ML20087A696

Georgia Power Company Motion to Exclude Admission of OI Conclusions.* W/Certificate of Svc & Svc List

ML20087A696
Person / Time
Site:	Vogtle
Issue date:	07/28/1995
From:	Blake E GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#395-16944 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9508070127
Download: ML20087A696 (27)

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UNITED STATES OF AMERICA 95 JJL 31 P2:41 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY Before the Atomic Safety and Licensing BoardDOCKETING & QERVICE BRANCH in the Matter of ) Docket No. 50-424-OLA-3

) 50-425-OLA-3 GEORGI A POWER COMPANY, )

et al. ) Re: License Amendment

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units 1 dnd 2) ) ASLB No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION TO EXCLUDE ADMISSION OF 01 CONCLUSIONS Introduction Georgia Power Company (" Georgia Power") hereby moves the Board to exclude from evidence any conclusions from the Of6ce ofInvestigations ("Ol") Report (Int. Ex. 39) proffered by Intervenor. The conclusions in this report are not admissible under the Commission's Rules of Practice or the public records exception to the 14 arsay rule, because they are not reliable.

Other elements of the NRC, including the Vogtle Coordinating Committee and the NRC Staff, have found that Ol's conclusions are not supported by the evidence. Admitting the conclusions from the 01 report would also deny Georgia Power its fundamental right to confront and cross-examine the investigator--a right Intervenor has recognized and advocated during this hearing.

Finally, admission of the conclusions is unnecessary. The Board is able and should make its own 9508070127 950728 PDR ADOCK 05000424 G PDR fh

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conclusions on the basis of the evidence presented in this proceeding. It does not need and should not consider the investigator's conclusions to perform this function. l

Background

During the recent cross-examination of Mr. Hairston, Intervenor's counsel referred to a number of the conclusions from the 01 report. The Licensing Board admitted these conclusions provisionally, but offered Georgia Power the opportunity to brief this matter. Tr. 9325 (July 13, i

i 1995). Georgia Power's position is set forth below. Georgia Power submits that conclusions from the 01 Report should not be admitted in this proceeding, and any such conclusions that .

have been provisionally admitted, as well as related testimony, should be stricken from the record.

Argument A. The Conclusions in the 01 Report Are Unreliable Hearsay and Do Not Satisfy the Commission's Standards on the Admissibility of Evidence i The conclusions in the OI report are hearsay and inadmissible because they are not suffi-ciently trustworthy. The standard for considering the admissibility of evidence in an NRC pro- I ceeding is set forth at 10 C.F.R. { 2.743(c):, which states that: "Only relevant, material, and ,

reliable evidence which is not unduly repetitious will be admitted." Consistent with this stan-l dard, while hearsay may be admissible in NRC proceedings in certain circumstances, the hearsay evidence offered must, at bottom, be reliable. Tennessee Valley Authority (Hartsville Nuclear Plant, Units l A,2A, IB, and 2B),.ALAB-367,5 NRC 92,121 (1977). See also Commonwealth i

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Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12,23 NRC 414,419 .

(1986). The 01 conclusions are not.

IIere, the actions of the NRC discredit the 01 conclusions and belie their reliability. The NRC's Vogtle Coordinating Group performed a detailed evaluation of the 01 Report, and disa-  ;

greed with all of the conclusions in the 01 Reoort.u The following examples of disagreements between the Coordinating Group and 01 illustrate this point:

• The Coordinating Group disagreed with the 01 conclusion that Mr. Bockhold deliber-ately withheld information from the NRC concerning problems or failures on the 1B diesel generator because he directed Mr. Cash to count only successful starts. The Coordinating Group concluded that incorrect information was presented as a result of the failure of Georgia Power personnel to exercise reasonable care in the collection of the start data, and not as a result of deliberate action by Mr. Bockhold. Coordinating Group Report at 13.

• The Coordinating Group could not support the 01 conclusion that Mr.11airston acted with a minimum of careless disregard in submitting inforritation to the NRC in LER 90-006. The Coordinating Group also could not support the 01 conclusion that the inaccurate statement in the LER was the result of deliberate actions by Messrs. Hair-ston, McCoy, Shipman, and Bockhold. Coordinating Group Report at 20.

• The Coordinating Group found insufficient evidence for Ol's conclusion that Mr.

Ilairston acted with careless disregard in submitting the cover letter to LER 90-006 Rev.1. Coordinating Group Report at 31.

• The Coordinating Group could not " identify evidence" to support Ol's conclusion that Mr. McCoy acted with careless disregard in submitting the August 30,1990 letter to the NRC. Coordinating Group Report at 39.

• The Coordinating Group could not find, as did 01, that Georgia Power submitted in-accurate information in its April 1,1991 response to the Mosbaugh/ Hobby 2.206 peti-tion. Coordinating Group Report at 46-47.

E Ssc Memorandum from David B. Matthews to Thomas E. Murley,"Vogtle Coordinating Group Analysis." Feb.

9,1994.

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L These fundamental disagreements between the NRC's Office of Enforcement and 01 evidence l the unreliability of the'Ol conclusions.

Reliability is also required if admissibility is judged under the Federal Rules of Evidence.

The "public records" exception to the hearsay rule does not allow unreliable investigative find-ings or conclusions to be introduced over objections. Thus, even if the hearsay evidence is an (

agency record, the evidence must be excluded ifit lacks trustworthiness. )

,i More specifically, the "public records" exception provides that ,

t Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings result- l ing from an investigation made pursuant to authority granted by [

law, unless the sources ofinformation or other circumstances indi. ,

cate lack of trustworthiness.

Fed. R. Evid. 803(8)(C) (emphasis added). While this hearsay exception is limited to " factual i

findings," the Supreme Court held that factually based opinions and conclusions may be included within the exception, but only if they are trustworthy. Beech Aircrafl Corn. v. Rniney,488 U.S.

153,163-70 (1988). "[A] trial judge has the discretion, and indeed the obligation, to exclude an  !

entire report or portions thereof-- whether narrow ' factual' statements or broader ' conclusions' -- j that she determines to be untrustworthy." Id. at 167.  ;

i Factors to consider in making a determination of trustworthiness are: (1) the timeliness of the investigation; (2) the skill or experience of the investigator; (3) whether a formal hearing was held, and (4) the bias of the investigator. McCormick on Evidence, { 296 (4th ed.1992).

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Ssc also Fed. R. Evid. 803(8)(c) advisory committee note. These factors provide a good frame-work to assess further the reliability and admissibility of the conclusions from the OI report. As ,

i she em below, the factors strongly militate against admitting the conclusions. j i

1. The 01 Reoort Was Untimely.

i L Mr. Mosbaugh submitted his diesel generator allegations in June 1990, but 01 did not complete its investigation until December 1993. Thus, it took Of three and a half years to com-plete its investigation, This excessive duration greatly diminishes the reliability of the findings and conclusions in the report. Most of the 01 interviews (Shipman, Burr, Aufdenkampe, String- l fellow, Bailey, Hairston, Frederick, Majors, McCoy, Mcdonald, Greene, Coursey, Eckert, Kochery, and Stokes)1' were not conducted until three years after the events being investigated, and by this time memories had faded. Further, OI refused to release any of the tapes it had deter-mined to be relevant, including tapes 57 and 58, until aner it had completed its interviews, thereby preventing interviewees from preparing for their interviews and refreshing their recollec-tion. Scc, ca, let:er from A. Domby to L. Robinson (Sept. 20,1993)(attached). Since much of the evidence on which 01 relied was extremely stale, and 01 may even have drawn inferences based on individuals' inability to recall events or details, Ol's excessive delay in completing its investigation strongly militates against the reliability and admission of the Of conclusions.

1 k These individuals were interviewed between June and November, 1993. 01 Report at 17-18.

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2. Mr. Robinson i acks Skill as an Investigator The 01 Report itself shows a marked lack of skill on the part of the investigator. Not only was the duration of the investigation excessive, but certain issues were poorly pursued. For example, Mr. Robinson's investigation of Allegation No. 6 concerning dewpoint readings con-sisted solely of an interview with Intervenor and review ofIntervenor's audiotape lie did not in-terview a single Georgia Power witness on this issue. 01 Report at 95-96.

Mr. Robinson also failed to interview key individuals. For example, he did not interview e

Mr. Ilorton, Mr. Webb, or Mr. Briney. He also failed to transcribe the interviews of key NRC  ;

witnesses. The 01 exhibits include only brief summaries of 01 interviews of NRC personnel and there is no indication that these interviews were conducted under oath. Further, the summaries .

t are extremely brief and do not appear to reflect any effort by OI to develop or consider exculpa-tory information. For example, although Mr. McCoy told 01 that a number of calls had been made to Mr. Brockman after April 19,1990 relating to the diesel starts statements, the OI inter-view summaries for Mr. Brockman do not reflect a single question about any calls after April 19.

In addition, Mr. Robinson includes in the O! report notes that certain individuals declined to take polygraph tests. Sec 01 Report at 22,55. It appears from these entries and their locations that Mr. Robinson draws negative inferences from the individuals' decision not to take polygraph tests. Such an inference, however, has no place in a supposedly impartial investigation (let alone an evidentiary proceeding). Moreover, Mr. Robinson makes no mention anywhere in the 01 re-port that Georgia Power's counsel and counsel for individual employees advised the employees I<

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to decline to subject themselves to polygraph tests because the consensus of the scientific and le-gal communities is that these examinations lack scientific validity. Georgia Power's counsel communicated and explained this advice to 01. See letter from B. Lavine to J. Vorse (Aug. 4, 1993)(attached). Mr. Robinson's inappropriate references to decisions to decline polygraph tests and apparent reliance on inadmissible evidence also indicate a lack professiowlism on his part (as well as lack of foundation and trustworthiness of his conclusions).

Finally, Mr. Robinson's lack of skill e ocmonstrated by the overwhelming rejection of his conclusions by the Coordinating Group. After an extensive review of the evidence, that Group was unable to accept any of Mr. Robinson's conclusions--not a single one.

3. No llearing Was Held No hearing was held as part of the 01 investigation. Thus, Georgia Power was not of-fered the opportunity during the investigation to test the evidence. It had no opportunity to re-view or respond to any of the 01 conclusions prior to issuance of the report.2 Therefore, this factor too militates against the reliability and admissibility of the 01 conclusions.

E Afler repeated requests by Georgia Power's counsel, Georgia Power's counsel was allowed to make a presenta-tion to 01 in October,1993, prior to issuance of the repon. 01 attached this presentation as Exhibit 113 to the OI re-port, but made no attempt w hatsoever to acknowledge or address in the 01 report (findings and conclusions) a single one of the points that Georgia Power raised in its presentation. There is not a single reference in the body of

. the report to the exculpatory evidence that Georgia Power urged 01 to consider.

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4. Bias The O! fmdings are also unreliable because of the bias of the lead Of investigator in this matter, Larry L Robinson. Mr. Robinson's partiality and close relationship with Intervenor illus-trates that he has a personal interest in the investigation of the events following the March 20, 1990 site area emergency at Vogtle. In his analysis in the OI report, he ignored relevant informa-tion that is favorable to Georgia Power.C His bias also shows in his excessive and blind reliance on self-serving statements by Intervenor. For example, in Allegation No. 6 concerning dewpoint readings, Of relies totally on an interview with Intervenor and on Intervenor's audiotape; 01 did not interview a single Georgia Power witness on this issue. OI Report at 95-96.1 Further evidence of this bias is also provided in statements made by Mr. Mosbaugh in his deposition of August 24,1994. In that deposition, Mr. Mosbaugh compared the extent of his dis-cussions with Mr. Robinson to discussions with his spouse. Mosbaugh Dep. Tr. 8/24/94 at 635-36. Mr. Mosbaugh also acknowledged this statement during the recent hearings. Tr.10019 (July 19,1995). Ile admitted that he has had extensive contact with Mr. Robinson over the last few years -- daily contact at times, working together for hundreds of hours. Tr. 9988-90 (July

• Sc.c Letter to Board from M.A. Young, Oct. 27,1994, enclosing Letter from A.H. Domby to M.A. Young. Aug.

31,1994 re "NRC Omce ofInvestigations' Review of Georgia Power Company Notice of Violation Reply, Vogtle Electric Generating Plant"; Letter from J. Lamberski to J.Y. Vorse, June 24,1994.

1 Mr. Robinson admitted in his deposition and in an internal NRC memorandum that the 01 conclusion on air quality would have to be revisited in light of evidence of w hich he was not aware when he made his investigation.

Robinson Dep. Tr.11/9/94 at 361-62; Letter to the Board from M.A. Young, Mar. 3,1995, enclosing, intcI alia.

Memorandum from L.L. Robinson to J.L. Milhoan, Oct. 28,1994 at 4. In that same internal memorandum, Mr.

Robinson also admitted that the 01 review did not consider the materiality of the various statements in question.

Robinson Memorandum at 8,9.

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• i 19,1995). Mr. Robinson's introduction to the context of the six months of tapes was solely through Mr. Mosbaugh's eyes and ears. His view of what is captured on tape reflects and is f dominated by Mr. Mosbaugh's interpretations and inferences. The contacts were so extensive ,

i that Mr. Mosbaugh would brief Mr. Robinson, sometimes daily, on statements made during j depositions in this case in order to fill in gaps in the investigation. Tr. 10006-07 (July 19,1995).

Mr. Robinson in turn provided Mr. Mosbaugh information which Mr. Mosbaugh used in this proceeding. Tr. 10009-12,10015-16 (July 19,1995). This testimony indicates the depth and in-  !

timacy of a relationship that has progressed far beyond professional standards of objectivity, j i

i This intimate relationship has apparently caused Mr. Robinson to accept unquestioningly 3

many of the assertions made by Mr. Mosbaugh, including, for example, misquotations of state- (

l ments alleged to be false? In contrast, Mr. Robinson did not even mention the exculpatory evi-l dence that Georgia Power's attomeys attempted to bring to his attention. See note 3 supra l I

f There is also evidence that Mr. Robinson prejudged many of the issues. On April 29, ,

1993, Mr. Robinson briefed the Staff of the Senate Subcommittee on Nuclear Regulation and Clean Air. The slides of that presentation show that Mr. Robinson provided a " Summary of Vio- 4 i

lations"-- eight months before the completion of his investigation and in advance ofinterviewing Messrs. Shipman, Burr, Aufdenkampe Stringfellow, Bailey, Hairston, Frederick, Majors, i

" In Allegation No.' 7, Intervenor misquoted a statement in Georgia Power's response to Intervenor's 2.206 petition  !

t and asserted this (mischaracterized) statement was false. Mr. Robinson included in his report the same misquotation of Georgia Power's statement and made conclusions on the basis of this mischaracterization. The Vogtle Coordinat-  :

ing Committee recognized the mischaracterization and rejected Mr. Robinson's conclusion. Compare 01 Report at ]

%-98 gith Coordinating Group Report at 46-47.  !

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McCoy, Mcdonald, Greene, Coursey, Eckert, Kochery, and Stokes. The slide in question is at-tached hereto. Having spent months and months with Mr. Mosbaugh's view of the facts and hav-ing briefed internal NRC and external Congressional overseers with his preliminary conclusions based on Mr. Mosbaugh's views, it is not likely that reasonable contrary evidence would alter his perception.

In sum, all of the factors forjudging the admissibility of an evaluative report militate against admitting the 01 conclusions. Since the 01 report "is not the kind of trustworthy report described in Rule 803," as demonstrated above, its conclusions should not be received into evi-dence in this proceeding. See Toole v. McClintock. 999 F.2d 1430,1434-35 (11th Cir.), mh's demed,1I F.3d 169 (1993); New York v. Pullman Inc.,662 F.2d 910,914-15 (2d Cir.1981),

ccIL denied. 454 U.S. I 164 (1982)(not error to exclude "' interim' staff report in the form of a 1

recommendation"). l l

l The 01 Report also does not satisfy the public records exception to the hearsay rule be-cause it has not been endorsed or accepted as the official position of the agency. A prerequisite l

of the public records exception to the hearsay rule is that the document in question must repre- )

I sent the findings of the agency. Figures v. Board of Pub. Utils.,967 F.2d 357,360 (10th Cir.  !

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1992). As demonstrated above, the conclusions in the 01 report clearly fail this test; neither the NRC's Office of Enforcement, the NRC Staff, nor the Commission have adopted the 01 conclu-  ;

sions. To the contrary, the NRC Staff conducted further review through the Coordinating Com-mittee, presenting (to the best of Georgia Power's belief) the Coordinating Committee's analysis 1

i to the Commission as the agency's basis for proposed enforcement, based its subsequent enforce-ment action on the Coordinating Group's position? and is now sponsoring the Coordinating j Group's position in this proceeding. Since there has been so much disagreement within the. t agency on the 01 conclusions, in no way can it be said that the 01 conclusions represent the posi-i tion of the agency. f t

i For all of these reasons, the conclusions in the OI Report are unreliable and should not be  ;

admitted into evidence. .

B. Admission of the Conclusions of the 01 Report Without Appropriate Sponsors Would Violate Georgia Power's Right to Confrontation and Cross-examination The conclusions from the 01 Report should not be admitted without proper sponsors.  ;

NRC precedents discussed below clearly recognize and hold that where agency reports are con- l troverted, they may not be admitted unless sponsored by a witness who can explain and defend them. This requirement stems from a party's right to conduct cross-examination of opposing wit-r nesses. Furtherm the obligation to present a witness to sponsor a report rests with the party seek-ing admission of the report.

For example, in the Three Mile Island Restart proceeding, the Licensing Board refused to admit into evidence investigative reports that were not sponsored by a witness, and the Appeal t

Board discussed approvingly and upheld the Board's ruling. Sgg Metronolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1260 (1984). In the San Onofre r Ssg Letter from J.L. Milhoan to C.K. McCoy, Feb. 13,1995 (Modified NOV); Letter from J.L. Milhoan to H.A.

Franklin, May 9,1994 (NOV).

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I licensing proceeding, the Appeal Board held that technical analyses offered in evidence must be sponsored by an expert who can be examined on the reliability of the factual assertions and the soundness of the scientific opinions found in the documents? Southern California Edison Co. l (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 N.R.C. 346,366-68

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t (1983). A similar holding was issued in Duke Power Co. (William B. McGuire Nuclear Station.

I Units 1 and 2), ALAB-669,15 NRC 453,477 (1982). In that case, the Appeal Board held that  :

technical analyses, opinions and conclusions were the type of evidence that calls for sponsorship  ;

by an expert who can be examined on the reliability of the factual assertions and soundness of 1 e

the scientific opinions found in the documents. While these last two cases dealt with technical l reports, it would seem equally appropriate to require sponsorship of an investigative report con- ,

taining both factual assertions and opinions.

Accordingly. Mr. Robinson or someone else from 01 with intimate knowledge ofits preparation, contents, and bases would have to sponsor the conclusions. Admission of the con-clusions in the 01 report without a sponsor would violate Georgia Power's right to confront and cross-examine the author of that report and the individuals making assertions in the record of this proceeding. 5 U.S.C. s 556(d)("A party is entitled to . . . conduct such cross-examination as may I

be required for a full and true disclosure of the facts"). Sec Finlav Testing Laboratories. Inc.,

LBP-88-1 A,27 N.R.C.19,27 (1988) (Licensee in license suspension case has " constitutional l

L The Appeal Board held that an FSAR may be conditionally admissible into evidence on the basis of indicia of reliability, but once ponions are put into controversy, the proponent must present a competent witness to defend them.' The Appeal Board further stated that if a witness is not provided to defend the document, Jt should be given no weight and excluded as evidence. 17 N.R.C. at 366-67.

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rights of due process and confrontation of witnesses"); Cleveland Elec. Illuminating Co. (Perry t

Nuclear Power Plant, Unit 1), LBP-90-25,32 N.R.C. 21,27-28 (1990) (evidentiary hearing re-7 quired for party to confront Staff witness who expressed factual conclusions in affidavit).

Cross-examination and confrontation would clearly be required to obtain a full and true disclosure of the facts. As demonstrated above, the 01 report is rife with inaccuracies that could ,

i only be brought to light under cross-examination. Without the confrontation and cross- l i

examination of the author of the OI report, the probative value ofits conclusions will not have been challenged, and Georgia Power's procedural due process rights will have been violated. i Intervenor has in fact recognized and invoked such a right in opposing the admission of a  ;

note (purely factual material) authored by Mr. Robinson. Intervenor asserted: "But the problem l

[

is, is that we do have the right to cross-examine the author of this document," and the Board sus- i tained Intervenor's objection. Tr. 9881 (July 18,1995). The Board should apply this law of the  !

case consistently to both parties.  ;

i C. Admission of the 01 Conclusions is Unnecessary  !

Admitting the 01 conclusions is unnecessary. All the parties in this proceeding are pre-l senting anew the evidence they believe the Board needs to reach a proper decision. The Board can resolve the issues on the basis of this evidence, including the testimony of the witnesses whose credibility the Board has assessed. The 01 conclusions would not contribute anything, i

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other than perhaps the investigators' dubious opinions on the ultimate issues, but those ultimate conclusions are for the Board to make.

The lack of value ofinvestigative conclusions is illustrated by the Appeal Board's deci-sion in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1260-61 (1984). There, the Licensing Board had declined to admit without a sponsor an investigative report prepared by Senator Udall's committee. The pertinent facts had already been introduced into evidence (through another, properly sponsored report), and the Udall report differed only in the conclusions drawn from those facts. The L,icensing Board reasoned that be-cause it was responsible for reaching the conclusions, the conclusions of others would be of no particular value--that the opinions of the Udall committee would not influence the Board one way or the other. The Appeal Board agreed, noting that once the Licensing Board is apprised of the facts, it is able and obliged to fomi its own conclusions. The Appeal Board therefore upheld the exclusion of the unsponsored investigative report.

0 Conclusion For all of the reasons stated above, conclusions from the OI Report should not be admit-ted in this proceeding, and any such conclusions that have been provisionally admitted as well as related testimony should be stricken from the record.

Respectfully submitted, N '

Ernest L. Blake Jr, David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W. .

Washington, D.C. 20037-1128 (202) 663-8000 Y James E. Joiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 Counsel for Georgia Power Company Dated: July 28,1995 TROUTMAN SANDERS

^J.J..S.r..%". .",M . . . ^..T ,.. h.^ .t 8sAh3euseANet 86ABA 000 88 ACHTmet stinust. N 3. . sn esos ATLANTA OSDADA 30008 8814 TsLOPwoms4 404-ees 8000 sneenmLE:eod eas aseo AMHUR H. Dotder DifeCT, 404 806 F30 september so, 1993 Mr. Larry L. Robinson office of Investigations U.S. Nuclear Regulatory Commission Region II Field office 101 Marietta Street Atlanta, Georgia 30323 Re Georgia Power Company Vogtle Electric Generating Plant, Unit 11 'fana Recordad statamants of Witnesses i l

Dear Mr. Robinson:

J on September 8, 1993 Mr. Cecrge Frederick reviewed his interview transcript in the above-referenced matter which is currently under investigation by your office. Mr. Dockery attended this review session and suggested that I might want to provida you a memorandum which addresses the tape recordings made in 1990. More specifically, I expressed concern that even though the interviewees of your investigation (Mr. Frederick, in this instance) acknowledge a likelihood of convarsing with other particular employees, they are unable to specifically recall certain conversations with those individuals. As I explained to Mr. Dockery, over three years have passed since these conversations, unbeknownst to the participants, were recorded.

Because of your review of those tape recordings your office is capable of fashioning detailed questions as to specific statements. In asking these questions, your office has chosen to forego the opportunity to refresh the interviewees' recollection by playing the relevant tape recordings. This approach leaves the witness relying solely on attenuated memory, without the benefit of all relevant information.

My statement to Mr. Dockery was that a witness's inability l

to recall specific statements under these circumstances should

, not be viewed as reflective of the witness's credibility. The witness simply does not have the ability to recall events as accurately as might be memorialized by tape recordings.

Nevertheless, to the extent that specific statements are highly significant to your office's deliberations, the witness should be affosded the opportunity to review those statements and, with a

, ._ _ q- _ _ _ . . . . . _.

TaoUnuNSAMERS

.g-~u a ua Mr.LarryL. Robinson deptember 20, 1993 Page 2 I

l Mafreshed recollection, respond to further, more detailed, questions. With respect to Mr. Frederick, the following are specific conversations alluded to in your interviews I

comment to Mr. coursey or Itr. Briney concerning recent history of calcon sensors (Tr., p. 11);

Mr. ariney's statement concerning his opinion of the calcon

, sensors as " junk." (Tr., p. 12);

" conversations with Allen Mosbaugh" (Tr., p. 26);

A " statement to Mr. Mosbaugh" (Tr., p. 32);

conversations with Mr. Majors (Tr., p. 46); and statement by Mr. Frederick concerning his assignment to identify reasons for historic discrepancies in statements (Tr., p. 60).

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T,hese particular statements may be insignificant in your office's analysis. However, additional observations concerning such statements by Mr. Frederick 31.13r an opportunity to listen to them would not be surprising. I am confident that the same applies to other witnesses in the same situation.

k i Please feel free to call me if more specific answers to your questions, based on.a refreshed racollection of Mr. Frederick or other witnesses, would be helpful in your review.

I Va truly yours, Arthur H. Domby AND njf cc: Mr. George Frederick i

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i TELSPMOhfE; 404 460000 PedE4h44.5. aos see asse anwi a uses oianer e u. ass. son August 4,1993 Mr. James Y. Vorse Nuclear Reguistory Commission Office of Investigations Region ll Field ONice 101 Marietts Street, Suite 2900 Atlants, GA 30323 Re: NRC Office of Investigatione Pronomad Una of Paivaraoh Examinatiana Deer Mr. Vorse:

This letter is written on behalf of thle firm's client who has been interviewed by your Office, as well se clients of Mesara. Kirwan, Morris and Hendrix wrth their exprese permission. The purpose of this letter is to respond to your July 27,1993 letters to Messrs. Lamberski, Kirwan, Morris and Hendrix and to explain why we have advised our clients to decline the request to subject themselves to polygraph examinations.

On July 20, igg 3, Messrs. Larry Robinson, John Lamberski, and Arthur

Domby discussed your Office's desire to subject present or former Georgia Power Company employees, including a former employee who submitted ellegations to the NRC, to oolygraph examination. Mr. Robinson agreed to provide a letter memorializing your request, as you have done. Your letter states that the polygraph

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examination will be used to determine the " veracity" of prior compelled sworn testimony. In prior discussions your representative similarly indicated the belief that polygraph examinations would reliably detect " deception" on the part of the examinees. However, your representative was frank and forthright in discusalons relative to his limited personal knowledge of such methods and, apparently, its limited historie use by 01.

Also, during this conversation, Mr. Robinson stated that the NRC's Office of Enforcement will weigh the decision of our cliente, based on advice of counsel, not to subject themselves to these examinations. We suggest that the clients' decnolons are of no factuel or logel consequence, since no evidence supports the proposition that the ph,ysiological

" deception and poly changes recorded during a gsi situations which are not presentygraph In your investigation, graph evidence, absent specis inadmissible in legal proceedings.

The legislative history of the Employee Polygraph Protection Act of 1998 and the statements of U.S. Department of Justice Manual (1989-2 Supplement) at Section 913.300 forcefully and convincingly put to rest the lay misperception that a polyysph can determine " deception" or " veracity." The le9islative history of the 1988 Act's background atstee:

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TaoumANSANDERS W 4A w es e 4*a Mr. James Y. Vores Aueust 4,1993 Page 2 There is little debate over the ability of these components of the polypeph instrument to accurately register these physiological changes Iblood pressure, roepiration pattoms and electrical conductivity of the sidnj. But there is no evinnoe to support that these physiological changes recorded during an examination ers unique to deception.

AnDer, foer, enmisty, surprise, shame, embarrassment, and resentment era some of the physiological states which can cause tient8ca! changes.

At best, the polygraph con claim to measure changes indicative of strees, but neither the machine nor the examiner can distinguish whether deception or another state of mind caused the stressed respones with an acceptable doy'ee of certainty. Despite the popular perception that the machine is a lle-detector," most experts agree that

}t is not. In addition to the charted responses, most examinera base their concluelon on the conduct of the examines, the natural inclinations of the examiner, and on statements made during the examination.

Senate Report 100 284 to P.L.100 347, pages 4142.

Similarly, the Department of Justice in its Manual has stated its agreement with the following saduseon reached by the Committee on Governmental Operations of the U.S. Houet M Mepresentatives:

There is no %e detector." The polygraph machine la not a " lie detector,' nor does the operator who interprets the graph detect " lies."

The machine records physical responses which may or may not be connected with an emotional reaction and that reaction may or not be reisted to guilt or innocence. Many, many physical and psychological f actors make it possible for en individual to " beat' the polygraph without detection try the machine or its operator.

- ' The coneenaus of the scientific and legal communities, then, is that these examinations lack aclentific validity. The American Medical Association reportedly concluded that the polygraph can provide evidence of deception or honesty in a percentage of peoDIe that is " statistically only somewhat better than chance."

Senate Report 100 2P4, aura at page 41. Thus, the evidentiary reliability of polygraph examinations is not based upon scientific validity and, accordingy, lacks trustworthiness.' ,

I The potential use of any polygraph results by the NRC's Office of Enforcement is highly guestionable. While 1 obviounty cannot speak to that Office's view of polygraphs, I can addreas.the NRC's standard on admissible evidence. Only relevant, l

' The Senate smendment originally proposed for the Employee Polygraph Protection Act of 1988 initially provided that employees or any prospective employee of a nuclear power plant could be polygraphed by liconesee to determine honcety.

Nevertholess, the U.S. House and Senate conferees did not adopt this exception to

t eneral prohildtion of employers' use of polveraphs, in lob related reviews.

printing for unescorted personnel and a criminal history records check were ved "much more likely to provide escurate, verifiable information about en applicant than could be obta6ned from a lie detector test." House Conference Meport  ;

! No.100 SSS, page 13.

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,,a Md. James Y. Verse l August 4,1993 '

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meterial, and rallahia evidence le admissable in adjudicatory proceedings which addreas enforcement actions.10 CFR I 2.743(cl. As observed by the Department oflJustice, the federal Court of Appeals which have considered the admission of unstipulated polyaro TW legal realities,ph examinstions have uniformly held the recults as inad un.derscore the inappropriateness of your request for polygraph examinations.  !

l Your Svestigation has addreened in minuto detail certain sotivities eruf events which occurred over three years ago. Mr. Robinson, personany, has been involved swtonsively in ther NRC's review of this matter since the summer of 1990, erviewees, in contreet, have not dedicated a subst6ntial portion of their efforts l r the last.three years to this leaue. It is only natural that recollections may not be i sai proclae as at a time more proximate to these events'. Moreover, Company employees are now privy to information and facts that they were not aware of in ,

1990, in answering questions today, it is impossible for them to seperste their 1990 knowledge of events as occurred from knowledge possessed today and obtained over thp past three years.

I You have in your possession contemporaneous tape recordings of some 4 2nt events or actions. From thoes tapes, and sasuming a balanced review, te Asble inferences relative to intent can be drawn with respect to the silegation wpich you are reviewing. The general demeanor of certain witnesses can also be ascertained by statements in the relevant tapes retained by your Office, and in the other tapes, which 01 apparently considers as irrelevant, previously provided to Georgis Power Company. The collection and review of this evidence is for more if evidence of " veracity" probative becomes pivotal than any polygraph in your agency's examination. Moreover,f ultimate resolution o this matter,I respecttuhy suG9est that further review by a different Office or forum is the appropriate method ofidetermination, not polygraphs.

In closing, I renew Georgia Power Company's offer to wovide Mr. Robinson

"' with information, including documents and transcripts of portons of tapes which your Office apparently did not retain or transcribe, and which are material, reliable and relevant to your inquiry. For exemple, relevant information is contained on some of the 201 tape recordings provided to Georgis Power Company in October,1991. The NRC returned the origmals of the 201 tapes to Mr. Mosbaugh and apparendy did not tr$nscribe any of the conversations on those tapes. Also, a number of highly i relevent documents were provided to the incident invoetlestion Team in March and  !

A9ril,1990. These contemporaneous documents should be carefully reviewed and l wpighed by your Office during your investigation, since both NRC and Georgia Power Company witnesses can not reasonably be expected to recall the fine level of detail sought by some of Mr. Robinson's questions.

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! ' Without belsboring the point, the Office of investigations consciously decided to forego interviews in 1991, based on " strategic and technical" considerations.

I l _. __ ,

TROUTMAN$ANDERS N;43/w.s.r.a cm Mr. James Y. Vorse August 4,1993 Page 4 Our clients look forward to an ob}ective examination of d the evidence end a timeh resolution of thle metter. Please feel free to contact me at your convenience.

Very truly yours, p

n B. Levine BBL:cks cc: Mr. Larry Robinson Richard W. Hendrix, Esq.

Bruce H. Morris, Esq.

Bruce P.10rwan, Esq.

Arthur H. Domby, Esq.

John Lamberski, Esq.

l 1

Case Brief Plant Vogtle -

False Statements / Conspiracy Re Diesel GeneratorReliability conf %NTi4L 4 .

For Staff of U. S. Senate Subcommittee on Nuclear Regulation & Clean Air  ;

April 29,1993 l

NRC Office of Investigations qG

l ,

PRESENTATION OUTLINE l

l INTRODUCTION / PURPOSE

! BACKGROUND ~

Vogtle Site Area Emergency Complainant / Alleger TIME FRAME / CHRONOLOGY

ORGANIZATIONAL STRUCTURE *

CASE THEORY / VIOLATION FLOW CHART

SUMMARY

OF VIOLATIONS MAIN PLAYERS '

SUMMARY

OF VIOLATIONS VS. TIME DISCUSSION / QUESTIONS t

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4 1- 1 f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  % JL 31 P2:41 Before the Atomic Safety and Licensine Board 0FFICE OF SECRETARY 00CKETlHG & SERVICE BRANCH In the Matter of ) Docket Nos. 50-424-OLA-3

) 50-425-OLA-3 GEORGIA POWER COMPANY, )

et al. ) Re: License Amendment

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units 1 and 2) ) , ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that copies of" Georgia Power Company's Motion to Exclude Admission of OI Conclusions," dated July 28,1995, were served upon the persons listed on the attached service list by deposit in the U.S. Mail, first class, postage prepaid, this 28th day of July,1995.

David R. Lewis Counsel for Georgia Power Company l

l

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and ? kynsing Board in the Matter of - ) Docket Nos. 50-424-OLA-3

) 50-425-OLA-3 GEORGIA POWER COMPANY, )

et al. ) Re: License Amendment ,

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units 1 and 2) ) ASLBP No. 93-671-01-OL,A-3 SERVICE LIST Administrative Judge Administrative Judge Peter B. Bloch, Chairman James H. Carpenter Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive Washington, D.C. 20555 Oyster Point  !

Sunset Beach, N.C. 28468 j l

Administrative Judge Stewart D. Ebneter 1 l

James IL Carpenter Regional Administrator, Region II Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 101 Marietta Street, N.W., Suite 2900 Washington, D.C. 20555 Atlanta, Georgia 30303 1

Administrative Judge Office of the Secretary Thomas D. Murphy Att'n: Docketing and Service Branch 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

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l Mitzi A. Young, Esq. Carolyn F. Evans, Esq.

Charles Barth, Esq. U.S. Nuclear Regulatory Commission

-John T.11ull, Esq. 101 Marietta Street, N.W., Suite 2900 i 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

'1 Adjudicatory File Director,  ;

Atomic Safety and Licensing Board Environmental Protection Division  ;

U.S. Nuclear Regulatory Commission Department of Natural Resources ,

Washington, D.C. 20555 205 Butler Street, S.E., Suite 1252 '

Atlanta, Georgia 30334 f

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