ML20043C477
| ML20043C477 | |
| Person / Time | |
|---|---|
| Issue date: | 04/03/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Zech NRC COMMISSION (OCM) |
| Shared Package | |
| ML20042D040 | List: |
| References | |
| FOIA-90-6 COMLZ-89-12, NUDOCS 9006050234 | |
| Download: ML20043C477 (1) | |
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April 3, 1989
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COML2-89-12 0FFICE OF THE SECRETARY MEMORANDUM FORT Chairman Zech
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FROM:
A uel J. Chilk, Secretary
SUBJECT:
DELEGATION OF SUBPOENA AUTHORITY TO ALAN ROSENTHAL All Commissioners concur in your proposed delegation of authority to the Secretary to issue subpoenas at the request of Alan Rosenthal.
Commissioners Carr, Curtiss and Rogers also agree that prior notice to the Commission not be requiredt only notification upon issuance.
In addition, Commissioner Rogers would not require prior notification by the EDO however he would continue it for OI.
Attached for your signature is a memorandum to Judge Rosenthal.
Attachment:
As Stated copies:
Commissioner Roberts Commissioner Carr Commissioner Rogers Commissioner Curtiss 900405-hl) 60 ppR
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December 19, 1989 CHAIMMAN The Honorable Peter H. Kostmayer, Chairman Subcommittee on Oversight and Inve'stigations Cemittee on Interior and Insular Affatrs United States House of Representatives Kashington, D.C. 20515
Dear Chairman Kostmayer:
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In response to your letter dated December 12, 1969 conflict between the views exprestad in Judge Alan,Rosenthal's October 1 memoranoum and his statements in Ms af fidt.vit submitted to the U.S.
District Court for Massachusetts, I am forwarding Judge Rosenthal's memorandum dated December 14.
Judoe Rosenthal concludes that there is no such conflict and provices a detaded explanation supporting that conclusion.
With respect to your suggestion that the Seabrook operating license be withheld until Mr. Comley answers his subpoena, I can inform you that a full power license may not be issued at this time and will not be issued until the Commission concludes its imediate effectiveness review an determines that full power licensing is appropriate.
As Mr. Rosenthal's memorandum suggests there is simply a possibility that the information Mr. Comley is curren,tly withholding, contrary to judicial mandate, deals with safety-related matters.
While that possibility must continue to be explored, there is at present no basis to conclude that Mr. Comley's tapes would disclose safety concerns relating to the Seabrook plant that the NRC staff has not already considered.
The Seabrook adjudicatory licensing proceecing includes no open issue related to Mr. Comley; however, any information provided to the staff will be appropriately considered in its assessment of plant-readiness.
The Commission will receive that assessment in a briefing to be held no earlier than January 18, 1990 determination on license issuance.and consider it before making its Sincerely, twwh.b Kenneth M. Carr
Enclosure:
Memorandum from Alan S. Rosenthal to Chairman Carr dated Dec. 14, 1989 cc:
The Honorable Barbara Yucanovich
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OFFICIAL USE ONLY December 14, 1989 MEMORANDUM FOR:
Chairman Carr (h
Alan S. Rosenthal FROM
SUBJECT:
CONGRESSMAN KOSTMAYER'S DECEMBER 12, 1989 LETTER I am in receipt of a copy of Congressman Kostmayer's December 12, 1989 letter to you, In that letter Mr.
Kostmayer points to what he deems to be an appare,nt conflict between a statement in my October 18, 1989 memorandum to the Commissioners and a certain representation in the June 19, 1989 affidavit that I supplied to the United States District Court for the District of Massachusetts in the proceeding seeking enforcement of the subpoena issued to Stephen 8.
Comley.
In actuality, no such conflict exists.
Indeed, the only possible conflict disclosed in the October 18 memorandum relates to the testimony given by Roger A.
Fortuna during his formal interview by me on March 22, 1989
-- an interview subject to 18 U.S.C. 1001 (the provision of the Federal Criminal Code concerned with, among other things, the making of false statements or representations in connection with any matter within the jurisdiction of an agency of the United States).
My reasons for these conclusions are as follows:
1.
My October 18 memorandum to the Commissioners was prompted by an article in the October 13, 1989 edition of the New York Times, written under the by-line of Matthew Wald.
Addressed to the hearing the previous day conducted by Mr. Kostmayer's subcommittee, the article revealed that, in an interview (presumably with Mr. Wald), Mr. Fortuna had stated that "Mr. Comley had provided important safety information and that he [Fortuna) was cultivating the man as a source."
l I had found that portion of the article to be most troublesome.
It was my impression then, and it continues to be my impression today, that Mr. Wald is a reputable reporter who would not misrepresent what he was told in an interview.
I thus had to assume that, in fact, the account in the Wald article accurately reflected what Mr. Fortuna had stated in an interview following the subcommittee
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hearing.
But, as I went on to explain in the October 18 memorandum, it was difficult to square the statement with Mr. Fortuna's testimony during the March 22 interview of him
-- at least if (as seems quite likely) Mr. Fortuna intended to be understood by Mr. Wald as asserting that he was the recipient of Mr. Comley's "important safety information'.
For, as I noted in the October 18 memorandum, during the March 22 interview Mr. Fortuna had disclaimed the obtairdng of any worthwhile information from Mr. Comley and my investigation to date has not disclosed the receipt of an such information by other persons within the Commission. y I must add on this score that, although not alluded to in my October 18 memorandum, my concern regarding the Fortuna statement reported by Mr. Wald was heightened by an incident occurring on the day of the subcommittee hearing.
Before the hearing commenced, I had occasion to review Mr.
Fortuna's prepared testimony.
That review disclosed the entirely inaccurate statement in that prepared testimony that I had sent a 1099 tax form to Mr. Ellison in connection with the consultant payment he had received from the NRC and that I had taken that step *only after (I) received press and congressional in Fortuna's attention,quiry."
I brought the inaccuracy to Mr.
believing at the time that it was inadvertent on his part and that he would therefore welcome the opportunit Unfortunately,y to correct his prepared testimony.
I was totally wrong in that belief.
Far from correcting the error, Mr. Fortuna repeated it in the course of-reading his prepared testimony once he took the witness stand.
In calling this to the attention of Mr. Kostmayer in my own oral testimony later in the day, I was compelled to l
note my opinion that there was substantial doubt that Mr.
Fortuna was interested in putting the truth before the subcommittee.
day, a similar doubt arose respecting Mr. Fortuna'sWhen I read i
testimony within the agency.
2.
Against this background, I now turn to the claim of an apparent conflict between the October 18 memorandum and my June 19 affidavit.
That conflict is said by Mr.
Kostmayer to stem from the statement at the conclusion of the memorandum that During the course of my investigation, no person (Mr. Fortuna included) has averred that Mr. Comley has given the Commission worthwhile information and, once again, it appears that the claim to that effect contained in his organization's press release is not accurate.
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The June 19 affidavit does not contain a contrary representation.
alone state explicitly, that I had in my possession theNow averment of Mr. Fortuna or any other interviewed person that Mr. Comley had given the Commission worthwhile information.
Nor have I made such a claim in any other document prepared by me.
In my September 21 interim report, for example, I explicitly observed (at page 54) that "there is insufficient evidence in the existing record to mandate a finding that Fortuna improperly provided Comley with confidential official information or improperly failed to pass on to others in the NRC information supplied by Comley" (emphasis in original).
All that I stated in my affidavit of present relevance is (at pages 2-3) that I had " listened to the recording of the January 14, 1987 conversations [between Messrs. Fortuna and Comley) and [had) reviewed a transcript of that recording.
The recording led me to conclude that the employee [i.e., Mr. Fortuna] Jma have disclosed sensitive and confidential NRC information to Mr. Comley and mag have failed to disclose to other NRC officials relevant information that he had received from Mr. Conley" (emphasis supplied).
I fully stand by that representation, which was made, of course, with full awareness of Mr. Fortuna's disclaimer in his March 22 interview.
That disclaimer was, of course, wholly self-serving.
(As noted in my October 18 memorandum, had Mr. Fortuna acknowledged that he had received significant information from Mr. Comley, the next question would have sought to determine whether that information was passed on to other NRC officials (and, if so, when and to whom).)
As such, the disclaimer could net have the effect of negating the impression left by the January 1987 Fortuna/Comley telephone conversations.
Those conversations are analyzed in detali in my September 21 interim report and, because both the commission and Mr. Kostmayer have copies of that report, need not be rehearsed here.
I would simply refer Mr. Kostmayer to the discussion at pages 56-62 of the report, which explains why I concluded (at page 59) that, notwithstanding Mr. Fortuna's disclaimer (noted at pages 47-48 of the report), "the Comley/Fortuna exchanges raise the possibility that Fortuna may have unjustifiably withheld from others within the NRC information that had been supplied to him by Comley."
In that connection, I went on (ibid) to observe that while the January 1987 telephone conversations fell short "of converting the possibility of withheld information into a reasonable certainty that such occurred, they do (through the Comley subpoena).give cause to inquire further Once
4 again, I have been given no cause to pull back from that observation -- which, to repeat, rested on the content of the January 1987 telephone conversations and not on what any witness (including Mr. Fortuna) might have told me in the course of an interview.
In these circumstances, the purported conflict between my June 19 affidavit and the October 18 memorandum (which did not even mention any recorded Fgrtuna/Comley telephone conversations) simply does not exist 3.
It obviously would be inappropriate for me to comment on Mr. Xostmayer's attem.pt to link to the Seabrook proceeding my " determination to Xeep the Fortuna investigation open until the comley subpoena is answered.'
Suffice it to say, I have no apologies to offer respecting my conviction that until that matter is resolved.the investigation should not be closed It well may be that Mr.
Fortuna (and perhaps others) find this conviction to be distressing.
If so, there is only Mr. Comley to blame.
i federal courts have rejected outright his attack on the Two validity of the subpoena.
Yet Mr. Comley continues his l
lawless disregard of the mandates of those courts.
it both surprising and regrettable that the concern over the I find i
treatment of Mr. Fortuna has not been accompanied by a condemnation of Mr. Comley's conduct.
i If I can supply any further information in response to Mr. Kostmayer's letter, please let me know.
1 My reference in the October 18 memorandum to the inaccuracy of the claim in the press release issued by Mr.
Comley's organization was in the context of that specific s
claim and did not contain the suggestion that I had established that Mr. Comley had never supplied Mr. Fortuna with significant information.
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