ML19259B488

Concerns Ambiguous Statements Made During 770729 & 770808 Testimonmy.Requests That Actions Be Taken to Correct Records of Both Hearings

ML19259B488
Person / Time
Issue date:	08/11/1978
From:	Hendrie J NRC COMMISSION (OCM)
To:	Gossick L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML19259B487	List: ML19259B486 ML19259B488 ML19274D838 ML19274D839 ML19274D840 ML19274D841 ML19274D844
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NUDOCS 7902260252
Download: ML19259B488 (2)

Text

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O.MTeD STATES Er

?g QNUCLEAR REGULATORY COMMt.]CN j}-

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i v.Asw.oTon. c.c. :sss August 11, 1978 i g gf,

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- sb fir. Lee V. Gossick Exeiutive Director for Operatiens

'4 U. S. Nuclear Regulatory Commission M

k'eshingten, D. C.

20555 9

i Cear Lee:

As you knew, the Co=issien has deliberated extensively the questions g

ud issues raised and the recc:mnendatiens presented by the report of

-c3 the Investigator and Auditor and the General Counsel concerning your W

testimeny in the !!UMEC matter before Congressional ccmmittees in July and August, 1977. A copy of the Co=ission's letter report to in Chairman Udall cn its deliberations is enclosed for your guidance 85 and information. The Cc=issioners concluded that the Co=ission as

.T a body had not given unambiguous guidance to the staff that, in its

.i-view, unqualified "no evidence" statements pertaining to theft or jh.

diversien of ShM could be misleading and were not appropriate. Given J

due regard to that fact, the Commission, nonetheless, concluded that

.d the use of the "no evidence" statement in your testimony before the 2

House Subec=ittee,on Energy and Environment en July 29, 1977, was C

,' W inherently ambiguous and thus had the potential to mislead; and your testimony on August 8 before the House Subec=ittee on Energy and Fower as to a Co:maissien position in the matter of evid nce of diver-

' Sq sion was incorrect. Accordingly, the Ccmission reques cs that you

.:2 act to correct the records of the two hearings.

3M4 I have enciesed also a copy of my remorandum to you and the. senior E

staff which reaffirr.s the Cc=missien's commit ent to fu 1 and ccm-E plete disclosure and absolute candor in our relationshit s with mbers a

of the Ccngress and its committees. I know that you shz re and lly 7J support these views. The Cc=issien desires that th~ey be reemphasized to all members of the staff who at any time may be called upon to testify before the Ccngress or to prepare testimony or advisory

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Mr. Lee V. Gossick.

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[@f' caterial for re-bers of the Ccngress or its comittees. Only through confirced dedicatien to these principles en the part of each of us can this egency cerit the full confidence of the Congress and the

'yd public which is an essential ingredient of :uccessful perferr.ance of its vital health and safety mission.

.l Sincerely, g

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eph M. Hendrie w

Enclosures:

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Commissioner Kennedy Cemissioner Bradford Co=issioner Ahearne

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umTeo STATES

!,f.p g, A Q NUCLEAR REGULATORY COM.f,]SION l

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August 3, 1978

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.,4 The Honorable Morris K. Udall, Chairman

' Cemittee en Interior and Insular Affairs D

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Subcomittee en Energy and the Envirencent -

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4 United States House of Representatives ea

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L'ashingten. D. C.

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Dear Mr. Chair =an-

>:s As you kncu, the Commissicn has been meeting over an extended peried of tice to review and censider the findings, conclusions.

"'k and recc=endatiens of the Office of the General Counsel and the

!Q Office of Inspector and Auditer'of the Co=issien who jointly Gda conducted an inquiry into the testitony of Mr. Lee V. Gossick, the

,M Cc=issien's Executive Director.' for Operatiens, at. a hearing befure Y

y:ur Subcc=iittee en July 29, 1977. The inquiry also covered t f" Mr. Cossick's testimony at a subsequent hearing before Chairnan 1

3

, John Dingel. cn August 8, 1977. The inquiry was carried out by the t

General Counsel and the Director of.the Office ~cf Inspector.and. -

I p-Auditor and senior cembers of their staffs. The inquiry report, 1A in three volumes, was cocpleted in February 1978 shortly before the

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hearing before your Subec=ittee en February 27, 1978, into this M

catter. The background of the inquiry is su=arized in Volume I y

of the report by CGC and DIA. The complete text of the findings, i.?_

conclusions, and reco=endations of the inquiry board are enclosed fS

- for convenience.

,J The Cc=issien's conclusiens en the rec =endations of the inquiry

,Nh b:ard were fontarded to you uith our letter of. June 19, 1978. The t

Cc=ission's views on the findings and.cenclusiens of. the inquiry a

b:ard are set fcrth below. In several letters (May 8. June 23, W

and July 10,1978) you have indicated dismay with the slow pace of F

'b M the Cc=ission's deliberaticns on this catter. The Cc mis'sion shares y:ur c:ncern en this point. However, tie would note that Chairman

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Hendrie and Cc=issioner Kennedy indicated their c:ncurrence with the,

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findings and conclusions of the inquiry board at the hearing before y ur Subcc=mittee on February 27, 1978. Cc=issicner Bradford could 7F3

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not be present at that hearing, but noted in a letter to you dated February 24, 1973, that he vias in general. agreement with the con-y clusions and rec:=endations of the report, although then as now, he

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.The Ecncrable rd3s K. Udall, Chairman

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prcierred to cephasize the particular conclusiens set forth in his i Vf letter as being the cost impcrtant points in his view. The Cc=issicn's views en the inquiry beard findings and conclusions are as follows.

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1.

The Cc=issien agrees with the inquiry board that "While past

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and present EpC Cc=issicners have expressed individual ccncern over the apprcpriateness of statements about 'no evidence' of theft n

er diversien, the Cc:missien teck no acticn to establish new policy S

or guidelines regarding such statements after the February-1975 briefings." The Cc=issien also agrees with the final sentence of ~

l"T this finding to the effect that some such guidance should have been provided by the Co=ission to rake it clear to the staff that unquali-Tied."nc evidence" statements ware not apprcpriate and could be mis-leading.

There are differing views with regard to. the incuiry board's finding that "e:scept for Cc=issioner Gilinsky's expression of' concern in 12 August'of 1977, about the 'no evidence' statement in the NRC MUF report, there was a pattern of Cc=issicn and staff actions, frca 7

1975 to Cece:ber 1977 which reflect the positien that there is 'no evidence' of theft or diversion of sci. ' If the.Cc=ission believed d

that the CIA briefing warranted particular cautien or circ =spection in public statements, it failed to co=unicate that cessage." Chairman y

Hendrie and Cc=issioner Kennedy believe that while there were actions W

in both directions, the prependerance of such actions formed a pattern clearly reflecting a "no evidence" position. They also believe that it is fair to say that.the.Cc=issica failed to cerunicate any message hN cf caution er ciret.cspeeion in public statements following the CIA

2. '

briefing. Cc=issicner bilinsky does not agree that there was a W

pattera of Cc=issien and staff actions clear enough to encourage unqualified "no evidence" statements ~ by the staff. He notes that, judging by events, the Cc=ission failed to co=unicate clearly enough w

a tassage that cautien.or circu=pectica in public statements was M

war-ented. Cc=missiencr Bradford feels that the Cc= mission never articulated a position en this subject firmly encugh for the staff to rely en unequivecally. He feels that sete indicatier, at bcth hearings

- 'M i _50

.that Cc=missioner Gilinsky held different views wculd h' ave been in cider.

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Chairman Hendrie and Cc=issionet ennedy acree that these d

ceneral conclusions, that the evolving role of 'the Executive Director of Operations has an important bearing in viewing the context of 3*7 Mr. G0ssick's testi=ny and that the high degree of secrecy attached 2

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The Mcnorable M is K. Udall, Chaircan ~

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gg to the CIA briefing impeded Mr. Gcssick's being properly inferred, di are correct. Cc missicner Gilinsky agrees that there was a high de;ree of secrecy attached to the briefing'and that the Executive

.h Director's role was an evolving one, but he does not reach the same

.g conclusions that the board dces en these findings. He thinks that H

this point has little bearing on the catter of tne ED0's testimony.

ft Comissicner Eradferd does not see that the evolving. role of the

'f Executive Directcr is relevant to anything of any importance. The ECD had emple responsibility to know that screthi.ng.out of the y4 ordinary was involved in the Apollo catter. Cenissioner Bradferd does a

feet-that it is irportant to realize the uniqueness of the " lapsed quorum" situation in which this matter arose. The Executive Director

'. 3 fer 0;eraticns has neither the experience in testifying nor the s

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s policymaking role of the NRC Cc=issicr.ers. If he thought that the agency's position was in favor of the "no evidence" formulaticn, then N

!@N he was in no position to vary frcm it. The icpertant questien as to

- the August 8 hearing remains why he paid so little heed to-Ccmissioner Gilinsky's efforts to ecdify the formulatien and why he did not bring

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the Gilinssy views to the Subccmittee's attention.

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Testineny en July 29, 1977 Before the House Subcc mittee en

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Enerc y and Env1renment

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The Cc=issicn notes the inquiry beard's citatiens of elements.

of Mr. Cossick's testiceny; these are simply taken from the' hearing i

. '4 transcript.

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2." On balance, the'Cc=issien agrees with the inquiry board's finding that it is debatabh whether "no evidence" accurately described KRC's M

knowledgu about the Apollo catter, as distinguished from Mr. Gossick's g

knowledge. Judged by the interviews, Cc=issieners serving before g

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Jr.e 20,1977, would not have made en unqualified "no evidence" state-

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Cent as describing URC's kncwledge of the matter at Apollo, at least 9

l ~g after the February 1975 briefings. The staff, including senior members who had been present at the-briefing, seems to have believed for the rest part that the "no evidence" statement accurately described the Apollo l :-M situation. In the absence of explicit Ccemissien guidance on the i @

matter, the inquiry beard's characterizatien of the point as debatable does not seem unreasonable.

The Cc=issicn agrees with the inquiry board's characterization of the "4

pctential to mislead. Cc=issioner Gilinsky feels that the "no evidence"

'M "no evidence" phrase as being so inherently ambiguous as to have the i

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'The Hencrable Ed.. is K. Udall, Chairman b-h':A?

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statement has, in fact, been used in an ambiguous way to convey a

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reassurance that the facts do not support. (See, for instance,-

hj C:=issioner Gilinsky's remarks en pages 26 and 27 of the report en the february 27, IS78,.0versight Hearing before your Sube==ittee.}

u; Cc=issigner Bradferd has noted a' number of reservations with regard to the "no evidence" statedent in his letter to y:U.cf February 24,

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1978.

s The Cemission agrees srith th'e in'quiry bsard's finding that.

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' Mr. Eossick, having chosen'to testify about.the Apollo catter, sh uld-4 e-been core expansive--either by detaili_ng so much of the r.atter as he then knew, er by clearly defining his terms.

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Chairman Hendrie and Cc issioner Kennedy agree with the finding tj cf the inquiry beard that in his July 29,1977, testimony Y,

)' I Mr. Cassick did not knewingly and intentionally misrepresent facts or knowingly and intentionally fail to present an accurate descrip -

l tica of the current understanding of the Apollo matter. Cc=issicner

' Gilinsky simply notes that he does not know what was in Mr. Gessick's 1

mind in testifying cn July 29. Cc=issioner Bradford does not feel

[1q that the evidence en this point is dispositive, but frcct what he knews t e :-

of the matter,-including the earlier teeting between Mr. Ccssick

[ T1 and the Cc :ittee Chairman, he is prepared to assume that it is true 8

of Mr. Gossick's testie:ny of-July 29th. His impression is that d

Mr. Ecssick's intentien was to adhere strcngly to what he fe'.

'J' was the pred::inant positten within the U. S. Government en this subject.

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The Commissicn agrees with the inquiry board that the public l U$

record en other pescible thefts or diversicas of special nuclear i#

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.paterial re: sins unclear in the light of Mr. Ccnran's testimony in the July 29, 1977, hearing. ' The Co : mission.has coved to rectify this i[p situatien by directing the staff to identify instances of alleged

. -9 successful thefts or diversions of such material and to prepare a 8

list of such instances,' including to the extent pessible those

• r*nticr.ed by Mr. Conran/ in a fer: suitable for filing in.the Public Docu ent Rcem. This action of the Cc=issien is noted with ip regard to rec:=endatien 4 of the inquiry b:ard in the cttachment

{',04 to our letter to you cf June 19, 1978.

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Testitory en Aucest 8,1977, Eefore the House.subec=mittee en yE Energy ena Pov:er.

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The Comissicn agrees with the findings of the inquiry board '

that Mr. Gossick testified incorrectly cn August 8,1977, when, in

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!.2 connecticn with a discussicn en the Apollo r.atter he told Mr. Ward s

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that it was correct that "the Cc=ission has also given asserence M!

that they believe that no significant quantities have ever bean

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diverted or stolen." The Cc=issien agrees that fir. Gossick also J;3 testified inccrrectly in going en to state "I can caly say, Mr." I!ard, that the statement of the Cccaissica that they had no evidence that

%z'j indicated any diversion had taken place was made in full knowledge of the briefing that they had received. So while.I personally was

!!p not briefed en that matter, the Cc=issien did make, and has reaffimed the judgment that, in their view, there has been'no evidence.o.

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e indicate'that any diversion has taken place."

,4 The 'Cc=ission rotes Mr. Gossick's testimony at the Febrt 2ry 27,1978, k.i hearing before your Sub:c=ittee to the effect that the inquiry board's explicit reference to the MUF report (!;UREG-0350) in connection with i

these two statements was in error, and that he believed that fir. Ilard s

and he were referring to various "no evidence" statements cade in

. 'it the 1976-1977 time frame. However, the particular phrasing of Mr. *n'ard's question; "no significant quantities have ever been diverted

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'2 or stolen," is unique, so far as we can determine, to the MUF report.

and it seems fair to assume that Mr.1lard teck that phrase frem the MUF report. Since the MUF report was underste:d to be linited to the iT-post-1958 time frame, any assurance frem that report could hardly be

}q applied to the Apollo matter, as the ir.quiry beard noted..

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\\g As noted, !1r. Gossick has asserted that he was not thinking of the VUF

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report in his answers to Mr. I!ard, but rather cf "no evidence" state-Dents frca other documents that might apply to the pre-1968 period.

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H:*ever, the argument that the Cc=ission has'in the past failed to V

6 provide clear and explicit guidance to the staff with regard to "no evidence" types of statements cuts both ways here. If the staff

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had not been cautiened against the unqualified use of such statements g

by the Cc= mission in any clear way, neither had the Cc=issica clearly M

established such statements as representing its collegial position. The M

C =ission agrees with the inquiry board that Mr. Gossick should have y

limited his testimony to the period covered by the MUF report.

! ;G1 Wa note Mr. Gossick's agreement with this cenclusien at the February 27th i t hearing. I!e believe that in the absente of a clearly stated Ccmmission view, Mr. Gossick should not have attempted to reflect a Cc=issicn 3%

sition en the Apollo catter.

Lg The Cc=issien notes the inquiry board's findiog that it has no infor=ation indicating that Mr. G:ssick's August 8th testimony was given with an intent to deceive or mislead the sub :=ittee.

d Chairman Hendrie and Cc=issicner Kennedy. believe that Mr. Gossick h3 N

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R The E:ncrable Marris X. Udall, Chairman

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testified in accordance with his understanding at the time of the f)

C:=ission's p sition and that he had no intent to mislead the -

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Sub:c=itte e.

They note their.cenfidence in Mr.' C:.ssick's character, honesty, and inte;rity, and the similar endorsements of former Chairmen t

Anders and Rowden and former Cc=issioner Mason. Cc=issioner Gilinsky 9

adds that he centinues to hold to the views expressed.in his letter of i

December 12, 1977, to Chairman Dingell. There he expressed his cpinicn that Mr. Gossick's testimony was not only incorrect but inexplicable

/a in vieu of the two retetin;s held on Au;ust 2.

As noted previcusly, it A4 is Jc:missioner Eradford's icpressicn that it was Mr. Gessick's intention 47 to adhere strongly to what he felt was the pred:minant p sition within f

the U.S. Government en this subject. Uhat Comissioner Bradford finds W

'O c:st difficult is Mr. G:ssick's failure to tell the Subec=ittee on 4

August 8th at least that Cc=issioner Giiinsky held a separate view.

'N (The inquiry rep rt d:es not have a finding C.2; further, since they do not deal directly with the Au;ust 8 hearing, the next two findings apparently should have been designated D. and E.

We maintain 5

the nu:. bering of the original report, however, to avoid ccnfusion.)

ht eva 3.

Chaircrn Hendrie and Cc=issicner Kennedy agree with the inquiry M

beard finding that Mr. Ccssick's absence frc: the February 1976 d

triefings was not due to any lack of confidence in him. Cc=tissioner X

Eradford agrees that the finding reasonably represents the evidence available in the inquiry report. Cc=issicner Gilinsky notes that 4

he does not kncu why Mr. Cassick was not present at the 1975 briefings.

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The Co =ission agrees uith the incuiry board's findings that no t ?d packet of information was offered by the CIA briefer or refused by NRC l[

at the 1975 briefings.

EEcodMgt:DATIOMS-N%

As noted previously, the C =issien's actions on the recc==ndations

,1]h of the inquiry beard were previcusly fcrwarded to you with our letter cf June 19, 1978. A ccpy cf the Cc=issien rer randum en the subject'

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is enclosed to provide in this letter a cceplete record of th-fw h.

C: =1ssion's views and actions en the inquiry report.

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>f Ycur letter of July.10,1978, listed fcur questiens with regard to M

Mr. Gossick's testimony which you believe should be answered by the M

C =issicn Answers to the fcur questi ns posed in your July 10th gj letter follcu. Cc=issioner Gilinsky has chosen to answer these em

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questions separately in a letter dated July 28, 1973, which he has left with te for delivery to you uith this letter.

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, The Hen:rable M:rris Y,. Udall, Chairman. V 6

"1.

1.'as Mr. C:ssick's July 29 testit:ny, with regard T

to whether there vtas evidence of a diversion, an accurate b4 representaticn of the facts?"

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I:o.' As noted under finding B.3 in the discussien of the inquiry b ard's 2f '

findings, the Cc=ission believes that Mr. Cossick, having chosen to

,:f testify about the Apollo matter, should have been more expensive-

,M either by detailing so much'of the matter as he then knew, or by

,91 clearly defining his terms.

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'"2.

Did Mr. Gessick's August 8 testimony accurately.

describe the Cc=ission's position with regard to

,h whether there was evidence of a diversich?"

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, f,n As detailed under finding C.1, the C =11ssion believes that' Mr. Cossick testified incorrectly cn August 8,1977, with regard to the Co: nissien's position en the Apollo catter, and believes that Ig]

Mr. Cossick should have limited his testimony to the period covered by a

the !"JF report and, in the absence of a clearly stated C0=ission vieu, 1;p shculd not have attempted to reflect a Cc=ission positien on the M

Apollo /tiUMEC catter.

"3.

Did Mr. Gessick's testimony en July 29 and x

August 8 reflect accurately his state of knowledge

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'}c of the Apollo /iiUMEC situation?"

ficting that his tasti=0ny at ioth hearings included statements that he had not been present at the Cc=issica briefings on the Apollo A

catter, as well.as the "nc 2vidence" statements that he believed repre-Of sented the Cc=issicn's position, Chairman Hendrie and Cc=tissioner j

Kennedy believe that Mr. C:ssick's testimony en the two cocasions cited vil did reasonably reflect his state of knowledge of the Apolic/NUMEC L*

situatien. They note..however, as stated in the discussien of finding 2

B.3, that Mr. Gossick should have core clearly detailed the limitations E

en his pers:nal knowledge er more clearly explained the sense in which he 4

was using the "no evidence" statement. Cc=issioner Bradford does not feel

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that the evidence on this point is dispositive, but from what he knows of the catter he is prepared to assume that it is true of Mr. C:ssick's ty testic;ny on July 29th. C0=issioner Eradford's impress!cn is that it M

was Mr. Gossick's intention to adhere strcngly to what.he felt was the fu predcminant position within the U.S. Government en this subject. What J

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C:=issioner Eradferd finds rost difficult is the later failure to tell M

the Subec=ittee on August 8th at least that Cc missioner Gilinsky held 21

%m a separate view.

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The Eencrable Morris K. Udall, Chairman

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To what extand does Mr. Cossick's testir.cny on h

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July 29 and A.: gust 8 represent a failure to fulfill.

f his cbligation to keep apptcpriate cemittees of

>l Ccngress fully and currently inferred?"

As indicated in the discussiens of findings B.3 and C.l...the Cc=issien believes that Mr. Gossick should h'a've been clearer abeut the'limitat' ens f4 en his cun knowledge, suitable qualified er otherwise explained the "no evidence" statements, or limited his testfceny to the post-lS68 peri;d, and should not have attempted to reflect a Comissicn position 1

en the Apollo matter in the absence of a clearly stated Cc=ission view cn the subject. His failure to do so represents a failure to

,[f keep apprcpriate cemittees of Cengress fully and. currently informed.

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The Com:nission notes Mr. Gossick response to a question by you at the 7

hearing on February 27, 1978, in which you ask Hr'. Gossick if he believes that his statement of "no evidence" ccepli'ed with the spirit and the letter of the law to keep the Congress fully and currently inforced. Mr. Gossick answered. Hr. Chairman, I guess I would have to say that I cannot consider my statement of my answers to the questica E

M brcught cut during that hearing as being unto themselves full ccmpliance

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with keeping you fully and currently informed."

c Based en its revieu of this matter, the Ccmissic,1-directing the

'h Executive Director to correct the records of the July 2gth and August 8th

.a hearings with regard to his testimony about Apolic/dUMEC. Further, the d

Cc ission is re-e phasizing to.the Executive Director and the staff its n

centinuing cc:nittent to a policy of full and timely disclcsure in all A

titters in cur relationships with the Cc: nittee and Members of the Cengress, and of cc:plete cander in these relaticnships.

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There are scre general 'ebservations that should be made about both the yA C2C/01A inquiry and cur assessment of it. That inquiry was not intended to be a definitive icok into the Apollo /!iUMEC catter. -It was intended

.fiA t0 give the Cenission a reascnably thercugh basis for assessing the

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- G Executive Directcr's testictny in the context in which it was given.

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Limitaticns of time, rescurce, and scope preclude its having been an exhaustive investigatien in which every possible lead was folicwed and every incensistency recenciled. For cur purposes in arriving at an

'is assessment of the testimony and of. necessary canagement and policy JA acticns, the investigatica has been sufficient, and no further investi-Gative steps are proposed.

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The definitive word en what, if anything, actually cecurred at I:UMEC

-3 uill have to cc:a frca scre other sources. Fcr !;RC purposes, it is

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encush that cur assurptions about safeguards and pessible threats Q

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l Tre i.::n=rable Perris K. Udall, Chairman 1 1.

N

. s.-

Lise changed a great deal since that tire. There is no comparison h

between the safeguards planned and already in effect as egainst those i.

that were. In nistence in the. tire at which the material in. questien i '.,

kas deter.ined to be. unaccounted for at GUMEC.

,The yollo/tc;EC k:tter rer,ains important in terms of whether.violattens i.'

of law cccurred, in terms ci proliferati'en assessments, and to seme M

exten'. in terms of possible esthods of diversion. As tn possible 4

diversion paths, we have indicated that we do not belitve that the

'.:V conditions that exis'ed at I:UMEC in the early E0's c:uld possibly te

[.'

repeated at any facility that we regulate today. The questien of legal A

' f@.

violation and of proliferation assesscent, while of importance to us, are the primary resp:nsibilities of cther agencies. Ccnsequently, we -

do net believe that we c:n just!!" the expenditure of further resources cf any substantial accurriin t.T IC investigatien of the Apollo /huiEC g'

cztter a. this time. The Cc.:lssion has answered separately your letter gl of May 25,1978, with regard lc the lessens learned from the Apollo /NUP,EC i.:

catter. Cc=nir.-icner Ahearne e.as not participated.in this c'tter.

'?

At3 Sincerely, M

1 l

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+-

'[

Joseph li. Hendrie M..t o

+

i W

Enclosures:

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-FI 35, CC"CLUSIONS A!;D RECM!

ATICNS qt Gur findings and recc=endaticas are the end products of an extensive -

[

investigaticn condaced within an understandably tight time frame. The g

investicators and supporting staff who assisted in this. matter were fully dare of the significance of this inquiry to the individuals concerned, the ec~ngressional subec aittees, and MC,end riade.

g7 their best efforts, v+ thin the deadline, te render a full and ace 2 rate d

ar..bmitted with the realization that they pass upon issues cenctrring.

g;,

account of all relevant facts. Our findings, cenclusiens, and recc=andations

,,,,.c which reasonable people hold, ano.will probably continue to hold, differ-M ing views. Me also recognize that there are investigative leads and M. 4 areas which might have been further examined had there been ecte th:= -

Ue can only state that-the findings, conclusiens and recocmendations

? ;

represent our best and.most forthright judgment under the circumstances.

,i~

It should be noted, too, that while this, aspect was not emphasized in cur investigation, we have no reason to believe that the inquiry arose

(.s.

cut of perscnal anicosity. Finally, we note that neither the NRC nnr the

,;f Chai man or any other Cc:missioner has reviewed this report p"icr to 7

its release.

[i-Ia stating these findings and reco=endaticns, we make no judgment en t.y whethar there was in fact a theft or diversion of SNM at HUMEC-Apollo.

IW We made every effort to develop frca all participants a full account of Id the february 1976 briefing but, despite our need-to-know and the significance 3

cf the catter involved we enecentered some difficulties, as previously s

f)

N noted. Ue cc=end Chairman Udall's publicly expressed.intentica to get night be of some assistance in this regard.

,h.

to the bottem of the GUMEC-Apollo case and we hope that this -eport 2-p Findincs and Cenclusions A.

General.

' M-1.

Uhile past and presmt NRC Cc nissioners have expressed individual cencern cver the apprcpriaten'ess of statements y

atcut "no evidence" of theft or diversion, the Cc=.ission

- 7 tcck no action to establish neu policy er guidelines regard-rR ing such statements after the February 1976 briefings.

jrp Except for Cemissiencr Gilinsky'r apressica of concern in

. mi August of 1977, about the "nc evidct.ce" statement in the NRC ly MUF report, there was a pattern of Ccrmission and staff actions, frca 1975 to December 1977 whic'1 reflect the positica that

~t there is "no evidence" of theft or diversion of SNM. If the Cc. mission believed that the CIA briefing warranted particular *

(s)).

caution or circumspection in public statements, it failed to cc=unicate that ressage. In cur view, because the inherent g

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44

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ambiguity in the "no evidence" phrase could, and apparently did,

g.

create a misleading impressica, sc:a such cessage shculd have g

been sent.

f.A4 2.

'We believe that the problems posed by Mr. Gossick's testicony

.s]%

shculd be viewed in the centext of the evolving role of the,

~

Executive Director of Operations (EDO). The statute authcrizes Director's of certai'n 'cc:penents to "cc=unicate vnth cr report v.

directly to the Cc: mission" when they deem it necessary. _1f Apparently thris eption was utilized by Mr. Chapran, the head of the ~ 1 Office of Huclear Material Safety and Safeguards at the time or the CIA briefing, who stated that he norrally did not go through 9

i

~.

Mr. Gossick in dealing with sensitive safeguards ratters.,

7 4

Mr. Huberran, the Director of the Offier. of Policy Evaluatien,at the time of the CIA briefing, cc=ented upon.the " cutting out of

.i Mr. Gossick frca in;crtant matters. He characterized this practice y,

'as " atrocious," and said it had left Mr. Gossick a "second-class

. citizen." We understand that in April of 1977, an attempt was mada 's to correct this practice.

k' hen a Cc=issica c;uorum lapsed, A

Mr. Gossick took over.the stewardship of the acency -- confronting y heavy new respensibility and saveral upccming congressional p?

hea. rings - without having been regularly informed about rcany

. things.

,.q, 4

3.

Much of Mr. Gessick's difficulties before the two subec=mittees

.,y was due to the degree of secrecy which was attached to the,

[1.f CIA briefing. Only a few knew th'e facts; and the few,justi-tg fiably cr otherwise, failed to cc=unicate to Mr. Gessick.

encush info'rration of substance to pemit him to independently rake a meaningful assessment of the accuracy of the "no Y

evidence" statement. This problem was cc: pounded by the..

cyg turnover accng high-level officials who attended the briefing.

so pervasive that it.irpedes ei.~rtives continuity in management.

]g adherence to secrecy shculf never be permitted to;becoce

..=m t ~~*

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B.

Testineny on July 29, 1977 befcre the House Subec=ittee en Enercy ar.c Env1renzenc Mr. Gossick's testircny en GUMEC-Apollo en July 29,1S77, before 1.

the Ecuse Subcc=ittee on Energy and Environtent is not entirely.

clear. parts of it disaveu knowledge of GUMEC-Apolio; other i

parts, such as the "no evidence" statement seem to suggest 7,

knowledge. Mereever, en page 25, speaking of UUMEC-Apollo,

%w de 9

]/ Sec. 209(b) Ecercy ?.ecrgani:Etica Act of 1974 u n e~~w w:g w r.a : q t w, w.w -

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),

• h z 82

s.

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Mr. Gossick said "...this matter predated the fi?.C...".

But on page 37, in a statement which Mr. Gessick acknowledged enec: passed

,M the IIUMEC-Apollo matter, he said '"rle have investigated every incident...I can say we have no evidence that...a significant a: cunt of S!;M has been stolen." Later, in an apparent reference <

di to i;UMEC-Apollo, he said "flinety-four (kilegrems) wculd be a Xet significant quantity. He have no evidence.that such an c cunt' 4;bN,i

.f has been stolen." Shortly thereafter, when asked whether the Apollo circumstances would cause a reasonable persen to wonder he replied...."I am not familiar with the alleged circumstances "hj about that...all kinds of answers have been rumor.td er speculated...

..x.

I just can't speak to that."

2.

Whether "no evidence" accurately deceribed NPI's knowledge about

' 1,%

RUMEC-Apollo as distinguished frca Mr.-Gossick's knowledge --

r is debatable. Scre of those who heard the CIA briefing agree i.'

with the tem; cthers who heard the same b*iafing would qualify

.2 it. We'believe that the phrase is so inbr mntly cabigucus as to m

i

-have the potential to mislead.

. p 3.

Under all the circumstances we believe that Mr. Gossick,

gd having chcsen to testify abcut ID:EC-Apollo, nheuld have Q"-

been core expansive -- either by detailing so much of the -

catter as he then knew,'or by clearly defining his' terms.

.3 4.

In his testimony en July 29, 1977, before the House Subcc=nittee o

en Energy and Envirennent, Mr. Gossick did not knowingly and Mf intenticnally misrepresent facts or knowingly and intentionally W

fail to present an accurate description of the current under-

~

standing of the Apollo matter.

J+;

In cur view, Mr. Gossick believed (and still ~

2, ;

believes) that there is "no evidence" of diversion frca.

t,y IR:MEC-Apollo. Uhether he was right or wrong is a.

. -t::!

different issue.

g Mr. Gossick believed that' his statement en e'iidence of'

!UM j 5.

theft er diversien did not differ frca a number of similar' I

"8 state ents made by the Cc :ission and staff, both before and after the February 1976 briefings. As noted above, d

?)g the Cc=ission furnished no guidance on public statene.nts on theft er diversion after the briefing.

MIl We found no informatica indicating that Mr. Gessick knew any details about the substance of the February 1976 I@

CIA briefing (which he did not attend) except for the cen-clusien in docucent 102 of the Cenran Task Fcree report 3

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,f that it " raised sericus questiene and did not provide con-

' JR clusive answers." Also, there are indicaticas that at least ene person who was at the briefing (and perhaps. core) r _d.

had advised Mr. Gossick, without furnishing substance, that

. I:/ '

. the briefings were inconclusive. Mr. Gcssick..

cware of

.1~~

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'Mr. Strauss' 'cauticn in docuredt 102 about qualifying "no evidence" statements, but Mr. Gossick dis:cunted this because N

'RRC haf centinued to make unqualified "no evidence" statements after the briefings. Mr. Gessick also was aware of media reports en NUMEC-Apollo and knew the CIA briefing had caused s.

.f;RC to contact the Executive Branch. Eut he discounted these events because he knew that the briefing had been N

i inconclusive. In the final analysis, Mr. Gossick chose to

'j

. adhere to what he believed to be the NRC positicn on the.

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catter, while expressing his perscnal lack of knowledge, recarding HUMEC-A;ollo. Me find that, in these circumstances, Mr. Ecssick did not intenticnally misrepresent facts.

8.

M S.

Eectuse of emphasis en the GUMEC-Apollo matter, the public record kah en other ossible thefts or diversicas of S:01 remains unclear T

v in light of Mr. Conran's testimony in the July 29, 1977 hearing 3

that:

g "There are other instances of theft and mat'erial stolen than w@

,.2 frce the ftUMEC-Apollo installation, thefts or suspected thefts. ' i 7) l #+

"There have been cther successful attempts to steal nuclear Il$

esterial - not always a large cuantity, not always bc b A

crade caterial. There have been a number of instances in 4

in which nuclear material was stolen."

'FM a

"In sc:a instances it was recovered so vie kncu it was rM stol en."

l2

[O.Z

--- "The dccurentatien that I have in my head is'so extensive

['d5 that I really cannot reme ber which part is classified and which is not, so I wculd really rather not say in i

public, but all. cf the infor,atica I have referred to is P

in the draft everview study report, or I have identified it in sc:a other way for the subccraittee...I would get

' 4.y very specific in a closed hearing."

g

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.C.

Testi-cnv en August 8,1977 before the Mcuse Subcc=ittee-

~

en Energy ana Foxer g

og M

l.

While we have no infcrmatica indicating that it was done with N

an intent to deceive or mislead the sutec-.ittee, Mr. Cossick

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Q, in his August 8,1977 testincny before the House Subce :nittee R%

testified incorrectly when he agreed that the Cc=nission, in

.k releasing the MUF report, has "also given assurance that they helieve no si5nificant quantities have ever been diverted or

,k stol en. " Referring to the same report, Mr. Gessick also testi-s

' fied inccrrectly in stating "The statement of the Cc=nission' that they have no evidence that indicated any diversica had taken place, was-rade in full knowledge of the. briefing that they had

.. ~

received. So while I personally was not briefed on that matter,

.the Cc=nissica did make, and has reaffired that judement that.

k

.. in their view, there has been no evidence to indicate that any z

diversion has taken place.".

s

.This testiceny is incorrect b'ecause -it failed to take'into

~

censideration the fact that the I?JF report, as -earlier stated j

by Mr. Gessick in his prepared testimeny at the hearing, covered cnly-the pariod.beginning on Jaauary 1,1958. It.was this 1958 limitation regarding "no evidence" of theft or diversion that

..was particularly significant to Cc=nissicner Gilinsky in the August 2,1977 briefing about the MUF report (in which

[g Mr. Gossick had participated) and in tne rewriting and approving g

of the press release acccapanying the KUF report. Mr. Gossick em in his interview admitted that in his August 8 "no evider:ce"

'55 testimony.he should have limited his testiceny by reference to 1S68, or by adjectives such as " conclusive" or "hard " Eecause M

Mr. Gossick now reccgnizes that he should have used such limita-FM tiens, we do not reach the questica whether circumstances,

' ncluding the, August 2 briefing and the teeting which followed, FI ishculd have, in any event, led Mr. Gossick to articulate those JR limitatiens in his testicony. L'e agree that Mr. Gossick should A

have limited his testiceny to the peried covered by the MUF

,N' report, cr used adjectives such as "cenclusive" or "hard."

h 3.

Mr. Gossick's absence',frca the February 1976 briefings was not Js:

due to any lack cf ccnficence in him.

ad

.K 4.

No CIA packet of infbr:aticn was offered to or refused by GRC at the

' "R February briefings. The results of the interviews indicated Senerally lj that the briefer spcke informally frca a folder or icosa papers.

tj) r Iw%

&cc:Mndations

.t Cn the basis 'of the infcmation developed in this inquiry it is recommended -

s that:

1.

If further inic taticn about the possibility of theft or diversica b

at I;UMEC-Apollo is rele, ant to NRC's centinuing safeguards respcnsi-N bilities, then the Cc= issien shculd arrange for briefings from the 5*. -

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- F3I and the General Accounting Office, both of which are cenducting current inc,uiries into the catter, and frca the i;SC, which agency q) triefed Congressmen Udall and Tsengas.

• wJ u%

2.

In the future, l'P.C shculd adhere to the position adepted in the i

August 1977 MUF report with respect to theft or diversion - that

,.f is, that NRC speaks only for 1963 and thereafter, and further, such

-j

^ c. statements shr.id *.e qualified by lancuage reflecting the inherent ytg

'N 2:ncertainties i he caterial accounting system.

a-

~.

Th'e Cc=nissica-should censider the prepriety of cc:itinuing to use

..- l 3

- ' the term "no evidence" in view of our experience in this r.stter.

4

, f;RC safeguards experts.should. identify, clarify publicly.,. rid takel-

~.?

4.

whatever action ray be appropriate with respect to the othet-alleged

,4 successful thefts or diversiens centioned by Mr. Conran. in his g

July 29,1977 testiceny.

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' Samuel J. ChiTk a

.:. ' EMDRA!C;i.G FOR: Secretary of ti c=issient N

lh FROM:

Joseph H.. Eendrie

, !g SU30ECT:

CC.91ISSION REVIEU DF LGC/0IA REPORT, "IUQUIRY-

. INTO TESTI!iONY OF THE ED0" n

As a result.of its first teeting to review the subject report '

~

g (May.ll,1978), the Cc=ission has decided to implement in m

~

substa:

the recc=endaticas cade therein (p. 47-48, Vol. I).

Y d

n Uith res. m to'Recc=Endatien 1., the Cc: mission wishes to ha briefed

?N W

separately by the Federal Eureau of Investigation and the General Accounting.0ffice' cn the progress and results to date of their y

investigaticas of'the KU:iEC matter. Mr. Federsen and Mr. Kelley should attend, as should the EDO, Mr. Dircks, Dr. Volgenau, Mr. Davis, Mr. Snith, Mr. Eurnett',- and perhaps ene or two other officers of W.

Mr. Eurnett's Division, as he and Mr. Smith cay think appropriate.

L";

The EDO should be asked to arrange the briefings.

lj

~~

l, Hith regard to Recc::andaticns 2. and 3., the Cc=issicn wishes to ti.

. clarify its position en the "no evidence" statenant as it pertains

.to GU:0EC and related catters, and to take this positien widely 4

kncWn to the staf.f. First, the statetent "HRC has no evidence that

g any sienificant a: cunt of strategic SKM has ever been stolen or d

diverted.," ca page 2 of the first inventory difference report,'

GUREG-DIED, =st he undarstcod to apply'caly to the post-19E3 f

pe-icd to which the re;crt applies. Seccnd, with regard to the b

UUMEC catte:- itself, an appecpriate characterization is that based

.g On infer.atica available to the Cc=ission at the present tica,

[q there is no cenclusive evidence that a diversica of a sienificant r3y a: cunt of strategic SKd either did or did not take place. Third, t

-the Ccrission believes that uhqualified "no evidence" statements g

should be avoided in characterizing inventory difference catters, since even a-zero inventory difference does not conclusively 3

da=nstrate that caterial has not been diverted. Qualified "no y

evidence" statetents shoul'd not imply a higher degree of ecnf.idence

, is r.

l I

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4 :- eite-^ica narrants. The st 'f judgments as to the,

lQ s $i i$y c[th$ft er diversion of S.J4 are based on a cc..bination g

a Tact ty on, g,

ratbactcrs$co cluding physical security c.easures aoting and ccatrol ceasures, and shculd ye cha cf #

in

'y rial a

--t 2Athdr than proof. Fourth, in dealing with pre-19CB

_ y..

eS'-NA2a'ta staff statements shculd note that such data predate g

.a3 f. gulatory staff activity and derive from a period in which

j 33feguards measures were far less stringent than ao present.

~. j.

sh uld dcVelop, for Cc=aissica consideraticn, a general ad 55tb$$"t concerning the conclusions that can be mad accut thaft

j and diversica of sienificant. amounts of strategic si, ase

, above-

}

4.u..Ji egard.o Re-aidation 4...the Cm.issi. en w s es t eh jtaff J

7 ih to. identify instances of alleged succes i.. ts o-dive-stens d

t

.g f st ategic specia ucl C c ]le, th se mentioned by Nr. Ccnran p'k[

should include, go ',-testi.~any.

Tha list should be in a form suita-in his July 29,.977 3;e.c. c r 4 t ] i n,,, i n th.a Public Cccument.secm,- exceP*6 'ba'" Classified

• M s

inf~5stion should be segre,m_ted in a suitable ~c,lassified supp.

.ement.

fm

'- ission believes a ccmprehensive. tabulation o suc rf ye.

r:m p"Icng t'..'e lines o, +.he ret'en^1.v prc-ared " threats list _is ces1rable.

n

.M a

e c _ trs I

e-d ssion discussions en other.

tiers in cennection with the b.kbry Report, including its findings and conclusions, will make place at future teetings.

cg

~

cd:. Cc=aissicner Gilinsky Cc=issioner Kennedy Cc=sissicner Bradford V{

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UNITED STATES i!s E.S ed ?,

gd"UCLEAR REGULATORY COMMISc'^N

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WASHWOTON D.C. 2M55 3A.

s_ g.

e August 11, 1978 kh,f j

CHalRMArJ

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MEM0 E OUM FOR: 1.ee V. Gossick Executive Director for Operations Office Directors

?

r SUEJECT:

TESTIMCRY BEFORE THE CONGRESS t

The Atomic Energy Act has charged each of us who ' testifies before Q

the Congress, or who provides information to the members of the Congress er its co=ittees, with the responsibility of assuring that the Congress is fully and currently inictmed. This acency rightfully prides itself-on the openness of its procedures and en

'Q

~

its efforts to keep the public fully apprised of catters under

--y consideration by the Cc :ission and its staff which may in any

P way affect them. Great though this responsibility is, cur responsi-

. fd bility to the Congress is even deeper and core fundamental. I T3 want to ree phasize that there is no core important obligation than N

that of assuring that that respcnsibility is faithfully and unce:-

M p= isingly carried out.

j. _&n Cander and forthrichtness cust be the hallmarks of cur relationships 2

with the members c. Congress and it cc :ittees. If this agency is 5 -'.

to discharge its responsibilities faithfully, there must never be a case in which we fail to provide a full and cc plete record' cn at w,

issue which is of interest or concern to the Cengress. In this 5%

re;ard, the Cc :issica is mindful of the need for clear, unambiguous M

, guidance to the staff as to its policies and views and of the necessity to ec=unicate its guidance and views prc ptly and effectively to all

. if appropriate levels. Sheuld a situation arise in which, upon reflec-

__ g tien, testimony given may seem less clear in its meaning than intended m

or less cceplete than night have been the case given more time for 3

conte plation of the answer, it is inc= bent upon the staff nerber er 4

Cc=issioner involved to correct or supplement the record prc=ptly.

tm Similarly, if we are to err, it should be on the side of providing 9

more rather than less informaticn on issues of potential interest

• h and cencern to the Congress--our answers to inquiries must be full

?

and cc plete, and informatica cust be promptly proffered.

4 9

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.h I know that each of you is dedicated in his support of the views ij expressed here. The Cc=fssion urges that we keep these principles

?

before us at all tices in our relationships with the Congress. Only

[ ?g; in this way can we r: erit the full confidence of the Congress and the gi public in cur ability and willingness to face squarely the difficult,

S l t

questions and issues which we hgve been charged by law to address.

(

q.

Jo eph !!. Hendrie if.

cc: Cc=aissioner Gilinsky r g Cc=issicner Kennedy Cc=aissioner Bradford t 54 Comissioner Ahearne (3

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• August 16, 1978 M

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The Honorable 140rris K. Udall, Chairman Subec mittee on Energy and the Environment Ccmittee on Interior and Insular Affairs lg United States House of Representatives Washington, D. C.

20515

Dear 14r. Chaircan:

M As you know, the accuracy of that part of my testimony on July 29, 1977, before your subco=ittee concerning the existence of evidence-relating to a possible diversion of special nuclear material from a nuclear fuel processing plant in Apollo, Pennsylvania, has received extended subsequent consideration. The background of this tatter is addressed by Chairman Hendrie's letter of August 3,1978, to you.

(, F As I stated in my testimony before your Subec=ittee during its

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• rg hearing on February 27, 1978, I should have been more expansive P

in ry responses to tir. Tsongas' questions during the July 29,

.N 1977 haaring - either by detailing so cuch of the matter as I

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then' knew, or by clearly defining my terms.

t 4 I agree with the finding of the OGC/0IA inquiry that the "no 5

evidence" phra:e as used in my testimony was inherently ambiguous PJ and thus had the potential to mislead. ~

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[20 On the basis of my present knowledge of the matter, I wish to state pj?

that I am aware of no conclusive evidence that a diversion of a.

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significant acount of strategic special nuclear naterial either

'i did or did not take place at Apollo /f D.EC.

I respectfully request

.t that my testimony on this matter at your July 29, 1977 hearing 32 be corr" ted accordingly.

M

'?d I r. Chaiman, I sincerely regret the misunderstar' dings that have "9

resulted, but I want to reaffirm that I had no intent whatever to

-D nisrepresent the facts as I understood them or to mislead the 1

Sub cc=ittee.

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90 Sincerely, f-y

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Lee V. Gossick Executive Director for Operations m.

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August 16, 1978

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I D fI M The Honorable John D. Dingell, Chair =an g" J J g < J : \\[@...

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3 Subcomittee on Energy and Power Cemittee on Interstate and Foreign Co=erce 4

United States House of Representatives yA Washington, D. C.

20515

Dear Mr. Chairr.an:

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As you know, the accuracy of my testimony on August 8,1977, before your Subecmittee concerning the existence of evidence of possible diversion of special nuclear caterial from a nuclear fuel processing

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i plant in Apollo, Pennsylvania (Apollo /fiUMEC), has received extended subsequent consideration. The background of this matter is addressed in Chaircan Hendrie's letter of August 3,1978, to the Chairman of m

the Subccmittee on Energy and the Environ =ent.

< Q; Uith reference to that part of my testimony regarding the i;uclear 3:2 n]i Regulatory Commission's assurances that no significant quantities 7

of special nuclear caterial had been diverted or stolen, I was in errer in not limiting my response to enly the period covered by the

.in f;RC. MUF report, i.e., January 1, 1953 to September 30, 1976.

jy I was ' worrect in stating that it was the position of the Commission ry that the. a has been no evidence that a diversion had taken place in.

53 the pre-195E time period, and, in particular, with respect to

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t3 Apollo /t:UMEC.

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Cn the basis of my present knowledge of the matter, I wish to state M

that I am aware of no conclusive evidence that a diversion of special "g

nuclear material either did or did not take place at Apollo /i!UMEC.

-s I respectfully request that my testicony on this matter at your 5

August 8,1977 hearing be corrected accordingly.

Mr. Chair =an, I sincerely cegret the misunderstandings that have

-y resulted from my testimony, and I want to reaffirm that I-had no

Q intent whatever to misrepre'sent the facts as I understood them or

A to mislead the Subec=ittee.

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I3 Sincerely, 5

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y ee V. Gossick Executive Director for Operations a

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