HAYES i
13 1
14 March 17, 1995 )i 15 9:10 a.m.
16 17 5200 NationsBank Plaza 18 600 Peachtree Street, N.E.
Atlanta, Georgia 19 20 21 Teresa A. Irons, CCR-B-1218, RPR'
~2 2 23 3ROWN REPORTING, INC.
- 24 1100 SPRING STREET, SUITE 750 ATLANTA, GEORGIA- 30309 25 (404) 376-8979 i 1
1 l
1 l
? 6 1 consulting work prior to leaving the government, but 2 that was last year and has nothing to do with 3 Georgia Power or these proceedings.
4 Q. Then let's go back to the last time that 5 you were given an employment situation that had some 6 relevance to Georgia Power or investigations Et 7 Georgia Power by NRC.
8 What was your last title held with the 9 Nuclear Regulatory Commission?
10 A. I was the director of the office of 11 Investigations.
12 Q. For what length of time did you hold that 13 position?
14 A. From February 1983 through July 1994. .
15 O. Did you hold any other positions with the 16 NRC?
17 A. No. '
18 Q. Prior to joining the NRC, could you give ,
19 a brief recap of your prior employment history?
20 A. Yes. I was employed by the United States 21 Treasury Department, Internal Revenue Service, as a l
22 criminal investigator from about 1965 through 1982, 23 early '83.
24 My previous occupation prior to'becoming 25 director at the NRC was the chief of the criminal
i I 24 ,
'l to be assigned a case. [
2- Q. Were you involved in the determination >
3 about who would be interviewed and on what 4 scheduling or what sequence?
5 A. I would be informed as to how they were 6 going to approach the case. I'd get a briefing --
.7 you know, where are we on the case, what have-we !
i 8 gotten so far, what is your game plan to continue ;
9 the investigation, who are we going to talk to.
10 so they would give me a briefing. So 11 that was the information going to me. l 12 Q. Did that play a role in those i
13 briefings -- wait a minute; I don't know; we ought i 14 to go to the left; we ought to go to the right; we i i
15 ought to interview this person first not that one? I 16 Did you provide direction? ;
17 A. What I would provide is why are you going i
18 this way as opposed to this way, in other words, in 19 order to raise the issue.
20 In the Georgia Power case, we had a very, j 21 very competent investigator. I was very ccmfortable !
22 with Larry on this case. It was more him telling me 23 what was going on.
1 24 He is in my view even then -- meaning 25 '92, '93, '94 --
as well as today probably the I i
4 9
25 1 individual within the NRC that knows more about this 2 investigation than anybody else.
3 So I relied very heavily on what he 4 thought was the appropriate avenue to be taken.
5 Q. Did you pick Larry Robinson for this 6 investigation?
7 A. I don't know that I picked him. I think 8 Jim Vorse said that he was going to put Larry on the 9 case, and I said, That's great.
10 Let me say this. Anytime a director is 11 assigned an investigation, if I had a problem with 12 the assignment, you know, I had the authority to j 13 make my concerns known and change it if I thought it 14 warranted change.
l 15 Usually the cases that are assigned are 16 assigned based on existing work load and priorities 17 as well as the experience and competent factor as 18 well as the individual agents. Some have more 39 experience than others. 1 20 So Larry is probably the most experienced l 1
21 agent in the region office. So it was natural that 22 he would get probably one of the biggest 23 investigations that office had ever undertaken.
24 Q. Was that understood from the outset that l
(
25 it would be one if the biggest investigations the
p .;
s i ,
32 l1 goingLto be on the various allegations.
2 Q. What1wouId your role have been in review 3 or, editing of any of the report?
L L 4. A. I didn't-edit the report.
L i L 5 Let me give you a little history about '
6 OI. I think our OI manual dictates that any 7 manager, including the field office directors or.the 8 director, does not have the authority to change an 9 investigator's conclusion.
10 Okay? That doesn't mean we agree with 11 them necessarily in every case. But I think to 12 maintain the integrity of the investigative process 13 we developed a system whereby if any investigator 14 felt as thoug;. someone were guilty and his manager -
15 said, no, I think they're innocent in-terms of a 16 specific allegation, then the agent wrote up the ;
17 case, made their call, and that individual manager 18 then made their call, and it all comes up to 19 headquarters' office.
20 The OI director staff would-review it.
21 They would make a recommendation to me saying yes or 22 no, whatever, and if it could not be worked out at 23 that level with the individual agent, no matter what 24 case it is, then the case is sent to three separate 25: oI directors not involved in the investigation, all
? 33 1 evidence under the report.
2 They're independently reviewed, and those 3 three directors send in their views on that 4 investigation to the OI staff.
i 5 The ultimate responsibility for the call 6 rests with the director of the Office of 7 Investigations, the ultimate responsibility.
B But all that input is in there and in the 9 case file if there's any disagreement so that the 10 file clearly reflects the position of each 11 individual OI staff person.
12 I felt real strongly about that because 13 there was a history at the NRC where managers were 14 changing agents' conclusions. I think that's !
15 totally inappropriace.
16 So I think my staff feels very, very free 17 to make whatever call they think is appropriate, and 18 they do so.
19 Q. Now, did this process get applied in the 20 Georgia Power case?
21 A. No.
22 Q. So essentially, Mr. Robinson's 23 conclusions were accepted at the regional level and j 24 subsequently accepted by your headquarters' pisople 25 and ultimately by you? j l
l l
.9 34 1 A. That is correct.
2 Q. So there were no changes or alterations 3 in what Mr. Robinson's views were that you recall 4 now?
5 A. No, no. That doesn't mean there's not 6 discourse back --
you know, what's the evidence to 7 support this or that sort of thing.
8 But whatever is in the report on this 9 investigation, if my memory serves me, Mr. Vorse 10 agreed to --
my headquarters' review staff, 11 Mr. Fortuna and I all agreed that this was the 12 appropriate finding based on the evidence obtained 13 during the investigation.
14 Q. What is the procedure for review at 15 Mr. Vorse's level, for example, of Mr. Robinson's 16 product? How does he do that? What kind of review 17 is undertaken?
18 A. By Mr. Vorse?
19 Q. Yes. It doesn't have to be Mr. Vorse. I 20 think it was in this case. But I'm talking about at 21 the regional level. 3 1
22 What kind of review is done of the 23 individual investigator's work product --
how 24 detailed is it, how much review of individual 25 evidence, that kind of thing?
p 39 l
1 my headquarters' st'aff didn't see it in the review 2 process because there's a lot of interchange between 3 the headquarters' staff and the field staff on any 4 major investigation.
5 Q. Let me go back to the question that I 6 asked, whatever your definition is of 7 " comprehensive" and make it --
I don't want to put 8 words in your mouth.
9 In your view, have you ever done a 10 comprehensive review of Larry Robinson's work?
11 A. I think so. I was very, very comfortable 12 with the findings in Mr. Robinson's case. I read a 13 lot of the evidence, participated in the briefings, 14 gave two or three briefings on this investigation to 15 the senior staff, including the EDO, NRR, and at 16 least two as I remember, 17 Also, the senior management meeting gave 18 a briefing on the Georgia Power investigation and
]
19 what we were finding and the evidence.
20 There were slides made that the senior 21 executive staff of the NRC was present and we put up l
22 evidence that we had found. ]
l 23 So this was not a run-of-the-mill '
24 investigation. This is one where senior members of I i
25 the NRC staff were briefed, were shown slides, were l
3 40 1 given two or three' opportunities to ask questions, 2 different opportunities at different briefings.
3 This was a major investigation.
4 Q. Have there been more major 5 investigations?
6 A. Sure.
7 Q. More major than this, that is, in your 8 view?
9 A. As major, yeah. Tennessee Valley 10 Authority, Northeast Utilities, Arizona Public 11 Service are some of the ones that come to my mind 12 right off the top of my head, and years ago, D.C.
13 Cook, if you remember.
14 Q. Yes.
15 A. You were involved in that.
16 Q. Who is Ed Addison?
17 A. Ed Addison? Southern? Is he with 18 Southern? Is that who that is?
19 Q. Whatever.
20 A. That's what comes to my mind, but that's 21 all I know.
22 Q. What about Bill Dahlberg?
23 A. Southern or Georgia Power.
24 Q. Did you ever speak with him that you 25 recall?
81 i i
1 Q. Do you have any sense that Mr. Robins'on's '
2 contact.with Mr. Mosbaugh in this situation would 3 have been more than your investigators had with i 4 people who raised allegations on any other occasion, ;
l 5 that is, that Mr. Robinson met with, spent time f 6 with, Mr. Mosbaugh more than any other investigator !
t 7 in OI's history from your knowledge has spent with ;
i 8 any other person who has raised allegations with OI? l 9 A. That's difficult to answer because I am .
10 unaware of the level of contact that my staff has .
11 with sources of information on a continuing basis. l 12 I am on this case because I know that ,
13 Larry would talk to Mr. Mosbaugh by phone or would 14 meet him. How many times, I don't know. I just 15 don't know. !
16 If I thought that we were spending too 17 much time, you know, meeting or wasting resources, l !
18 you know, I would have put a stop to it, but I i
1 l
19 didn't have the impression that we were doing more 1 20 than what a competent field investigator would do. j 21 Q. Have you had other OI investigations j 22 where the person raising allegations had tape l l
23 recordings that played a role in the investigation?
24 A. I don't think so, Ernie. Nothing comes 25 to mind right now. I don't think so. l
H !
I i ._
9 85 i
- / !
~1 whether it's someone inside or outside.
2 Q. What procedural steps or mechanisms did ,
3 you put in place to ensure your OI investigators y i
4 wouldn't suffer that? !
5 A. Well, I think it's in my policies. It's l
6 in a review by my headquarters' staff. When the !
7 ' reports come in with the associated evidence, that 8 evidence is looked at.
9 If there is a sense of impropriety or 10 lack of objectivity or what have you, it would 11 surface at that particular management review. f i
12 In this particular case in question, my
, i 13 involvement in it was more extensive than the ;
14 routine investigation. I would have seen a sense 15 of, you know, have you lost your objectivity. I ,
16 mean, I would have felt it.
17 Q. So you were the quality assurance or the {
18 quality control in this instance? i 19 A. No. .I didn't say that. j 20 Q. You would, however, have seen it, you ,
21 think, if it was taking place in this proceeding?
22 A. I would have had a sense of it as well as t
23 Mr. Vorse would have had a sense of it as well as !
24 Mr. Fortuna would have had a sense of it as well as ;
25 my staff and headquarters because they were in touch F
e
o 86 1 on every investigation as well as I and they would 2 have come in and said, hold it, we're out of balance 3 here, Ben.
4 So there's built-in checks to try and 5 sense that before it contaminates the conclusion.
6 Q. If you believe that familiarity could 7 lead to a lack of objectivity, did you place any 8 restriction on how much time your investigators were 9 to spend with one who was raising the allegations as 10 opposed to those that were being accused of 11 something?
12 A. No.
13 Q. So what were the mechanisms, if any, 14 other than your own sense or others in the review 15 chain sense that lack of objectivity might be 16 occurring?
17 A. A review of the evidence. I mean, in the 18 final analysis, Ernie, the evidence is going to i 19 speak for itself, the report is going to speak for 20 itself, and it's goint; to stand to fall on the ]
21 merits of the evidence in the final analysis. l 22 And during this final process, I did not 23 have a sense that we were outside the bounds of a 24 professional criminal investigation.
25 I think the report is well-written and l 1
4 160 i
i 1 Looking at the last bullet on that page, 2 it says " Volunteered tapes to OI for review prior to l 3 .GPC" and then " Assisted OI with many hours of tape i 4 review". What does the first bullet mean? !
5 A. I don't know. f i
6 Q. It's the first sentence.
7 A. I don't know. I have no recollection 8 what that means.
9 Q. The reference in the second to many hours 10 of tape review, does that help you respond to my 11 earlier question about how much time you know 12 Mr. Robinson might have spent with Mr. Mosbaugh? ,
J 13 A. ,
No. I told you that I don't know how l 1
14 many hours, days, or what have you that it was 15 necessary for Larry to work with Mr. Mosbaugh on 16 these tapes.
17 Q. But at least as of today it doesn't seem 18 to you that -- well, maybe it does.
19 I. don't mean to mislead you one way or 20 the other, but you don't have the impression today 21 that Mr. Robinson spent more time with Mr. Mosbaugh 22 because of his need to go through these tapes than 23 any other investigator spends with any other 24 alleger?
25 A. No. I would think that Larry spent more
I I
U 161 t
1 time with Mr. Mosbaugh than we would with the 2 normal, average alleger.
3 This was a much more complicated issue 4 than what you would normally encounter in OI's 5 investigative work. This was a very sensitive, 6 complicated matter with a lot of facets to $jt .
7 It's not, you know, a radiographer case 8 or a hospital case or something that is fairly 9 cut-and-dried.
10 This case was an outlier compared to 11 other cases that we undertake. It was a major 12 investigation. )
13 Q. Do you recall whether tapes were played l 14 in the course of this presentation to the l
15 congressional staff? i 16 A. I don't think so. I don't think any 17 tapes were played. !
18 Q. Do you recall any presentation of tapes 19 or their knowledge of tapes? !
l 20 A. Excuse me. What do you mean by )
i 21 presentation?
22 Q. Do you recall any discussion by the 23 congressional staff people who attended the meeting 24 of the tapes or their knowledge of the tapes? i 25 A. No, I don't.
]
i
): i 1 :
d '
c 2 5 3' 1: as an expert witness in any' proceeding?- '
'2
'A. No.
P i.
3: Q. And since you've been with.the: Office of !
i 4 Investigations, how many OI reports _have youLbeen :
5 involved with,-do you think?
6 A. Hundreds.
7 Q. And based on your comparison.of the 8 OI Report-II-90-020R which is the diesel generator .j 9 report, how would you consider the level.of i 10 professionalism that went into preparing this report I i
11 as compared to hundreds of other OI reports you have-12 reviewed? i 13 A. In comparison to other reports,-this I I 14 'l report I think is an outstanding effort-by a very.
15 competent professional investigator.
.' i 16- Mr. Robinson I believe was named agent-of 17 the' year at one particular point,by the director. I 18 just don't question his integrity or his 19 competence.
20 The report is well-done. Even the. review-21 staff that looked'at it, I don't know of any I
.22 questions as to its lack of authenticity or attempt-23 to mislead or anything like that.
24' Q. Do you know what the standard of review 25 is-or like legal-type standard of review the
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