ML20136E118
| ML20136E118 | |
| Person / Time | |
|---|---|
| Issue date: | 06/06/1983 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20136D878 | List: |
| References | |
| FOIA-84-415 NUDOCS 8511210426 | |
| Download: ML20136E118 (97) | |
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b DEVINE INTERVIEW - TAPE 1 - JUNE 8, 1983
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' Judge Hoyt Mr. Devine, I would like to introduce myself on this record, l
I am Helen'F. Hoyt, Administrative Judge with the Atomic I
- Safety and Licensing Board Panel, my office is in East / West Towers, Bethesda, Maryland. My colleague here is Mr.
Sebastian Alcot, from.the Nuclear Regulatory Commission, General Counsel's Office. The third person in the room with us here today.is Ruth Ann Miller, who is the law clerk with the Atomic Safety and Licensing Board Panel. Mr. Alcot and I
! I were assigned by Chairman Palladino on May 6, 1983 to l F '
undertake an investigation into the allegations that are detailed in the November 16, 1982 memorandum to Chairman Palladino from Martin G. Malsch, Deputy General Counsel,
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titled Interview with Thomas Applegate. In accordance with our assignment the focus of our investigation will be whether or not the Director of OIA and that office made a good faith effort to carry out their responsibilities in the OIA investigation of Applegate's allegations investigated by Region III in the early months of 1980. If you anticipate any questions you may have an attorney if you wish to have one, you of course may do so if you wish. I think we can also recogni=e on this record that you are an attorney admitted to practice here in the District of Columbia.
8511210426 851106 PDR FOIA BAUSER S4-415 PDR
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Mr. Devine
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Judge Hoyt We have elected to use'a small dictaphone cassette recorder in lieu of making copious notes, it is intended for our use only.and will remain in cur files and will be used to transcribe the events of this interview with you today. We ask that you not discuss this interview with anyone in this Commission's office or any other office and this request is made of you to insure that what we discuss today will not, if'it could, influence any other person's we may talk to about the OIA investigation. And we would like to ask if you have any questions of us before we begin.
Mr. Devine What-is the timeframe for completion of your inves-tigation...
Judge Hoyt i
As indicated in the assignment from the Chairman, our report and findings with recommendations would be submitted on or before June 30, 1983. That is the date that was given to us in May.
i Mr. Devine ;
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3 The' reason-I asked that question, Judge Hoyt, is that Lynn Bernabei from the GAP staff is very knowledgeable about the issues of OIA because she was the lead counsel on a lawsuit that was just completed with you folks, Mr. Applegate's Freedom of Information Act suit, and she gained a consider- ;
able amount of additional insight into the operations at OIA i
~ in'the process of conducting depositions, and in discovery work in connection with that lawsuit. I feel that her contribution would be invaluable. Ruth Ann said that you folks were under some time pressures and that you would prefer to meet with me today although Lynn won't be back from licensing hearings until next Monday, however, if it's at all possible I'd highly recommend it because you won't get a complete story of what GAP has to offer unless you ,
l speak with her.as well as myself.
- Judge Hoyt We will certainly take that into consideration, Mr. Devine, l
and we w_ll very possibly want to speak with her, I think l
l that I can make that commitment on behalf of our team. As 1
j you have noted in the warrant from the Chairman, we will l '
make, when we have completed our investigation, we will make ,
- the report with findings and recommendations to the Chair- l man. All-right, Mr. Devine, that completes my formal l
{. introductions and now I would like to ask you if you would i l
4 please give us your full name and your business address if 1
you will, s,ir?
Mr. Devine 4
My name is Thomas Devine, I'm the Legal Director of the Government Accountability Project of the Institute for Policy Studies, our address is 1901 Q Street, Northwest, here in D.C. and the zip code ic 20009.
Judge Hoyt
.And that is the same address of the Lynn Berry that you mentioned to us a few moments ago?
Mr. Devine Yes. Lynn Bernabei, a
Judge Hoyt 1
Bernabei, I'm sorry. That would be with the GAP project as well. Mr. Devine, in the Martin Malsch interview with Mr.
Applegate, he had mentioned that there were employees that lied to Applegate in an attempt to deceive him in an attempt to cover up the problems at Zimmer and I think that was mentioned on page one of that interview that Mr. Malsch had with him, can you give us any enlightenment as to what employees lied to Applegate7
5 Mr. Devine Judge Hoyt, I don't think I'm going to be able to help you too specifically there. That's probably referring to some of the statements which Mr. Applegate made which were nore conclusive and concerned his personal conversations with different staff representatives, I know that he was particu-larly upset with Mr. Cumming's, however, the role that I'm able to help on really is an analysis of the record that was created versus the record that was available in the conduct of the investigation and I would be very hesitant to speak for Mr. Applegate in terms of which particular conversations he had in mind there.
Mr. Alcot Mr. Devine, is GAP still Mr. Applegate's attorney.
Mr. Devine That's a goed question, because a suit was just disnissed, NRC won a motion for summary judgment on that and I guess in the normal course we finished our business for him. He l
hasn't given um any formal release on it and we just don't have some matters to attend to on the case. I think there was the question of attorney's fees, so I guess we are technically still his counsel.
l Mr. Alcot
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You accepted representation of Mr. Applegate fer the FOIA litigation alone or for more?
Mr. Devine Well, it was for two issues, in the second issue I think
.that we probably will still be his counsel on for some time.
We initially represented him on whistleblower disclosure to the Office of the Special Counsel at MSPB, Merit Systems Protection Board, and while the OIA report has come in on Mr. Applegate's allegations, there are some unfinished matters, one is that IE, of course, reopened their inves-tigation as a result of the Applegate disclosure and while in November of 1981 Region III filed an interim report, they haven't finished the job yet and Mr. Applegate wants us to continue to keep on top of it. The second aspect of this is that DIA's report, as I recall, did have a reference to recommendations would be developed to see if the problems .
didn't occur again. And one of our concerns is that they haven't been developed and as a result we don't really feel that our representation from Mr. Applegate is completed on the initial assignment that we had.
i l Mr. Aloot l
i By recommendation are you referring to generic changes in .
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!!RC investigative. . .
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7 Mr. Devine Right, right. To be very frank with you folks this morning, because I have been in Cincinnati and Harrisburg and I just arrived back about an hour ago, I only had a chance to skim my notes on this, I wanted to cooperate with your schedules on it so I couldn't give you the page reference in the OIA report, but I do recall that either in the report or some of the cover memorandum there was a reference to policy reformc that would be considered and we are concerned that there hasn't been any structural response or proposed structural response to the problems in Region III that we believe were responsible for postponing the exposure of the problems at Zimmer.
Mr. Alcot Are you familiar with the reorganization of the Commission in the creation of the Office of Investigation?
Mr. Devine Ch, of course I am and I felt that that was a very constructive step at the NRC. I was very pleased that that occurred. To the extent that that is mooted out any f
recommendations that Mr. Cumming's would have made, then the issue has been resolved, but unless Mr. Cumming's has firct made some recommendations, it's a little bit difficult to i
E say that the creation of OIA would solve a11 of the problems at Zimmer.
Mr. Aloot Zimmer or Region III?
Mr..Devine At Region III, I'm scrry. For example, Mr. Applegate was concerned with Mr. Keppler's leadership of the case initially and we've had concerns during 1982 about Mr.
Keppler's leadership of the case. Merely to take out the investigative branches reporting length to the Regional Administrator, may not solve all the problems that were involved there so I wouldn't say that's that really satisfied us, although I applauded.
Mr. Aloot Let me ask a general question, you had a chance to review the November 16, 1982 memorandum from Marty Malsch to -
Chairman Palladino?
Mr. Devine l i That's correct.
l Mr. Alcot 1
9 Did you also review Attachment 1 to that mer.crandum, which is titled Interview of Thomas Applegate?
Mr. Devine Yes. I did. I skimmed those over by a five minute span here before we got started.
Mr. Alcot To the best of your recollection, is the interview summary that's attached as Attachment 1 to the Malsch memo, is that a complete and accurate summary of the interview with Mr.
Applegate and I believe yourself and Lynn Bernabei?
Mr. Devine To the best of my recollection it's an excellent job of summarizing the issues that we raised.
Mr. Aloot And similarly is the Marty Malsch summarization cover memo is that an accurate summary of the issues that we raised, there are six, we identified six in the memorandum. Or are there any that to your present recollection you raised in l November of '82 that are not contained in Mr. Malsch's I
identification of the six general issues?
l Mr. Devine i
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., s 10 How, Mr. Aloot, if I thought that he'd skipped something significant I wouldn't have thought he did an excellent job.
l Mr. Alcot .
Yeah, I suspected that. Okay.
Judge Hoyt
! Yes, I wanted to go ahead. I wanted to go ahead with the
- original questions which Mr. Alcot has now laid an excellent foundation for, get back into that first page of the inter-view of Thomas Applegate and it indicates that of course you were present?
Mr. Devine Folks, do you have an extra copy so that I could read it as the three of you get...
Mr. Alcot I have one.
Judge Hoyt Ua have many copies and would be happy to provide you one and have so done to at this time. Did ycu ever discuss with Mr. Applegate what employees had attempted te deceive him, because he was so firm in this memorandum that he is making the allegation that unc employees attempted to deceive him i
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11 in attempt to cover up problems at Zimmer and that they were not directed solely to Jim Cumming's. Mr. Cumming's is one of the NRC employees and there are others, I take it Mr.
Keppler must fall into that pattern too?
Mr. Devine .
Yes. Mr. Applegate's complaints were primarily at Mr.
Cumming's and Mr. Keppler.
Judge Hoyt And there were no other employees?
Mr. Devine He may have had some problems with Mr. Davis, Mr. Keppler's Deputy Director. He basically feels that certain commit-ments were made about the conduct of the reinvestigation.
The commitments weren't honored and he did call up the Region III offices quite regularly and would receive general reassurances on this and he just wasn't satisfied. -
Judge Hoyt Excuse me, I'm sorry, I didn't mean to interrupt, but now you are referring to the commitments that were made in an interview at Region III in February, on February 26, 19017 Mr. Devine
.- o 12 That's correct.
Judge Hoyt J
I What specific commitments were made, did Mr. Applegate feel? l
'Mr. Devine Well, Ma'am, I think that we've covered these, they've been summarized quite well in Mr. Malsch's memorandum, but I'll go over some of them again with you if there is any question about it.
I Judge Hoyt If you will.
Mr. Devine one of the commitments for example is to take affidavits during the reinvestigation as opposed to the first time around where sometimes there weren't even any notes of the interviews, sometimes there were some notes, that were -
referred to in the report. But that of the interviews that occurred would be written down and formalized and the individuals would swear to their accuracy who were witnesses. That was one particular example of one of the things that we achieved a consensus on. Another example of this was that there would be weekly prcgress reports to tir.
Applegate during the investigation to see if he had any new
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,13 information to add because he and GAPc'ontinued to work on the case during the'NRC's probe.
Judge Hoyt Who at Region III was to make those weekly reports, Mr.
Devine?
Mr. Devine It was-Mr. Jim-McCartin, who was to bc Mr. Applegate's contact, and Mr. McCartin did check in quite. regularly with Mr.-Applegate through the first few months of the case and I believe it was around April of 1981 that communications was broken off, I think there were a few calls after that.
Judge Hoyt What was that date again?
Mr. Devine I believe it was around April '81 that the communications stopped. Additionally, Mr. Keppler made a commitment to me.
Immediately after that meeting which, of course, I shared with Mr. Applegate and was free to, that if there were any contradictions between the information supplied by GAP from witnesses and on the information that the NRC obtained from those same witnesses that we could have joint interviews te resolve the contradictienc, no that the second time around
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( 'the NRC report would be the final solution, the final word on this rather than on getting another round of controversy after... -
Mr. Aloot
- Was.anybody present when Mr. Keppler made this extra record commitment?
!Dr. Devine Mr. Applegate may have been there, but I don't think sc, I recall Mr. Keppler called me into his office and was very concerned. I said that he felt personally very bad about what had happened to date and that he wanted to make sure that the controversy was resolved the second time around. I seem to recall that he, his eyes were swelling up with tears, he wanted to emphasize to me his commitment to make j sure that the flow record got out the second time at Zimmer, i And we discussed two issues, one was the idea that the contradictions would be resolved through joint interviews, and this was rather a request of me, if I would be available for that type of work with the NRC.
Mr. Aloot Now, let me see, then it was you who would participate with the NRC investigators, or was it Mr. Applegate who would participate?
15 Mr. Devine No, it's that I would participate with the NEC investigatcrs as Mr. Applegate*'s counsel.
Mr. Aloot I see.
Mr. Devine The other issue, that we talked about was one that I raised which was, I raised it specific Mr. Keppler raised the general problem which was that he was concerned that some of his top investigators weren't performing well enough and this was evidence of it what had happened at Zimmer. And what suggestions could I make on that respect. And I suggested that GAP had some experience in terms of vitiqu-i;.9 government investigations submitted in response to whistleblowing disclosures before the Office of the Special Counsel and in fact our evaluation criteria for agency reports under the civil service requirement.had been adopted by the Special Counsel and published in the Federal Register in that we would be pleased to work with him on a similar l
' project for Region III or the NRC that he or other officials like himself could use kind of a checklist to evaluate reports when he received them from his investigators regu-larly or a spotcheck sort of...
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l 16 Mr..Aloot Is that checklist provided to Mr. Keppler?
Mr. Devine I did call hr. Keppler back, he didn't contact me further about that'. suggestion, I called him back about it and basically he said,that he was interested but that he was
'verybusyandhebouldgetbacktomeandtherewasn'tany follow up work on it.
Mr. Alcot
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To the best of your recollection, were these commitments x ,
made by Mr. Keppler after the February 26th meeting? Were .
they communicated to anyone else in Region III or '-
headquarters?
s.
x Mr. Devine I believe so, because in a' telephone conversation I had that '
April, I was checking myself for a progress. report on how the case was coming, I believe it was that April, it cculd have been May but it was that Spring, and I was a little bit concerned because Mr. McCartin hadn't gotten in touch with Mr. Applegate for several weeks and the last time he had spoken with Mr. McCartin, Mr. McCartin had describad some of he reactions they were getting. On one of the witnesses, I believe it was Mr. Aldrich of Peabody Magnaflux and I took
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17 the position _at that time that althcugh I hadn't taken an affidavit from Mr..Aldrich, because Mr. Applegate had supplied a' tape of an interview that he had with Mr. Aldrich to the NRC and that it was a significant part of his disclosure that if Mr. Aldrich was now providing inconsis-tent information with what was on that tape that we should go down together and resolve the inconsistencies. That was a conference call with Mr. Keppler, Mr. Jim McCartin and I believe Mr. Streeter, either Mr. Streeter or Mr. Davis. 'And l
l so-that's at least two other people, no one seemed to be l
l taken by surprise...
l Mr. Alcot
. Did_Mr. Keppler say, yes, or...
l.,,
i Mr. Devine No he didn't, he said that he didn't think that they were really. contradictions, he said that they were different t
perspective on the same issues, but that he didn't think they were technical contradictions so that it wouldn't be necessary.
Mr. Alcot But you have no direct, or you received no direct indication from anyone in Region III that they had been advised cf Mr.
Reppler's commitment for a joint interview?
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Mr. Devine No,.the only way that I would say'that they received notice is because I provided notice to two other people, I advised Mr. Keppler when I was discussing the, how the investigation was coming in the authorized issue.
Mr. Alcot So your belief that Mr. Keppler communicated this joint commitment is based on your mentioding joint interview and nc body objecting to that classification...
Mr. Devine I wouldn't even say it's a belief in Mr. Keppler communicat-ing, I'd say my belief that commitment was communicated is based upon the fact that I did it on one occasion. I wouldn't be surprised if Mr. Keppler has since no one seemed to be taken by surprise, but I don't have any direct knowl-edge of that, you know, the investigators told me that Mr.
Keppler had assured that this would be done...
Mr. Aloot Okay. I'm done with that line of questioning.
Judge Hoyt All right, I wanted to get into the documents that you hcd passed through GAP to the OIA to Region III and I asked you,
. ;6 19 in general, can you identify what documents that you passed i -and when?
Mr. Devine I.can identify it very generally, I think we had scmewhere around six to eight affidavits that we shared with the NRC TAPE TWO SIDE ONE June 9, 1983 Judge Hoyt Mr. Devine, we'll identify this as Tape number 2, side 1, continuing with your interview. I'm sorry, I didn't get the last part of that on the previous tape, if you will reconstruct...
Mr.'Devine The third reason that I disagreed with-what. happened in.the c criminal investigation was the length of time for the delay.
Once the Region III safety probe was suspended to reaccess priorities I thcught that OIA could have gone back to work and finished what they started even if their original judgment were correct.
Judge Hoyt
20 Did you have any feeling there was something wrong with the the persons who developed this? Did you feel that there was any reason some diabolical reason that they would not have proceeded in the criminal investigation at this point in time?
Mr. Devine Gee, I sure don't have any inklings or suspicions of corruption or any type of behavior that I would consider more than just policies that I drastically disagree with. I don't think that there was any payoff or that there was any...
Judge Hoyt i
Just say a judgment?
Mr. Devine It was bad judgment. I really wouldn't be able to give you an informed answer on that though. What I'm basically saying is that I don't want to speculate about people's motives if I don't have any basis for it. I'm speculating more about the effects of their policies in the nature of 1 their policies rather than why they came up vith them. I hope I'm not speculating on the effects and nature of the ,
i policies because we've spoken with a number of the witnesses and done a lot of work under the Freedom of Information Act
21 to understand what went wrcng at Zimmer. I'm trying to get a little better comprehension of how the process works.
Judge Hoyt Your conclusion, that you've come to though is that there's something wrong in.the process of investigations here at the NRC that brought that about?
Devine That's correct.
Aloot Do you feel that the main purpose of the NRC regulatory side distinct from licensing is to identify and prosecute criminal violations or to make sure a plant has been built to specifications -- specifications are to protect the public health and safety.
Devine I would say that both missions are very significant for the Nuclear Regulatory Commission. The criminal aspect of it doesn't need to be entirely criminal but to me its the aspect of the NRC's mission that goes for the causes of the type of safety effects that I I&E looks at. It goes for the problems of a breakdown in the management organization of the lack of commitment to the NRC's regulations. I uculd
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22 nay that we have a new grounds for denying an operating license of character and confidence that came out in the Houston Power & Light case. Right now, at TMI you have a problem with opening up Unit 1 again because the problems about the ability and integrity of the management there.
Hy, what I've learned about the nuclear industry is that the plants that seem to be the ones that really get themselves.
in trouble as opposed'to having rough edges that need to be polished and technological problems to be resolved. But the ones that have systematic breakdowns in their hardware or the paperwork are the plants where theres been a real breakdown in the organization, in the management of the utility, or the contractor. And I believe that the NRC does have a very significant mission to determine the causes of the safety problems that their inspectors identify. And its very much a failurc of that particular aspect of the NRC's mission, in our opinion, why GAP continued to be involved with the Zimmer case. We were all ready to wash cur hands of involvement with nuclear power plants and the NRC in.
November of 81, and to declare victory and to pat the NRC on the back and to say that we've helped the system to work a little bit better and that everybody should be smiling all around. But when I read through the detailed meeting of the Region III report and when I learned some of the information that hadn't been pursued. That hadn't been recorded. I became very disillusioned and upset that the !!nc reform i
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program may have been relying upon the cause of the quality assurance break down at Zimmer to provide the solution for it. And its because of that that the record wasn't complete and because the utility was in charge of the reform program that we concluded that the, not the effect of policy was for the whether wolf to replace fox as the guardian of the hen house. And that we couldn't walk away from the case at that point. And that led to the very intensive investigation that we conducted in 1982. And I believe that our concerns have been largely substantiated on the overall level if not on the specific level. That should of all come out in early
- 81. That should have come out in May of 1981. Region III investigators at that point had determined there such a wide scope of problems that they recommended that construction be suspended. But they were over ruled on that.
Mr. Alcot By whom?
Mr. Devine Well thats very interesting issue. My initial understanding of this was that it occurred after a meeting that Mr.
Keppler had with Mr. Earl Borgman, the Senior Vice President of CG&E. And after that meeting the decision was made to put CG&E in charge of Quality Conformation Program and to
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, 24 issue immediate action letter rather than than suspending construction.
Mr. Alcot
, . This quality conformation program come between phase one and phase two? .
Mr. Devine The quality conformation program was instituted, it began in August of'81, it arose out of the April 8, 1981 immediate action letter. And it basically was the solution to the problems that had been identified during the early phases of the reinvestigation of phase one of the reinvestigation and of course it continues in effect. I have sinced learned additional that while that part of it was accurate that there was more to it than just Mr. Keppler meeting with Mr.
Borgman. A Mr. Stallo came out from Washington, D.C. and he criticized the Region III investigators for ccming up with such severe conclusions on the basis of problems that were merely paperwork. And I just not familiar encugh with the decision making process to know if the person who really called the shots was Mr. stello or if it was Mr. Keppler, or if Mr. Borgman also spoke with Mr. Stallo or what. I know that there was two events that occurred. And in the octcher 20, I believe it.was October 26 staff brieting of the Commissioners when the commissioners were challenging Mr.
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, 25 Keppler about cverruling his investigators the previous year, Mr. Keppler did state, that why I checked with the .
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-people in Washington about this, I.didn't make this decision alone.- He didn't go beyond that. So I know that there was L a lot.of people were involved with it.
Judge.Hoyt How did you become aware that Mr. Stallo had made those remarks at.that investigative meeting?
l Mr. Devine-Those came out came out in the deposition a Judge Hoyt for i the Freedom of Information Act suit. I believe it was Mr.
Gamble's deposition but I'm not sure. The other thing that I felt about this is that the reform program there was instituted prematurely before the URC identified the causes of the problem and thats how you get in the embarrassing
- f. situation of having already appoint the cause of the problem to be the solution. And that when they learned of that in the summer of 1981 that that information was largely either not included in the public reccrd, such as the Dooth affidavit which was.on of the Region III affidavits, or the Gettings' interview, or else it wasn't referred to, it was buried in the report and not referred to in any of the public statements summarized in the NRCs findings en the basis for their program. Thats the jest of what we
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disagreed with in thrms of the policies, and, well we disagreed with in terms of the extent of the disclosure was all of the information that wasn't provided in the IEE report November 81, and in the CIA report of November 81.
And in that respect I'm talking about things such as the Harpster interview. Or any discussions of attachment 10 to the IE report which was the training program for IE -
investigators, a program which Mr. P'hillips was the leader of lectured at the classes, in which his conduct in the Applegate investigation didn't comply with. So there was some things we thought in the OIA report were quite significant that weren't included. Some of the IE reports that we thought were very significant that weren't included.
And quite frankly thats why GAP got involved with the licensing process. We wanted to complete the investigation of the issues that the NRC wasn't doing. We wanted to call in the witnesses to try and identify the causes of the problems that the NRC wasn't going to be doing that. And we wanted to call in the witnesses and find out what they had told the NRC that wasn't in the public record. We wanted,to make sure that the facts on Zimmer all got out. And if we had, if our initial confidence and admiration for the 81 investigations had been sustained we would have been l
l finished with the case in November 81.
i Judge Holst l
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27 Do you have anything else? .
I Mr. Aloot -
No, I don't.
Judge Hoyt I have no additional questions at this time Mr. Devine.
Mr. Alcot oh, I have a couple more questions.
Judge Hoyt Sorry, go ahead.
Mr. Aloot one of the allegations of Mr. Applegate makes, and I'm not quite sure whether you reiterated was that OIA failed to monitor 8113 Region IIIs finding...
Mr. Devine Sure, I did reiterate that, thats correct.
Mr. Alcot on what basis did do you conclude that CIA had a responsibility to monitor the actual second I&E investigation resulted in 81137 l
28 l Mr. Devine I don't know that there was an allegation that OIA would have been responding to in monitoring the 81 reinvestigation. But I think that it would be very relevant for CIAs findings and how much and how significant of a policy performs needed to be made. And also in terms of evaluating credibility of Region III response on its 1980 work to be on top of on what Region III was doing in 1961.
So I think that they would it would be relevant for their ccnclusions and recommendations whether this was a thing of '
the past or whether it was continuous. On that since I think it is literally relevant. I think is a matter of i effective system of checks and balances within the NRC that is a matter of routine that they were working with IE and they were investigating investigation that a probe that l there was some basis to conclude that were superficial. In l ,
1980 they would for goodness sakes want to make sure the i
same thing didn't happen in 1981. I would think as a matter of policy that Mr. Cummings would of been had the same gull that tir. Reppler did when he called me into the office end l said I want a want to make sure that this time we finished the case.
Mr. Aloot Mr. Kappler said that not Mr. Cummings?
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29 Mr. Devine Thats what Mr. Keppler told me, I think that Mr. Cummings should have.
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- Mr. Aloot l
Well, let met, do you have any, was there any understanding between Mr. Applegate, yourself as representative of the Government Accountability Project and OIA or Mr. Cummings in r January of 1981, that OIA would be monitoring Region III's investigation as it went on going?
Mr. Devine The-only, I wouldn't say in January of 81. I would say that OIA presence they had 4 representative, Mr. Arthur Schnebelen, at the February 1981. '
Mr. Aloot Do you think you believe that is an indication of a commitment to monitor? . .
Mr. Devine Well, it was certainly they were monitoring what happened at that meeting. I didn't try to interpret that an a commitment or ar.y formal obligation. They were introduced as being people who were involved with the case who were looking to what NRC had done before and I wculd have to go
30 back to the transcript to see if they were presented as continuing to watch.what was the correct. I guess I rhink that there is an obligation by the agency to make sure that they don't repeat in 1981 the type of mistakes that occurred in 1980 or substitute different ones for them and to the extent that OIA is the chuck in NRC system of checks and balances and the quality of IE investigations. I would think they would of been en top of that in 1981.
l Mr. Alcot so the basis of your belief that OIA should of been monitoring Region III's investigative effort of 1981~is one ,
in your judgement a good manager would of dcne, and two OIAs :
inherent mission in the organization of the commission
.should of lead them to do that?
Mr. Devine I would amend that a bit, rather than saying its a good manager would have done that. I would say that a minimally ,
adequate program would have required that the same that there would of been sort of a check not to the sane mistakes !
were repeated two years in a row on this nuclear plant.
Additionally, I don't know how to interpret Mr. Schnebelen's L presence at the February 81 meeting.
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l Mr. Alcot I
31 Well did not Mr. Applegate or yourself requent that a ;
representative of the Department of Justice be at that .i meeting?
Mr. Devine Mr. Applegate may of requested the representative of Justice be there.
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11r. Aloot How was Mr. Schnehelen introduced?
l Mr. Devine 1 Not without going back to the transcript, Mr. Aloot, I 1
couldn't. I tell you I know he was introduced as being frem the office of Inspector and Auditor.
l Mr. Alcot As I go through this, however, and you did say that this was a pretty good summary of what he said, said.that... .
s Mr. Devine What page are you on?
r l Mr. Aloot I am on page two. At the bottom of page two. Of course were talking about the commitments that were made that '
t, -
i 32 '
Region III didn't follow. The summary says they, I assume l
~
i that means yourself, and Mr. Applegate perhaps in.... stated that DIA had either agreed or given silent consent to the !
i ground rules. Now, is that because Mr. Schnebelen was thera
- and didn't say anything, is.that the commitment to monitor?
l ,
Mr. Devine ,
I don't know how you read that sentence as being relevant'to t a commitment by OIA to monitor Region III' l
Mr. Aloot l l
Well, I'm... f P
Mr. Devine I mean they were at the meeting they didn't object to the ;
ground rules for Region IIIs work in the reinvestigation. I don't know that that, I wouldn't interpret that as saying (
that that meant they had a commitment to monitor them, it !
means they didn't object to what Region III.wac discussing.
I Garble from Alcot and Devine !
Mr. Aloot What were reading is in the number three of the Malsch summary.
33 Mr. Devine Maybe you better show me that one then.
Judge Hoyt Thats on page what?
Mr. Aloot Page one I believe.
Mr. Alcot on this sheet it says that and this is the last part of number three.
OIA and its review function and in its cooperation with I&E should of seen that they were they referring to these commitments. And you just mentioned that the function of CIA agency is to you check.
Mr. Devine l
Its your folks substitute from Inspection General thats my understanding. - -
, Mr. Aloot I
! \
- To my mind that means monitor, are you saying that thats different? I mean, the way I read this is that what you are really are saying is that OIA is the agency Inspector General, okky, so they have responsibility to monitor how the Regions do their job.
34 Mr. Devine Uh huh.
Mr. Aloot And I'm trying to understand is, in the cummary you indicatu that, in someway this is evidence because, CIA was prese.nt at this meeting and they didn't say anything in response to these the commitments to take sign sworn statements?
Mr. Devine They didn't object to it.- Thats right.
Mr. Aloot They weren't doing the investigation?
Mr. Devine They weren't doing GAP investigation they were at the meeting when we were discussing the ground rules for that investigation. They did not object to the ground rulec.that were developed.
Mr. Aloot Did you read CIA presence, Mr. Schnebelon's presence, as a commitment that DIA would be r.cnitoring this second Region i
III investigatient
r l
35 i
, Mr. Devine l
L Aa I think I have told you, I wouldn't read Mr. Schnebelens L presence in and of itself as a commitment to monitor the l
l investigation. But I went back to the transcript there may l have been some' language to that affect, I don't, there wasn't when I came out of the meeting with, and nor have we l alleged that CIA broke a commitment by not monitoring Region III's reinvestigation.
l Mr. Alcot We did say that DIA failed to monitor?
l l
l- Mr. Devine L
, We say that they failed it to, that they should have, that they were. involved in this case the second time around and L
right under their nose was evidence that the same mistakes were being repeated and they let it happened. I think thats wrong Mr. Aloot.
hr. Aloot j Thats what I'm trying to clarify that this commitment to monitor is not something that flows from lets say a specific task given to them by the Chairman?
Mr. Devinc
36 I believe thats one of the first things I said in responte to your inquiry. I'm not.
Mr. Alcot .
Your inquiry is general?
Mr. Devine Yea, I feel that as a check and balance with the NRC if the same problems are being repeated and their working with the investigators who are being hampered by those same problems ,
they would do comething about it rather then to continue to operating solely in the past, solely in a criminal investigation, and let the health and shfety problems pile up during the Region III reinvestigation. It wasn't that they violated a pledge. It was they allowed the problems to perpetuate.
Mr. Alcot Even though they had identified allegedly identified them as a problem earlier.
Itr. Devine I'm sorry.
Mr. Alcot
37 Even though that their own investigate reinvestigation of Phillips investigation had identified those same types of problems?
Mr. Devine They were in the process of doing that. CIA had two missions during 1981 as you know. One of them was their investigating Phillips and the other is occurred during the summer which was to investigate the harassment r.andatory lack of mandatory inspections and alteration of records. I believe that there was a third activity which was required to see that the Zimmer problem was solved. And that was to make sure that Region III did it right the second time around. You know OIA had plenty of reason to know that it wasn't happening right.
Mr. Alcot Okay, I'd asked that its very clear. And now in the last l point I wanted to get some information on is the editing of the CIA report.
Mr. Devine Sure.
i L hr. Alcot 4
38 In what way do you think the report improperly edited, I think you may have referred to the summary?
Mr. Devine I did on some of the problems that we had with it. And its really a list of two of them. One was the Harpster interview which directly contradicted the public explanation of the cause and the scope of the problem.
!!r. Alcot Do you believe that the OIA investigation the report that was issued in August 7, 1981 was edited in such a way, thats what I'm concerned about, what was edited cut of CIAs report...
Mr. Devine Thats one of the things.
Mr. Alcot . .
But that public statements weren't they made in November of 81 after the report had been issued?
I Mr. Devine Well as a matter a fact the two reports were re.'.essed to the public within a week of each other in November of 61. In August of 81 the significarice of that interview was that it r
s 9
39
'contradictedthesubstanceoftheAprik8immediateaction letter and the Quality Conformation Program which was being born in August of 81. CG&E and Region III had been negotiating the contents of the QCP during the summer of 81.
And the CIA report would have come out juut as they begin Work.
Mr. Alcot so you do believe that the significance of the Terry Harpsters interview was more with respect to Region IIIs investigative conclusions and CIAs investigators...
Mr. Devine I say the significance of it is in three areac. One is that Region III was aware of the scope of the problems at Zimmer.
One before Mr. Applegate raised the problems their. They are aware of it sometime around between 77 and 79 before the Three Mile accident thats one area of significance. Second area of significance is that CGsE was awaru.of the scopo of the problems at Zimmer and was according to Mr. Harpator seemed to be the cause of a lot of the, although I don't i believe he stated in those words but he complained that fir.
Borgman wouldn't listen to his wornings and went over hin head and complained to Mr. Keppler. So those two particult.r problems I think were very significant in the CIA report.
And then thu third is that they contradicted the ...
i
) .
'i l
40 Mr. Aloot But what was there relevance to, what was Harpsters relevance in your mind to-OIAs investigation to Phillips?
Mr. Devine For that I should answer very directly at this point because what we have, the conclusion we've come to from the depositions that we took in the FOIA law suit is that OIA ,
1 changed its directions drasticly during the course of this reinvestigation that the initial mission of OIA defined by Mr. Cummings was that this would not be recorded, I had on there that type of thing. That their going to look at the programmatic problems and causes of this rather than trying to pending that down to individuals. .
Mr. Alcot And that was understanding that you inquired in Janusry 1981 when there was meetings between CIA and CAP 7 Mr. Devine Well we meet with Mr. sinclair and Mr. Schnebelen in January of 81 but it was relatively a brief meeting and it was to establish the when I processed their cooperating rather than for them to inform us of what their specific goals in it would be and the !!arpstars interview was very relevant to that. It showed that the problum had been going on in m
I O O 41 Region III for years and had some very significant information in it. The Harpster interview served most of the drafts that were reviewed with in CIA and its ny understanding that it was at the end of July or the very beginning of August that Mr. Cummings edited out the Harpster interview, basically on the grounds that this wasn't relevant for their conclusions about Mr. Phillips.
Well thats at the end of the game changing the goals of the project and deleting perhaps the most, I don't know which I would put as the most significant interviews that have ccee out, Gettings, shwears or Harpater. But of the three of them only one of them was made public. Without litigation and challenges and that type of thing. And the Shwears one was made public without commit. Go I wes very concerned that DIA change the direction and in the process edited out about 20% of their report and what to me was the most significant information in the CIA report.
Mr. Alcot . .
And you said that was a second area were...
Mr. Devine Well that was if there was any text I'd have to go back and check in the materials that were received in the law suit.
About attachment ten to the CIA report. And when the commission released the report in November Il scme very
t 42 heated memoranda strong memoranda with otrong positions between CIA and IE and IE's position essentially was that DIA didn't understand the IE program. And attachment ten was a fairly significant rebuddle to that position becauso it was the IE investigative program. On in what I have been informed is that attachment ten was placed in the report but there wasn't any explanation in the public text about attachment ten. And then it was kind of slept in to the record rather than conscious decision by tir. Cummings to include that in their report. And as I look back on it, this struck me as a very phony debate between IE and CIA.
If the their particular attachment had been included and there was the text describing the way Mr. Phillips violated his own program his own standards there wouldn't have been much grounds for IE to say that DIA didn't underotand IEs program. And I really wondering, you know, whatu serious here in the public record. Were these memoranda serious?
Or what was the point of these things, why were these things released? Why were they written? If you go back and check whether CIA originally understood IEs program they certainly should of been capable of reading it. And their criticisms would of held up under that context. So those were the tuo areas were major wholes in the report. The third thing that I was concerned with that also came in the depositions and this was essentially that OIA brought their report out to Region III for their review and suggestod modifications
- =
43 before it was released. And that some changes were made.
And then in particulars some changes were made in the conclusions after Mr. Keppler called up Mr. Cummings and l taled it over with him. And I had some real questions abcut that propriety of that. Essentially of the independence of the CIA process of investigating targets within the NRC. I know that if it were someone outside the government you wouldn't call up the target of your investigation and l
negotiate the conton'ts of your conclusions about him or her.
That is what occurred on within the NRC and we also has serious concerns about that. This business about Mr. Stello and about changing directions with' respect to the Harpster interview and about Region III prior review, were not issues that I raised in Mr. Applegate's or Ha. Bernaby raised in November with Mr. Malsch or Mr. Levi, because we weren't aware of them at that point, that came out in disecvary process for this law suit. I suspect that Ms. Bernaby would be able to help you with additional examples, but I war kind of in support roll in that case and these were the ones that jumped out on me as adding to my understanding.
Mr. Aloot I have no more questions.
l Judge Hoyt
t 44 I just got one more that the story of the interviews of everyone isn't it. There were two points that were made in this interview with Mr. Applegate and Mr. Malsch in November 82 Mr. Devine and one concern that Cummings failed to appreciate the sericusness of Applegate's concerns and brushed Applegate off, it seems like to re that that is just beating a dead horse in the head. That had been pretty much ringed through, and I can't understand why it was raiced at the November 5 interview?
Mr. Devine I'm glad because its Mr. Applegate stilled felt strongly about it.
Judge Hoyt ;
I Is there anything else that in your opinion to bc looked at in that regard I suggest as you characterize it of any j interest to Mr. Applegate?
Mr Devine I wouldn't add to what Mr. Applegate had to say about it and I would suggest that any further contributions on their initial interactions you could check with Mr. Applegato. I i
would add, however, that I haven't suen a chango in approach by Mr. Cummings. ;
. ..- . ._ . . ~- . . -..- .- .
- t;
. 4.
45 Judge Hoyt Towards Mr. Applegate?
Mr. Devine No. Towards the way OIA operates in response to i allegations. For example. :
Judge Hoyt "
Nave you had any example, oh I'm sorry, your about to give then?
Mr. Devine :
Yes. We called for an CIA investigation at LaSalle last, oh
. I believe that was early July cause of a strika.,'y similar :
type of problem with Regions III failure to consider how that it was presented by whistle blowers at that nuclear i n i U power plant. CIA did have, did work on the case, to do some work on it. Mr. Cusumings didn't contact us or the complaints on it. And we eventually under the Freedom of i Information Act obtained a memoranda that sucmarized hic '
L ..
investigation.
i.
t i f Judge Noyt
{
l Why should Mr. Cummings have contacted you about it? -
t E
l.
[
Mr. Devine
! l t- ;
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46 i Well because we were the complaints in the case. And the whistle blowers who had made these charges about the quality of Region III response to their allegations had quite detailed information on it and were ready and able to go over their interactions. On how they had presented the L
information, their attempts to present the evidence to -
Region III, their frustrations on it, what had happened there. Mr. Cummings, well the OIA response to this was also I believe in part because Mr. Fried Morra in another inspector connected with the LaSalle case felt that Region IIIwaseitherwasn'tormaybegivkngtheappearanceofnot properly responding to all of the problems that had been identified at LaSalle in the late Spring and early Summer of 1981. The OIA response to this was to go out and speak with Mr. Morra, the other inspector and to speak with fir. Keppler and to say that I'm satisfied that something to the effect that I'm satisfied that there won't'be any further trouble, and close the case. I believe that the first step in an OIA investigation should be to get intouch uith the people who raised the issues and make sure that you fully understand all the issues that they've raised and that they might, that they don't make sure that they don't have any relevant materials that they might not of understood the significance of but would help in their probe to responding to their charges. And Mr. Cummings didn't in touch uith the complaints. He handled the investigation entirely himself P -
47 and it seem to be more of counseling session that an investigation there. So we were quite dissatisfied with that. Another case that came out is that Three Mile Island, and I' representing several employees at Three Mile Island and they presented a whistle blowing disclosure in March of 82, March of 83, I'm sorry, this past March. That lead to an OIA investigation being opened. I don't know when the thing was started, I know that it was started before the April Udall hearings, because the Commissioners announced.
that OIA had opened an investigation on at the April Udall hearings the Commission announced that. I got my first communications from OIA last week. I don't know how far along they are in the investigation but there's either continues to be a significant problem of delays in getting going on these cases or else what I would perceive is the problem in conducting the investigations without going to D the source of the problems and getting the full scope of what the allegations are is the initial step. If I can give other examples of this down at the Catawba nuclear power plant and this the proper person speak with would be Ms.
Billy Guard of the GAP project. But we called for an OIA investigation their-because the Region had failed to pursue evidence provided by employee witnesses on quality assurance violations. And the report that we got back and all I had did open up an. investigation, the report that we got back from one of the witness who spoke with OIA, however, was
_ _ _ . ,.p. _ , . , . _ _ . _ - . _ , , . . _ , _ _ _ . _ _ _ _ . - _ . _ , , , , . , _ _ _ _ , . _ ,,.,__v,__..,._,_w - w.,.. , ,,,_c_ ., y
48 that they were there to see what GAP was up to. I just don't see that as proper roll for OIA at all. To keep track of GAP. I thing their job is to keep tack of problems -
within the Nuclear Regulatory Commission and they have enough of those to deal with, without worrying about us.
So, I mean to the extent that Mr. Applegate was miffed, Mr.
Cummings didn't return his call more promptly, you may be right that thats been gone over a few times and I don't know what there would be further to contribute other than what Mr. Applegate may have but I am not satisfied that the problems have been solved. It continues to be one that we deal with on other occasions.
Judge Hoyt As recently as 11 arch of 83 and you feel like that?
Mr. Devine Thats correct.
Judge Hoyt Let me just touch then briefly on the other question I had, Mr. Devine we have not been as we can determine any places were resources were devoted to investigate Mr. Applegate, which is his fourth allegation here. If you have any such information could direct us into that vain, I think that its time to.give it to us.
'i 49 Mr. Devine I believe that Mr. Applegate went into the details ot what he was talking about their when he spoke with Mr. Malsch and
. Mr. Levi. In particular, it was some interview with his former employer, Major Cox, of a confidential services it was a detective firm that Mr. Applegate initially worked for. And Mr. Applegate's feeling was that the NRC should have'been going after the problems at Zimmer rather than investigating Applegate.
. Judge Hoyt Well, did Mr. Applegate have any information that someone from this agency had checked with Mr. Cox?
Mr.-Devine Oh yes. It was from the NRC.
Judge Hoyt l
l Do you know who it was? -
Mr. Devine
( It may have been Mr. McCartin, I'm not sure, but it may have been Mr. McCartin. Mr. Applegate has said something to the effect that Mr. McCartin apologized to him for it but said that he had to pursue this. And I...
i
.-,,. . - -.., , . , , -. , . ....,.r
1 50 Judge Hoyt.
And in a criminal investigation wouldn't you look at what an alleger did? -
Mr. Devine Yea, I haven't given my own opinion about this allegation and I believe its...
Judge Hoyt I knew it would be coming so sir go right ahead.
Mr. Devine Since I'm Mr. Applegate's counselor, I don't think that I will. ,
Mr. Alcot You have no direct knowledge or evidence of an NRC investigation on his, your information comes from Mr.
Applegate? -
Mr. Devine I believe so sir, there might have been some reference to an interview with Mr. Cox in one of the reports, I know that it wasn't flushed out. Mr. Applegate's former landlady Joan Minks called me last week and said that the NRC wanted to meet with her and she doesn't have any knowledge of problems
O s
-51 at Zimmer. She only has knowledge of problems with Mr.
Applegate, so thats some other indication that some interest in it. I wouldn't really be able to drive very accurate conclusions about that unless there was scme significant amount of information or of effort going into checking Mr.
Applegate.
Judge Hoyt I just wanted to touch en that. I have no other question of any nature Mr. Aloot, do you?
Mr. Aloot Neither do I.
Ms. Miller I have one just on that vain. He also talks about members of his family being contacted, do you have any information about that?
Mr. Devine No, I-didn't speak with members of Mr. Applegate's family to confirm or deny that. He does live with his mother, though, and I can give you his home number so you could check...
l l
l Judge hoyt l Would you put that on this record then for us Mr. Devine?
~_ _-
. 52
/
Mr. Dcvine Sure. Its, I wonder if I said, I'm not sure it its listed or unlisted mam, I better not invade his privacy.
Judge Hoyt Well I of course will follow your interest Mr. Devine.
However, I think this is a two way street. If Mr. Applegate comes here and makes a certain allegations to this Commission and then feels that he's not being treated fairly
, when this Commission votes on subrtantial proportion his resources to investigate that I feel that we have some entitlement to ask you some...
Mr. Devine of course, I wouldn't challenge that at all.
Judge Hoyt and I hope thats not what you were telling me and in that r
vain if you would like to check and find out if that number is not unlisted unpublished whatever it is and you wish you j may contact either Mr. Aloot or myself and our numbers are Mr. Devine Opened to the world.
l Judge Hoyt
.. . _ = - _ .. ._
53 Opened to the world as all our financial records and everything else.
So I would....
Mr. Devine The only thing I can say is that he's working for the State of Ohio now the Department of Energy. So, I'm sure he, I think its a Grants review. He's personnel for Grants review there. So you could contact him through the State government and Judge Hoyt
. And thats the Department of Ohio, is that, whats the Capitol of...
Mr. Devine Columbus.
Judge Hoyt Columbus.
Mr. Devine Yea. I'm sure that as soon as I tell him that you want to communicate with him he'll be in touch with you.
4 54 Judge Hoyt No. I did not indicate I wanted to communicate with him Mr.
Devine necessarily, I simply want the means of being able to have that communicacion for it to be decided to communicate with him. I want to be sure we understand one another.
Mr. Devine I understand the distinction meant.
Judge Hoyt I have.
Ms. Miller I just want to ask one more question thout that. When you were investigating thece allegations of Applegate's way back did you talk to members of this family?
Mr. Devine No, I didn't speak with members of his family, the only-personal friend that I spoke with was his landlady Joan Minks and that was because part of his affidavit was that his landlady had been threatened and I wanted to check the accuracy of that with her.
l Ms. Miller Thats all I have.
l 1
t 55 Judge Hoyt Thank you Mr. Devine for your time with us this morning and we appreciate it and in the event that we need any additional information we would like to have the opportunity to do so with you, you have no objections to that? -
Mr. Devine Certainly.
Judge Hoyt Thank you.
Mr. Devine Sure.
Judge Hoyt This is the conclusion of all recorded matter on this tape.
Judge Hoyt We will identify this as Tape one side two of the interview with Mr. Device.
Go ahead.
Mr. Devine I know that there were several initiatives that I took with the NRC staff. I'm nct sure if they were with Region III or
9 l
56 l just with !!r. Sinclair. For them to call Mr. Hurtsgarten, gave him his number and informed that when I knew he was.
available. And Mr. Hurtsgarten informed that the NRC hadn't been touched. I'm just not positive Mr. Aloot whether I gave them the background notes or not.
Mr. Aloot You had this Hurtsgarten summary in January 1981?
Mr. Devine Actually I had it sometime around early fall, end cf the
- summer early fall 1980 and I was very interested in seeing the results of Mr. Hurtsgarten telephone work. He collaborated with what I was getting in person before we came to a conclusion that the NRC had missed a significant number of the problems.
Mr. Alcot But in January 1981 did you not make a commitment to CIA to provide in information that you had regarding Zimmer?
Mr. Devine I'm not sure you would characterize interaction. I know that made a commitment to fully cooperate. I know that...
, o.
t.
57 Mr. Aloot You did you provide the information to him?
Mr'. Devine Yeah. I know that everything that they asked for I gave them. And...
Mr. Aloot for instance they didn't know what you had until you teld them? l Mr. Devine Well, I told them about the Hurtsgarten materials. We discussed that in some depth, in fact, if there is question in.your mind about this I would suggest that you folks read the transcript of that meeting and it will answer a lot of your questions.
Mr. Alcot -
Well thats February 26, right sir? i l
i I
Mr. Devine Right.
-Mr. Alcot
g .
58 My understanding was that there was a meeting between representative of GAP and OIA in January of 1980 regarding the OIA investigation?
Mr.-Devine Well there was one meeting, Mr. Aloot, if it was in January of.1981 rather than February of 1981. Were talking about the same meeting, a l't we.s at the beginning of the year.
There was a transcript of ene meeting that we did.
Mr. Alcot I'm talking about a meeting that occurred here in Washington?
Mr..Devine Oh, with Mr. Sinclair and Mr. Schnebelen.
Mr. Alcot Yes, were you made an agreement to give the NRC information that they could use in conducting inadequate investigation and my question is, if you had Hurtsgarten summary and his l information in your possession in January why wasn't that also turned over to NRC?
21r. Devine
~
59 Uell, I tell you I informed the NRC about this. I believe that we probably did turn it over to them. I made attempts to get them in touch with Mr. Hurtsgarten. We certainly j weren't withholding the information. If they didn't receive it, it was just because nothing was ever filed through on it. But we certainly didn't attempt to keep thht from getting it. I l
l l
Mr. Alcot l l
Well try to understand what kind of information that GAP 1 would provide. From what I can pick up you agreed to and did provide statements from the ledgers. Did you also, commit to basically dump your file on NRC, take everything that you had developed independently notes and what?
l Mr. Devine I don't believe that there was any commitment to that effect. It was information that we had developed that we thought that it was significant as evidence in the case; It leads for witnesses. I felt that Mr. Hurtsgarten was a very significant witness. I probably...
Mr. Alcot You do recall....
Mr. Devine
4 60 I may have very well have given Mr. Sinclair a xerox of Mr.
Hurtsgarten notes. I just can't place that event in'my mind right now so...
Mr. Alcot But you do recall at one point advising a representative of the NRC, Mr. Sinclair of the existence of this Hurtsgarten...
Mr. Devine Actually I informed the whole meeting in February, I think there about eight or ten people there, and we discussed it, it was one of the items that Region III would be following up on.
Judge Hoyt-Did you ever receive a transcript of that February 26 meeting?
Mr. Devine Yes we did maam.
I Mr. Alcot Did you review it?
Mr. Devine l
l L. ]
61 Yes I did.
tir. Aloot Did you determine it to be a correct, complete and accurate summary of what was'said?
Mr. Devine
~
I didn't have any complaints about it. I didn't check it with my notes to collaborate, but I read thrcugh it and I felt that it was generally accurate. The various things that I checked in it that I wanted to pin down were as I recalled them, so.
Mr. Aloot Although one of the items, one of the commitments regarding the conduct of joint investigations you previously stated that was made outside ...
i Mr. Devine .
- Thats correct. That was after the meeting when Mr. Keppler called me into his office...
Mr. Alcot Were there any other commitments made at that meeting?
Mr. Devine f
m
j L
l 62 No. It was my understanding that there was two issues we discussed after the meeting. One was on resolving contradictions and the second was on evaluating future reports as they came in and helping to develop some criteria for that.
Judge Hoyt
- I wanted to pick up again on the co'nversation that you had with Mr. Keppler about Mr. Applegate's was there more than one of those calls or was.there just one?
Mr. Devine I only recall one call like that and I believe it was by Mr.
Keppler. It's possible there was some additional communications but even that one is pretty vague. Its more that I remember the irritated tone in his voice rather than the specifics of his complaint that he was upset. Mr.
Applegate was getting in the way. And, so I also recalled that I informed him that if what he told me was accurate Mr.
Applegate was getting in the way and that I would get in touch with my client and make sure that it stopped, and I did immediately.
Judge Hoyt L
.- . - . - ~ . .-. -- .. - - - - - - _ - . - ~
s 63 I'm not going to pursue that any further. The contacts that you begin to have with the U.S. Attorneys office developed at what period in time?
Mr. Devine Momentary, I would say that the first time I met the U.S.
Attorney was in January 1983. That was 'the U.S. Attorney in [
Cincinnati. There was a gentlemen in Cleveland who worked for the U.S. Attorney's office, I believe, named David Everritt. And I had spoken with Mr. Everitt sometime, I
~just couldn't give you the date for that, it was either the late fall of 1980 or early 1981. My only reason for pinning it down like that is that I know that Mr. Everitt's name
! came up at the February 1981 meeting. So it was and there was considerable discussion that Region III that the NRC would coordinate their work with Mr. Everitt and that he was
! to be their contact. I'm not sure if I first talk to him shortly before that meeting or shortly afterwords. I know that there was, I did have some conversations with Mr. -
l Everitt and he was going to start working with me en the !
criminal aspects of the case. And he basically dropped out ,
l r j of sight then. He didn't get back in touch with me further on it and Mr. Applegate reported to me at some point that Mr. Everitt wasn't going to be working on this further. I
- didn't bug Mr. Everitt about this, I do recall that I l checked back with him on another occasion after our initial
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64 discussion which was appeared to be the prelude.to a workir.g l
relationship. Mr. Everitt said he was still interested in the case and was still planning to work with me. I don't know that date of that one and I didn't hear from him again.
Judge Hoyt What was the subject matter that you discussed with Mr.
Everitt in Cleveland?
Mr Devine Well, the primary criminal charges that Mr. Applegate raised were I refer at this point is the cesspool allegations.
They weren't so much that a traditional type of Atomic Energy Act violations as bookie operations at the plant, underground businesses at the plant, smuggling out of materials, that type of thing. And that was probably the major focus of our initial discussion. Mr. Applegate had raised concerns that radiographs were removed from the Peabody Magnaflux trailer. One of his charges is that there had been a break in into the Peabody Magnaflux trailer, and some of the X-rays were missing on the particular typing spools that Mr. Applegate was concerned about, it was specific examples. So that might have come up in my initial conversation with Mr. Everitt. I do recall though that it was more of a general discussion, it was kind of an introduction, getting to know each other, both expressing a
65 willingness to cooperate and to claw information. Is more the prelude to getting down to business. And I was disappointed that we never did get down to business on it, but I did press the issue for the Department of Justice.
Mr. Alcot Mr. Everitt express this time in view as to the process-a-gatory merits of Applegate cesspool allegations?
Mr. Devine I know that he was very interested in pursuing Applegate's issues. And he informed of that, I don't believe that...
e Mr. Aloot Was he pursuing belt buckler's, drinking on the job, and theft of copper?
Itr. Devine Well in drinking on the job, I'm not sure we even discussed is a criminal violation. Now, if your saying was he interested in those specifics, I'm not sure what sparked his interest, but I speak with prosecutor periodically and sometimes they don't have the time of day for you and sometimes they want to keep the door open and express interest and Mr. Everitt did.
< -- ,- - ,w, r -, -
66
. Mr. Alcot Want to keep the door open basically?
Mr. Devine He was interested in working with us. I guess keep the door
{ open to possible prosecution by checking on what you've t'
4 gotten in working. As to what it was that he felt was i significant I really couldn't tell you at this point.
Judge Hoyt -
Uhen did you have any conversation or when did you begin to
- have conversations with U.S. Attorney's office in Cincinnati?
i i
Mr. Devine I would say that my first conversation at with them was in probably late February or Early March of 1982. And I was checking the status of the criminal investigation that I had surmised had occurred during 1981 I believe it is. -
Judge Hoyt Thats Regional III's criminal investigation?
Mr. Devine
- k Well, its OIAs investigation.
l
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I 67 Judge Hoyt All right I'm sorry, yeah.
Mr. Devine '
And I wanted to find out if they were working on it again.
That was my understanding that an investigation had been opened, that covered topics that would fall under the criminal provisions of the Atomic Energy Act. In fact there was a letter from Mr. Schnebelen to Ms. Ann Tracy that outlines some of the issues, harassment, failure to conduct mandatory inspections and alteration of records.
Mr. Alcot Where did you get a copy of that letter?
Mr. Devine Under the Freedom of Information Act.
Mr. Alcot -
Was this before or after your reading with the U.S.
Attorney, or the Assistant U.S. Attorney in Cincinnati?
fir. Devine Well it was long before I first met with the Assistant U.S.
Attorney of Cincinnati, which was January 1983.
N 60 Mr. Alcot Was that in.your, no I mean your first meeting in February of 82 with....
Mr. Devine You mean n.y first conversation, telephone conversation, I had obtained those materials under the FOIA before I called the U.S. Attorney's office.
Mr. Alcot Is that your basis of your understanding that a criminal investigation had been opened by the OIA or are their other sources?
Mr. Devine There were other sources which were confidential sources.
Mr. Aloot Well confidential in what way? - -
Mr. Devine Confidential in respect that the conditions for them speaking with me is that I wouldn't reveal their identities.
Mr. Alcot
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69 7 don't want to press anything in here but is there, are we talking informers confidentiality?
Mr. Devine We're talking about GAP confidentiality, Mr. Alcot.
Mr. Aloot It's a new common law privileged, I'll have to look it up...
I'm a little confused on how this investigative...
Mr. Devine Well there was a letter that we sent to the U.S. Attorney I believe it was either late March or early April 1981 that compiled all the indications that were available on the public re, cord that a criminal investigation had been opened.
And in fact I believe that I confirmed this with Mr.
Keppler, as I've received reports on this and I want to know, I want an explanation.
( Hr. Aloot j Again before your meeting with the U.S. Attorney's office?
Mr. Devine I believe that I probably did this after I spoke with the U.S. Attorney. I called up the U.S. Attorney to confirm that there was an investigation and if so, to offer our
70 cooperation and express my concern but none of the witnesses that I'd been working with seemed to have been contacted by them. And the U.S. Attorney's office informed me that they were unable to confirm or deny that there was an investigation.
Judge Hoyt Who was your contact there at the U.S. Attorney's office?
Mr. Devine I believe I spoke with a Mr. Ralph Hanley up there. I'm not sure, but I think it was Mr. Hanley. Mr. Applegats also called up Ms. Tracy and obtained a similar response. And we were very frustrated with this point it is why the primary criticisms that we have of how the Zimmer issues have been handled. Our understanding of what had happened with the criminal investigation is that the end of the previous summer when August starts, September, I believe August that there had been a decision made not to pursue the criminal probe because it could interfere with the ongoing I&E sarety investigation. And that somehow the criminal investigation would create a context were witnesses were more closed mouth about the safety problems than they would be otherwise. We very strongly disagreed with that interpretation of proper
. investigative techniques. Our feeling was that it probchly the criminal invectigation would loosen tongues rather than
<1'
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l 71 tying them up. However, we felt that after the November l 1981 report was issued that there wasn't to much excuse to l continue to keep the criminal investigation on hold, because I did check with Mr. Keppler, and this is one of the things that I checked with him.and learned that the reinvestigation at Zimmer had been suspended for several months while Region I'
III reassessed its priorities for how they would conduct Part 2 of the reinvestigation. And as it turned out that investigation was essentially, the I&E investigation was essentially on ice from November 81 to sometime in the Spring of 82. I'm not sure if it was March, April or early May, I did get a letter and it's one of the exhibits in our licensing briefs that informed us when they would begin phase 2 and it was sometime in the mid/ late spring. I didn't feel that there was any excu'ce for continuing to postpone the criminal probe during this three to four month timeframe when the safety investigation wasn't occurring. I didn't understand why everything would of been stopped their. I thought that they should get back to finish what they started the previous summer even if the original reason for stopping the criminal probe were valid.
Judge Heyt What did Mr. Keppler tell you were the reasons to reassess their priorities at this point?
1
,0 72 L
- Mr. Devine Well, the reassessing of the priorities as he said, I felt quite reasonably that he's used a lot of his staff time on Zimmer. And there was a lot of work left to do and they didn't want to just wade into it. They wanted to figure which were the issues they should go after first and what I was the most significant. And again, he said they had, I guess there something over a hundred allegations at that point that were left to pursue, and they wanted to do their homework and get organized and figure out their game plan . ;
)i before they went back to work on it. And they had some other plants to catch up on and problems, they couldn't do 4
everything, put all their eggs in the Zimmer basket. So...
Mr. Aloot This is some position on your part? Mr. Keppler did.not i convey this information to you...
4
?
Mr. Devine - -
4 That was very strong impression that he left me. I wanted to know what had happened and he said that we've got other priorities and we have other cases and I gotta put some of my people into those and I'm trying to reassess what our priorities are for part II of this effort because we've got large number of allegations left. And... -
s 73 Mr. Alcot When was this phone call with Mr. Keppler?
Mr. Devine Gee, it was sometime in early 1982. You could be the date of that Mr. Alcot, by checking the exhibits to our licensing briefs last summer. It may have been...
Mr. Alcot On Zimmer?
Mr. Devine Yeah, on Zimmer. It may have been the May 18 initial licensing brief and I'think that it was that one. And it may have been one of the later petitions to reconsider. But Mr. Keppler sent me a followup letter on it and he laid out the timetable for when they would start phase two and it was a summary basically of our conversation.
Mr. Alcot Was your understanding then that there was no Region III investigative or inspection effort on site Zimmer during this period of reassessment?
Mr. Devine
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)
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74 Well they had the resident inspectors but the probe that led l to 8113 was on hold. They had finished part one and they were going to wait until they determine their priorities
. before they start part two and it was a three to five month time lag in~there. In the early mid time period of that lag I contact the U.S. Attorney's office and I contacted Mr.
Keppler and when I wasn't able to receive answers'on this in late March for some reason the date March 26 sticks in my mind, but that may be off by a few weeks, we sent a letter to U.S. Attorney's office in Cincinnati asking for an explanation of who was responsible for these problems.
There was another thing that came up that had gotten my suspicion on this and that fairly definitively let me know that there had been a criminal probe there. That was the
- February 198'l Ottenger hearings. They were oversight hearings on the NRC's budget. And Congressman Ottenger asked Mr. DeYoung about the criminal investigation at Zimmer and Mr. DeYoung stated that OIA, the NRC had done its share 4
in the Department of Justice had asked NRC to back off on this untill the safety problems were halted, were resolved and that basically that it was the Department of Justice
- told NRC to stop and thats why they stopped. And so in this letter to the U.S. Attorney I asked for an explanation of why they felt that the NRC shouldn't be involved in these issues anymore, particularly since the safety reinvestigation was on ice for the time being. And the U.S.
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A '
75 Attorney. responded that, I believe that day or that evening or the next. day, with a press release which stated that the NRC had said the criminal investigation could be interfering with the safety investigation and the U.S. Attorney had stepped' backed at the request of the NRC rather than Lt visa-versa. When I. spoke with Mr. Keppler, I'm not sure if it was.before or after the letter to the U.S. Attorney, I had asked him wh't a he thought about this problem of the
-criminal approach could get in the way of the safety probe.
And he .said well, some of our people think that witnesses could be hesitant to speak if its a criminal. investigation Ub and:we want to make sure that the plan is constructive safely. And I recall saying to him comething to the effect of well Jim maybe some people said that but you and I both
.know better. It's one of the most basic rules in the book, that if you really want someone to speak you would press the criminal issue and give them immunity and then he will sing
. like a bird. If your really concerned about these safety problems we better get on with the criminal investigation.
And Pir. Keppler had told me that.he would speak with the people in Washington about it. And a decision would be made on rather it was appropriate to reopen it.
-Judge Hoyt Did he say who he was going to speak to and why?
S' a >
76 l
Mr. Devine No, he didn't. Well, within about a month or so of this, and I should also give the followup to this letter to the U.S. Attorney, it was reported in the Cincinnati papers, and Mr.-Cumming's was asked about the NRC criminal enforcement program,-and one of the questions that came up was whether there had ever been a~ prosecution under the Atomic Energy Act for criminal violations of the act. And Mr. Cumming's reported that he didn't remember any, and since he is the guy who would be in charge of those cases, he figured there
.probably hadn't been. And that interview further eroded my confidence in the priority that the NRC was giving to criminal violations.of the Atomic Energy Act, I thought it was a very flipped sort of response to what appeared to me to be a serious problem with the nuclear industry. But it
.was shortly after this public expose scandal challenged however you want to put it, the public challenged that Mr.
Applegate presented. And I wrote the letter on behalf of Mr. Applegate, that the NRC did meet with the Department of Justice and i'n the beginning of June 1982 had a briefing of the Commissioners, Mr. Keppler announced that the~ Justice Department had decided to reopen the investigation. It wasn't I guess untill late August or early September 82 that the first person from the FBI got in touch with me. But I
- - was aware that they had reopened it. They went through the
1 i
77 l i
evidence and studied and they got to me at the end-of the summary.
Nr. Aloot The FBI interviewed you?
Mr. Devine Thats correct.
Mr. Aloot Do you-remember the name of the special agent that conducted the interview?
Mr. Devine Mr. Aloot, I would prefer not to give you the answer to that, cause I don't know what the protocol is and that sort of thing.
Mr. Alcot The identities of the FBI agent who conducted interviews is not secret, what you say is between you and beyond.
Mr.-Devine Mr. Sinclair worked quite closely with the FBI team members.
I don't think you should have any problem finding out.
'e L
78 Mr. Alcot Was he out of the Cincinnati office?
Mr. Devine ,
Yeah, it was out of the Cincinnati office.
Nr. Aloot Do you believe that any. relevant information regarding possible criminal violations was withheld or delayed in transmitting, or there was a delay in transmittal to the U.S. Attorney's office from the NRC?
Mr. Devine Yes, I do.
Mr. Aloot.
Can you expand on that?
Mr. Devine -
In transmitting from the NRC to the U.S. Attorney's office?
Mr. Alcot l
Yes.
Mr. Devine
79 That I couldn't say, because I den't know when the information that OIA generated during the summer of 1981 was forwarded to the U.S. Attorney's office. So, ny answer tc that would be I just don't knew on that.
Mr..Aloot But you do, you did say that you believed that relevant information was not provided to the U.S. Attorney's office from the NRC7 Mr. Devine No, I don't think that I said tha't relevant information wasn't provided to the U.S. Attorney's office, no, I think that the U.S. Attorney's office was the recipient of some bad advice on the necessity to call off the criminal probe for the time being, I felt that that was...
Mr. Alcot Advice from the NRC? -
Mr. Devine From the NRC.
Mr. Alcot That would be a first. The Department of Justice taking cn Agency's advice.
t l
80 Mr. Devine Well, my understanding of it was there was some debat within the NRC about whether the OIA probe was a help or a i
hindrance. And that the Department of Justice decided that if they didn't have the, if there wasn't consensus from the agency the technical expertise of this project should go ahead but they weren't going to push it themselves until the NRC had a consensus that they should be working on it.
1 1
Mr. Alcot Is your objection then to the agency's managers exercise of their judgement, or is your objection that the basis for the judgement the facts on what they were saying made their decision was false or incomplete?
Mr. Devine Well I think that they have the right to exercise their judgement on these types of issues so I don't think there is anything wrong with NRC managers expressing a policy recommendation at all. This is the basis for calling off the criminal investigation that we objected to and the fact that it was called off for so long, and that it was called off for longer than there was a need to.
Mr. Alcot
s ,-
( 81
.You say you object to the basis for the NRC terminating or delaying it's criminal investigation, but I'm not quito sure what you object to, is it the decision to delay and some question about the validity of it's policy judgements delay or is it because they didn't have all the facts before them and that, because of that then it probably delayed their investigation? .
Mr. Devine It's the former. But I had stated considerably stronger lir.
Alcot, I don't think that there some question that it was a mistake to call off the probe at that point. I think that it was absolutely wrong to stop the probe at that point.
The criminal investigation had uncovered very significant information in the summer of 1981.
Mr. Alcot The NRC's criminal investigation?
Mr. Devine The NRC's, OIA, IE joint criminal investigations.
! Mr. Alcot 1
l Did you review the file?
i Mr. Devine
82 Pardoa7 Mr. Aloot Have you reviewed the files? .
Mr. Devine Well I'm aware of a lot of the information from it. One of the exhibits answer.the Freedom of Information Act, we've received a. lot of the materials that OIA forwarded to IE on November 18, 1981 which was a little less than a week before IE issued it's report. And it was very significant evidence and it directly contradicted the findings that NRC Region III publicly stated. And I believe that it was a serious
. breach of public trust, that an inaccurate record was knowingly presented to the public in November of 81.
Mr. Alcot Yeah, but that was the health and safety investigation, I'm trying to focus in on the criminal investigation? -
Mr. Devine Well the information in the criminal investigation was directly relevant to the conclusions of the health and safety investigation.
Mr. Aloot l
I-
o ,
83 Is it your judgement that it was significant in a criminal or evidence of criminal violations or is, was it somebody elses judgement that it was, that these interviews or the material developed in OIA's investigation?
Mr. Devine .
I would say that it was both. It was my judgement, it was the judgement of Congressional staffers that reviewed the information with me, it's the judgement of...
Mr. Alcot Is that Udall's committee or...
Mr. Devine Udall's committee and Ottenger's committee.
Mr. Aloot They conveyed that to you?
Mr. Devine As I went over the information with them with this and they were very concerned about, extremely concerned.
I Mr. Alcot
f I l 1
i 84 l t
To your knowledge did the U.S. Attorney or the Department of Juctice criminal division have a similar view of that information?
Mr. Devine I'm not aware of what the perspective was within the U.S.
Attorney's office in the summer of 1981, I know that the agents working on the case in 1982 for the U.S. Attorney's office were extremely enthusiastic about the space.
Mr. Alcot Those are FBI agents?
Mr. Devine Those are the FBI agents.
Mr. Aloot Not the Assistant U.S. Attorney?
Mr. Devine I did speak with the Assistant U.S. Attorney in January of 83 and she expressed her feelings that this is a very significant case and was pleased at the cooperation that we had given. We did not discuss her opinion in retrospect about what had happened in the summer of 1981.
r 9
85 Mr. Alcot So from what I gather then what you are concerned about is l
.that what your alleging is that based on the information that OIA developed that you have acquired that there was no basis to terminate the criminal investigation in, I don't know, late 1981?
Mr. Devine 1
-Thats correct. !
Mr. Alcot Are you also saying there was no basis to delay the criminal investigation?
tir. Devine Well the investigation, I'm sorry, thats not correct, it wasn't terminated, it was delayed, to stop the investigation in August or September of 81.
Mr. Aloot Pending resolution of health and safety issues?
Mr. Devine Right.
Mr. Alcot
. t i l
I 86 t
l t Is it also your opinion that as a matter of fact and law it
. ;was improper to delay that investigation?
Mr. Devine Ah, I don't know that what legal violation I would be charging with it, there has, I mean it's been suggested to me by. confidential sources that there is an obstruction of justice there. And that's not I don't believe thats my responsibility to make a legal conclusion like that. What I was concerned about is that there was very savor problems at Zimmer and it was necessary the way the investigations had been divided up. The criminal investigation going thrcugh the causes of those problems. And at Region III issued a report in November that reported to address the causes of the problems and publicly reported the causes of the problems. The information was completely inconsistent with what OIA was starting to find and was stopped from
-resolving. And I thought that that...
Mr. Alcot ,
Was stopped or was decided to stop?
l Mr. Devinc i That the OIA investigators were stopped from resolving I l
l know that it was through the Freedom of Information Act, I
v s
87 know that this was a fairly high level decision with Mr.
Cunning's and Mr. Davis and Mr. Keppler.
Mr. Alcot Did the Department of Justice participate in this?
Mr. Devine .
My understanding is that the Department of Justice wks, well
'they couldn't avoid it, participating in the decision, and I think that I summarized to you my informal understanding that they didn't want to go ahead unless there was consensus within the NRC that was proper. And I think Mr. Burns press release in the Spring of 1982 would further confirm that.
i Mr. Alcot Let me see it I, I would still want to get this clearly on the records so theres no confusion on ours or anybody's elses part. You have alleged, or you believe that the NRC investigation, criminal investigation, by OIA was improperly delayed?
Mr. Devine Thats correct.
Mr. Alcot
a '
88 And it was improperly delayed because, and you can fill in the blanks?
Mr. Devine ,
I don't have the answer why Mr. Cumming's or Mr. Keppler whoever... -
Mr. Aloot But you had the answers why as properly delayed, I mean thats your allegation?
Mr. Devine ch, I don't have the answer why they did it.
Mr. Aloot Yeah, well thats, I guess for us to determine. You just tell me why it was improper for them to delay out run with it?
Mr. Devine Well, I go the few reasons for it. One is that is was appeared to be a very successful investigation up to the time that it was halted. Two of the interviews in that investigations are interviews that I considered to be one of the most significant work that the NRC has done. One was an interview with Mr. Phillip Gettings the other was an
~ .
80 interview with Mr. William Schwares, by the way the reason, first things that tip off about this that the Schwares interview was included in the IE report as exhibit 52 and it mentioned that Mr. Sinclair and someone from IE were involved with this. So I knew that OIA was doing more than double check just what the NRC was up to. And the perspective that was given to the public in the IE report is that CG&E basically was guilty, if their gilty of anything, of blissful ignorance, denying neglect, that they lot t' heir contract run a muck and thats what had gone wrong at Zimr.icr.'
And the solution to this problem was, Mr. Alcot
, Get a new contract?
Mr. Devine That would have been one solution. The solution was one that had already been imposed in April of 81 which was for CG&E to assunie its responsibilitics and start taking over control for the Quality Assurance Program at Zimmer.
Keeping on top of the effort. That was the solution. Well these interviews that DIA conducted in the summer of 1981 showed that theory was quite possibly enaccurate. And the two interviews were with Mr. Phillip Gettings who was the Quality Assurance Manager for Kiser, and with Mr. Schwarers was the Quality Assurance !!anager for CG&E. Well !!r.
90 Gettings stated that he had to clear every decision-that he made with Mr. Schwares and that one of the problems at timmer was that the client of the utility was keeping such
- close oversight that.it was difficult for them to work.' ,
Then the interview with Mr. Schwarers which I thought was very skillfully conducted succeeded in having him switch his
. positions during the interview from basically this was a problem with Kiser to this is a problem that I'm facing with -
CG&E. And Mr. Schwarers said that although he had been the person to override Kiser on certain decisions those just his signature on the paperwork that in fact the decisions were made at management meetings were the NRC investigators asked who was at the management meetings. so it was basically dominated by construction vice presidents. And the NRC asked well who made the decisions from these meetings. Well i
l we, Mr. Schwarers we are reported to Mr. Erl Borgmen. The j NRC investigators probed further and at that point Mr.
Schwarers stated that he would not be able to answers any l further questions beyond yes or no. That they did have thu same problem at CG6E that he had complain of at Kiser, that i
Quality Assurance was not independent from construction
( management, I know that he had been under tremendous pressure during his time as Quality Assurance manager, but
- he was retiring, and he wouldn't answer any more questions
- accept yes or no. And that was to me, that was the end of the CIA investigation at simmer. And my opinion in studying
r w b 4
l 91 L that informIation was that in the Summer of 1981 the MRC was on the verge of cracking the case there. They had gotten CGEE Quality Assurance manager to contradict what the URC l , initial assessment was of the causes of the problem. And the Quality Assurance manager was pointing to Mr. Ecrgman without verbally saying you should speak with Mr. Borgman to clear inference from this interview was that Mr. Borgman
- needs to be interviewed now. And they stopped that. They j stopped the investigation, said that this would interfere i
with our safety concerns. And inspite of these.
Mr. Aloot l And you disagree with that inclusion?
Mr. Devine Absolutely.
Mr. Aloot Do you acknowledge that conflict that the opposito conclusion from your view is also could be correct?
Mr. Devine Anything is possibic Mr. Aloot, but that would fly in the face of my experience in the legal world and as an investigator and it was one that I know was harshly protested within the Nuclear Regulatory Commission m
e 92 investigative staff. I don't know if this particular case played a significant roll in setting up Office of Investigations, but if it didn't it should of. These pecple are in a very sensitive significant backfinding mission and they were prevented from finishing their job.
Judge Hoyt Was that investigator Mr. McCartin?
Mr. Devine I don't know if Mr. McCartin was involved in those particular interviews or not.
Judge Hoyt Who was do you know?
Mr. Devine I know that Mr. Sinclair was one of the people who was involved in the... .
Mr. Alcot Maybe Mr. u ald Mr. Puglesia?
Mr. Devine
!!e might have been involved in one of them. Mr. Sinclair, as I understand it, was one of the lead people on that, on
4 93 that investigation and since he has working on the current OIA investigation there, in my opinion he probably the for most expert in the nation on the problems at Zimmer and the histo,ry of the last few years of the NRC work there.
Mr. Aloot One of your, Mr. Applegate's concerns, and I believe it was on of your concerns was that these highly relevant interviews were not transmitted to Region III in a timely manner?
Mr. Devine They were transmitted on November 18, 1981.
Mr. Alcot You also previously stated that you had a lot of confidence in Mr. McCartin in the investigative team?
Mr. Devine -
Mr. McCartin and Mr. Barrett, thats correct.
Mr. Aloct Do you believe that Mr. McCartin had the technical skill and background to determine what was relevant and not relevant to his investigative efferts?
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!r 94 Mr. Devine I would sure hope so, if they put him in charge of the reinvestigation. I do believe that he is an outstanding investigator. I was impressed with the quality of the Region III reinvestigation report what was presented and Mr.
Reppler stated that he was an outstanding investigater at the Jdne 1982 briefing of the Commissioners. I believe that Mr. McCartin resigne'd from the Nuclear Regulatory l Commission, commissioner Ahearne raised that point in June l of 82. Mr. Kappler explanation was that Mr. McCartin was a very good investigator and that the problem that he as a l
l manager had was that he have to fire everybody else if he i
wanted to go along with McCartin concerns about the way investigations were concerned. So he wanted to up grade L everyone else and McCartin was_to much of perfectionist or l something to that effect, he wasn't satisfied and left.
Mr. Aloot i
l But your concerns about the late transmittal of OIAs -
material transmitting November 18, 1981, was your concerns still exist if you knew that Mr. McCartin either participated or at the time of the interviews was orally briefed as to the substance of interviews?
Mr. Devine
t 95 Not at all. My concerns was this was not made part of the record. My concerns is that Region III gave public conclusions for which they had very significant evidence were flatly inaccurate.
Mr. Alcot So your real concern was not that this material was transmitted so late that it couldn't be included in the report that this material contradicted what the reports conclusions were and whether it was transmitted in June or...
Mr. Devine It was the transmitted, the right to be included in the report, the Schwarers interview was one of the documents that was transferred on November 18 and it was included in the IE report.
Mr. Alcot -
Did you know at the time that the 8113 came out that Region III was planning a second phase which a lot of informatien developed in the course of 8113 investigation would be icoked at in the second phase?
Mr. Devine
q 96 I knew that the day the 8113 came out because Mr. Kappler announced that and after his press conference he said
.som6 thing to me to the effect that well we still got a lot of work to do. Tom. I don't know that I was aware of that in advance. I think that I was given some notice of that when they informed me that a report was coming up I think there was some qualifier that we hadn't finished that but we think its important that we release some information on this.
Mr. Aloot Do you have any question Judge Hoyt?
Judge Hoyt
. I want to go back to one area Mr. Devine that you had mentioned earlier about the interest of Regicn III, is it I
your understanding that Region IIIs interest in this was in l
health and safety issues, that it was in criminal area as well, did you believe there was a division of interest there and that we should very highly compromise? -
Mr. Devine i
j Well, my understanding is that Region IIIs prime
! responsibility is civil violations and health and safety i concerns'and that OIAs responsibility was more to the preliminary investigative work for referals to the i
Department of Justice. I was aware that there was, when I i
m 97 i
raise these concerns to the Commiscion, I was aware that there was people from CIA and IE who were working on the criminal probe in the summer of 1981. So I didn't think that it was some compartmentalized that there was a problem with lack of communications or unwillingness for IE to loan any of its staff for that effort or anything like that. .
That wasn't, I didn't consider it bureacratic problem so much as an improper policy decision and a failure to providu a complete record to the public and then a failure to go back and finish what they started.
!