ML20132B920
| ML20132B920 | |
| Person / Time | |
|---|---|
| Issue date: | 04/09/1984 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8404110608 | |
| Download: ML20132B920 (81) | |
Text
ORIGINAL
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UNITED STATES OF AMERICA NCCLEAR REGULATORY Commission In the matter of:
BRIEFING ON CRIMINAL VS CIVIL INVESTIGATIONS O'*I" NO-i l
l i
l Location:
Washington, D. C.
1 - 58 p,
Date:
Monday, April 9, 1984 1
l l
TAYLos ASSOCIATES l
em me nn.
re:S I suses.M w sene sees 8404110608 840409
- nn,apen. O c. Mass PDR 10CFR
,33 3m PT9.7 PDR L
a m ;h/r& t I
' UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 BRIEFING ON CRIMINAL V.
CIVIL INVESTIGATIONS 5
0 PUBLIC MEETING 7
8 Room 1130 1717 H Street, N.W.
9 Washington, D.C.
10 Monday, April 9, 1984 11 The Commission met, pursuant to notice, at 10:25 a.m.
12 COMMISSIONERS PRESENT:
(
13 NUNZIO PALLADINO, Chairman of the Commission VICTOR GILINSKY, Commissioner 14 THOMAS ROBERTS, Commissioner JAMES ASSELSTINE, Commissioner 15 FREDERICK BERNTHAL, Commissioner 16 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:
17 S.
CHILK G.
MESSENGER 18 B.
HAYES J. MURRAY 19 J.
FITZGERALD M.
MALSCH 20 AUDIENCE SPEAKER:
21 R.
FORTUNA 22 23 24 i
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rs DISCLAIMER This is an unoffical transcript of a meeting of the 'Jnited States Nuclsar Regulatory Commission held on April 9, 1984 in the Commission's office at 1717 H Street, N. W.
Washington, D.
C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or editsd,and it may contain inaccuracies.
The transcript is intended solely for general informational purposss.
As providsd by 10 CFR 9.103, it is not part of ths formal or informal record of decisien of the matters decussed.
Expressions of opinion in this transcript do not necessarily refisct final detsrminations or beliefs.
No pleading or other paper may bs filsd with the commission in any proceeding as ths result of or addresssd to any statement or argument contained herain, except as the Commission may authorize.
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PROCEEDINGS
'2 CHAIRMAN PALLADINO:
Good morning, ladies and 3
gentlemen.
4 The Commission meets this morning to discuss the 5
agency's conduct of civil and criminal investigations and 6
the relationship between such investigations.
7 By memorandum dated September 1, 1983, I requested 8
OGC,.OIA, and OI to develop a Commission paper addressing 9
NRC's conduct of civil v.
criminal investigations for our to consideration.
The paper was provided to us in December, 11 SECY-83-497, and forms the basis for our discussion today.
12 The Commission has asked OGC to take the lead in 13 presenting the issue this morning.. We also have the 14 Director of OI and the Acting Director of OIA at hand to 15 participate in the discussion.
16 Are there any additional comments from Commissioners 17 at this time?
18 COMMISSIONER ASSELSTINE:
I don't thnnk so.
I 19 think it's useful tc have this meeting.
We did get the 20 paper in December and the paper-indicated that there were a 21 few areas where OGC, OI, and OIA felt that they could use 22 some guidance from the Commission in trying to work with 23 Justice in developing a Memorandum of Understanding in_this 24 area.
U, 25 I think it is useful to have this meeting and to.try
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3 i
and provide that guidance and find out where we are in 1
2 moving ahead with the MOU.
3 COMMISSIONER BERNTHAL:
In fact, in retrospect.it's too bad that we didn't meet earlier on this.
4 5
COMMISSIONER ASSELSTINE:
Yes.
6 CHAIRMAN PALLADINO:
Any other comments?
Then let 7
me turn the meeting over to general counsel's represent _ative.
8 MR. FITZGERALD:
The paper that you have before s
you' discusses two general areas of concern that had been issues in the investigations area for some time.
10 That is the authority and responsibility for NRC to conduct criminal 11 investigations and the relationship of the agency with the 12 Department of Justice when the Department has on occasion 13 14 requested that the Commission stay its investigation or enforcement action until completion of a Department action.
15 16 The purpose of this meeting and the paper is to 17 flesh out these areas and to provide OI with guidance to go to the Department and work out a Memorandum of Understanding 18 on these general areas, and working out specific implementations 19 20 within that guidance.
21 Now, on the civil v. criminal investigation 22 question, as the paper points out, the investigation that is 23 conducted by OI into a violation, or suspected, alleged violation of our regulations, would basically be the same 24 26 whether it is labelled civil or criminal.
An investigation
i 4
1 is a systematic, patient, objective inquiry into the facts 2
of a particular instance.
3 To be sure it is a criminal investigation, 4
additional rules might apply, such as not being able to use 5
administrative subpoenas, for example, and a criminal 6
investigator would be armed with certain additional powers 7
that a civil investigator might, such as the power to arrest.
8 However, the investigation generally would be run 9
pretty much alont the same lines. The real dividing line 10 between these investigations is the purpose for which the 11 investigation is going to be put.
Is it [oing to be to 12 secure enforcement of our civil regulations or orders, or is 13 it for a criminal enforcement purpose.
'}
14 We believe --
15 COMMISSIONER ASSELSTINE:
Or both.
16 MR. FITZGERALD:
Or both.
The "or both," following 17 up on that, frequently this inquiry, an investigation 18 conducted by the NRC, can be put to both uses.
A common 19 situation is for the NRC to investigate a suspected 1
20 violation of our regulations.
21 If that violation is willful, then it may be a 22 criminal violation because Section 223 of our Act provides 23 for willful violations of the Atomic Energy Act and 24 regulations promulgated under particular sections of the O,
2 Atomic Energy Act, that a criminal penalty is permissible or
5 1
available.
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2 The question of willfulness, however, is something 3
that OI under the policies that the Commission has blessed 4
will look into, and it is relevant to the Commission's 5
business and mission because if the regulatory violation is 6
- willful, an increased penalty -- civil penalties or other 7
enforcement action -- will be cor.sidered.
8 Now, we believe that the Commission -- and OGC 9
has taken this position in the past -- that the Commission 10 does not have independent authority to conduct criminal 11 investigations.
However, at the request of the Department 12 of Justice for assistance to the Department in fulfilling its (s) 13 mis <3 ion, we believe the Commission does have authority to 14 grant th at request.
15 That means that a major subject for the Commission 16 to determine is when a request such as that comes before, i
17 l
you, what is the response; what. criteria would dictate the 18 type of response in any particular case.
19 COMMISSIONER BERNTHAL:
I guess I don' t know whether 20 you have a lengthy formal presentation or not, but one thing 21 that I would like to have you focus on to some extent is 22 a better definition -- and the Commission needs to think of 23 this too -- what " assist" means, really.
24 Assist can mean lots of things.
It can mean that O-~
25 our Office of OI would essentially do the work and report to I
6 1
DOJ when it is finished.
We maybe do need to take a look at
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2 that.
But I don't want to interrupt your train of 3
presentation.
4 MR. FITZGERALD:
I believe that that's one of the 5
areas that guidance should be provided to OI, should they 6
only engage in helping out the Department of Justice in a 7
criminal investigation in conjunction with the FBI, or should 8
they basically, on occasion, be all alone in the investigation, 9
subject only to general guidance by a Department of Justice 10 attorney or a grand jury.
11 COMMISSIONER BERATHAL:
Let me just say at the outset 12 too that my concern here is that the job be done, to be sure,
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13 by somebody.
But also that our -- well, as we used to say 14 back in Nebraska, "That our eyes not be bigger than our 15 stomacn wnen we are looking at a plate in front of us. "
We 16 have a limited staf f; we've got a lot of work to do here and 17 it seems to me we ought to try and make sure that we get 18 the things done that we need to do and not be doing things 19 the Department of Justice can do better and can do for us.
20 So, that is sort of one of the areas that I want to 21 focus on.
Go ahead.
M CHAIRMAN PALLADINO:
Incidentally, I think that is 23 of interest to all of us, at least I am interested in that.
24
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COMMISSIONER,ASSELSTINE:
Yes.
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M MR. FITZGERALD:
Well, OIA, OGC, and OI in this
7 i
i paper recommend that the Commission in appropriate circumstances
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assist the Department of Justice.
2 3
CHAIRMAN PALIdDINO:
It doesn't say that, does it?
4 I thought it says " conduct."
5 COMMISSIONER ASSELSTINE:
The way the options were 6
formulated was " conduct," yes.
7 CHAIRMAN PALLADINO:
Yes, "Will conduct 8
investigations," and I have comments on that.
9 COMMISSIONER ASSELSTINE:
Yes.
10 MR. FITZGERALD:
Okay, I understood it as comply 11 with the DOJ's request for assistance in the conduct of 12 criminal investigations.
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13 COMMISSIONER ASSELSTINE:
Yes.
14 CHAIRMAN PALLADINO:
Incidentally, you say that 15 an investigation can serve both criminal and civil purposes, 16 or civil and criminal purposes.
And yet, on page 3 you do 17 talk about the differences and you mention them earlier, is between criminal and civil investigations, at least in the 19 footnote.
20 It seens to me that the procedures regarding l
21 criminal safeguards do affect that collecting.
You can't do t
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u exactly the same thing under our procedures as the FBI could I
l 23 do under theirs.
l lO 24 MR. FITZGERALD:
That 's righ t.
There is a 25 difference in -- for example, we can use administrative
-s 8
1 subpoenas in our fact gathering, the FBI can't.
On the other 2
h and, the FBI in a criminal investigation is armed with a 3
pretty good arsenal of powers that we don't have access to --
4 grand jury subpoenas would be one instance.
5 CHAIRMAN PALLADINO:
But aren't the criteria 6
different and the purpose, anyhow?
The criteria determine 7
how far you go, I presume.
8 MR. HJ.YES :
You mean in terms of thoroughness of 9
the investigations, Mr. Chairman?
10 CHAIRMAN PALLADINO:
No, in terms of whether you 11 are. proving beyond a reasonable doubt in a criminal case, 12 or whether the preponderance of evidence in a civil case.
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13 Could we discuss them, so I understand them?
14 MR. FITZGERALD:
Well, you are talking about the 15 burden of proof --
16 CHAIRMAN PALLADINO:
Yes, and that influences --
17 MR. FITZGERALD:
-- in a formal hearing.
18 CHAIRMAN PALLADINO:
And that influences, I guess, 19 how far you go in an investigation.
20 MR. FITZGERALD:
Generally, I don't believe it 21 would.
I think you would be out to do -- I believe that M
Ben would consider in any case, even if it was just for a 23 purely civil purpose, he would gather all the information that 24 was available, with due regard to some limits as far as 3
accumulative evidence.
But he would be out to find out
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1 exactly what happened and to prove it convincingly because
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2 you would need that in order to make your regulatory decision 3
you or I&E, or whatever.
4 CHAIRMAN PALLADINO:
Well, are there any cases 5
where we would decide we have gone far enough on the need 6
for our civil enforcement action where Justice may decide 7
we ought to go further for criminal purposes?
8 MR. FITZGERALD:
Yes, sir.
For example --
9-CHAIRMAN PALLADINO:
So, that is the substance of H) my question, then.
11 MR. FITZGERALD:
It may be that the elements in 12 a particular case, the alements of a crime with the criminal
(,)
13 case, may have an additional element that would not be 14 present in our civil case, and Ben's investigation would 15 simply not address that point.
You would end up with a 16 situation where 80 percent of the elements had been 17 investigated and proven out but because he wasn' t doing a 18 criminal investigation, he wouldn't have pursued that other 19 part of the case.
20 When it went to the Department of Justice, the 21 Department would see that there was a void and would M
require before they made a decision, would require a 23 further investigation.
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24 CHAIRMAN PALLADINO:
Well, but that then does
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come to the question I raised.
Even though we say, "Well,
10 1
we are going to do a thorough investigation, when we are 3
s 2
satisied we have done the civil portion and we don't go any 3
farther, then we haven't quite done what you said they can 4
do.
5 MR. FITZGERALD:
No, I meant that frequently the 6
civil investigation will be basically coextensive with the 7
criminal investigation because willfulness, for example, is 8
an element that we would pursue for our own civil ends, and 9
that element also would be of interest to the Department of to Justice because it.ould go to make out the criminal violation.
11 And frequently, you would find that the Department 12 would not need to do any further investigation to pursue a
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13 criminal case in such a case as that than what OI had 14 already gathered.
15 Now, it can be -- another example, however, is 16 they have a dif ferent standard of proof, as you mentioned.
17 They also have frequently to take items before juries, lay 18 juries.
They may want further cumulative evidence or further 19 investigation because they believe that it will enhance their 20 likelihood of bringing in a successful prosecution.
21 I have been in the Department of Justice and I 22 know that you can work a case ad infinitum, never satisfied, 23 trying to create that perfect case.
But you don't hava to 24 create a perfect case.
O M
But if you are going to have to bring it to trial,
11 1
you may want to create a perfect c'ase.
In that instance 2
where the OI investigation has been given to the Department, 3
it is quite possible that a Department attorney may want to 4
improve on perfection by doing a little further investigation.
5 CHAIRMAN PALLADINO:
Well, the reason my question 6
comes up, this paper implies that if OIA doesn't do enough 7
so that it covers all aspects of the possible outcomes, then 8
it's an incomplete investigation.
And I don't think that 9
in every case that should be the situation because if they to go through doing all the civil -- getting all the civil 11 information including whatever the Act says about wrong, 12 willful wrong-doing, their job may be done and going further
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13 may not be called for.
14 MR. FITZGERALD:
I agree with that, Mr. Chairman.
15 CHAIRMAN PALLADINO:
But this implies that anything 16 that is not complete is faulty and doesn't cover that 17 particular circulmstance.
18 COMMISSIONER ASSELSTINE:
Gee, I guess I didn't 19 get that sense when I read the paper.
I think Jim's right 2) the way he has characterized it, is that for most cases our 21 investigation is going to pretty much be coextensive with Z!
whatever might be needed in the cririnal area.
You may have 23 a few instances --
3 24 MR. FITZGERALD:
But you would draw the line, stop 25 the it.vestigaticn when it is complete for our purposes.
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_i 12 COMMISSIONER ASSELSTINE:
For our purposes, that's 1
2 right, that's right.
3 COMMISSIONER BERNTHAL:
But you do get into this 4
funny situation that we did in one or two cases recently 5
where we nave work for our purposes that still needs to be 6
done, and you refer it to the Department of Justice and 7
all of a sudden we are under a restraint from the Department 8
of j ustice, a request that we can't easily ignore, to suspend 9
some of the inquiries that we might need for our civil to purposes.
11 CHAIM1AN PALLADINO:
Yes.
12 COMMISSIONER BERNTHAL:
And it just seems to me
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13 that when we initiate an investigation, our purposes should 14 be served first.
We have a responsibility under the law to 15 get our job done, and exactly where things get turned over, 16 with the danger then thct we will be asked to stop what we 17 are doing I'm not sure.
But that is a situation that I would 18 not like to see us in again.
19 COMMISSIONER ASSELSTINE:
That's the second problem m
we are talking about.
21 MR. FITZCERALD:
That's a separate question.
- Also, 22 it raises a further detail.
You are referring to the criminal 23 referal area.
The one subject that needs to be addressed 24 in an MOU would be, when do you first bring to the N
Department's attention -- formally or informally -- a
13 1
suspected criminal violation, only at the conclusion of r^^
2 k
the investigation or at the first nuance of it that you 3
strike out in tne field.
4 (Commissioner Gilinsky enters room. )
5 COMMISSIONER BERNTHAL:
Well, that raises an 6
interesting point that I had not thought of before, actually, 7
and that is whether there is anything within the law that 8
requires us to make immediate notification.
Are we permitted 9
to go along for what could be perhaps some at least weeks 10 or months carrying out a civil investigation when we know 11 full well that there may be evidence of criminal wrong-12 doing?
13 MR. FITZGERALD:
I believe that that has been 14 looked into and that the basis of our referal responsibilities 15 is spelled out in an Attorney General's memorandum I have 16 not seen a copy.
17 COMMISSIONER BERNTHAL:
Could you summarize that 18 in ten words or less?
19 CHAIRf1AN PALLADINO:
We are getting far afield from 20 my question.
I think these are valid points --
21 COMMISSIONER BERNTHAL:
I'm.sorry.
22 CHAIRMAN PALLADINO:
But I did want to point out 23 that on page 3 it says, " Terming the investigation ' civil' 24 means only that there is a valid NRC civil enforcement
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25 purpose and, there fore, that criminal safeguards and proceaures ll
14 1
are not required.
It does not mean that different facts will l'
be developed or that dif ferent matters will be investigated. "
3 And yet, there are circumstances where different --
4 the investigation would go further if it were purly criminal.
5 MR. FITZGERALD:
That's correct.
6 MR. HAYES:
Yes, there are circumstances where 7
that happens.
8 CHAIRMAN PALLADINO:
So, that's where I got this 9
feeling that an investigation has to be thorough and yet 10 it can' t be thorough in every case.
At least it should 11 allow for the fact that we may have served our civil 12 purpose in all regards and there still be things to be
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13 investigated for criminal purposes.
14 MR. FITZGERALD:
Right, although I would 15 consider that that is a thorough NRC investigation --
16 CHAIRMAN PALLADINO:
Well, th at 's --
17 MR. FITZGERALD:
-- if it is thorough for our 18 civil purpose.
19 CHAIRMAN PALLADINO:
Well, that isn' t stated 20 anywhere.
21 MR. FITZGERALD:
Okay.
22 COMMISSIONER BERNTHAL:
But it is so intertwined 23 with this question, it seems to me when you sniff out and 24 suepect criminal wrong-doing, that you lay yourself open to 2
having to suapend, shortening the civil part of the
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15 1
investigation.
I just think that's key to the process.
2 COMMISSIONER ASSELSTINE:
There are two, I think 3
there are two parts of it, Fred.
One part is when either 4
formally or informally do you want to bring an item like 5
this, or are we required to bring an item like this to the 6
Department's. attention.
7 The second is, if they ask us not to go forward, 8
then what do we do in response to that.
9 COMMISSIONER BERNTHAL:
Yes.
10 COMMISSIONER ASSELSTINE:
And how do we negotiate 11 a workable process that lets us notify them when we think 12 there is something that involves potential criminality and, 13 at the same time --
14 COMMISSIONER BERETHAL:.Yes.
15 COMMISSIONER ASSELSTINE:
-- be able to complete to and perform, and satisfy our civil responsibilities.
17 CHAIRMAN PALLADINO:
Well, do you have any further 18 guidance as to when we have to tell DOJ of suspected 19 wrong-doing?
20 MR. HAYES:
Let me give you my views.
21 COMMISSIONER GILINSKY:
When we have reasonable 22 grounds to believe that criminal matters may be involved.
It 2
is always a matter of judgment.
24 MR. HAYES:
It certainly is always a matter of 25 judgment and an interpretation of the facts presented in our
16 1
report, as this Commission is fully aware of on a recent T
2 case, and there are differences of opinion by reasonable men.
s-3 What I have attempted to do over the last year or 4
so is to provide the Commission and the staff with a thorough, 5
complete investigation that hopefully satisfies our regulatory 6
needs.
That is my first objective.
And most recently I went 7
so far as to write a letter to a Regional Administrator and 8
ask that particular administrator, does this investigation 9
meet your regulatory needs and be guided by
'.'yes" or "no" or 10 additional questions.
11 Upon receiving input from the staff at that point, 12 then we looked at it for potential criminal sanctions.
There
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13 may or may not be some there.
And if we feel as though at 14 least there is a potential, or suspected, or -- I forgotten 15 the Attorney General's language in that area, but then we 16 refer those particular cases where in our view there may be I7 some criminal sanctions, to the Department for their review.
18 But at the same time, se can provide to the 19 Commission and the staff a completed report and a completed 20 investigation that we can take whatever regulatory sanctions 21 the Commission desires at that point.
22 Now, the second issue concerning wha; happens upon U
request from the Department of Justice that we suspend or 24 abate, or what have you, enforcement action.
That particular Oes 25 issue I was in hopes of addressing in the Memorandum of
i 17 1
Underatanding with the Department of Justice.
That is one
'O' 2
reason why we have asked for this particular Commission meetinc 3
early on and, as the Commission is aware, it has been post-4 poned two or three times.
5 But my view today is that that Memorandum of 6
Understanding will set forth specific time frames and specific 7
guidance as to how long the Department can review that 8
report prior to taking some stance, either "yes" or "no" in 9
te rms o f, "Yes, we are going to pursue it" or, "No, we are 10 not," or whatever.
u I am hoping, you know, for 60 days.
I ch'ose 60 days because it usually, takes the staff anywhere from 35 to 45 12
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13 to come up with an NOV -- a Notice of Violation -- if the
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14 staf f is obliged to do that.
So, I thought 60 days would be 15 a negotiable figure with the Department.
It would not, at 16 least in my view,!. ave a negative impact on the Commission, 17 and the staff, in taking subsequent enforcement action and, 18 hopefully, everyone would be satisfied with that arrangement.
19 CHAIRMAN PALLADINO:
Then, whatever MOU you do 20 negotiate, you will come back to the Commission with.
21 MR. HAYES:
Certainly.
H COMMISSIONER ASSELSTINE:
Yes.
23 MR. HAYES:
Ce rtainly~.
24 CHAIRMAN PALLADINO:
I appreciate it.
I just 25 wanted to say it.
I
18 1
MR. HAYES:
I was trying to get some guidance from t'^h.
2 the Commission prior to going to the Department of Justice, 3
and I share with you, you know, a couple of the points that 4
I think definitely have to be answered in that particular 5
Memorandum of Understanding, and some of my views, at least 6
going in negotiating with the Department in hopes that it 7
meets tha Commission needs as well.
8 COMMISSIONER BERNTHAL:
How long have you been 9
sharing on those negotiations, Ben?
I mean, they have been 10 underway for some time now.
11 MR. HAYES:
Well, we had an initial meeting with 12 the Department of Justice, I and my staff, and then the
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13 Commission tasked OIA to prepare this paper.
We suspended 14 our negotiations with the Department pending some guidance 15 from the Commission.
16 I wanted to avoid the situation where we would go 17 down there and try to strike some compromise and then come 18 to the Commission and, say, you huow, the Commission would 19 correct me.
We have to have something to go bargain with M
from you gentlemen first.
21 COMMISSIONER BERNTHAL:
Is there any sense, or would 22 it be appropriate for you to give us any representation of 23 the nature of discussions, whether there were any preliminary 24 conclusions or thoughts that arose out of your negotiations M
before yo'u suspended them?
l l
19 1
MR. HAYES:
Well, in our first meeting there had f ',
2 been some preliminary work done by, I think, Jim Cummings, 3
and there had been some drafts prepared.
So, we are starting 4
with that.
5 I felt that the Department of Justice was very 6
open with us and actively would like to solidify these 7
arrangements in a more formal understanding to avoid some 8
problems we have had in the past.
9 So, I think they are in the same situation we are, 10 they would like to have some of these points put in some 11 written doeucment so that both agencies know what each agency 12 is committed to.
13 l
COMMISSIONER BERNTHAL:
Yes, I'm sure that's true.
14 But I was really asking for any substantive thoughts that might
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15 have come out of your early discussions.
16 MR. HAYES:
No.
My first discussion was basically 17 to introduce the staff members collectively, the Department 18 and the OI staff.
At that point, we had set an estimated 19 completion date of December of last year, and we had designated l
people to start, really, the groundwork and to start working l
together.
22 But I don't think we are going to have a serious 1
23 problem in coming to some compromise position with the 24 Q
Department.
Again, I think th'ey are as anxious as we are to ik /
=
get rid of the shadows and put something in proper perspective.
20 1
I think they would entertain anything that w.e would O
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2 want to propose to them that was reasonable.
3 COMMISSIONER GILINSKY:
Let me say, I found this 4
to be a sensible paper on a difficult subject.
5 CHAIRMAN PALLADINO:
Under the recommendations for 6
guidance you say, "That the Commission authorize OI to state 7
in its negotiations with DOJ that NRC, in appropriate 8
circumstances, will (i) conduct investigations at DOJ's 9
request."
10 My feeling would be that we should say, "(i) 11 assist in the conduct of investigations at DOJ's request."
12 COMMISSIONER ASSELSTINE:
Yes, I would agree with
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13 that.
Yes, I think that's right.
14 CHAIRMAN PALLADINO:
And "(ii) it says, " Defer 15 investigation or enforcement action at DOJ's request."
16 To be consistent with what OGC has been doing, I 17 put the word " written" request --
18 COMMISSIONER ASSELSTINE:
Yes.
19 CHAIRMAN PALLADINO: -- as another matter.
And then 20 I would be also inclined to append that under that sentence --
21 COMMISSIONER BERNTHAL:
Joe, I'm sorry, where are Zt you?
Zl CHAIRMAN PALLADINO:
On page 12 --
24 COMMISSIONER ASSELSTINE:
Page 12.
25 CHAIRMAN PALLADINO:
-- of the paper, item No. 1
J 21 1
COMMISSIONER BERNTHAL:
Okay.
lf 2
CHAIRMAN PALLADINO:
And (ii) says, " Defer 3
investigation of enforcement action at DOJ's" -- and I 4
have inserted " written request. "
5 COMMISSIONER BERNTHAL:
Yes.
6 CHAIRMAN PALLADINO:
And then I would add, "providing 7
there are no health and safety concerns which prompt immediate 8
administrative action by NRC."
I think we have to protect 9
ourselves with that.
10 COMMISSIONER ASSELSTINE:
Yes.
11 MR. HAYES:
Well, I would assume the staff would 12 take thcse actions even during the investigative process
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13,
or prior to it.
14 CHAIRMAN PALLADINO:
Well, you are seeking guidance 15 and I want to make sure that one is in the guidance.
16 COMMISSIONER ASSELSTINE:
Yes, I agree.
Yes.
17 COMMISSIONER GILINSKY:
I think that sounds fine.
18 COMMISSIONER ASSELSTINE:
Yes.
I would even raise 19 the point that Fred raised earlier.
Is it realistic or 20 feasible to say, "Look, what we would like to do is get our 21 civil investigation done.
At that point we'll tell you 22 that we have completed our investigation.
We will identify 23 any potential-criminal items that we think might be of 24 interest to you.
We will give yo'u our investigation materiala 25 and then ask for your judgment about whether we can go ahead
a 22 1
or whatever. "
Trying to formalize the time of notification I
2 at that point.
Is that a realistic thing?
3 MR. HAYES:
In the transmittal letter itself, then.
4 COMMISSIONER ASSELSTINE:
And work out the details 5
of the kind of thing that you mentioned, the 60-day period 6
where they can decide whether to take prosecutorial action 7
in a particular case and hopefully get a decision at the end 8
of that time.
And if they don't want us to go ahead, require 9
a written notification of that from someone in a fairly 10 senior level in the Department headquarters -- maybe pick 11 where that level is.
12 COMMISSIONER GILINSKY:
Is 30 days too hosrt?
()
13 MR. HAYES:
For review?
I would think so.
In 14 my opinion 30 days is too short.
Yes, sir.
15 COMMISSIONER ASSELSTINE:
ind I guess I would say 16 if they are going to ask for an extended delay, (1) there 17 ought to be a written notification and, (2) they ought to 18 give us the reasons in the letter why thef think we can't 19 go ahead.
N CHAIRMAN PALLADINO:
Yes.
And I think when we 21 say " written request," we ought to say from whatever loval.
22 COMMISSIONER ASSELSTINE:
Yes.
23 CHAIRMAN PALLADINO:
What did you say?
24 COMMISSIONER.ASSELSTINE:
Vic said Assistant M
Attorney General.
23 1
COMMISSIONER GILINSKY:
Yes.
2 CHAIRMAN PALLADINO:
I don't know what level that 3
is.
4 MR. FITZGERALD:
Who is the Assistant Attorney 5
General, Criminal?
6 MR. HAYES:
Steven Trott.
7 MR. FITZGERALD:
That's possible.
You might 8
consider the Mark Richard level which would be --
9 COMMISSIONER ASSELSTINE:
Is that Deputy Assistant?
10 MR. FITZGERALD:
-- Deputy Assistant.
11 MR. HAYES:
Yes.
12 MR. FITZGERALD:
I think that that might be a 13 more workable level.
14 COMMISSIONER ASSELSTINE:
Okay.
15 COMMISSIONER BERNTHAL:
How thoroughly have we 16 checked to see what other agencies, what other arrangements 17 are made between si.ailar agencies and DOJ7 Do we have a 18 feeling for that?
Surely, they can't be --
19 MR. FITZGERALD:
A number of them have Memoranda l
20 of Understanding, not all. I don't believe that the subject 21 of exactly what relationships other agencies have has been l
l 22 explored in great detail.
l l
23 I do know that recently I was having discussions 24 with an SEC attorney in their Enforcement Section and they 26 came up with a suggestion that might be worth pursuing, at
24 1
least looking into further for the NRC.
They have a criminal f~,
2 referral and they also make -- they grant access to their 3
files without referral on occasion.
The Department will 4
request access to their files and the Commission will s
determine whether or not to grant it.
6 If the Commission does grant it, then there never 7
will be a referral.
If the Department will run with it 8
and either determine that there is nothing worthy of 9
prosecution further work or will determine that indeed there 10 is and will proceed accordingly with a grand jury investigatiori, 11 than alternative of granting access strikes me as being 12 something that the Commission might want to explore further.
(
13 That could be done under this Memorandum of Understanding.
14 COMMISSIONER ASSELSTINE:
Yes.
15 MR. FITZGERALD.
Because it is apparently formally 16 worked out with the Department.
17 COMMISSIONER BERNTHAL:
How would that practically, 18 then, change how things might happen?
Does that mean that 19 it would greatly diminish the chances of our being asked to 20 suspend investigations, since they would have access to our 21 files?
Other than the fact that I gather there would --
22 MR. FITZGERALD:
I'm not sure it would have any 23 effect such as that.
It is conceivable that it might just 24 fqS simply h ave the e f fect, in particular cases, of never V
2 resulting in a formal referral.
But that can be a desirable
25 1
end in a particular case where there may be a statement to
('s 2
the formal referral even where we don't see that the case 3
is very prosecution worthy from our own particular perspective 4
and may be reluctant to formally refer the matter because 5
of kind of a reluctance to attach that stigma to someone, 6
should it become known.
7 COMMISSIONER BERNTHAL:
I guess I would like to 8
see some thoughts on that because that is an idea that maybe 9
we ought to think about.
10 CHAIRMAN PALLADINO:
Which idea?
11 COMMISSIONER BERNTHAL:
Well, the question of whethe c 12 we should do as the SEC does, namely make our files available
-()
13 to DOJ short of -- I gather you are saying short of a formal 14 referral.
And that the advantage of that might be that we is would have a better chance to avoid. this unhappy situation 16 where we have to suspend our civil work while waiting. for 17 them to make a judgment on the criminal merits of the cace.
18 COMMISSIONER ASSELSTINE:
Ben, what do you think?
19 Do you have thoughts on it?
20 MR. HAYES:
Well, I think while that may solve 21 one problem, it may put the commission in a situation where 22 the investigation is being more dictated by the Department of 23 Justice and we riay lose our subpoena authority because we 24 are not a criminal investigative arm per se but yet, the 25 Department of Justice which is a criminal arm of the
26 1
government is well in on the case early.
s 2
So, I would think that we would have to really 3
do some additional thinking on that.
4 MR. FITZGERALD:
I would agree with that, Ben.
But 5
I think you are assuming a fact that is not in evidence, that 6
this doesn't have to occur early on.
This can also occur 7
later on.
8 COMMISSIONER GILINSKY :
Let me ask you, why do we 9
need to stop our investigation af ter we have referred a case 10 to the Department of Justice?
11 CHAIRMAN PALLADINO:
That's a good question.
12 COMMISSIONER GILINSKY:
Why can't we just go on and
()
13 put no time limit and if they come around sometime, that's 14 fine.
If they don't, we are doing our work.
15 CHAIRMAN PALLADINO:
They are supposed to request 16 this.
17 MR. HAYES:
The Commission can do that.
18 COMMISSIONER ASSELSTINE:
Yes.
19 COMMISSIONER BERNTHAL :
That's a very good question.
20 MR. HAYES:
By statute, I th ink, the Commission 21 can do that.
22 CHAIRMAN PALLADINO:
But suppose they request our 23 deferring any action?
24 COMMISSIONER GILINSKY:
Well, that's something we O,
25 would have to consider.
Obviously, we are going to cooperate
27 1
with them and we have to discuss it.
(
)
2 CHAIRMAN PALLADINO:
Well, I wanted to come back s.,
3 to that policy question.
I think you are touching on it 4
where it says, "The Commission authorize OI to state in its 5
negotiations with DOJ that the NRC, in appropriate 6
circumstances, will..."
7 What are the appropriate circumstances, and does 8
NRC have any say in what the appropriate circumstances are 9
at the time that the questions come up?
10 MR. FITZGERALD:
Okay, I would think that 11 availability of manpower would be --
12 CHAIRMAN PALLADINO:
Well, I --
13 COMMISSIONER ASSELSTINE:
I think he is on the 14 second part, deferring?
15 CHAIRMAN PALLADINO:
No, I am just on Item No. 1 16 where it says that the NRC in " appropriate circumstances,"
17 and does NRC have any say in the appropriate circumstances.
18 Can we put something in there --
19 COMMISSIONER ASSELSTIME:
Oh, yes.
30 CHAIRMAN PALLADINO:
-- that would give us a place 21 in determining.
22
. COMMISSIONER GILINSKY:
Well, I think we are the 23 ones who dGcide 24 CHAIRMAN PALLADINO:
Well, I'd like that clear.
O.
25 It's not always that clear.
28 1
COMMISSIONER BERNTHAL:
I'm just not sure that you f^,
f 2
can write clear rules on some of these things.
3 CHAIRMAN PALLADINO:
I agree.
4 COMMISSIONER BERNTHAL:
That may be the problem.
5 COMMISSIONER ASSELSTINE:
Yes.
6 COMMISSIONER BERNTHAL:
And it may well be that we 7
need to deal with these somewhat on a case-by-case basis.
8 Nevertheless, Victor's point is a key one, and I 9
have never understood why we have to stop anything.
I gather 10 it has to do with witnesses clamming up or --
11 MR. FITZGERALD:
Well, we don't have to stop.
It's 12 clear that we dcn't have to stop.
()
13 COMMISSIONER GILINSKY:
That has to do with after the 14 point at which the Justice Department shows some interest 15 in taking action.
But if we simply referred something, the 16 chances are they won't take any action.
I think that's what 17 the statistics probably show.
18 And it raises the question, you know, why should 19 we be holding up.
20 MR. FITZGERALD:
But we don' t have to stop.
21 CJAIRMAN PALLADINO:
Except we had one --
22 MR. FITZGERALD:
Only when we receive a request.
23 COMMISSION 3R BERNTHAL:
But we had some rather 24 persuasive arguments given us why we must suspend 60 days 25 and then another 60 days, as I recall.
29 1
MR. FITZGERALD:
Yes, sir, but that was in response s
2 to a request.
3 CO'MMISSIONER GILINSKY:
I see.
4 MR. FITZGERALD:
The normal matter is not to 5
receive any requests at all.
6 COMMISSIONER GILINSKY:
I see.
So, the 60 days 7
only starts if we have gotten a request from them.
8 COMMISSIONER ASSELSTINE:
A request, that 's right.
9 MR. FITZGERALD:
That's right.
And normally what to you have happen is that the matter is referred by OI to 11 I&E and the regions at the same time that it is referred to 12 the Department of Justice.
(~}
13 COMMISSIONER ASSELSTINE:
Right.
(_s 14 MR. FITZGERALD:
And I&E and the region consider and 15 evaluate an enforcement action and, ir. deed, make enforcement 16 decisions based on that investigation without consulting with 17 the Department or anything else.
18 It's only when a request comes in.
In the instance 19 that you are talking about, indeed, a request did come in 20 and then the question is --
21 COMMISSIONER ASSELST ?.11E :
How do you handle it.
22 MR. FITZGERALD:
-- how do you handle it.
How 23 should we respond.
24 COMMISSIONER ASSELSTINE:
So, our posture would
?y M
be, we are making a referral in this case.
You should know
30 1
we are going ahead on this.
Then, if we get a request that we defer action, then at that time give them a limited amount 3
of time to decide whether they are going to act or not, and if 4
they want any further extension beyond that time, we would 5
have to consider it on a case-by-case basis.
6 CHAIRMAN PALLADINO:
Well, in the case, though, we 7
just continued delaying.
Now, that doesn' t mean that it l
t 8
has to continue as long as --
9 COMMISSIONER ASSELSTINE:
That's right.
That's 10 righ t.
11 COMMISSIONER GILINSKY:
Well, how many cases have 12 there been, really?
)
13 MR. HAYES:
That we have deferred to the 14 Department?
15 COMMISSIONER GILINSKY:
No, where they have come 16 back and say, nold up.
17 COMMISSIONER ASSELSTINE:
Just a couple, right?
18 COMMISSIONER BERNTHAL:
Not many.
19 CHAIRMAN PALLADINO:
They generally stop all 20 important ones.
How many times have we been requested tc-21 hold up our investigation, pending further action by the 22 Department of Justice?
23 COMMISSIONER ASSELSTINE:
Or enforcement action?
'N 24 MR. HAYES:
I can only think of one utility, but
\\_.
25 of cases only two that I can think of.
31 1
COMMISSIONER GILINEEY:
So, two, two cases altogether.
- (
2 That's not a whole lot.
3 MR. HAYES:
Yes.
4 COMMISSIONER GILINSKY:
I wouldn't expect this to 5
happen very of ten.
6 MR. HAYES:
Two out of literally hundreds.
7 COMMISSIONER ASSELSTINE:
That's right.
8 COMMISSIONER GILINSKY:
So, we are really talking 9
about the extreme end of this --
10 MR. HAYES:
You are talking about the rare 11 exception rather than the mondaine day-to-day business that 12 OI and the Department of Justice does on a continual basis.
13 COMMISSIONER ASSELSTINE:
Yes.
14 COMMISSIONER BERNTHAL:
Maybe it's best --
15 CHAIRMAN PALLADINO:
There is another one where 16 the staf f has recommended that we wait.
So --
17 COMMISSIONER GILINSKY:
Still, three out of a 18 hundred --
Hi CHAIRMAN PALLADINO:
-- I would say it's a small 20 numbe r.
21 COMMISSIONER ASSELSTINE:
That's right.
22 COMMISSIONER GILINSKY:
The main thing is to make M
sure we do our work well.
24 CHAIRMAN PALLADINO:
However, somehow I get the 26 feeling that we feel constrained af ter we have given something
i 32 1
to the Department of Justice.
p 2
COMMISSIONER GILINSKY:
Well, we shouldn't.
3 COMMISSIONER ASSELSTINE:
That 's right.
4 COMMISSIONER GILINSKY:
The problem here historically 5
has been that referring or contemplating referral has slowed 6
thinos down here or, in some cases caused us not to take 7
action at all.
I am talking about events that predate Ben's 8
appearance here.
9 MR. HAYES:
That's one of the positions that I 10 took early on was to --
11 COMMISSIONER ASSELSTINE:
That's an example, too.
12 That's correct.
(~s) 13 MR. HAYES:
-- was to complete the investigation 14 so the Commission could go about its regulatory business.
15 I'm not 1 proponent of what I call " premature referral" to 16 the Department or to any other agency.
We take care of our 17 needs and then evaluate the product for any additional 18 ramifications.
19 I think the Department would respect that.
20 MR. FITZGERALD:
The Department's general 21 position, I think historically, has been that the NRC is 22 free to take -- assuming the investigation is completed --
M is free to take enforcement action if it is necessary to 24
, -)
protect public health and safety.
/
M They then move on, however, and say that civil
e o
33 1
penalties, however, are - I believe their attitude is-more p
2 that that's mere money and that we should stay our hand in 3
enforcing a civil penalty collection action hearing thereon 4
pending their making their decisions in the criminal frame-5 work.
6 Now, we would say that even the imposition of a 7
civil penalty has a logical health-and-safety connection 8
in construct, backing it up, and to be sure that's the case 9
they understand that.
But they would see that the mere 10 collection of money is, you know, that can wait.
11 But if the plant -- o r i f the re is an immediate 12 threat to public health and safety, feel free, go ahead.
We'll
~
()
13 take our chances with the criminal.
14 CHAIRMAN PALLADINO:
Can I go to the policy 15 part of your recommendations?
It seemed to me there.are 16 sevcral policy questions we need to address.
17 First, with regard to the loaning of investigators 18 to the Department of Justice.
In a couple of cases you have 19 come to the Commission and asked the Commission's permission 20 to loan these individuals, and in one case you.just -- you 21 did not come back and asked the Commission and just loaned 22 them.
23 I think a policy question we ought to address, and 24 that is that the loaning of investigators to the Department O
M of Justice should require Commission approval because it
O 34 1
does impact on your limited resources and it would relieve 2
you of feeling the direct pressure cf taking your limited 3
resources and giving them to the Department of Justice.
4 MR. HAYES:
At this point --
5 CHAIRMAN PALLADINO:
That's one.
I've got four of 6
them.
I 7
MR. HAYES:
All right.
At this point, on that 8
particular issue, I think we have discussed that previously 9
and we have made available -- the OI organization has made 10 available -- one investigator this year, is all, I think 11 for a maximum of two weeks if I am not mistaken, Mr.
12 Chairman.
That 's the extent of --
(' )
CHAIRMAN PALLADINO:
There were three cases.
I 13
(
14 '
don't want to mention them.
15 MR. HAYES:
There may have been three cases, but to I'm talking about the actual use of Commission resources.
17 It was very limited.
18 CHAIRMAN PALLADINO:
I have to ask myself the 19 question, in considering the pressure on the investigations 20 and number of cases that are pending, why should we be 21 giving some help on this particular case.
I think that's a 22 question the Commission ought to consider in each case.
D' COMMISSIONER GILINSKY:
Well, you know, we don't 24 ask I&E when they have somebody help out at FEMA or any 0,
25 number of other agencies, or state agencies.
m
35 1
CHAIRMAN PAL.A7IFO:
They 've got more resources.
h 2
COMMISSIONER GILINSKY:
Well, I think that's a very 3
good point.
I think the main thing to make sure is that 4
Ben's got enough people, which we really --
5 CHAIRMAN PALLADINO:
We are waiting for that 6
authority.
7 COMMISSIONER BERNTHAL:
It hasn ' t been easy.
8 CHAIRMAN PALLADINO:
I still --
9 COMMISSIONER GILINSKY:
That's really what we ought to to be placing our effort on.
I think as far as having 11 somebody help out for three weeks, I think we really have 12 to leave it to his judgment.
m 13 Cl! AIRMAN PALLADINO:
Well --
14 COMMISSIONER ASSELSTINE:
Yes.
15 CHAIRMAN PALLADINO:
-- in two cases he came back 16 and asked the Commission.
On the third case, he did not.
17 And I say, "Well, I think he ought to come back to the 18 Commission."
That's my opinion.
19 Now, if you want to settle it that he doesn 't have 2
to come back, well, that's another position.
I think that 21 is a guidance that we ought to give him.
22 COMMISSIONER GILINSKY:
I think you ought to check 23 periodically the extent to which he does this.
24 CHAIRMAN PALLADINO:
Well, after he's done it, 25 there is little --
36 1
COMMISSIONER GILINSKY:
Well, but then you are not j
2 talking about resources.
Then you are talking about being 3
unhappy about him helping out the Department of Justice --
4 CHAIRMAN PALLADINO:
No, I'm not unhappy about his 5
helping out the Department of Justice.
I'm looking at where 6
our priorities lie, and sometimes they are lying in a differen :
7 direction.
8 COMMISSIONER ASSELSTINE:
BL. I guess my sense is, 9
nobody is more sensitive to that problem than Ben is, since 10 he is the one that has the responsibility to get these things 11 done.
12 I guess I would leave it to Ben's judgment.
I~f 13 C.J]
he feels that -- if the situation ever arises where he is 14 getting a lot of requests that it looks like are going to put 15 a burden on him, then I think he is free to come back to us 16 and say, "Look, I'n prepared to say no on this one because 17 I think it's really going to create a problem for us. "
18 But the sense I get from Ben is that it's not a 19 problem yet at least.
20 MR. HAYES:
Well, we have basically, in some 21 instances, turned down the Department of Justice requests 22 for assistance.
I am hopefully very judicious with the 23 Commission's resources.
That's why a few months ago when 24 this issue was discussed before the Commission, I told you
[
3 that we were gcing to have day-to-day managerial involvement
37 l'
of my staff to ensure that our resources were being applied p) 2
.to Commission regulatory needs, even though we are assisting 3
the Department as opposed to other investigative matters 4
that the Department might be pursuing.
I watch it very closely.
5 CHAIRMAN PALLADINO:
I wasn't aware of the ones 6
you turned down, maybe that would help me.
You can do that 7
later.
8 MR. HAYES:
Yes.
9 MR. MURRAY:
Mr. Chairman, I am Jim Murray from 10 ELD.
I felt compelled to come up here and talk a 1:.tle 11 bit on this subject because the EDO has some resources 12 that are involved here, too.
It's the technical people 13 out in the field who get involved with the grand jury, and 14 then we can't use them or can't do our inspections.
15 So, it's more than Mr. Hayes' resources when 16 the Commission agrees to assist the Department of Justice, 17 however they agree.
18 So, I would suggest that in making the decision 19 to assist the Department of Justice it indeed be done on a 20 case-by-case bas is.
We haven't seen that many cases come 21 along.
And that the criteria for deciding what to do should 22 be as follows:
23 To what extent will a successful prosecution 24 assist the NRC's regulatory goals.
25 Would unsuccessful criminal prosecution be a risk
38 1
not worth taking.
)
2 And, is the potential benefit to NRC's regulatory J
3 goals worth the expenditure of NRC resources, including the loss of use of any personnel involved in grand jury proceedings 4
5 that will be required.
6 Those are admittedly very general criteria but they 7
need to be applied, it seems to me, en a case-by-case basis.
8 And the EDO would very much like to get involved with the 9
Commission decision to apply those criteria because it does 10 impact.
11 COMMISSIONER GILINSKY:
It seems to me those are 12 useful things to inject into the process.
But beyond that 13 we've also, I think, got an obligation to help them out to the 14 extent we can.
15 MR. MURRAY:
No question about it, and 99 times out 16 of a hundred our goals are totally compatible.
17 CHAIRMAN PALLADINO:
And I wasn't saying that we 18 were changing our objective.
I was saying that loaning of investigators to DOJ should require Commission okay, or 19 20 approval.
21 MR. MURRAY:
Yes, sir.
I was giving you some Zt more reasons why you might want to think so.
21 CHAIRMAN PALLADINO:
I don' t know, so far we have 24 heard two who say no and one who says yes.
I don 't know if
(^)
N-25 there are others.
39 i
COMMISSIONER ROBERTS:
I'm going to agree with you, (v) 2 Mr. Chairman.
I 3
CHAIRMAN PALLADINO:
Insofar as guidance.
4 COMMISSIONER BERNTHAL:
I'm sorry, I didn't under-5 stand that we had a misunderstanding yet.
6 COMMISSIONER ASSELSTINE:
The question is, do you 7
want to leave it with Ben and the EDO to decide --
8 CHAIRMAN PALLADINO:
Loaning an investigatot.
9 COMMISSIONER ASSELSTINE:
-- whether t.o loan people 10 out, or whether it has to be bucked up to the Commission 11 eve ry time.
12 COMMISSIONER BERNTHAL:
It seems to me that what we just heard are good, broad criteria to be used'in making that 13 O"
14 judgment.
15 I would like to get a better idea of how large is this problem really is.
It sounds like it's --
17 COMMISSIONER ASSELSTINE:
I don't think it's a 18 problem.
19 COMMISSIONER BERNTHAL: -- it's not a big problem.
20 CHAIRMAN PALLADINO:
Well, then it's important th at 21 it comes to the Commission.
22 COMMISSIONER GILINSKY:
You mean we deal with 23 small problems?
24 (Laughter) 26 CHAIRMAN PALLADINO:
We deal with small numbers.
40 1
We deal with small numbers of things.
But this is no small
.(
2 thing.
Don't confuse numbers with significance.
3 MR. HAYES:
The request from the Department of 4
Justice for resources to assist them in a grand jury action 5
has, over the last 13 or 14 months, has come in -- in written 6
form -- on three occasions.
7 I approached the Commission on one of those 8
requests and elected -- my view was not to participate.
9 The Commission agreed with that.
The latest one was a vendor 10 case and both OI and the staff agreed to participate in that.
11 And the most recent one, the staff made an election to 12 participate also.
13 At no time have I, as the Director of OI, committed 14 staff to assist in a grand jury request.
I have always gone 15 through the EDO.
I have always gotten them to say "yes" or 16 "no" because it's his resources and not nine.
17 So, there is nothing -- you know, I just don't 18 i
go back without Bill Dircks' okay and say, "Yes, we are going 18 to provide tecnnical assi. stance."
That's his decision and 20 he has always made that decision.
21 And I presume he has used the criteria that OELD 22 has just set forth.
23 CHAIRMAN PALLADINO:
Well, I still maintain that 24 loaning of investigators to the DOJ should involve 25 Commission approval.
That's only one point.
I don' know
41 1
if you got a feeling on that, Fred, or no.
2 COMMISSIONER BERNTHAL:
It sounds like it's -- and 3
I still don' t have any numbers.
It scunds like it 's such 4
a small fraction of cases, though, Joe, that I'm for preserving 5
flexibility on the part of staff if it really is not a major 6
problem.
7 I don't know whether you can give us some numbers.
8 MR. HAYES:
Right now, OI has committed one 9
investigator.
As I say, I think he has put in two weeks 10 over the last calendar year on a vendor case.
We have just 11 most recently committed an OI investigator to assist in another 12 referral, but we have not, to my knowledge, done anything 13 with the Department on that issue.
14 From the staff's side, the staff has provided 15 technical resources to the grand jury investigation in 16 Harrisburg, I believe two people assisted that grand jury.
17 And most recently, the staff agreed tc assist on the request 18 that I answered a few weeks ago from the Department.
They 19 provided one technical person part time.
20 All of these arrangements with the Department of 21 Justice are purely part-time situations and we have very 22 little --
23 MR. MURRAY:
Yes, but once they get contaminated 24 with the grand jury, they are out, period, whether it's part 25 time or not.
e 42 1
COMMISSIONER BERNTHAL:
Let me summarize my thoughts
- (}
2 on this.
It seens to me we ought to address the policy 3
issues that exist here in the broad sense and not try in 4
such a small number of cases, I think, constrict Ben's 5
freedom to operate.
6 The policy issues, as I see them, are one, that we 7
should givc Ben some fairly definitive guidelines on which 8
to make his judgments.
EDO's suggestions here might form the 9
basis for that.
10 Secondly, unrelated policy question -- well, it's 11 related, we ha~ve not talked about it yet, and that is who 12 refers these things to DOJ.
Joe, you have a memo out that 13 I largely agree with on that.
O 14 Thirdly, I'm concerned that this policy statement is here, which you have softened from " conduct investigations" 16 to " assist in investigations," that may still not quite be 17 the right implication, it seems to me.
18 We may want to make sure that we cooperate in every 19 way necessary with DOJ, but that we not by any policy 20 Jtatement give the implication that we are going to be 21 aggressive or proactive in achieving criminal investigation i
22 of objectives.
We have --
23 CHAIRMAN PALLADINO:
I think that ought to get in the 24 policy statement in addition to some of the things we have 1%
l (_,'
30 authorized Ben to negotiate.
But I think our --
43 1
COMMISSIONER BERNTHAL:
So. I'm not in favor at I
2 this point, since the problem seems to be so small, of 3
putting into our policy statement there a direct requirement 4
that Ben consult with us every time he has a requirement to 5
loan one or two people.
6 CIIAIRMAN PALLADINO:
I don't think that the problem 7
is that small._ Okay, but that at least for the moment 8
settle:; that one.
9 I do think in a policy statement we need to say 10 something about the health and safety concerns that require 11 immediate administrative attention.
12 COMMISSIONER ASSELSTINE :
Yes.
13 CHAIRMAN PALLADINO:
I think that should also get 14 into the policy statement.
We ought to also give in the 15 policy statement the fact that we like the request for 16 deferring enforcement or investigation written and be at --
17 what did you say, the Deputy Assistant --
18 COMMISSIONER ASSELSTINE:
Yes, either the Deputy 19 o r --
E CHAIRMAN PALLADINO:
Now, I also have another one 21 that is more controversial, the one on which I signed a memo 22 this morning, and that is Commission involvement in material 23 false statement.
24
(
i I still think that r>1nce we have put the curb on L.
25 I&E with regard to material false statements where they have
44 1
to come to the Commission, I think similar action ought to be 2
done with regard to referral of material false statements to 3
the Department of Justice because here again we can face 4
the situation where we can no longer proceed on an action, 5
depending on the reaction of the Department of Justice.
6 COMMISSIONER ASSELSTINE:
No, but I don't see how 7
that's a problem if we are in agreement that we are going to 8
go ahead, absent their stepping in and saying, "You can't,"
8 and we have goot reasons why you can't."
10 CHAIRMAN PALLADINO:
Well, and suppose they have 11 reasons why you can.
12 COMMISSIONER ASSELSTINE:
Well, then why is i*.
(
13 different than any of the others?
14 COW 4ISSIONER GILINSKY:
What did you do with I&E?
15 I remember we had an argument about it.
16 (Laughter) 17 CilAIRMAN PALLADINO:
Well, it' my understanding 18 that the procedure provides for Commission consultation on 19 any enforcement action that involves a material false statement finding, but dres not provide for Commission 21 consultation on referrals to Justice on material false statements or suspected material false statements.
I 23 For consistency,and even more to make sure that 24 we retain our flexibility, that should be referred to the 25 Commission or consultation exist with the Commission.
,45 1
That's another policy issue.
2 COMMISSIONER GILINSKY:
Why did you single out the 3
material false statement?
4 CHAIRMAN PALLADINO:
It's been singled out in I&E 5
enforcement.
6 COMMISSIONER GILINSKY:
No, but why did you do it 7
there?
8 CUTIRMAN PALLADINO:
I don't recall.
9 COMMISSIONER GILINSKY:
Well, you were very 10 insistent about it at the time.
11 CHAIRMAN PALLADINO:
Excuse me.
I think that wh, 12 did "we" do it.
I think "we" did it, I didn't.
()
13 (Laugh ter) u, 14 COMMISSIONER GILINSKY:
"You" as plural as well.
15 (Laughter) 16 COMMISSIONER ASSELSTINE:
That's right.
17 CHAIRMAN PALLADINO:
I can take it plural.
If you 18 would have said "we," that would have included you.
19 COMMISSIONER GILINSKY:
Well, I didn't.
20 (Laughter) 21 CHAIRMAN PALLADINO:
I don't know.
22 COMMISSIONER GILINSKY:
Do you remember the argument 23 for that?
Because if we can't remember it, we ought to 24 reverse it.
)
25 CHAIRMAN PALLADINO:
No, I think we can go for
46 I
an amount.
2 COMMISSIONER ASSELSTINE:
I think Victor has raised 3
a good question, why is it important that material false 4
statement violations come up here as compared to all the 5
others.
6 COMMISSIONER BERNTHAL:
What fraction of referrals 7
are material false statement, as opposed to other things?
8 MR. HAYES:
I'm sorry, Commissioner, I just don't 9
have a --
10 COMMISSIONER BERNTHAL:
Is it small or large, or 11 most of them?
12 MR. MURRAY:
It's bound to be small, Commissioner 13 Bernthal because what we call " material false statement" is 14 very, very rarely a criminal act.
I don't know of any that 15 are criminal acts.
They are 10.01 violations, 18 USC 10.01, 16 they are not violations of the Atom.e Energy Act.
17 COMMISSIONER BERNTHAL:
Of the things we refer to_
18 DOJ, is what I am asking.
Do they form the majority of the 19 things we refer to DOJ or is it --
i l
20 CHAIRMAN PALLADINO:
Incidentally, I do remember 21 some of the arguments.
We have so much disagreement on what L
a material false statement is, especially with respect to 22 23 omission, comission, and some of the criteria involved, it's 24 been a subject that the Commission hasn't been always in O
25 agreement on.
If the Commission can' t always agree, _ I think
47 it should be discussed, depending on the circumstances of 1
2 the case.
3 COMMISSIONER GILINSKY:
Well, it seems to me the way to handle that is for the Commission to give guidance 4
5 on material false statements.
6 CHAIRMAN PALLADINO:
It has attempted to, but it 7
hasn't always been consistent.
8 COMMISSIONER GILINSKY:
But it's odd to single out 9
one kind of violation.
What you are really doing is just to putting stumbling blocks in the way of --
11 COMMISSIONER ASSELSTINE:
Yes.
12 COMMISSIONER GILINSKY:
-- action in that particular 13 front as opposed to others.
14 CHAIRMAN PALLADINO:
That's because the Commission 15 has -- this is no trivial matter.
The Commission has spent 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> discussing many of these cases and has written opinions 17 that still are debated.
18 COMMISSIONER BERNTHAL:
In fact, the rules of 19 Ben Hayes' own shop, I think, that went up to the Bell 20 Subcommittee, said from some time back -- as I recall -- that 21 referrals to the Department of Justice, oddly enough, were 22 to go through OIA which implied going through the Commission.
2 COMMISSIONER GILINSKY:
No.
24 COMMISSIONER BERNTHAL:
I thknk that's what was said.
' O 25 (Simultaneous conversation)
48 1
COMMISSIONER GILINSKY:
We did say to go through ts 2
OIA.
3 COMMISSIONER BERNTHAL:
That's right.
4 COMMISSIONER GILINSKY:
But OIA --
5 COMMISSIONER BERNTHAL:
Reports to us.
6 COMMISSIONER GILINSKY:
As does Ben.
7 COMMISSIONER ASSELSTINE:
Yes; that 's right.
8 COMMISSIONER GILINSKY:
And OIA --
9 COMMISSIONER ROBERTS:
Which is a mistake.
10 COMMISSIONER GILINbe.x:
Well, that's another issue.
11 COMMISSIONER ASSELSTINE:
It is another issue, it's 12 not a mistake.
13 COMMISSIONER GILINSKY:
The fact that it went 14 through OIA did not mean it went through the Commission.
15 It in fact did not.
16 COMMISSIONER BERNTHAL:
Well, then one wonders 17 what the point of going through OIA was.
18 COMMISSIONER GILINSKY:
There wasn't a whole lot of 19 point to it.
20 CHAIRMAN PALLADINO:
Well, I think we modified that.
21 COMMISSIONER ASSELSTINE:
That 's ri gh t, it has been 22 modified.
23 COhMISSIONER GILINSKY:
But it did not, those did M
not go through the Commission.
M COMMISSIONER BERNTHAL:
The reason that I asked the o
49 1
question, though -- I don' t know whether you got an answer --
2 of what fraction referrals were, material false statement, 3
is that I would tend to agree, why single that out if that is 4
most of the cases?
5 COMMISSIONER ASSELSTINE:
Yes.
6 COMMISSIONER BERNTHAL:
Now, if it's a small fraction 7
then perhaps we have something to worry about.
8 MR. HAYES:
I don' t have the figures, Commissioner.
9 I can certainly provide them t6 the Commission.
But the 10 normal material false statement is usually a document of 11 some type, presented to the Commission in some regulatory 12 proceeding or some review, or something of that nature.
It's 13 a falsification of an entry in a required document.
/
14 COMMISSIONER C2RNTHAL:
I understand that, but 15 the question is --
16 COMMISSIONER GILINSKY:
Well, you say a falsi-17 fication.
Actually, a material false statement is not --
18 that does not imply that it was done deliberately.
19 MR. HAYES:
That's correct.
COMMISSIONER ASSELSTINE:
That's right.
21 MR. HAYES:
That's correct.
22 COMMISSIONER GILINSKY:
And it would be only in the 23 case where it were deliberate --
24 (Commissioner Roberts leaves room.)
26 MR. HAYES:
Deliberate,' willful falsification.
~
50 1
COMMISSIONER GILINSKY: -- it would be eligible for v)
COMMISSIONER BERNTHAL:
Exactly.
3 COMMISSIONER GILINSKY: -- for referral to the 4
Department of Justice.
5 COMMISSIONER BERNTHAL:
I think you are confusing 6
the question, though.
The question was, of the things we 7
refer to DOJ, are these material false statement things most 8
of thoc1.
Until we give Ben some clear guidance on what 9
the Commission thinks about material false statement, maybe 10 we should consider everything that is referred to DOJ, just 11 as a routine matter.
The Commission should make that 12 decision rather than Ben being stuck with it, at least until 13 he understands what our policy is on those things.
14 (Commissioner Roberts returns to room.)
15 MR. FITZGERALD:
I am under the imprescion that a 16 large number of items are referred to DOJ.
That is, a large 17 number of the investigations that do reveal action on which 18 we would take enforcement action, for example; not ones that 19 just turn out to be nothing.
20 Ben, do you have any idea how many referrals to 21 DOJ are made annually?
22 MR. HAYES:
Yes.
I think since the inception of 23 OI, which would be approximately 20 months, we are talking 24
(*_,3 somewhere between 10 and 14, I believe -- 12 and 14.
k/
26 Is that close?
51 1
MR. FORTUNA:
That's just since we've got the
()
2 referral responsibility.
3 MR. HAYES:
Okay, so it would be about the last 4
year, then, we are talking 12 to 14 cases.
5 COMMISSIONER ASSELSTINE:
Six months?
6 MR. FORTUNA:
I would say the last six months over 7
a dozen, probably 20.
i l
8 CHAIRMAN PALLADINO:
Two a month?
i 9
Well, I was not proposing that we ask Ben to refer 10 everything to the Commission.
I just selected material 11 false statement because it is one that has been a real problem 12 for the Commission, one on which we have had very confusing 13 O
writings; one on which we don't always get consistent answers, 14 and I think one that we ought to keep consistent between 15 OI and our practice with I&E.
16 COMMISSIONER GILINSKY:
Well, but the way for the 17 Commission to deal with that is for the Commission to make 18 up its mind not to take on the job of the staff.
19 COMMISSIONER ASSELSTINE:
Yes.
20 CHAIRMAN PALLADINO:
I'm sorry, on this one we have 21 a more complex problem, one on which we have acted with Z:
regard to I&E.
El COMMISSIONER ASSELSTINE:
Well, I thought we had an 24 effort aimed directly at coming back to the Commission on 25 material false statements to try and develop some guidance on
52 1
that very point.
()
2 If that's the case, I agree with Victor, that 's the l
3 way to deal with it, not by pulling up tne referrals.
4 MR. MURRAY:
I'm reliably informed --
5 (Laughter) s 6
MR. MURRAY: -- that we expect to have that paper 7
down here this week.
8 COMMISSIONER ASSELSTINE:
Terif fic.
9 CHAIRMAN PALLADINP:
Well maybe that --
10 COMMISSIONER ASSELSTINE:
That's the vehicle for 11 dealing with it.
12 CHAIRMAN PALLADINO:
If we can settle that, then I wouldn't need the statement I have and then we might release 13 14 I&E.
But if it doesn't settle it, I still would stick to my 15 guns.
16 I think the other one was -- I already mentioned --
17 and that is the basis on which we would delay enforcement 18 action.
19 COMMISSIONER ASSELSTINE:
Yes.
20 CHAIRMAN PALLADINO:
Those are the items I thought 21 we ought to add, plus the one that Fred caught up, we ought to 22 add to the policy statement.
23 COMMISSIONER ROBERTS:
Well, to your " adds" I have 24 a proposed deletion which I don't think will find much favor, 25 but I think we have absolutely no business calling up contracto rs
53 1
and. vendors in this policy statement.
I think it is highly b
2 arguable about whether we regulate contractors and vendors.
3 We regulate licensees.
4 CHAIRMAN PALLADINO:
What page are you on?
5 COMMISSIONER ROBERTS:
I'm in the proposed policy 6
statement, on page 12.
7 CHAIRMAN PALLADINO:
Oh.
8 COMMISSIONER GILINSKY:
Well, we fine vendors.
9 COMMISSIONER ASSELSTINE:
Yes.
10 COMMISSIONER ROBERTS:
We have, and it's questionable 11 whether we have that authority, in my opinion.
12 COMMISSIONER GILINSKY:
They paid the fine.
)
13 COMMISSIONER ROBERTS:
That doesn't have anything 14 to do with the rightness or the correctness of it.
15 MR. MALSCH:
Well, in some cases we have clear 16 authority to fine a vendor, in other cases we do not.
17 l
COMMISSIONER ASSELSTINE:
That's right.
18 MR. MALSCH:
It depends on the situation.
19 COMMISSIONER ROBERTS :
Exactly, I agree.
20 CHAIRMAN PALLADINO:
How do you define a vendor in 21 this case?
22 MR. MALSCH; Well, non-licensees with some involvement 23 in plant operation or construction.
24 COMMISSIONER ASSELSTINE:
But again, isn't the R. '
25 place to deal with that issue when we look at the whole vendor
54 1
policy this year?
That's another area where we've got a major
- (I'5 2
initiative.
k.-
Who knows, we may end up licensing vendors'.
3 COMMISSIONER ROBRTS:
0,h --
4 (Laughter) 5 COMMISSIONER BERNTHAL:
A cry of pain.
6 (Laughter) 7 COMMISSIONER ROBERTS:
I remember what Victor 8
tole me early on.
He said, " Tom, in the private sector you 9
go for bucks.
In the government you go for turf."
10 (Laughter) 11 COMMISSIONER ROBERTS:
That was a very sound 12 advice.
My experience would prove that you were entirely 13 correct.
O 14 (Laughter) 15 COMMISSIONER BERNTHAL:
You've got to be careful, 16 Victor.
17 (Laughter) 18 CHAIRMAN PALLADINO:
You got any more, Tom?
19 COMMISSIONER ROBERTS:
No.
20 (Laughter) 21 COMMISSIONER GILINSKY:
Thank God.
22 (Laughter) 23 CHAIRMAN PALLADINO:
You've got any more, Fred?
24 COMMISSIONER BERNTHAL:
No, I don't'think I can 25 possibly add.
55 1
COMMISSIONER ASSELSTINE:
I think we have given more 2
than enough guidance.
3 (Laughter) 4 CHAIRMAN PALLADINO:
I'm going to make the following 5
suggestion --
~
6 COMMISSIONER ROBERTS:
What guidance?
7 (Laughte r) 8 CHAIRMAN PALLADINO:
Now, wait a minute, I'm going 9
to make the following suggestion, that OGC rewrite the 10 1 and 2 recommendations to encompass what you think we have 11 said, such as " assist in the conduct of investigations,"
12 requiring " written requests from the Deputy Assistant 13 Attorney General."
14 COMMISSIONER ASSELSTINE:
Yes.
15 CHAIRMAN PALLADINO:
Piltting in the provision that 16 there are no health -- that if there are health and safety 17 concerns that we are free to take prompt action.
18 I think some of these same points need to be 19 said in the policy statement.
I think I lost on a couple of 20 the others, but I'm not going to give up.
But I'll have to 21 give up for today.
H COMMISSIONER BERNTHAL:
Did you mention the broad M
EDO -- these broad criteria so that Ben has some yardstick 24 to measure these things by ?
O 25 CHAIRMAN PALLADINO:
Well, it isn't only Ben that has
a 56 1
to measure them, the ED0 has to measure them.
2 COMMISSIONER ASSELSTINE:
That's right.
3 MR. MURRAY:
Well, everybody, yes.
4 COMMISSIONER ASSELSTINE :
Yes.
5 COMMISSIONER BERNTHAL:
Us, too.
6 COMMISSIONER ASSELSTINE:
The development of some 7
criteria.
8 CHAIRMAN PALLADINO:
See, I wanted to put us in it 9
but the Commission said, "No, leave it to EDO and Ben Hayes."
10 So, we are out of it once we establish --
11 COMMISSIOdER ASSELSTINE:
To the extent that you caa, 12 you can develop the criteria to be part of the Memorandum of 13 Understanding that would provide the framework, then.
14 Certainly, that will give us an opportunity to look at the 15 criteria.
16 COMMISSIONER BERNTHAL:
Joe, I'm not saying, and I 17 did not say, I don't believe, that we should be out of it until 18 we get this policy issue settled.
I think the guidance was 19 good that the Commission take charge of these material 20 false statement things until Ben has some clear guidelines.
l 21 He doesn' t have those right now and so at least for the time 22 being, we ought to continue to look at thic.
23 CHAIRMAN PALLADINO:
What are you going to give us 24 guidelines on, material false statement?
25 MR. MURRAY:
Yes.
We have a staff paper that --
57 I
CHAIRMAN PALLADINO:
Well, I wasn't talking about
'O
,,,i 2
material false statement, I was talking about loaning people.
3 COMMISSIONER BERNTHAL:
Loaning people, okay.
4 CHAIRMAN PALLADINO:
I'11 hold on that one until 5
I read the paper.
I think the others we covered in the first 6
part.
7 COMMISSIONER BERNTHAL:
That's right.
8 CHAIRMAN PALLADINO:
- Now, you had another point 9
that you said ought to be included in the policy statement, 10 and I forgot what it was.
But I agreed with it.
11 COMMISSIONER BERNTHAL:
Well, I don't --
12 MR. FITZGERALD:
Cooperate with the Department of 13 Justice rather than --
14 COMMISSICNER BERNTHAL:
It was only a question of 15 whether even " assist" was not quite the right wording, and 16 J think they can play with that.
17 CHAIRMAN PALLADINO:
Yes, our policy is to first 18 serve our civil purposes and then help DOJ.
19 COMMISSIONER ASSELSTINE:
Yes.
But I'm not sure 20 if-there is much difference between " cooperate" and " assist."
21 CHAIRMAN PALLADINO:
Yes.
22 COMMISSIONER ASSELSTINE:
But it's certainly 23 different than " conduct."
24 q
(Laughte r) 25 CHAIRMAN PALLADINO:
Okay, any other comments on
s. -
58 I
this point?
Oi' i
2 Okay, thank you very much.
3 MR. HAYES:
Thank you.
4 CHAIRMAN PALLADINO:
We stand adjourned.
5 (Whereupon, at 11:25 a.m. the meeting of the 6
Commission was adjourned.)
7 8
9 10 11 12 13 O
1.
15 16 17 18 19 20 21 22 23 24 O
=
CERTIFICATE OF PROCEEDING 1
- \\,3 This is to certify that the attached proceedings before the f
2 m
NRC COMMISSION 3
In the Matter of:
Briefing on Criminal V. Civil Investigations Date of Proceeding:
9 April 1984 Place of Proceeding:
Washington, D. C.
were held as herein appears, and that this is the original transcript for the file of the commission.
e io Elizabeth Hansen Official Reporter - Typed it
/
[
(/)
is Official Reporter - Signature I4 15 16 17 18 to 20 21 22 i
23 2.
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