ML20129A763
| ML20129A763 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/27/1984 |
| From: | Rich Smith NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| To: | NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| Shared Package | |
| ML20129A429 | List:
|
| References | |
| FOIA-84-745 NUDOCS 8506040727 | |
| Download: ML20129A763 (8) | |
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July 27, 1984 MEMORANDUM FOR: File THRU:
George Messenger, Acting Direct
, 01A Hollis Bowers, AD/I FROM:
Ronald M. Smith, Senior Cri al Investigator Office of Inspector and Auditor
SUBJECT:
TELEPHONIC CONTACTS WITH THOMAS DEVINE, GAP The. purpose of this nemorandum is to memorialize the substance of two tele-phone conversations I had with Thomas Devine on July 23 and 24, 1984, respec-tively. Devine initiated the call of July 23 at approximately 1:00 p.m. and the call lasted to approximately 3:25 p.m.
His stated purpose initially was to determine if I had reviewed his letter of July 19, 1984, which returned the original copy of his Report of Interview and raised additional matters con-cerning the Diablo investigation (84-26). At that time I had not yet reviewed the materials in detail and so informed Devine. He then asked if I was going
'to interview his witnesses.
I responded that I didn't know for sure yet; but that, unless an identified need to do so developed, I probably would not because my efforts so far were showing that the allegations were not correct.
The remainder of the time on July 23 and approximately 45 minutes on July 24 (11:23 a.m. to 12:10 p.m., approximation) was spent addressing differences over various matters. Salient among those was Devine's stated position that I should interview his witnesses because he was only the counsel for the sources of the allegations and Region V had " lied" to me, "made false statenents" to me, and was not telling the truth. Therefore, his witnesses should be interviewed so that they could have the opportunity to rebut Region V's answers. The salient point I made to Devine was that testinony from his witnesses which would merely confirm their view as to the allegations was not needed because I was finding that the allegations were either factually in error or were erroneous because they were based on comments taken out of context.
I'further said that I had reasonable and plausible responses to every allegation with docurrentation.to support each response.
Devine then said I was going to conclude that the allegations weren't substan-tiated without talking to his witnesses who could show that Region V had provided me with " bullshit."
I responded that if that were true, he should get me the information and/or tell me what it was, but that I was not and could not make him a partner in my investigation and that I was not going to conduct an inquisition concerning the NRC responses absent some indication that they were false. He told me that he had just told me so and that his witnesses could show that.
I asked what specifically they had that he had not already provided. Again he said that if they knew the responses by the NRC individuals, they could rebut the responses.
103-h8 8506040727 841211 PDR FOIA j.Ap DEVINEB4-745 PDR
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2 During the course of the conversations, I pointed out multiple times that he 6
was jumping the gun and that he should wait for my report.
If he then saw that any NRC responses were false and he had evidence to support such an allegation (s), he could report that to me and we would open an investigation into whether the individual (s) lied to me in an official NRC investigation.
Each time he answered that in the meantime the plant would be licensed and operating and the matter would be moot then (although I don't recall if I specifically said it, but a matter of lying by NRC employees in an NRC investigation on material rmtters would never be moot, except possibly if the person had since died).
I ld him repeatedly, he would have to do things "by the nunbers" in a logical sevence. Therefore, if I was being lied to and the lie was documented in my report, then the matter could be pursued at that time, but that I would not conduct an inquisition on his say so, particularly in light of the infonnation I have collected which, on its face, supports each respondent's coninents in a reasonable and plausible way.
On multiple occasions, I pointed out to Devine that he was trying to " argue" interpretation of certain facts a certain way and that " arguing the facts" was not within our province. Our job is to report the facts on each side of the issue with argument as to which facts to believe or how they should be inter-preted being left for the appropriate licensing board, the Commission, Congress or other appropriate forum. He was presenting arguments, not facts, or evidence.
In several instances, Devine made the point that he had told me a lot and that only part of it was in our " format".
(The comment was true, because the allecations were extracted from what he told me and that was done because we onlp'look at the possibility of misconduct of NRC employees as an investigative matter. We do not do audits of the effectiveness of NRC operations (although findings of misconduct or poor performance may lead to
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the inference that effectiveness is diminished).)
There were many other comments, but they all centered around the items addressed above. The bottom line, as I saw it, was that Devine believes that he and his witnesses should have the right to see what I learned from the respondents and then be given the opportunity to rebut their information.
I rejected this view because to do so would have meant that I was no longer in charge of the investigation and would have then meant that every time I objected to Devine or his witnesses' view of a matter, I would have had to justify inclusion or non-inclusion of " facts" based on the right of rebuttal.
I told Devine repeatedly that this was not a trial, but an investigation, i.e., I accepted his allegations and supporting information and then got each respondent's side of the story and his supporting information. As stated previously, the results seemed reasonable and gave me no indication that the responses were not truthful. Accordingly, there was no reason for me to pursue the matter further absent clear evidence that they were not truthful.
Absent that, pursuing the natter on Devine's (or his witnesses) say so would delay the investigation for the purpose of corducting an inquisition to prove the innocence of the NRC respondents. Workinq nn a presumption of regularity, it should be, and I believe is, against public policy for the Government to subject itself to such an inquiry. As stated previously, there is adequate remedy in those cases where its turns out that the respondent was not truthful.
3 The above response (and reasoning) apparently was not acceptable to Devine d
because he told me that this investigation was a " waste of time," at least twice; that.he withdraws his allegations; that this was a " farce"; that he wouldn't be a party to it; that it was a waste of the taxpayers money; and that he would follow up his " formal" withdrawal of the allegations in writing.
'I then reported the gist of the above to Hollis Bowers and George Messenger jointly with the recommendation that regardless of whether Devine " withdrew" his allegations, our Report of Investigation should be completed and issued, which is to be the case.
Finally, I must point out that on multiple points, Devine would take a point I
.made and twist it to a different conclusion.
For example, when I said I did not need to talk to his witnesses if they were only going to confirm their previous allegations as reported by him; he would then respond, "You refuse to talk to my (or the) witnesses?" to which I would respond, "That's not what I said, I said absent indication that I have been lied to and/or presented evidence that that is the case, there is no reason to interview witnesses to get information I already have, i.e., the allegations and support previously provided." The last time I gave that response, Devine made his comments about the nature of the investigation and his announced withdrawal of the allegations. He then abruptly hung up the phone.
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- n j iy-DIABLO CANYON 2.206 PETITION In a Memorandum and Order dated April 13, 1984, the Commission referred a petition, submitted by the Government Accountability Project (GAP) pursuant to 10 CFR 2.206, to the Office of Inspector and Auditor because within the petition, GAP, through its counsel., Thomas Devine, raised the following matters which he viewed as requiring investigation:
(a) whether there have been misleading or material false statements by the NRC staff to the Commission during the March 19, 26, or 27 briefings, or in Supplemental Safety Evaluation Reports SSER-21 (December 1983) or
.SSER-22-(March 1984); and (b) the causes of the QA breakdown within the NRC staff responsible for Diablo Canyon. (In a second petition dated May 3, 1984, an additional briefing date of April 13 was ~added to (a), above.)
Thomas Devine was interviewed in late June and 16 allega'tions of possible wrongdoing on the part of various NRC. employees were identified.
Field work has been completed and a report on the results of that effort is in prepara-tion.
Prepared by Ronald M. Smith g
July 27, 1984 b
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d SUPPLEMENTAL - DIABLO CANYON This supplements the Diablo Canyon statement prepared July 27, 1984, which is
-incorporated ~herein by reference.
The bulk of the allegations were that individual NRC employees, on different occasions, either by statement or omission, falsely advised the Commissioners on various issues of import to the Commissioners' decision on low power testing at Diablo Canyon. The NRC employees and number of allegations against
.them were as follows: Harold Denton, NRR-one; Richard Vollmer, NRR-one; James P. Knight, NRR-one; Dr. Mark Hartzman, NRR-one; John B. Martin, Region V-six; Thomas Bishop, Region V-one; Dennis Kirsch, Region V-three; and two allegations against the NRC staff for (1) an alleged false statement in NUREG-0675 (SSER 22) and for (2) failing to give sufficiently complete and accurate notice to the Atomic Safety and Licensing Appeal Board of a particular issue.
Results l
None of the allegations was substantiated, either because GAP was factually in error in its allegation or because the substance of the allegation was based on matters taken out of context and therefore erroneous, a
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On~ July 24, Thomas Devine, orally (telephone) advised Ronald Smith, 01A, that he was " formally" withdrawing all of the allegations and that he would follow J
up on that advice'in writing. He was apparently upset because of a refusal by Mr. Smith to allow him and/or his witnesses to review the NRC employees responses to the allegations so that he and/or they would have a chance to rebut the NRC responses because, in his view, Region V had provided Mr. Smith with false responses. Secondly, Devine was advised that his " witnesses" need not be interviewed if all they were going to do was to confirm the substance of the allegations previously provided by him.
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3.
That Thomas Bishop, Director, Division of Reactor Safety and Projects, Region V, on March 26, 1984, made a false and/or misleading statement to the Commissioners by stating that the NRC had not yet been provided additional supporting material for an allegation concerning hydrostatic
-test records.
4.
That James P. Knight, Assistant Director for Components and Structures Engineering, NRR, on March 19, 1984, by omission, made a false and/or misleading statement to the Commissioners by failing to tell them that (a) Isa Yin, NRC, had discovered 48 inspection issues which were material to the licensing decision, of which only some had been discussed; (b) serious questions had been-raised by uncontrolled design changes in the
" Quick Fix" program; and (c) an undocumented Westinghouse management policy regarding destruction of material records had been instituted.
5.
That Dennis Kirsch, Chief, Reactor Projects Branch, Division of Reactor Safety and Projects, Region V -
a.
On or about February 29, 1984, by omission, made a material false statement in IE Report 83-37 by failing to discuss-(a) the Nuclear Services Corporation (NSC) audit finding that "(w)hile a written Quality Assurance Program exists, the program does not meet the requirements of 10 CFR 50, Appendix B..." or (b) the interview and February 2 affidavit of Harold Hudson, which verified the accuracy of the NSC audit.
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b' By omission, made a false and/or misleading statement to the-Regional Administrator, Region V, by failing to advise him of an apparent breakdown in corrective action for pipe rupture restraints.
By omission, made a false and/or misleading statement by failing to c.
include in the NRC transcript of a January 5,1984, interview with two witnesses those portions of the interview where Mr. Russ Nolle (sic) was identified as a management official who obstructed inspec-tors from performing quality functions.
6.
That Richard Vollmer, Director, Division of Engineering, NRR, on July 5, 1984, violated prior staff agreements with witnesses by announcing that NRC inspector Isa Yin no longer would be permitted to conduct interviews with Diablo Canyon witnesses.
7.
That NRC staff misled the Commission by stating in NUREG 0675 (Diablo Canyon SSER 22,. paragraph 5.4) that the issue of " Design Change and' Drawing Control" was considered to be " adequately resolved for purposes of licensing decisions."
8.
.That a person, or persons unknown, on the NRC staff made a Government decision outside official channels which could also adversely affect the confidence of the public in the integrity of the Government by publishing in NUREG 0675 (SSER 22), dated March 1984, a finding that "the allegation
-that management has purposely destroyed documentation is not sub-stantiated" without the results of a proper investigation by the Office of-Investigations.