ML20028D735
| ML20028D735 | |
| Person / Time | |
|---|---|
| Issue date: | 05/28/1982 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Ottinger R HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML20027A771 | List: |
| References | |
| NUDOCS 8301190411 | |
| Download: ML20028D735 (10) | |
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NUCLEAR REGULATORY cot.'.t."SSION
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. :. w.u. n The Eencrab'e Richard L.
Cttinger, Chairman Subccrcittee on Energy Conservation and ?cwer Committee on Energy and Cercerce United States House of Representatives
_.- Washington, DC 20515
Dear Mr. Chairman:
Inclosed are the answers to the cuestions in your letter of Mav. #,, 1982 rec.ardinc the Hav. ward-Tv.ler ? ump matter.
s We share your concern about the release of the draft inspection and investic.ation recorts to Como.any reo.resentatives.
- Moreover, we agree that our investigatorv. efforts should not be burdened bv any practices which even give the ac.c.earance of imo. roc.riety.
Nevertheless, I am concerned that your criticism of the Ccrm:..ssion and its senior orricia,.s appears.to be based on a misunderstanding of the facts.
Your letter states (see cace 5):
"Most importantiv.
these actions are reprehensible because of the total indifference shown by the Cormission to the discicsure of these actions at the highest staff levels.
The Cemrtission's inaction in the face of internal documents anc ev:.cence that orivate, unrecorcec meet:..ngs between a vencer under investication and senior NRC star: no.
amiliar with t.ne investigation occurrec anc resultec. in revisions in One text or_ o::1cla, cernunications constitutes an encorse-ment of this premiscuous behavior between the regulated and the regulator."
There are two incertant coints that merit consideration in this
_1rst, ranner than total incir:erence anc inaction, connection.
the Ccr=ission acted prcmptly to establish the facts and to address two problems that arose in the Hayward-Tyler investiga-tion.
It directed that:
(1) no draft investigation reports will be issued without the explicit apprcval of the Executive Direc-
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w mented these acticns.
8301190411 830104 PDR COMMS NRCC CORRESPONDENCE PDR
i Mcnorable Richard L. Ottinger 2
secondly, it was reported as a result cf the investigation that the caly direction given by the senior NRC official present at the Fe':ruary 25 mee:ing was to be sure that the language in the tran ri :al le::er was consistent with the findings of the inspection and investigation reports.
This hardly qualifies as reprehensible action, despite the fact that changes were later made in the transmittal letter -- changes about which the Inspector and Auditor said:
...I believe the regional officials
- __ made the changes in good faith believing they were on point and valid."
In a similar vein, the Office of the Inspector and Auditor reported to the Commission that the flaws in the handling of the Rayward-Tyler matter were not primarily caused by a people problem but by a more fundamental institutional deficiency regarding the agency's policy, procedures and overall management of investigations.
Your letter appears to support this point of view when you state (see page 2):
...the Commission must establish clear policies which can be easily, followed by the Regional Offices.
This is not to impugn the ethics of those in the Regional Offices, but to stress the need for clear standards which can minimize actions such as those taXen in Region IV in this case."
The Commission's decision to establish a new Office of Investigations addresses the basic institutional problems with our investigative program.
Further, during the discussion of the Inspector and Auditor's report to the Commission on the subject, no.one expressed a view that the facts revealed egregious conduct by NRC officials which suggested that administrative disciplinary measures should be considered.
On the contrary, it was noted that the officials in question withstood any undue influence.
From your oversight perspective, I believe you would agree with g
me that our regulatory operation is a complex one.
Senior staff officials more often than not are attempting to deal in rapid fashion with multiple problems.
When deficiencies in agency actions are discovered, we expect to be held accountable to a very high standard.
If disciplinary action is warranted, the failure to take such action should not be condoned.
However, the investigation has not disclosed the need for such action.
The agency's success in carrying out its mission depends on the dedicated efforts of its employees.
Prejudgment of the integrity of empicyees not only harms the morale and effectiveness of the individuals attacked but also deeply affects all members of the agency and could reduce their continued availability as public officials.
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i Hencrable Richard L. Ottinger 3
is that your May 7 letter implies that senior NRC My final print cfficials 2hruld never talk to representatives of organizations which are the subject of an investigation.
We agree that such meeri.. 3 should rarely be held before the investigation has been
- leted, and enly for a clearly stated regulatory purpose.
in carrying out our regulatory responsibility we depend
- Ecwever, heavily on those who are subject to our regulations for informa-
' tion regarding, for example, the safety significance of alleged deficiencies and corrective actions that may be warranted.
Placing a stigma,,therefore, on any neeting with representatives of an organization under investigation would not be in the best-overall interest of the ccaduct of our regulatory responsibilities.
In conclusion, Mr. Chairman, we share your concerns about avoiding improprieties in our investigations.
Nevertheless, I sincerely believe that the conduct of our mutual responsibilities is not advanced by the circumstances I have discussed at some length.
We will continue to do our best to. assure that proper investigatory practices are routinely followed.
Commissioner Gilinsky adds:
I do not agref with the Conmission's letter.
I am disappointed that the Commission did not even express its displeasure with the handling of the draft and final reports.
Sincerely,
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s Nunzio,J. Palladino i
Enclosure:
As stated cc:
Rep. Carlos J.
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GUESTION 1.
_What sanctions are available to the Cc= mission for breach of 10 CFR Part 0 by a Commission employee?
ANSWER.
Part 0 cenerally recocnites that violation of any of the instructions or statutes referred to in the Part 0 may subject employees to disciplinary acti:n by NRC in addition to any penaities prescribed by law for such s
viciation (0.735-3(a)(7).
Subpart C of Part 0 includes a list of restrictions imposed by statute on the conduct of employees.
(0.735-30).
Part 0 is incorporated in its entirety in NRC Manual chapter 4124 " Conduct.of Employees."'
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General authority for adverse-actions against government employees is provided by 5 U.5.C. Chapter.75.
While this chapter does not apply to NRC empicyees directly by. virtue of the agency's excepted status under.
Section 151d. of the Atomic En.ergy Act of 1954, as amended, NRC has adopted its provisions in the agency's personnel regulations.
' Oepending upon the circumstances, if a particular statute is violated, the statute may itself provide for the appropriate sanction.
(See,e.g.
the statutes referred to in 0.735-21-0.735-27).
Unless a sanction is specifically provided for by a statute which has been violated, a general, touchotone is in 5 U.S.C. section 7513 which states in part, that "i.. an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service."
A full range of sanctions are available beginning with counselling and proceeding through memoranda of admonition, letters of reprimand, suspensions, up to and including loss of job.
OUESTION 1 What sanctions are available to the Commission for breach of 10 CFR Part 0 by a Commission employee?
s (i)
Have any of these sanctions been invoked?
ANSWER
' e understand the question to relate only to instances in which Part 0
'n' has been invoked as the basis for the sanction.
There have been two instances in which Part 0 has been relied on to impose an administrative sanction against a supervisory employee.
The general authority in Part 0 is rarely used in and of itself as the basis for an administrative sanction against any employ'ee.
However, there are instances of administrative sanctions being imposed on non-supervisory empicyees,
und'er the authority of 5 U.S.C. chapter 75 or other specific statutes as the circumstances may warrant.
Typically, the bulk of these sanctions concern absences without approved leave, falsifying government documents S e
9 (e.g. job application fem and time and atter. dance cards) and insubordination.
(ii)Ifso,underwhatcircumstances?
(1)
A supervisor we.s suspended for seven calendar deys for. improperly advisinc 'a licensee to subr.it false records as part of a license renewal a piita.i:r. (backdating a portion of the application to meet a 2
deadline).
(2) A supervisor was suspended for thirty calendar days for unauthorized use of U.S. government vehicle,rasuiting in its 1oss to the government.
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On April 6,1932, Mr. Failadin estified tef:re the OUESTION 2_.
Interior and Insular Aff airs Sub:cmmittee cn Oversight the C:mmission had and Investigations to the effect tha:
determined that no discipiinary action was warranted at this time as a result of the a:tions of Regicn IV officiais.
(Note:
Although the transcript of the April 5 hearing has not yet been released for our detailed review, we believe that the Chairman testified in part:
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"And I indicati that the Comnission has fIot thought at" this point in time that any disciplinary action' is
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needed.").
(i)
Provide all legal analysis of Commission policies, pr'ocedures,. rules and regulations prepared by the General -
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Counsel, the Executive Legal Director, the Office of Inspection and Enforcement or the Office of Inspector a'nd Auditor, along with any other considerations upon which this decision was based.
ANSyER The deficiencies in the handling of the Hayward-Tyler matter were not the product of an employee problem. The underlpi As stated in the letter of transmittal and in previous investigations.
correspondence to you on this subject, the Commission directed its attention and actions to the underlying institutional deficiencies.
In reaching this conclusion, the Commission had for its consideration the Inspector and Auditor's report and the following statement of his conclusions and recommendations:
12, 1982, Region IV officials should not Clearly, on February have released drafts of the inspection and investigative reports, the draft transmittal letter to the inspection report Notwithstanding and the draft Hotice of Nonconformance.
whether or not we have specific regulations or guidance addressing this point, common sense should have dictated acainst this decision, given the totality of the circumstances.
Both the EDO and regicnal official - given the frecuency and informality of the various meetings and phone conversations
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with Mr. Rowden, et al - should have confirmed by memo or letter the substances and merits of these contacts.
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Thrcuchout the investication and inspection there was less t
than the proper arm's length distance between NRC and the This distance should have been vendor and his attorneys.
maintained not cnly because cf the ccmpeting interest that exis:s durinc an investigation but particularly because cf :he fact that NRC cfficials were dealing with former associates i
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who were also fomer senio'r officials of the S?.:.
Failure to maintain this distance subjects insoection and investigation reports to the charge that they it:k independen:e and/or objectivity.
Fo11cwing from the previous points we are-left with the ir. disputable fact that the vendor was successful in effecting softening changes to a prop: sed NRC transmittal letter - and
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the per:eption by some that this was done to accomodate a former boss.
Finally, while the changes did in fact soften the letter I do.
not believe that regional officials knowingly made these thanges simply to accomodate the vendor or fir. Rowden.
l'oreover, although the changes to the proposed transmittal
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1itter 'probably would not have been made absent' the tactics employed b) SiTPC* and.their attorneys, I believe regional officials made. the changes in good faith believing they were on point and. valid.
"With regard to recommendations, it is my cpinion that 01A's inquiry into the various aspects of the handling of the liTPC investigation / inspection substantiates to a large degree what has been brought to the Comission's attention in the past, to wit, the NRC investigative program is below par.
The primary reasons for this
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situation is not a people problem, as we have many fully trained and competent investigators in the field, but rather we lack comprehensive For policy and procedures with regard to NP.C field investigations.
example, I do not believe there is region-wide agreement with regard to such practices as en' trance conferences, exit conferences and similar practices as they pertain to investigations.
"An immediate solution to this problem would be the formation of an Office of Investigation, reporting directly to the EDO or to the Current regional investigators would report directly to.
Director, DIA.
this office and the. office would serve.as a service organization to the The clear advantage of having this office report directly five regions.
tif the EDO would b'e that major line functions of the agency would continue to report to the EDO and OIA would retain its total overview The major advantage of having this office report to the
. function.
Director, DIA, lies in the fact that many field inves.tigations deal with whether or not the regions have done a proper job and this reporting arrangement would avoid'the situation where the EDO is looking at and l
appraising one of his own.
I "I do not believe we can avoid coming to grips with this issue any longer." (End of Quote)
Although the Office of the General Counsel did not provide any written.
1ecal analysis, a representative of. that office was present at the
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l Fart 0 was discussed.
The Cc.h.ission meetings on the subject.
Cccissien was advised as a general proposition that although it would not be legally irrational to apply Part 0 (because of its general
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language), the Office of The General Counsel stren;1y recem anded against that course.
Historically, ?ar: 0 has been unders cod to be concerned primarily with ccaduct whi:h involves conflict of interest situations.
If Part 0 is to be breidly interpreted and applied (so as to invoke administrative sar.c icns On the basis of the appearance of a viciation of one or m:re of its ;e..eral standards sclely because of isolated err:rs of fud.: ment), the Office of General Counsel reco=anded that prior r.:: ice of such intent be given to all NRC employees.
The C:=itsion was also advised that on the basis of the facts reflected in the Inspector and Auditor's report on the Hayward-Tyler matter, the Office of The General Counsel was not aware of any provision of. law which appears to have been violated by any NR? employee.
The Office of The Executive Legal Director did not provide any analyses, legal or othernise, with regard to the decision that "no disciplinary r
action was warranted at this time as a result of the actions of Region.
IV official."
The Executive Legal Director was present at the.
Comission meeting at which the advice su=arized above of the Office of The General Counsel was given to the Co=ission.
On May 1,1982, the Di. rector of the Office of Inspector a'nd Auditor furnished you a copy of an April 20 memorandum prepared by his investicators and a copy of his April 23 response.
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C'JESTION 3 yhat was the purpose of the meeting be: ween Mr. Dircks and Mr. Rowden, in light of the fac: tha NRC cfficials present ware not familiar with :he facts of the case?
Is it NRC policy for senier officiais, presumably not involved in or familiar with the inspection or investigation :: meet with parties under investigation to dis:uss the investigation and documents associated charewith prior to issuance of the final report?
If so, please state the purposes served and the safeguards used e
to prctect the agency f. rom possible perceptions of impropriety.
ANSWER l
The statement in the question that the NRC officials present were not familiar with the f acts of the case is not correct.
The Office of l
Inspector and Auditor's report indicates that senior NRC Headquarters:,
officials had been previously briefed on the results of the Hayward-Tyler Pump Company investigation.
This briefing was conducted
.by John Collins, Administra, tor of the Region IV office, on February 18, 1982.
That briefing was sufficiently detailed to raise questions in the minds of the attendees (at the February 18 meeting) rega'rding the adequacy of the investigating and the draft report of the investigation.
There was also concern about the safety implications of and deficiencies in the pumps and the type of remedial action which would be taken to inform those who needed.-to know.
The meeting was held because it was requested.
The particular source of the request was not a determining factor in holding the meeting.
Meetings with repressntatives of companies regulated by the NRC are not Such meetings are an essential part of our ascertaining facts I
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which may have a significant bearing on regulatory actions, such as the type and timing of enforcement actions.
It is appropriate for the Executive Director for Operations to meet with senior company officials l
to discuss matters under his purview.
The regional offices report to the, Executive Director'for Operations.
As far as " safeguards" are concerned, both the Executive Legal Director and the Deputy Director of
]nspection and Enforcement accompanied the Executive Director for Operatiens at the meeting.
Additional administrative directions, l
referred to in the covering letter, have been issued to require written summaries of such meetings and to prohibit the release of draft investicatior, reports to licensees or their agents without the express permission of the Executive Director for Operations.
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o OUESTION 4 Ohat activities are centert. plated by the Cc=i:sicn to determine whether such actions are not unccman by Headquarters officials discussed in this istter?
AN5'n'E R Althcugh such rsetings are not frequently conducted by Headquarters cfficials, it is not ina;propriate to previde an opportunity for company rs;resentatives to meet with senior Headquarters officiais to discuss issues under their purview when the circumstances so dictate.
This is particularly true when safety considerations and the need, if any, for remedial actions is involved.
In the final analysis, the institutional changes which the Cemission has already directed with regard to canagement and conduct of investigations, coupled with the sound
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judgment of resportsible officials, should minimize any concern of the type raised by the Hayward-Tyler matter.
And, as indicated in the ar.swer to Question 3, additional directives will be issued to the exterit necessary regarding the circumstances under which senior officials are
,to meet with representatives of the subject of an on-going investigation.
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