ML20132F082
| ML20132F082 | |
| Person / Time | |
|---|---|
| Site: | Midland, 05000000 |
| Issue date: | 09/20/1982 |
| From: | Baci P NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | NRC OFFICE OF INVESTIGATIONS (OI) |
| Shared Package | |
| ML20132F031 | List: |
| References | |
| FOIA-85-249 NUDOCS 8510010237 | |
| Download: ML20132F082 (28) | |
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UNITED ST ATES
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j NUCLE AR REGULATORY COMMISSION nasm=cto=, o. c. rosss September 20, 1982 s
MEMORANDUM FOR: File o
FROM:
Peter E. Baci, Sr. Investigato Office of Investigations
SUBJECT:
MIPLAND/ZACK: GAP ALLEGATIONS On 15 September 1982, a meeting was held at the O' Hare Hilton Hotel, Chicago, between representatives of the Consumers Power Company (CP) and the NRC.
The meeting had to do with CP's desire to begin its'own company investigation into the allegations made by representatives of the Government Accountability Pro-ject (GAP) concerning the Midland Plant.
Specifically, CP wanted to serve subpoenas on GAP because (they claim) they have been unable to obtain informa-tion regarding the allegations contained in the GAP affidavits or copies of the affidavits themselves from the NRC staff or GAP.
The NRC's position, as presented by Jim Keppler, Mike Wilcove (ELD) and.nyself, was that any action taken by the licensee prior to the NRC's investigation might have a negative impact on the investigation.
They were told that an investigation by the licensee would most likely lack credibility with intervenors and might intimidate potential witnesses in the NRC probe.
CP's attorneys emphasized that they would certainly be working within the system if they served the subpoenas since they were issued by the Board; NRC's response was that they were certainly within their rights to serve the subpoenas out that it would be counterproductive to all sides to do so.
CP was asked and agreed to back off until the NRC had completed its investigation.
When they asked how long.this would be, they were given a target date of the end of January 1983; however, it was stressed that this was a target date and that if priorities changed, then the completion date might be pushed back even further.
To save time, Keppler agreed to let 01 brief him on the investigation and then permit CP to go ahead with theirs before the actual report was completed.
CP expressed concern that the delays might affect their fuel-loading date (October 1983).
(Note: This concern apparently is closely associated with a contract they have with DOW Chemical to buy processed steam from Midland.
DOW has the o'ption of backing out of the contract if the plant is not on line by January 1984 and has threatened to do so in the past.)
l Present at the meeting were: Jim Keppler, Mike Wilcove (ELD) and nyself from the NRC and Attorneys Michael Miller and Dick Stahl from Isham, Lincoln & Beale, Attomey J. Brenner from CP and Project Manager Dennis Budzig from CP.
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@ hl VW TESTIMONY OF BILLIE GARDE and THOMAS DEVINE GOVERNMENT ACCOUNTABILITY PROJECT INSTITUTE FOR POLICY STUDIES WASHINGTON, D.C.
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CHAIRMAN MARKEY AND SDBCOMMITTEE MEMBERS:
I.
_ INTRODUCTION On behalf of the Government Accountability Project (GAP) of the Institute for Policy Studies it is an honor and a privilege to appear before you today.
Our testimony is presented to this comittee specifically on behalf of Mr. E. Earl Kent, one of the many nuclear construction workers that GAP has or is representing as coudsel.
Mr. Kent is with us today in order to make a brief statement about the manner in which the Nuclear Regulatory Commission (NRC) handled -- or didn't
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handle -- serious allegations that he brought to its attention at two nuclear power plants.
Mr. Kent's encounter with a Nuclear i
Regulatory Co. nisalon inspection mirrors the experience of other i
5 workers at nuclear power plants under construction across the nation.
i The policies and laws for protection of nuclear workers who
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revealinformation which may. have an impact on public health and safe-ty are clearly outlined in the code of federal regulations.
The ex-parience of Mr. KesA is a good example of the reality.
Unfortunately i
i for Mr. Kent -- as well as hundreds of other conscientious nuclear workers who put the health and safety of the public first -- the consequences of telling the truth or' raising serious, valid questions in the nuclear industry are personal, professional and financial ruin.
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Many potential whistleblowers are willing to speak out in spite of 'the risks l but only if it is going to make a difference'.
As a Merit Systems Protection Board survey of government workers revealed, 73% who failed to challenge significant misconduct attributed their silence to a belief that nothing could or would be done.
Only 19% " decided that reporting this matter was too great a risk for na."
The problem 'for nuclear industry whistleblowers is that there is no guarantee anything will be accomplished except professional martyrdom.
The NRC is plagued by a breakdown in the quality.
assurance (QA) of its own investigations.
The poor prospect:s are due to generic weaknesses that GAP has observed in NRC investigations and inspections.
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A.
In its approac'n to whistleblowers, th e NRC ha s --
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(1) refused entirely to speak with employee whistleblowers, to cover specific issues such as retaliation, or to investi-gate at all when the allegation concerned a plant about to open; (2) violated the confidentiality of whistleblowers, either directly or indirectlyt (3)'
narrowly defined issues raised by whistleblowers and failed to inspoct b: yond hardware examples the witness was able to ident1ry.pecificallys (4) failec to record interviews or take affidavits, particularly on the most significant issues being raised by whistleblowers; l
(5) returned affidavits to witnesses to delete references to sensitive issues; i
(6) failed to include affidavits in the public reports when the statements contradicted the NRC's party line on the problems at nuclear plants; i
(7) failed to keep pace with new whistleblower allegations in a timely manner.
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In_its approkch to utilities,'the NRC has --
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{8) i conducted closed-door meetings with utility.and con -
tractor executives when investigating whistleblower allegations:
1 (9) provided advance warning to utilities about where
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and'when the NRC was going to inspect hardware; '
(10) relied on industry's technical conclusions without disclosure of supporting data and calculations for evaluation of whistleblower allegations; t
-(11) offered advance, informal review of decisions to the targets of NRC investigations and inspections, thereby per-mitting utilities to escape accountability through informa11 i
j of ten-unenforced commitments "not to do it again. "
i (12) reviewed and informally approved licensee, practices befor approved by corporate officials with quality" assurance responsi-bilities, thereby undercutting the employees who tried to carry out their duties objectively despite the pressure of.
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management urgings that "it's all right with the NRC, are you holding things up?"
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In its approach to its' own personnel, the NRC has --
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(13) censored 'the text and conclusions,of sensitive in-t vestiv.tiva iludings by the staff;
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(14) permitted fact-finders with first-hand knowledge t
of defective conditions to be overruled by national-officials I
I whose biases carried more weight than the evidence; l
(15) obstructed efforts by its investigators to evidence necessary for potential criminal prosecution. gather fatado its fcet-finders to draw conclusions based on what was and learned.
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(181 pu v =4 an internal " buddy system" that undercuts the c6_i'.
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Ad shatters the morale of conscientious emple1' 0er.
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Lits apyroach to _the public, the NRC has --
(17) attempted as a knee-jerk reaction to. discredit critics -- whether whistleblowers, anti-nuclear organizations, or simply interested and concerned citizens -- by questioning
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their motivations, patriotism, integrity, and technical com-5 Petence to raise questions about pulbic health and safety; i
(18) destroyed draf ts of reports, created secret files and failed to admit the existence of documents requested under l
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. the Freedom of In' formation (FCIA), in order to prevent the public from learning how investigative findings were covered up.,
We base these conclusions on our experience monitoring the NRC over the last three years as counsel for citizens organizati ons and approximately a dozen whistleblowers at six nuclear plants, as well as interviews with over 75 witnesses from the nuclear industry We emphasize that it would be unfair to generalize the miscondu t c
above to all NRC investigators, inspectors, managers or even commissioners.
On each level the NRC has numerous employees who help to define the term "public servant."
But the misconduct listed above has tahon place and continues to occur frequently eriough that potential whistleblowers are playing career Russion Roulette when they consider disclosures to the NRC.
Further, we believe that nuclear p:wcr is so dangerous that the analogy extends to the public.
It 14 a.all comfort that NRC investigations periodically are effective -
generally when investigators are unshackled due to the political pressure created by a scandal and citi=en backlash.
II.
BACY.Cnc*.T::
The Governr.:.t f. ::'.:.tability Project is a proj ect of the Institute for Policy Studies, Washington, D.C.
The purpose of the program is to broadun the understanding of the vital role of
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public and corporate employees in preventing waste and corruption, 7::.
to offer legal and strategic counsel to whistleblowers
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, to provide xtsk a unique legal education for law students, 1C75=it to bring meaningful and
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i significant reform to the government workplace, and to expose government actions that are repressive, wasteful or illegal and that pose a threat to the health and safety of the American public.
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Presently, the Project provides a program of multi-level assistance for government employees who report illegal, wasteful or improper actions by their agencies.
GAP regularly monitors governmental reforms, offers expertise to Executive Branch offices and agencies, i
and responds to requests by Congress and state legislatures for analysis of legislation to make government more accountable to the public.
l GAP's Citizens Clinic is a citizens training, consulting, and socia 1 activist program for local " grassroots", public interest, community, and church groups.
This program is designed to assist and direct citizen involvement.
Its role is to provide a range of services to individuals or groups who begin to speak out about l
problems spawned by corporate or government ineptitude or mal-feasance.
The Clinic's focus is on assisting citizens to, effectively i
use their First Amendment rights to expose or address significant issues.
l The Clinic addresses health and safety concerns, consumer fraud, corporate " rip-offs", pollution, government misconduct, abuse or inaction, and the abridgement of individual rights that i
of ten accompanies the struggle of citizens to redress their griev-ances.
In recent years GAP has been approached by a growing number of witnesses from nuclear power plants under construction across the nation.
In keeping with its objectives, both the CAP Whistle-
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blower Review Panel anB the Citizens Clinic Review Board have directed staff to pur' sue aggressively the complaints and problems.
that nuclear workers bring forward.
GAP is not an " anti-nuclear" organization.
Its objectives within the nuclear industry are the elimination of the government's misconduct and inaction, the uncovering of facts that warrant closer scrutiny or regulatory action by the Nuclear Regulatory Co5 mission (NRC), and monitoring of how the NRC deals with signifi-cant information provided by nuclear "whistleblowers".
This Clinic assumes that nuclear-related issues are critica'$1y important to the public safety, and acts upon evidence that the NRC is doing an inadequate job regulating the nuclear industry that government created.
Nuclear whistleblowers, the central figures in our approach to nuclear-related work, are the vital components in the struggle for safe energy and making the public aware of dangerous or question-able conditions.
III.
CASE STUDIES OF THE QUALITY ASSURANCE BREAXDOWN IN NRC
_INVESTIG ATIONS A.
Zimmer our work began over three years ago when Thomas Applegate, an undercover detective who was fired from the Zimmer nuclear power plant af ter uncovering severe safety problems and rampant criminal activities, brought his evidence to GAP.
GAP launched its own extensive investigation.
Eventually, GAP's investigation led to two NRC probes -- an internal investigation and a renewed l
l probe of the detective-whistleblower's original allegations.
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The results of both investigations, released in November 1981,~
substantiated GAP's accusations.
The NRC internal investigation revealed that the NRC's original effort failed to meet minimum government investigative standards.
The probe of the fired am-ployee's actual allegations led to a record $200,000 fine, based on a finding of systematic quality assurance violations -- records had been doctorei, mandatory inspections had been skipped and i
inspectors harassed.
But the NRC even failed to see the forest through the trees the second time around.
Since November 1981, new whistleblowers from inside and outside the Commission revealed devastating new evidence about the plant and the NRC.
The latest information 1
demonstrates that the NRC investigations, as meticulous and com-prehensive as they appeared, were meant to contain the scandal at i
the plant and whiri the focus away from exposure of the most funda-mental defects, hardware problems, and root causes.
In the., process, NRC avoided possible criminal prosecutions.
Finally, in Npvember 1982, after a sustained citizen campaign, the Commission recognized the scope of the prob 3cm and suspended safety-related construction.
Unfortunately, the, Commission was quicker to shut down scheduled licensing beerlaw.
the Zimmer QA brea~kdown than it was to shut u.o down the plant.
Tne Nxu'still has not permitted the hearings.
As a result, the public still has no institutional opportunity to check whether the Commission has succeeded -the third time around in avoiding a coverup.
On June 3, 1983 GAP filed a renewed motion to reopen the licensing hearings, on behalf of the Miami valley l
Power ~ Project.
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The Kent Case-
.Following the GAP staff work at Zimmer we received a request to pursue worker allegations of major problems at the Mid-land nuclear power plant in Midland, Michigan.
On June 29, 1982 our preliminary investigation resulted in filing six affidavits with the Nuclear Regulatory Commission.
One of these affidavits was from Mr. E. Earl Kent, a fo'rmer senior welding engineer employed by the Bechtel Corporation, the main contractor of the Midland facility.
His affidavit detailed serious welding defects at the Midland facility, and referenced similar probleds at two other nuclear facilities that he worked on -- Palisades and San Onofre.
After submitting his allegations to the Nuclear Regulatory Commission at the end of June, Mr. Kcot prepared his evidence and documentation for the anticipated visit by NRC investigators, i
Unfortunately the ir..ectigators never arrived.
In mid-August', at 1
Mr. Kent's own expense, he went to the regional NRC office to l
talk to the government officials charged with investigating the I
detail and specificity of his' claims about the problems at Midland.
Further, he wanted to clarify that the NRC was aware of his know-ledge about serious hardware problems at the two other sites.
Mr.
Kent was seriously disappointed in his reception.
He sensed correctly that nothing would be done.
i Following the mid-August visit, GAP wrote a letter to Mr.
James Keppler,. Regional Director, emphasizing our concerns about Mr. Kent's visit.
In the three months following the submission of Mr. Kent's claims -- serious construction flaws -- there remained no efforts on the part of the NRC.
During this time Mr. Kent
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and GAP worked to untingle the mystery of Bechtel's inadequate welding pr'ocedures.
Finally, upon his return to California, Mr. Kent attempted to independently pursue his concern Wbout the San Onofre facilities He contacted the utility, Southern California Edison (SCE),
and also made direct contact with the Bechtel site Quality Control office in early and mid-September, 1982.
Then, after almost two years of working within the industry and regulatory system, Mr. Kent gave up on "the system" and agreed to go public for the first time by talking to a' reporter from the Ley Angeles Times.
The reporter had learned of.Mr. Kent's allega-tions from another source.
On October 13, 14, and 15, 1982 there were numerous news stories about Mr. Kent's allegations at the three facilities.
Af ter the press coverage, Mr. Kent was finally contacted by the Region V inspectors who had previously ignored, or remNined ignorant, of his allegations.
These NRC contacts came after Mr.
Kent had again offered his assistance and information on serious welding flaws.
Mr. Kent agreed to meet with the Region V inspectors.
Two days after the meeting NRC inspectors appeared at Mr.
Kent's homa and insisted that he sign a three page statement that they had prepared from their notes of the October 15 meeting Mr.
Kent reviewed the statement and'made some changes.
However, he wisely delayed signing the statement prior to review by his counsel.
On October 25, 1982 Mr. Kent was taken on a site tour of the San Onofre facility by Bechtel, SCE, and NRC personnel.
During this tour he pointed out numerous construction problems, including
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- worker safety violations, and atte.mpted to explain his technical welding allegations.
He was not allowed the use of tools, accom-paniment by a witness, or even the courtesy of a step ladder to point to specific flaws.
i After our review of the statements, as well as receiving much more detailed information from Mr. Kent, we informed the NRC -- both
. Region II.Tand Region V -- that Mr. Kent would be supplying an expanded and much r.. ore detailed affidavit of his allegations after he received and reviewed the NRC tapes of his interview.
The NRC's comitment to provide the tapes immediately to Mr. Kent was a prere-quisite to Mr. Kert's neeting with the RC without his counsel prisent.
Then, on December 10, 1982 the Region V office, the Bechtel
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Corporation, and Southern California Edison held press conferences l
or issued press releases about the NRC report which debunked Mr
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c.scredited him publicly, and denounced his concerns as unsubstantiated, untrue, or technically inaccur' ate.
It was a cheap shot.
Region V didn't bother to notify Mr. Kent prior to the public press conference, sithough both Bechtel and Southern California i
Edison had plenty of tine to prepare for their own press releases i
issued the sr.:aw a..
Region V didn't bother to provide a copy of the report to Mr Kent or his counsol-until 5 days after its public release.
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fact, neither Mr. Kent nor GAP had received the interview tapes at the time of. the press conference.
The NRC did not even wait for Mr. Xent to sign an accurate version of his allegations and evi-dence, which the report supposedly had rebutted.
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We were outraged at how Region V handled Mr. Kent's allega-
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tions.
We announced that we would do an independent investigation of (1) the substantive allegations; and (2) RegionV'sinspection/
investigation effort.
We completed that effort last month.
Kent Analysis Tomorrow we intend to file our independent investigative analysis of Region V's Kent inspection with the Commissioners.
In summary our independent investigation of the NRC's effort has determined that--
(1)
The inspection was seriously prejudi ed by unverified and unsubstantiated attacks on Mr. Kent's integrity by another NRC inspector.
As evidence to discredit Mr.
Kent's allegations, the NRC used uncorroborated. rumor; deliberate misrepresentations of another NRC inspection effort that, in fact, had never been conducted; and crude, irrelevant and unsubstantiated personal attacks on Kent's professional and educational background.
(2)
The inspection was curtailed at its inception to meet the utility licensing timetable for San Onofre Unit 3.
(3)
The inspection did not address the basic generic welding flaw alleged by Mr. Kent.
(4)
The inspectors either did not conduct, did not document or destroyed records of all of the interviews with Bechtel and' utility executives, yet the alleged interviews were used to discredit or dismiss Mr. Kent's allegations.
(5)
The NRC either did not perform, did not document or de-stroyed records of any independent technical analysis of in. KenL'= allegations -- instead, the NRC adopted with-out question Bechtel's technical evaluation of the safety consequences from its own misconduct.
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The NRC either did not perform, did not document, or destroyed records of all inspection interviews with work-ers beyond Mr. Kent and two employees specifically referenced by him.
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~The NRC either did not conduct or did not document r
interviews, or destroyed records of information provided by individuals who substantiated Mr. Kent's specific or generic allegations.
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A NRC regional investigator attempted to predetermine the res01ts "of another Region's inspection / investigation
, efforts prior to any inspection / investigative effort
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Regional inspection policies were directly" contradictory to federal NRC inspection guidelines for a period of at least 18 months -
this practice compromised 'at a minimum one San Onofre inspection effort as documented in an internal office of Inspector and Auditor investiga-
- tion, the Narbut Report.
(10)
Top-level NRC administrators, including officials in the offices of Nuclear Reactor Regulation (NRR), Investiga-tions (OI), and Inspection and Enforcement (IE) were all aware of the inadequate investigation / inspection effort undertaken by Region V.
(11)
Finally, the NRC failed to provide either the Washington, D.C. administrators or the public with the facts sur-roundin'g Mr. Kent's refusal to sign an NRC-prepared sta temen t.
Instead, Region V officials used the unsigned statement as fact, and failed to ' explain that Kent's refusal to sign was. based on the fact his counsel advised him not to because the statement was inaccurate, incomplete and seriously understated Mr. Kent's concerns.
On balance, we believe that just as at Zimmer three years ago with j
the Applegate allegations, the NRC response ~ to Mr. Kent failed to meet minimum government investigative standards.
We will ask the Commissioners to -- (1) initiate a le'gitimate inspection and technical analysis of Mr. Kent's welding defect
, concerns, and (2) seek an investigation by another government agency - such as the Naval Intelligence Service into the outrageous handling of Mr. Kent's allegations, or (3) request a GAO investigation.
into Region V's handling of this inspection and.the deliberate or inadvertant violation of NRC inspection procedures and policies throughout the Region.
We have also forwarded this information to the Departmen't of Justice.
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C.
Palo Verde in May 1982, Region V and the Office of Investigations began an investigation into allegations of faulty electrical work on the shutdown systems and falsification of quality assurance records at the Palo Verde plants.
At the time, the NRC staff promised Robert Gunderson, the electrician who raised these allega-tions, that his identity would be protected and that there would be a through investigation.
Mr. Gunderson, who last February revealed his identity in order to criticize the conduct of the NRC's investigation, believes he was subsequently blackballed from the nuclear industry.
Further, over a year later the ' investigation report is not complete.
The investigators did not go to the site to examine Mr.
Gunderson's allegations until two months after interviewing him and another QA managar who made similar charges.
In September 1982, before the issuance of any report, the Arizona Public Servi'ce Company which owns Palo Verde announced in its newsletter that it had received a " clean bill of health" from the NRC on these allega-i tions.
Mr. Gunderson was flown back to the site in October 1982 for an exit irta*" --
.>.a investigators told him at the time that
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all problems he described had been fixed prior to the NRC inspection l
or that the specificellons for the job had changed so the discrepan-l cies were no longer violations of the specifications.
Mr. Gunderson, expecting this response from the NRC, then detailed other problems which _ he had deliberately omitted from his first affidavit.
Ncne of these deficiencies, of course, had been repaired.
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When we inquired a' bout the status of the investigation and how the utility knew the outcome of the investigation, the OI investigator hung up the telephone on us.
We complained to his I
superior in the Office of Investigations in February 1983 about the manner in which the investigation was being conducted.
We, heard no response until May 1983, when ve were told that OI had misplaced our letter for three months and believed the matter was more appropriately handled in CIA.
The OI Report has yet to be -issued, although a special in-spection report issued on April 22, 1983 indicat$s Mr. Gunderson's charge of f alsified records was corroborated.
Neither OI nor CIA has provided any explanation for the long delay in the investiga-tion or the apparent disclosure to the utility of Mr. Gunderson's allegations prior to NRC inspection.
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Catawba
.A On April 21, 1983 GAP requested an Office of Investigation (OI probe into the Catawba facility under construction in South Carolina by Duke Power Corporation.
We had received significant evidence of a massive utility coverup of welding procedure violations, records f::-ification and retaliation.
This information f
was brought to the ERC's attention by over two dozen welding l
quality control inspectors.
Retaliation and records falsification are potential criminal l
violations; but the NRC region permitted, the utility to dispose of the issue through a report by a consulting firm on whose board the utility president sat.
The ensuing report devoted only three j
pages out of 450 to the allegations of deliberate violations such
- 15 as illegal reprisals The regional office was satisfied that there aren't any problems.
The whistleblowers feel they were left to twist slowly in the wind, and are still twisting.
Clearly this would have been an opportunity for the new office o-Investigations to demonstrate its own independence and to compe nsate for the NRC's previous abdication.
Unfortunately, OI passed the buck again.
It delegated the case to the Of fice of Inspector and Auditor.
At best, OIA will investigate the NRC's own oversight, leaving the charges of reprisal still effectively unanswered As a result, after two years there have been three utility task forces, one Regional I &
E review and an OI referral to OIA.
But the NRC's investigative program still has failed to seriou l sy address all the issues initially raised,at Catawba.
IV.
ORGANIZATIONAL CAUSES FOR THE BREAKDOWN The case studies demonstrate repetitive violations in' the quality of NRC investigations.
At nuclear plants, NRC inspectors' have con-cluded that repetitive violations indicate an organizational breakdow in the quality assurance program.
In our opinioni that same con-clusion applies to'the NRC.
We have identified four causes for the breakdown - 11 programmatic defects;
- 2) failure to honor the i
merit system for personnel decisions; 3) absence of legitimate structure for checks and balances on agency performance, evidenced by the absence of an independent Inspector General; and 4) failure of leadership by the Commissioners.
The net effect has been to cripple the NRC's investigative program generally and to effectively l
abdicate the criminal enforcement of provisions in the Atomic Ene i
Act.
A.
Programmati'c Defects
.In some instances bureaucratic roadblocks have obstructed inve,stigators' efforts.
For instance, in practice the various NRC factfinding bureaus -- OI, OIA and the Office of Inspection and Inforcement (IE) -- sometimos each wait for the other to complete it s individual segments before taking a turn.
Successive instead of integrated cases lead to delays, as witnesses leave, forget key evidentiary de tails or simply become tired of the' ' parade of.
NRC representatives.
The nuclear industry investigators and attorneys do not wait for IE to finish its insp$ctions before speaking with witnerses.
We don't understand why OI investigations
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,are put on hold, sometimes until potential criminal cases become stale and defenses are perfected.
Another significant problem is the prohibition on conclusions or recommendesivas L. GI reports. - As a result, the factfinder who directly observes the witnesses and gathers the evidenc'e must l
defer judgment about such key issues as criminal intent to those i
without firsthand knowledge -- Mr. James Cummings, OIA Director, or the Commissione.rs.
While the ultimate policy decisions of course must be made by agency leadership, GAP believes that the MC 's inve = L1w. *.....:.uld be permitted'to draw conclusions about what they have learned.
Currently there is a void in the NRC's a
capacity to detect intentional. violations of the Atomic Energy Act.
One of the most obvious handicaps for.OI is its meager' staff of approxir.ately 25 investigators.
Given the ' state of utility contempt for legal QA requirements,.this is a hopelessly inadequate force to unenva.r the causes 'of illegalities throughout the' ' industry.
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Buddy System intrusions Into the Civil Service l
- One letter that GAP received recently alleged serious I
personnel policy abuses -- including predetermined personnel I
selections for those who don't make waves with the industry by I
a particular regional administrator.
The letter contained docu' ments that evidence violations of the Civil Service Reform Act.
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The results of these merit systems violations can be ominous for the public forced to put its trust in the NRC.
To quot'e the NRC source who communicated with GAP --
... incapable stooges are being promoted to' lead com-petent engineers into doing an inadequate job.
One incapable person after being installed at the helm, stands in a position to help select.other incompetents i
and thta the chain continues which ultimately spells disaster.
These concerns echo the frustration of excellent investigators who have left the agency in protest.
They have informed GAP that many conscientious NRC investigators must make a career decision after around two years -- whether to stop fighting for principles and results, or whether to leave.
That is not to deny that dedi-cated personnel pqrsist, or that outstanding new investigators i
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are recruited by the NRC's public service mission.
But we-believe talent is wasted unnecessarily due to merit system violations.
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C.
Lack of an Independent Inspector General The repetitive breakdowns in the quality of NRC investi-gations suggest a breakdown in the agency's system of' checks l
l and balances.
We have found that to be the case at the Commission.
The Office of Inspector and Auditor does not have legitimacy as the watchdog on the quality of NRC's performance.
To illustrate the snrrv state of OIA's credibility. the whiseleblomer who disclosed
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- 18 allegations of merit system violations closed with a specifi c request:} "Please, we do not want you to send Mr. Cunmings or his staff to do this /Jnvestigaticp7 They do a good paint cover up job when it comes to covering up for management deficiencies Our assessment is that OTA under Mr. Cummings leadership h as sacrificed its role as an agent of accountability.
On occasion it has been reduced to smoothing over potentially embarrassing scandals through " counseling", to make sure that the problem is
" resolved".
Even worse, CIA has become a de facto graveyard for charges of criminni Atomic Energy Act violatioss.
As with the breakdown in the NRC investigative program generally, the OIA's record can be illustrated through case studies and re~ eat violations, and explained through poor leadership and p
structural defects.
1.
Case Studies of OIA Investigations a.
The Narbut Report
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Our concerns about Region V's handling of the Kent investigation led us to inquire into the regional inspection policies.
We discovered that a July 1982 OIA investigation had determined that, in fact, Region
-V had a policy of sharing inspection information such as draft reports with licensees that was in direct violation of NRC investigation / inspection policies.
We learned that the OIA investigators had effectively gathered all the facts, but the OIA leadership failed to endorse or even in~clude the investigative conclu-sions in the final report.
i b.
Zimmer The Zimmer case illustrates the myriad of CIA deficiencies.
In the end, the investigative staff was able to produce a significant report.
But they
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produced it in soite of OIA. management, which severely compromised the effort through -- 1) even more significant censorship; 2) stopping the. investigators the key point in their probe into the 'causes of at the QA breakdown; and 3). denying the existence _of agency records requested under the Freedom of Informa-tion Act (FOIA) which reveal the extent of the coverup.
Our June 3,1983 motion to reopen Zimmer licensing proceedings summarizes CIA's -.and Mr. Cu:mning's -
efforts to avoid public disclosure of the NRC's role in the failure to see the obvious at Zimmer.
The rationalizations for the coverup are in the' I
best tradition of Catch 22.
To illustrate, throughout most of the Zimmer CIA investigations Mr. Cummingu effectively defined the mission as determining the' root cause of the NRC's f ailure, rather than a witchhunt against individuals.
This effort produced evidence that both Region III and top utility execu-tiven may have been aware that the OA program was
-I 3 out of control as far back as 1977, and deliberately L
'let the violations continue.
At the last minute,.
Mr. Cummings - del'eted this major section of the' report, over the investigators' objections, with'the' excuse that OA's mission was merely to look for' individual personnel violations.
Mr. Cummings cut the' he' art out of the OIA report around the same time tha't he partici-i.. _ Gecision to stop his investigators as they pag.;
were closing in on indentification of the decision.
makers in the OA violations, for possible presentation to a grand jury.
Last month Judge Thomas Hogan issued an order in Applegate v. NRC No. 82-1829 (D.D.C., May. 24, 1983)
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with significant conclusions about OIA's lack of accountability to the public under the FOIA.
The Court found that--
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t 2-evidence was uncovered in the record suggest-ing that despite the existence of a carefully t
drafted official NRC FOIA policies and pro-cedures, the personnel assigned to implement FOIA in OIA executed those rules in a manner designed to thwart the release of responsive i
materials....It is disturbing to this Court tha't unbeknownst to agency management, an office in the NRC was able to design a filing and oral search system which could frustrate the clear
- and express purposes of FOIA.
The ' assertion of e
an exemption is one thing,. avoidance borders on dishonesty.... A lawsuit ought not to be required to ensure the adequacy of a search.
Mr. Cummings has publicly stated that the FOIA policies in the Zimmer case reflected his decisions,,that he l
did nothing wrong and would make the 'same ' decisions 3
again.
In light of the Court's finding,,this type of leadership is not reassuring.
It has been a barrier to exposing the truth.-
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Lasalle i
At LaSalle,. Mr. Cummings could perha'ps explain better th:n we why he' found nothing when' he' ' investigated i
internal allegations of "NRC white wash" by members of
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Region III management.
His own memorandum of July 15,-
1982 to William Dircks (enclosed as Exhibit 3) illustratas how OIA has substituted counseling, and Mr. Cummings' subjective reassurance, for accountability:
t on June 30, 1982, Jim Keppler called me ' relative
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to internal comments being made 'in Region III to thc effect that there was so much' emphasis /
r-==-"-a to complete the~ licensing process of the LaSalle plant that certain allegations l-relative to LaSalle, and currently under investi-gation by' Region III, were not being properly investigated, i.e., the investigation would result in a " white wash."
Principle examples given by Maura and Reimann i
in this regard was the fact that Reimann had been pulled off the investigation just at the point where he was discovering more evidence /
records to support the falsification charge and further that proper safeguards were not
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records but rather the records were le the custody of the licenseer ment that the ' criticism levied by Maura Reimann was valid, however, overall office circumstances have dictated both the delay of investigative matters and in some instances th assignment of inspectors to investigatory e
matters; The Regional Administrator has directed that '
the falsification allegations regarding torque wrenches and gauges be.fu'11y and completely investigated irrespective'of real and/or ima g
pressure regarding the licensing of LaSalle.gined i
taken by this office.In view of the above no furcher ac This ~ approach may smooth over potential scandals b is no substitute for effective enforcement as th ut it his.t'ory of La Salle demonst; rates.
e sorry 2.
_Causes of the OIA Fa_ilure Like the QA breakdown at OI, the violations at OIA are repetitive.
The same type of misconduct is being discuss a today that was reported two years ago in a General Accounting Office report,
" Improvements Needed in the Nuclear Regulato i
Commission's Office of Inspector and Auditor" ry i
(July 9, 1981)
EMD 81-72.
While,Mr.
Cummings' leadership is an obvious target we believe that GAO's findings help to explain the conti breakdern:
nuing Auditor needs to be strengthened.The independence o the recommendations contained in this report mplements also suggests that Congress consider establishing a GAO statutory Inspector General office at the NRC.
- an office could help ensure that the Congress a,dSuch the Commissioners receive objective informati n
problems within the Commission and enhance public on on trust in the regulation of commercial nuclear power.
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- This lack of organizational independence would violate Crite,rion I of 10 CFR 50, Appendix B if it existed at a nuclear power pinnt.
At the NRC it helps explain why OIA was stopped in its tracks and hit with bureaucratic retaliation when it took tentative steps in late 1981 to pursue agency accountability.
When OIA proposed an audit of.the,NRC's QA J
oversight, Chairman Palladino quashed the initiative and al-lowed the staff that would have been the subject of the audit to exonerate 8.t:: elf.
This action undercut the Cha'irman's warning to the Atomic Industrial Forum that the NRC will hold the industry to higher quality assurance standards.
Similarly, after CIA's strong findings on Zimmer,.the i
NRC's " watchdog" was put on a leash and' not permitted to conduct further oversight of NRC investigations for months.
h
..e u i..mit is that an independent Inspector General l
is necessary to establish a structure that even~ permits -
accountability.
Fresh leadership is necessary to' ' imp 1hment
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a system of 1egitimate checks and balances, if one becomes available.
D.
Failn*e of ! W.ership by the Commissioners as seen aoove, the Comissioners must share the responsi-bility for the investigative breakdown at NRC.
Amazingly, this spring the conmissioners took the industry bait and established an advisory committee that may further weaken the investigative program.
The " Advisory committee for Review of the Office of l
Investigation Policy and Rights of Licensee Employees Under Investi-gation" was established to consider such issues as whether NRC w.
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investigators should be required to inform witnesses of their Miranda r,ight to counsel.
Another topic was whether the company should provide the lawyer.
We believe that this 'p:mje~t ~is illegal under the Federal Advisory Committee Act (Pub.L.92-963), as well as utterly frivolous.
Initially the committee is illegal, because the NRC justified its existence -by subtracting a key phrase from the Act.
In a January 10, 1983 letter, Chairman Palladino explained that a co=mittee is appropriate in part because "we are.not aware of any other agency advisory committee which could fulfill this purpose."
That is not the relevant test under the statute.
Section 5(a) a of the Advisory Committee Act specifies that proposed committees should be' screened to determine "whether the functions...are being performed by one or more acencies or by an advisory committee i
already in existence." (emphasis added).
As the NRC's Advisory Co=mittee hearings revealed, nearly every other agency in the
~
Executive Branch already has a policy on Miranda-style warnings in non-custodial interrogations.
Various representatives shared their experience with the NRC.
As one bewildered witness at the May 26 hearings from the Pentagon IG noted about the whole proposi-
- tion,
"...I just don't understand the purpose of it."
The NEC advisory committee also is illegal because it does not reflect the requirement in Section 15(b) (2) of the Act for balanced membership "in terms of the points of view represented...."
There is not even token membership on this committee for public interest and/or citizens groups, or even those who have fought for the rights of nuclear industry employees.
Just as industry proposed c
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the conmittee, its membership is top-heavy with industry representa-tives.
The chairman has represented Houston Power and Light.
Another. ember was one of those who started the Atomic Industrial Forum.
The bias is so crude that Julian S. Greenspun, the Department of Justice's Deputy Chief for Litigation, General Litigation and Legal Advice Section, Criminal Division, refused to cobperate with the committee.
Mr. Greenspun explained that " policy matters of NRC investigative procedures are not, in my view, to be decided in concert or partnership with representatives,and agents for utility co=panies or their management who may be subjects of these investigations...."
The effort is frivolous if its true intent is to help protect employees.
In GAP's experience, whistleblowers are much more
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chilled -- and realistically threatened by -- management repre-sentatives than by NRC investigators.
Indeed, there is little prospect of criminal liability for anyone.
The NRC effectively does not have a credible program to prosecute criminal violations.
There have been only a handful of criminal referrals to DOJ in history, and just one indictment of which we are aware.
In short, the Commissioners have fiddled Nero-liko. l i" 1.. ~.-try-proposed and dominated advisory committee u.
to " solve" a non-problem by further weakening the NRC investigative program -- which already has lost public credibility.
nu.'
V.
CONCLUSIONS Contrary to NRC responses on occasion, GAP's concerns are not unreasonable demands.
We are not alone in our frustration, I
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I 25 -
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I which is shared widely hy whistleblowers, the public and even the Department of Justice.
The legitimacy crisis has reached the point l
that on March 25 Mr. Greenspun warned that he is " reluctant to
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reco:raend at this point that NRC be the exclusive agency relied on to develop criminal cases (and possibly civil cases)..."
For too long the NRC has failed to perceive the obvious at nuclear power plants.
It is time for the Commission to admit the' obvious about its own shortcomings and begin a thorough overhaul I
of its program for investigations arid agency accountability.
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WHOLESALE' B i
dramatu than reductmn of change emmn n hath t
'gpg gasohne emissions Po!!ution The besi ni w s about thi ;
leveh on gas fueled autos be-deme is thai if si works i
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gin to go up as soon as the passenger cars, it mas be op
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vehicles lease the showroorn.
phed to buses and trui t s.
hMU# [/cQ Smog desice checks aim at which are responubic for 20 ;,
y making small adjustments to percent of schnic crmssu n-t restore the tuning But diesel includmg 75 perceni of the engines tend to retain the partic ulate matter same lesel of emissions over
- Peter Steinhart l
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DAY CARE WATCH I
l T5 2 P M DO YOU ANOW 1,and, (805) 3254E68. $4 5 m where your children are)If Bes erly Hilh. Interna-you re among the 1.5 milhon nonal Children's Center, dual-career couples in Cah-(213) 652 7483. $75 fornia, chances a c your pre-hierced: Happy Tirne schoolers are in one of the Nursery School, (209) j Frans Poet's View over Morrea. Srais; e cool $200,u a for openers 6,616 licensed day care cen-722-3889 $40.
I ters here. Those centers that Pasadena: All Saints i
TMuseum in h1alibu, the HE.J. PAUL GETTY ter, N.Y? Esti rated worth:
are staie supplemented oper-Children's Center, (818)
$100 million This repository ate on a shdmg scale, with an 449-0985, $69.
I richest in the world, has of photography and motion average maximum charge of Riserside: Joyful Noise more than $1 million a week picture history is in big
$70 a week, but waiting hsts Pre School and Day Care, to spend on art purchases.
fmancial trouble, and if the are long and preference is (714) 686-6473, 547.50 Even though museum direc-trustees don't come up with a gnen to low income families.
Sacramento: Alice in torJohn Walsh says he buys solution, escrything may Privately funded centers, Wonderland Pre-School and t
g selectisely in order to asoid have tc. be donated to the however, have no such hmits Day Care, (916) 455-0607, upsetting the international Smithsoman. The collection We looked at a number of
$43 75.
art market, it is obvious that includes 600,000 prints (rare the Gerry can a!Tord what-Steichen, hturay and Hine) them recently and came up San Diego Adventure with these weekly rates for Days, (619) 560-5686 is offered. So why not: and 5,000 film titles, full-day care for a two-and-a-
$63 50.
ever a The Art Collection of the primarily of the silent genre.
half-to hve-year-old (lunch San Francisco: Friends of British Railway Pension eA couple of Sotheby's and snack included)
Saint Francis Childcare Fund? Estimated worth $37 Old Masters paintings? In Bakers 6 eld: h1unchkin Center, (415) 861-1818, $91 milhon. The fund has in-January, there will be two vested a portion of its assets landscapes by seventeenth-in an art collection which in-century Dutch artists, es-NUKING THE cludes marvelous impres-timated at $200,000 to sionist paintings, quality
$300,000 apiece. Both Land-WHISTLE-BLOWERS medieval manuscripts and uope of Wheatfilds by Jacob sculpture from the Pa r-van Ruisdael and Vier coer 1"wo SENIOR ENGINEFRS safety code violations, and 1
thenon. The collection does larreo, Brant by Frans Post 8 wh w rked m, the Bech-removmg them for domg not include national trea-are signed and considered tel-built Midland, Michigan, theirjob may subject Bechtel sures, so it can be exported works of 6rst impor.
nuclear plant are sumg the to as much as $100 milhon in and sold easily tance-assets to the Getty's San Francisco company for punitise damages.
a The George Eastman own Old Masters collection.
wrongful termination.
E.
Not so, says Phihp Placier, House Collections, Roches-
-Sarah Green Durkin Earl Kent and Ken West one of four attorneys repre-l i
originally asked for $1 mil-senting Bechtcl. Kent was lion each in actual damages fired because he was "mcom-l AlR WATCH
'or bei"8 '"id o'r ia vi i a re'ea and we 'e<>"'e he of their contracts. But recent was not a " satisfactory em-C ALtFORNIA MOTORISTS reduce their emissions 80 news that completion of the ployee." But West claims his who complain when they percent.
Midland plant was aban-supervisors rated his perfor-ee soot pouring from the tail All this will be made pos-doned following a series of mance as
- meeting or exceed-s pipe of diesel-powered sible by a particulate trap that Snancial and safety related ing [their] requirements,*
utomobiles (exempt from 61ters soot from the exhaun a
setbacks bolsters the engi-and Kent says he had been smog device inspections) stream and burns it. The de-neers' charges that they were serving as a senior quality-may soon stop grumbling.
vice is not expected to add 6 red for whistle-blowing. Or control engineer for the com-Beginning in 1985, diesel appreciably to the cost of a so believes Paul Monzione, a pany since 1980. It was only passenger cars sold in new car. But, says Bill Sessa member of Melvin Belli's after he tried to draw atten-California must meet in-of the Air Resources Board, 6rm, which is handling the tion to undersized, porous reasingly tighter standards
- lt's as important a milestone c
ase. According to the law-and excessively ground welds c
for particulate emissions. By as the catalytic converter.*
yer, NRC guidelines obh-that Bechtel dismissed him.
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7 1988 the state expects to.
For one thing, says Sessa, gated his clients to report
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