ML20031A615
| ML20031A615 | |
| Person / Time | |
|---|---|
| Issue date: | 08/14/1981 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20031A612 | List: |
| References | |
| NUDOCS 8109240228 | |
| Download: ML20031A615 (7) | |
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For:
The Commissioners From:
Executive Directcr for Operations Subiect:
INVESTIGATIVE JURISDIC'ICN OF THE OFFICE OF INSPECTION AND ErmrEMENT
Purpose:
,arify the authority of the Office of Inspection and Entorcement to conduct external investigations within the jurisdiction of the NRC.
Discussion:
Two NRC offices have been delegated the authority to conduct investigations:
the Office of Inspection and Enforcement (IE) and the Office of Inspector and Auditor (01A).
There has been a continuing lack of clarity regarding the investigative juris-diction of IE as compared to that of OIA; this has resulted in problems affecting the effective functioning of both offices.
The purpose of this paper is to T-1)-advise the Commis,sion of this problem because of its impact on both IE and OIA operations and (2) to seek Commission clarification of its desires in this area.
It is my view that the distinction between the investigative responsibilities and authority of the two offices should be determined by whether the matter to be investigated is internal or external.
By internal I mean that the investigation involves an NRC employee or contractor; by. external I mean that the in-vestigation invelves the licensed nuclear industry or a matter of NRC regulatory interest.
I contend that Id has exclusive authority and responsibility for the conduct of all external investigations and that DIA has similar exclusive authority for the conduct of internal investi-gations.
I base this contention on official Delegations of Authority embodied in the NRC manual chapters pertaining to the two offices.
CONTACT:
W. J. Ward, IE 49-27246 B109240228 810819 PDR MISC PDR
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Manual Chapter 0113 pertains to OIA.
I view this chapter as clearly establishing OIA as an internal investigative and auditing organization.
I see nothing in MC 0113 that assigns authority to OIA to conduct external investigations.
In contrast, Manual Chapter 0127, gives IE a broad external inves'.igative mandate.
Among other things, it confers on IE the 'esponsibility to investigate licensees, their contractors r
or suppliers, applicants, indiv; duals, and any organization subject to NRC jurisdiction.
MC C127 dest-ibes the purpose of these investigations as being "to ascertain tne status of ccmpliance with NRC requirements" and to " identify conditions...
that may adversely affect the public health and safety, the common defenst and security, the environment, or the safe-guarding cf nuclear materials and facilities."
In addition, l
MC 0127 specifically charges IE to " investigate incidents, accidents, allegations, and other unusual circumstances involving
. natters in the nuclear industry which may be sub,iect to NRC jurisdiction..."
The issue of authority notwithstanding, I believe that IE responsibility for external investigations is consistent with its role as the primary arm in f-ie4d operations of the NRC.
As a line office under the Executive Directcr for Operations, IE has predominant responsibility for operational matters requiring field work involving the nuclear industry.
The evolution of the Incident Response Program and cortain recommendatiens of the TMI Special Inquiry Group aia evidence of increa<ed emphasis on this operational role.
Because the conduct of external investigations is clearly an operational activity, I believe it is aopropriate to place this responsibility within IE.
Conversely. it appears to me that it is inconsistent to have OIA perform external' investigations, thus involving a Commidsion staff office in an operational activity.
Commission policy has been to place operational activities under the cognizance of the Executive Director for Operations.
Assigning e>ternal investigative authority to 0IA represents a departure from this practice.
Most important, however, would be the impact of OIA involve-ruent in such investigations on the inspection and enforcement program in general and on enforcement coordination in parti-cular.
Indeed, it is the problems riready encountered in such investigations as South Texas, huclear Pharmacy Incorporated,-Stepan Chemical, and the various TMI investigations that have demonstrated the need to have this conflict corrected.
In these cases, there is a lack of assurance that all developed infcrmation has
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e been'provided to IE or the Department of Justice, enforcement actions have been delayed, and confusion has been generated on the part of licensees having to
. deal with two sets of NRC ir.vestigators.
The Depart-ment of Justice has been brought into some of these matters with only limited IE consultation regarding the program impact of such an action.
Relatedly, there have been instances where IE Enforcement meetings with licensees have led to NRC/ Licensee Agreements b
which were-later challenged by 00J.
The Niagara Mohawk,
. Stepan Chemical, & Nuclear Pharmacy cases are examples where this has occurred.
In the.above-cited examples, OIA indicated that they i
initiated an investigation due to evidence of apparent criminality.. Investigations of actual or potential
- criminality are a subset, at best, of each of the larger categories of internal versus. external investigations.
Furthermore, it is not clear to me that any NRC component has statutory authority to conduct purely criminal investi-gations.
Nonetheless, it is instructive to examine the topic of criminality in light of oiTF experien'ce to date.
- As it pertains to the NRC, actuel or potential criminality
" can be considered as fal. ling into two categories.
The first category is encountered during inspections or investigations (or is brought to the attention of the NRC in some other i
fashion) and is only peripheral to NRC's interest or responsibilities.
Examples of this type of criminal activity range from theft of private property er
- embezzlement of licensee funds to* violations of specific federal laws, such as smuggling, counter-l f eiting, or evading payment of inc ome tax.
NRC's I
responsibility regarding this information is clear.
Like any good citizen, we must make the information available to the Federal, State, oF local law enforce-
- ment agency having jurisdiction over the matter.
NRC has neither the authority nor the desire to investigate such matters.
In the second categ'ory are those instances that are clearly
- related to matters within the jurisdiction of the NRC.
The vast majority of these snvolve potential violations of the Atomic Energy Act or the General Fraud Against the Government Statutes (such as.18 USC 1001 or 18 USC 371).
Some examples of these are willful violations of NRC ' regulations made
- criminal by statute, records falsification, lying to an inspector or investigator, unlicensed posses'sion of nuclear matenial, or attempts to deceive the NRC in order to obtain a license.
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In each of these examples, the eiements of potential crimin-ality and NRC's regulatory interects are inextricably inter-twined.
No decisions can be made regarding either health and safety actions or criminal prosecution until there is an adequate amount of information available on which to base such a decision.
It is my belief that. the appropriate way to acquire this information is to initiate or continue an investigation concerning the matter at issue.
It is important to note that the vast najority of investi-gations conducted by IE involve, at the outset of the
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investigation, the possibility of criminality.
IE is dealing with, or has dealt with recently, dozens of instances where the initial information indicateu either possible falsification of records relied upon by the NRC or the knowing and willful violation of NRC regulations.
In each of these cases, IE initiated an investigation to determine the facts about the situation.
In most of these cases the investigations revealed matters of health and safety significance that were tner dealt with in accordance with IE enforcement procedures.
Several also indicated potential criminality; those cases were then coordinated with OIA with a view to referral to the Department of Justice.
Still others, a sicJnif'icant numb ~er as 2 matter of fact, have resulted in a determination tnat either the inform-ation was not of safety significance or that the person sup-plying the inforn.ation was in error.
It should be noted that by following a course of action, like l-that described above, IE is able to ensure prompt possession of information of suf ficient quantity and qualO./ on wnich to make its decisions involving the health and safety of the public.
At the same time, such a course of action does not foreclose a future decision to pursue criciaal prosecution.
It should be noted that most of the exatples of potential criminality encountered by IE are not of the " smoking gun" type.
There is little if any need to undertake an immediate criminal investi-gation in such cases.
l In those rare cases in which prompt field response by the FBI might be warranted, such as theft of Special Nuclear Material (SNM) or sabotage, IE investigators could either assist the FBI or conduct a parallel investigation in coordination with the FBI as was done in the recent Beaver Valley investigation and three other cases in the past year
^+ criminality is involved, IE investigators need Whethet o.
to cellect sufficient information to support successful NRC enforcement actions.
To this end, they identify and collect copies of pertinent records, and identify and interview persons who can provide substantive information.
When warranted by the
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nature of the case, sworn or unsworn statements are obtained.
It should be noted that statements, or admissions, or other eviJence obtained by IE investigators could be used for prosecutive as well as civil enforcement purposes.
- Thus, these IE investigations would enhance rather than hinder any subsequent criminal investigation or prosecution.
As IE has perceived the relationship of the investigative program to be central to NRC enforcement efforts, IE has increased investigator staffing levels markedly.
Of the 18 IE investigators on board, 14 have had at least five years of criminal investigative experience.
In sommation, IE and OIA have both had difficulty regarding the respective investigative jurisdictions of tne two offices.
Thus I feel that this matter needs to be clarified by the Commission.
I believe that the following points support the IE position:
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(:) The appropriate NRC manual chapters presently give IE ex,lusive authority to conduct external investigations.
(T) -External investigations, as an operation ^al activity, belong under the cognizance of an EDO line office.
'(3)
IE has demonstrated the capability to conduct such investigations.
(4) The current situation is having an adverse impact on our the inspection and enforcement program and is causing confusion among licensees.
(5) The July 9, 1981 GAO report on CIA notes the need for 01A to concentrate on its legitimate internal audit role.
Recommendation:
I recommend that the Ccmmission reaffirm the intent of Delegations of Authority in MC 0113 and 0127, designating IE as the NRC agent for all investigations external to the agency and OIA as the NRC agent for all internal investi-gations.
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g The Ccmmissioners Coordination:
The Offices of NRR, f4M55, RES, ADM and ELD concur in this recommendation.
The views of OIA will be provided separately.
William J. Dircks Executive Director for Operations p
'The Commissioners
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Coordinction:
Tne Offices of NRR, NMSS, RES, ADM and ELD concur in this recommendation.
The views of OIA will be provided separately.
William J. Dircks Executive Director for Operations WPU:CY EI:IE D:EI:IE ELD D:NRR D: NMSS D:RES DD:IE 8/13/81 VWard DThompson Jhurray HDenton JDavis RBMinogue RDeYoung Ward 2(N) 8/ /81 8/ /81 8/ /81 8/ /81 8/ /81 8/ /81 8/ /81 D:IE ED0 ADM VStello WJDircks DJDonoghue 8/
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