ML20136E218
| ML20136E218 | |
| Person / Time | |
|---|---|
| Issue date: | 06/15/1983 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20136D878 | List: |
| References | |
| FOIA-84-415 NUDOCS 8511210446 | |
| Download: ML20136E218 (58) | |
Text
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e-UNITED STATES OF AMERICA $
NUCLEAR REGULATORY COMMISSION la the matter of:
INTERVIEW OF LYNNE BERNABEI Docket No.
CLOSED s
Location: Nashington, D.C. Pages: 1-58 Date: Wednesday, June 15, 1983
~
TAYLOE ASSOCIATES caen n p.na.
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L 1 UNITED STATES OF AMERICA +
2 NUCLEAR REGULATORY COMMISSION 3 j 4 INTERVIEW 8 OF 4 LYNNE BERNABEI Attorney-at-Law 7
Government Accountability Project Institute for Policy Studies a l
- 1901 Q Street, N.W. .
l Washington, C.C. 20009 9
10 Room 1045 11 Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
12
- Wednesday,' June 15, 1983 13 14 The interview commenced at 10:55 a.m.,
i 16 BEFORE: .
I-
{ 14 THE HONORABLE HELEN F. HOYT
, ADMINISTRATIVE LAW JUDGE l 17 ATOMIC SAFETY AND LICENSING BOARD PANEL 1 BETHESDA, MARYLAND 2 is l C. SEBASTIAN ALOOT, ESQ.
g 19 Office of the General Counsel , .
Nuclear Regulatory Commission 20 Washington, D.C.
'O st )
j ---
l 22 23 24 26 O
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3 JUDGE H0YT: Ms. Bernabei, I would like.to read you 3 a statement that we have been using with other interviews and 4 I would like to persist in doing it.
8 So, I am going to introduce myself as Helen F. Hoyt, 8 Administrative Judge with the Atomic Safety and Licensing Board I
7 Panel, and to introduce to you also my colleague, Mr. Sebastiaq 8 Aloot from the NRC General Counsel's Office. .
8 Mr. Aloot and I were assigned by the Chairman on 10 May 6,1983 to undertake an investigation of the allegations 11 detailed in the November 16, 1982 memorandum to Chairman 18 Palladino from. Martin G. Malsch, Deputy General Counsel, 13 entitled, " Interview with Thomas Applegate."
14 In accordance with our assignment, the focus of t
la our investigation will be whether or not the Director of OIA I
l 18 and that office made a good-faith effort to carry out their 3 17 responsibilities in an CIA investigation of Applegate's l
E- 18 allegations investigated by Region III in the early months I
i 18 of 1980. . .
e 80 To anticipate any questions you may have concerning
- I 21 an attorney -- and I believe you are an attorney yourself?
3 St MS. BERNABEI Yes, ma'am.
l El JUDGE H0YT: -- if you wish to have another one 24 with you, you may do so.
as We have elected to have this interview with you ,
- t. )
- 3
( !
I transcribed by a reporter and it will be made available to ',
2 you. I believe before we 'went on the record, you indicated '
3 that you would-like to have that opportunity.
4 We ask that you not discuss this interview with 8 anyone in this commission's office or any other office.
s This request is made of you to assure that what we discuss i I
7 today will not -- if it could -- influence other persons 8 we talk with about the CIA investigation.
9 Do you have any questions to us? -
10 MS. BERNABEI: Well, I guess I would have one 11 sequest.
12 JUDGE HOYT: Sure.
13 MS. BERNABEI ,
I am familiar with the interviews 14 since Tom Devine and I both participated with Marty Malsch.
l 18 I would, if possible, like a copy of the memorandum just to 3 .
l 1e see it.
17 JUDGE HOYT: Yes, we will make that available to 1
i 18 you. We will stop the record at this time and get a copy of I
g 19 it for you. , ,
,! 20 (Discussion off the record.)
{3 21 JUDGE HOYT: We will go back on the record now.
l st ,
Ms. Bernahei, I think during the time we were off 23 our record of the interview here you had an opportunity to 24 examine the charter of Chairman Palladino to Mr. Aloot and I, 28 and also a copy of the memorandum of Marty Malsch to the
Y- ? ,
- t. 4 L
1 Chairman-dated November 16, 1982. The memorandum did have
} 2 the two attachments noted in that memorandum, also given to 3 you at the~same time. I think you will acknowledge that.
4 MS. BERNABEI: Yes.
5 JUDGE HOYT: Thank you. l t
6 I Ms. Bernabei, we are particularly anxious to f 7
explore with you the various processes you went through in a
the examination of the various versions and revisions of the 9
l OIA report which was ultimately issued on August 7, 1981.
10 I just want to give you that question generally and 11 let you take it and explore it in the sequence you feel most c 12 comfortable doing.
p 13 -MS. BERNABEI: Perhaps I should explain a little I
14 bit how I got to my idea what the changes were in the different I3 16
. versions.
l l 16 JUDGE HOYT: That is part of it.
', 17 MS. BERNABEI: One of the things we did, we obviously 1
i is examined the different version's once we had received copies 18
'g of them, which was in late December of 19.82, subsequent to our 20 filing of the FOIA suit on behalf of Mr. Applegate.
21
{_ Secondly we did --
I. 21 MR. ALOOT: In late 1982 or '81?
23 MS. BERNABEI: We received the documents in late 24 1981, that is a notice of filing in the FOIA suit. The suit 25 was filed June 30, 1982.
I. .
f
- s s
5 1 We also did,deposktionsP,o...'f'David-Gamblec. John.. ,
- . , % *, . % w- ,,.w, s . . ,/ e STEMMDEEMRiGstT" James; Cummingrp all;of, whom had 2 ~ > .
s.n.m. . aw. a .: ...
. . c~ . ., p. ; . 5 3 .~MMM 7
ti. ab.ou..t.,Rt..h..e_tKa'i.igWTa.t.'Ne.
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O n-5 So, those were basically the two main ways we came a to determine what changes had been made. ,
E***F5MS
- b'* -~ . - * .
- one of the changes was the Es#"a' tion-of'aths/ Harp"ste# -
7 t a &Ip+y d -- the infamous Harpster interview -- which we
, m .e.eo.- p 9 believe was a substantial change. ga,14 starkwho? w..~ a s- i 10 a ??fertiMiEgdrTM'5CMM7d..79%
11 dgt=f h'. , ui _ _a - ' ' -- m6Mja#fME_.',thatC.he ' , 4 12 ~)ftlfd]i2 TheeFJlRLME[surs]);iripl(ems ,
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r ;rfNNeisteeMgge[yt'obleg,g y 14 @,133.o ggItttion}atg
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- l 1e We considered it a significant interview because f 17 it @ppgt.rg j
- i
- 18 r mfg , _ . _ E9actican = m-rmem-#^*~ry,',W,*3y4pp,gy, iI _
.j 19 quitelya WENPMiG%eh{Inijisg
! 20 We believe it should have been included in the t
{ 21 report and I think'Mr. Cummings in his deposition agreed with
<a
- ]
22 us to some extent becauseh~~-~_- . - - -_'" -
- '%wr.y.x .: ,y n. .x,..\
.he.d.orroborats.Mr .
23 ApgIEMEMst. BAKE $EtToE orssseN. &T.*_ac..c.6un.e.r That is that 24 there were hardware problems at the plant. Mr. Applegate of 25 course talked about three welds and Harpster was talking about
o 6
1 other hardware problems. -
2 Qth g f f@L;42Was Rat;whattit 'a;,r-3 s,pgMh;*p3Ewas,,,"J!ghlifgh4thectiallsiratiohs . by1 . .(
4 M"Y.Tf6mesiedHF+=t%170I3UTE"'. investigation into,whether ,j m....,.....:..
,eessweews.ym . . .e-.. _ enn ess urs.swse =. y.* * *- % .T % **
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antly._ingentigated. w'-*o uld.
5 6 r ~ 1 h A M N M W uf2 M k 5 r~e.7.'was ~
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j, 7 OI -- * *N'" N W 1.t:h,e. -MRCete, corr.oborat.e..'.these.
4 8 chae ,M?,eerfa'liialfMM3'cTatefdeEE'dere. i 9 Baysicallynff. t;&p yia +-wgawascas-.Nght,- that:- E
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k :.-= . . ~ l 10 'theh'Offjflifh.- ~- " Lr ~ %sa&, Tp=c ~x:adui%._':a :b D It. M 1e d aY 11 E ataxt ,7of ,
t 12 % % f . 7 @' N p24 M j g Manna,l[Qf.Thg IE Manua1, 13 or portions of it, were included as an attachment to the 14 report. e!bl&limmest:igatore i> VY 15 Wmh, ~~ r.w-- W..;p .P.'. "m' = -in
.x . =,.sonductintf
=- -
= -e th.e ori.gidal" IE .it' 16 I.'. l
! 17 We felt that both legally and as an investigative 3
i
' matter it was important to show that there were definite 18 i
i 19 rules that were not followed in this investigation and there-f 20 fore we believed that deleting that from the text of the 21 report wass a change.
t
! 22 D "-- ==da was that_ in the-23 .(x=-REGodsununary?- I believe it is called -- in which 24 Mr']'== Q personally, as I understand it, upon Mr. Kepler's 25 request or demand -- however you characterize it -- personally
-' 7 l 1 ch.o ang.th,,{th.E. Ekecutiv. aji.r%y 's .o".that.~it 'sai.d thTf.oc6si~d.f y .
.~ . . s s.. .. . . . -
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2 -thw tE..E ~6r..f. w. a. s.:.,noEIB.'s' ot-Phylo.s..?I.1P. s.~dVren1Mnvesticator .
3 progsmand-its
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. . 9. , m- adgYaacMh3..whatIser o.r.Enotyer, rconducted
- -- - - - ..u.. n... .
4 k*"4--J^r ad6%Mi%T42W,6T.yagaMonC 5
.ggig.)
6 Again, from the information from Mr. Gamble, Mr.
7 Sinclair, and even Mr. Schnebelen and Mr. Cummings as inter-l 8 viewed, the.Agnihu.dtr.duslyiTrally;es~dartermined e-e - mnun -
/
9 in January of 1981 -- right? 1980-1981 M g g g '
10 W S M C. W F T E .Lfl} Qkrond..: y 11 ar"f:ddsIWiddifsMmTgGiiiiE.ttEaEm== w.- 4 12 That was Ba'EMedling.aTsdS'ies'uf . meet.g..,gs in be. tween w % .sme me. -u ..s,. ra y 13 %f%ggtogT Eli&UEnir 6ht,-bygMr, is Cugag] We think that'Mrgj,glcaph@,)pgggttesyst 15 tp.Jgh@ggalgydigt_ecutivel-(.-......_.._.,_.m'._thaththe scope ;was restricted
- i. 4 1
[ 16 Wji~Nh.,garjtyraNarGFEr&{ggwytgg.,
3 17 There were other changes made that I could not s
,t e
18 detail but I think an examination of the different versions 1
l 19 would verify it. There was some change made in the language s
20 about -- in the.;@2 ry'$--= y.],, g g gronic 4
{ 21 <
ggg_yidipit.5co51easiat;itimunerg That, I believe, was s
22 4 3. M 59T,yag g Ts % 3 (s E M 5hE6t.in,,,,,;
23 th;.pi , g g o-g 24 There were ot.h. a..t"_Ichi.u.i.ge.s E.Me 3 .the ExYcuEiv'ed
,-..-m =-
,.~ .. ,i !s'i,equest. I I believe that is noted in 25 ,Susiinary; uponJtrnZesle 4
we- - - ,- - ,, _ _ - , . , - , - , , , . , -
'o
. 8 s
I the final report. ,
2 Some -- I should not say "some," I should say at l l l 3 least one had to do with a itelgi&FofltMwbYdsr{"NRC'"- g 4 gen _maenent tr_osig,41W~, n,mmw.p;. <~,.. ,.. ...u.%- 3 m uties. . cow;ese li 5 mGgiW. bag,@wmqQeprg.ksryestigativer. _
m .u . report
. . . . is.g 6 Ahv 5 Y M M g7 M JpM E Y [ 3 Y which would be Mr. Kepler 7 himself. We thought that was a significant change and that
(
s it had been more specific in the earlier draft of the report. j 9 Those are the only specific ones I can ment. ion. I 10 can say that in reviewing the separate drafts, again the saww-11
$Mf Wenient ifaTFoWIrtd:aagrowin.ge ope agu,,u..eport,7 them.sc.3. of,the r
.-.m u__y ..y,..,.
12 fr'o MFWehFe**KthC2rrvestigtj,g@m;.,es- - am m. . ,. - a lur of .;Segion , .III .Y u ~ --
l 13 tcr'dir'sisfort oFwfikt*vE# call "Applegate's three welds."
14 We thought that the focus of the investigation and 1,
lj 15 the findings as reported in the interviews in the earlier lI ll 16 drafts of the report was much broader and obviously much more ll 17 significant than when it came out.
li ll 18 JUDGE HOYT: Go ahead.
i ll 19 MR. ALOOT: You mentioned the I&E investigator 2
ll' j; 20 precedures. Have you in the course of the litigation you have
{ 21 just completed had an opportunity to review those procedures
!l 22 that were contained in the OIA report originally?
l 23 MS. BERNABEI: You mean in the exhibit to the report?
i 24 MR. ALOOT: Yes, exhibit.
25 MS. BERNABEI: I have reviewed it but not in any
9 l 1 great detail. -
2 MR. ALOOT: Not in any detail, all right.
3 MS. BERNABEI: You mean to tell you which ones 4 would be useful to put in tr.e text?
5 MR. ALOOT: Well, I guess my general question is,
. .6 in reviewing the procedures that were attached, in your opinion!,
7 were the procedures good invsstigative crocedures that should l i
8 have been followed or just. acceptable procedures that should l 9 have been followed, or that they were just procedures that 10 were really no good but they should have followed them anyway?
11 MS. BERNABEI: I think my reading of it was that they 12 were acceptable and that they certainly would have given the 13 investigators guidance and certainly helped them to come to 14 a better original investigation than they did.
h 15 I did not really read it with an eye towards, is l 16 that the best we can do, o
,j 17 (Laughter)
'l
,# - 18 MR. ALOOT: Okay.
I
[ 19 JUDGE HOYT: Were the changes that you found of
=
f 20 such a significant nature that if one read Report A and then
'{ s
. 21 Report B, you would not be able to identify problems, or l 22 were these word changes? We have come across the term, l
23 " word engineering" in these interviews and I find that i 24 probably as descriptive as any other to try to convey the 25 question I had in mind and that is, were these word engineering i
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l 1 changes that would not have changed or did not in fact change ".
l
- l
~
2 the report significantly?
3 MS. BERNABEI: No, not all of them. I would say 4 some, certainly the ones that were done at the -- certainly e a number of P - ._'- t/.g.rgdene;ek.Q-Ibehest ofr.the[_3- q 6 P - 9 1--' 4 m . 'I - ,a ne m.. :i..^_ n^ e:w:.-i_n - thF.~4itnstithat-they mav
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- x. . ..; ;; - ........ ,. ;.;w. ~ , .
7 hav- God C L..e;~ ;;..c 4E.%Qw trut not>the; substance. g w= --
. 4 ,. .
I 8 W think the ones I mentioned, specifically g rG]ers mM7;tws_gg] heiVnwg- { g.
10 menW3hInsp;== m __g g-;i- ;- 7, jig- rgecge.. ,'
11 Summ It ENidh lhrWSaignifican,
'-~ . n ewa : .; g ,__.
C 12 che ggp a ra __. w w g y 13 JUDGE HOYT: What was your understanding of what 14 the OIA investigation was to do? I h 15 MS. BERNABEI: My understanding - .to give you the .
l l_ 16 M M Q Q g. g was --
i
,; 17 JUDGE HOYT: Sure.
18 MS. BERNABEI: -- @ F W hoY5 i h 7 f.**fGambler - ..
.~
s i
19 m s.s.hirgg1MgaM.h.p9dMJQ An4%[I'Q{go some l
20 extent, was to --
21 JUDGE HOYT: Now, you are pairing these off, Mr.
i 22 Gamble and Mr. Sinclair on one side and Mr. Schnebelen and 23 Mr. Cummings on another? The tone and the way you said that l
24 made me think of that. I 25 MS. BERNABEI: Well, what I am saying is that they l
1 11 were all useful to some extent for giving me some picture of
~
t ,
2 what the scope was back in January of 1981.
3 MR. ALOOT: Were they all consistent?
4 ~ Efw,<.-
so ~They _are c..,.n - .,.,. - .....onsistent..to'the extent )
5 6 = W ==id Elk ( W,M g tiffn','sia is 7E[t Y Eo~cUs Ion I 6Vahp2partiCgar;,,1n,aly34ua,1;gn,G, ( Q{rgd61{1,siIdlyiduhl's i I ;
'7 u ~. .- in-- dw%suili,J il L z, Jailk
~ m.;w1.g:am. ..,.. . ,e im..the4nwestigatiOIT
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i 8 RV5 MPL===t1= W hr,,.[3 5 $.O W U S W<0 l l
9 Now, where we go from there is that - the investigators, --
m 10 and I understand m.v .m,. N'. na as well.
We did not depose him 11 for that fact but what I understand from the two investigators.
~
12 (It.oss-'r.
... tyree ?pW4.I.s-trrdWs.HEd. fp wa.'s .N.t.h'dF. i..t..i..was;.,to[be., ann 3 13 N E EC.O. I M IDS G . N 3 M '9YtI T pfCgf.any,specifical,1 y 14 W f ddYMsysiiel-Tt-D*-f6cusing_ on . . e
! 15 ifiniiieM 4
l 16 Mr. Cummings and Mr. Schnebelen would probably say 3 17 it was Region III's investigation of Applegate's allegations.
J l
18 But again, they all agreed that it was not a personnel I
h 19 investigation. They were all asked the question, "Is this
! 20 supposed to focus on a particular individual" and they said, r
E 21 "No, we told them not to."
5 g 22 The way I think this comes out most graphically is, 23 La the early stages,of the interview OIA -- I believe it 24 was Mr. Schnebelen, Gamble and Sinclair, I think those were 25 the three, went out to Region III. Mr. Kepler was upset, he l
1 l
~
?
i 12 said, "Do you think I need to get lawyers for my people"
~
1
~
2 and they said, "No, that is not necessary. W'e are not l
3 focusing on individual investigators. What we are doing is, i 4 we are getting into Region III. So, that is really what 5 our focus is on." Everybody acknowledged that was the case.
6 So I think we at least know from there that it was not a ..
7
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I 8 In fact, 433MikflAil i>FieltipIltid$$a25 icjianal '5 !
i "T.TM 9,f
%eetistftc~'1te%gichpeople/.t2ubEOlt'iisas"act"and they should , '
10 y t~worfy..
, - - ~ -
-am Y~ %
- about '
11 MR. ALOOT: As you read the final report as it was 12 issued, as an outsider, did you feel that the final report 13 reflected the fact that it was not a personnel action 14 investigation?
15 MS. BERNABEI: To some extent. To some extentt 16 7%ggy ^o'tspf5f=*l *h%yh_@gpedfic ,
17 wT . ._ - Qgg;3dershoQFCt #ct; appear;thatt ; Region . ,I 18 TJItuttgewjget&Jeflbur_t&mp,,ggetcaavestigatineproperly. g 19 h30theatemuskaglat** That they did not do .more of 20 the task right.
21 (Laughter) 22 MR. ALOOT: They were " drawn" but they were not 23 " quartered."
24 MS. BERNABEI: Well, I don't even know they were 25 " drawn." I guess looking at the Rarpsitex;sintaryLew,_ I,.think e
~
1
\
I 13 l l 1
1 it is a g; damning _intervieq. I think looking at what they
-~.-.r e , ;
2
,gnaggtheirir.ypres1MTnspeMotpaclk in '7.67grou know,
~ --
3 -
I thin @hM..h11y;AodifA.~.. .&.51. e.r.cf."t.h.. .
- eft! f~ ,mailu,.res
.4 .
-- . .. .M"/EL*, . ,, , _ _ - M afe1 ^ c-4 apW4CWAQ 5 MR. ALOOT: Is,it not possible that the Harpster 6
interview, while relevant to OIA's particular inquiry, was 7
perhaps more relevant to Region III's second investigation 8 of Zimmer? j 9 MS. BERNABEI: I'm se?ry, OIA's second investigation?
10 gitav d EUri') No, I&E's, the Region III's second 11 investigation of Zimmer as a result of the GAP petition, the l
12 19 allegations, health and safety allegations.
I8 MPM.E8sW,.%EbL .h Y P W s g . 4-14 w"as M M M YY M'b t'M s"s'i$Es75k ~
j ~ 15 f: Actually, I J.,
3-18 1 will tell you why not. 6 E_ta3,h.payint;w 3
', 17 ha ea1t=
= mar-n..,_,jg--m.tds MggWildRJ.WitRire'iisNhbd
=
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18 ~6TMEhhpmwh9 g d M N N T fsi d @ #' * ' '
19 8:. 2 :: ~ ~ - _-_ 2 + w -~
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20 I think considering what had been turned out since j 21 1979 at Zimrrer, what he knew was pretty old information. What, t
i 22 ne.
- ia -bout #RC::monitoririffisf*Ehwithere:
. ~ ~~ .w.w. e .;s. w ~ ~ ~ ~ -- - ~ ~ ~ wera.. - ~ - inherent
,.. ,. M 23 m WifaIns, pet ~ w een,- 3K[and. $RR HIStryou-know, there was .not an
.-..,a.,., w .u
. . -- p 24 adequate;insp%Ci.m-(>staf tw7 .3 .
25 All those kinds of things, I think, are obviously of I .
+
.; 14 1 concern to OIA and not necessarily to IE other than in a 1
2 peripheral -- not peripheral but in an ancillary way.
3 So, I think actuallp'2115%t~e61p,.ymm..ee. .*;ew is-much .
- 4 .som_e <acaiskrtacto.ch.-tereIA-At&.
. .~ :-- , ,m-. .. . _,._. . .. . . .Ra-that is/alsdTwhp.'Harpster 5 m .w31 y,{q ;y,d 43a7 9 ,hglater" time 7 Entil"it ?
6 hu a--k an l r e a d y.' c 6in be- licl
- - . .;. y .
i 7 MR. ALOOT: You don't believe it was an oversight? !
i 8 MS. BERNABEI: No. Do you want to know why?
9 MR. ALOOT: Yes. ;
10 (Laughter) 11 JUDGE HOYT: Definitely.
12 315E'3RRERBN: Okay. I think -- and again this is 13 my personal opinion and all I have, again, to rely on is 14 what we got out during the deposition. I. thiab-th _p e {
j MMkhol#!*the" HarpsteEiHWriFiiF,)$n..c. --~ .d:-Il thinf
~
15 .are W-2 2
l 16 E-3 3
j 17 I think it was a very dangerous interview and they i
l 18 did not want that to come to light @egau%efitf;WTalTInllid^' Jr i
l 19 a lo.t,,oggpelelJMtIhaddbeYesiianib3>N M r9 nY Ed'lieilis~ '
s +- -
N 20 4WWJN i 21 In terms of what happened at the Harpster interview
-i i: 22 af ter it was originally recorded I think demonstrates it was, 23 as I understand it, the last interview in the line of the 24 Gam'ble-Sinclair interviews. I think it was conducted in l
25 April, April 6 or something, 1981.
15 ,
1 **It3ME-Aneluded"in .all :draf ts. of'.tWiep6ft'until -.
sometimaein' July'bf!?STFattwhichTiIiEth'eMias iIeel:li17
~
2 3 be tween > -
=.17;$,;fx(2+.1et ma-get3that-strmight,.-which
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4 b..et_ wee.:mp C .
i M,a. g. w.ha.pS'.'!NNaMGTwmac.TheTIE,"- Nie and, m -
5 ,qg I can get you specifics on that, I just have not 6 thought of this for a while.
I 7 At that meeting, the investigators were told that '
8 Harpster was going to come out of the report. They were,
.i' 9 according to the depositions, frankly surprised because this 10 was a late date. It had appeared in prior revisions and never 11 .been taken out before.
12 "Jfe~DI&tR901titi .,@,CLfmaings;, ev_igtly_ ,r, acommended" - , ,
13 's.gy e g,% 4 m e&h W r. Schnebelen said, "I'm not so sure 14 that is a good idea but I think we should share it with
)
t 15 Region III."
f 16 The investigators said, "Let's keep it in the f 17 report." Mifbh, iE- .
to-i,tggigw[Its@ept;in, ;.,
18 . R1 But that is the h 19 first time that this third file idea came,up.
a 20 The second time the third file idea came up was
{ 21 .
ngain by Mr. Cummings in December of 1981. This is after 7
l 22 Schnebelen told Mr. Gamble to take home the Harpster interview --
23 liot the Harpster interview, take home the materials he had 24 in the draft.
1 25 Evidently -- and this is according to Mr. Gamble and I
16 1
Schnebelen denies it, but looking at all the testimony I ,
2 guess I'would certainly leave my credibility with the i
3 investigators on this one -- evidently after he told him l 4 to take home his documents, at the same time Gamble says I 5 to Schnebelen, "I have these Harpster materials. Terry.
f 6 Harpster gave me his personal file. I have got these, what ,
i 7 do you want me to do with them?"
l 8 He said, "Well, I think you should put them in 9 81-39." 16_2.GamaL _ _
-. , . % vhaY R ' 2 i
i 10 which stated,f,*If,Ver transferrincJ,.the -Harpst .
m * ~c -
w : - w , m v.r ge=9 W, ,_ mm ah.
.~w-l 11
= .E --- ua to u-a. 'i 12 He sent a copy of the memo without the attachments 13 to File 81-18. When Cummings saw that, he wrote a notation 14 on that, "Why don't we get this stuff out of the Harpster i 15 file," at least that is the way I read the words. "Everything lI l 16 that says Zimmer should not be put in the Applegate file, maybe s .
j 17 we should create another file, i.e., a third file" because li 18 obviously the distribution for this particular memo was the l
1 m
19 two files that were in existence.
lt j 20 Mr. Cummings did admit in the deposition he wanted
\.
R 21 to create a third file.
!5 I 22 Now that, coupled with the fact that the-ihterview 23 + q$3=T-Edriktte%-- at least from the testimony we have --
24 '
agasithinX'HaK.jii6[orie ;. l' 25
, ;is ureallf z'eif'iht'eMiTtE6,:IfisIl~,'.ifrTaWreisthift mis &'gimentP -
~
i L . . .
17 1
inggggsmessingLtion 13f" thy {intierpiesfielther- in; the. ,OIA , , ,
}
2' reportJr,__asg,Ly(grmjktion mattier' t"oMIor~$iE~$IEdoeukissio.n.
i 3 MR. ALOOT: You mentioned that.you in the course of 4 your litigation reviewed all the drafts of the OIA reports 5 that was ultimately provided to you. In any of those drafts, 6 w as the Harpster interview discussed in the summary? ,
7 MS. BERNABEI: I don't believe specifically. I !
l 8 think it was in a general way.
I 9 If I can remember, I don' t think any of the inter-
. 10 views were discussed specifically. I would have to go back 11 and read it. I think the Executive Summary was more a 12 factual kind of thing.
13 MR. ALOOT: I will be frank with you, it is a little 14 difficult to understand the significance of Mr. Harpster's
-! 15 interview, and whether it was in the report or out of the
- 3
'l 16 report, the Executive Summary never changed.
17 MS. BERNABEI: Oh, you mean with regard to the
.1
$ 18 Harpster?
-r ,
i g 19 MR. ALOOT: Yes. If Mr. G&mble and Mr. Sinclair .
.g ;
.j 20 thought it was so relevant, why didn't they discuss it in
~
21 their initial drafts of the summary?
s l 22 MS. BERNABEI: Well, I think what it did say in the 23 summary -- and again I would have to review it to make sure i 1
24 because it has been a while -- is not so much discussions of l 25 specific interviews but the general finding. ,
1 l
4 ,
l e
- a '
18 t - he
.%,W2..r4a.<wJca-.v.
.wou.ld.1.w think .that.theeHarpster . interview* :
wa gtsg.d_.i.e.- . m .. - ,- m e xw m - c -..'e,ithe'c!fronic 2 n' the. suunnaryNwas_.in:. sta tements . lik
.. .. ~ ., . . . , - ~ , . , -._
3 h
...l3tmsu {# ]% problems br~a description.n., ..-in isomewBIE l
~
4 u dfM7 hrmIShouFthe'histiary'of'sucliDblems t that,,, nevar
. . f 5 .
1$m M = M ito M N NfAc N Er 7oro7 nidequate,NRC monitorings. ,
6 MR. ALOOT: Were those words " tone" words, chronic? f I
7 MS. BERNABEI: I don't think that came out in the t i
8 final report. !
l 9 Again, you know, I would say that the Executive I 10 Summary is probably the only part of the report that most 11 people read. I think; ppg @fis$.Th7e tio'nSEI$I t NAEe'cuYv'e* 4 12 p6Ty f f a T s i sL" d I4 n fd Ei 2 .I 13 .3 would have to read the Executive Summary but I 14 do not think they discussed specific. interviews, period.
i 15 MR. ALOOT: Yes.
[ 16 JUDGE HOYT: Did you really respond to Mr. Alcot's
'f 17 question now? If it was not in the summary and the summary i
.l 18 riever changed, the significance that you are placing on it, is
.a
~j 19 that consistent with the way this whole matter came ou.t?
t
'! 20 MS. BERNABEI: What I am saying is, I don't remember
-1 21 the summary specifically discussing any interview. So, I 1
- l.
22 l
'ould necessarily think -- I could be wrong again but I don't 23 remember it discussing any interview. So, I would not have 24 i nxpected it to discuss Harpster either.
- 25 The other thing I would mention is, the way I under-
19 1
stand what happened in this report is that even if a certain ',
exhibit were deleted or certain mention in the text were 2
3 deleted, it was not necessarily coordinated.
4 So, in some part the exhibits or the interviews l
5 .w ere separate from the report since tswir.liEiFria what I would l 2 ;
6 call a comprehereafCehbe4to .make' sure dhdy w'ere l 7 conni eant. I 9, . .. .. . g _ r _q-
.n.
~
9 4
^ ^ "^ cutieve*Sttuttnim~
- lp-M" .wr";&w&;;"Wab.aphi.iw
..wG
~ - 7' ~13EE~~
- n6T6fi~E'
- - ~ ~ ig'e~d evhn .
10 T.mugh-7the mater 28IsfonWhich itlWashasWwere deleted, that 11 g:="#".EYs I TEhAv7 b N b f1}.ng th5tI 12 Au.g31ged- ~-*M5 -, -yh11r*2FhrF'tjta,6FamTei;4rbia. oE9faFe7 13 gi'ntgfMM.n;E5EgEWifeMW .: f 14 c.h
'l 15 MR. ALOOT: Let me ask another question. Based
-l 16 on the information that you have developed to date, based 17 on your reading of the final report, do you believe that the l
=l l 18 report as issued -- to the extent it talked about Region III --
- is
[ 19 do you believe that that report is accurate?
20 MS. BERN ABEI : Accurate?
21 MR. ALOOT: To be distinguished from complete.
l 22 I: I don't know if you can distinguish 23 the two. w%would-say: m., c.. era __.s. that'- f.t?'uii.dRststede
~ -- the . exten t ' o f f 24 Regiorr~_H1's' 1 izndais'.n, tG. . g~1 Cit"wds ~ # '
s m ..pr~i3b..l._an.
- - 5Dn.d71'.n
.e-
20 1 MR. ALOOT: But there were no factual errors that
\
2 you --
l 3 MS. BERNABEI: Well, I didn't do the investigation, I
- 4 so I would really --
5 (Laughter) 6 MR. ALOOT: No, I mean based on your litigation ,
I i
7 that revealed the process, the editing process and basically '
l-8 what the investigators had and how the changes in the report 8 occurred.
l 10 Were _ there any changes that you know of where facts
-11 supporting the report were changed so that conclusions could 12 be changed?
13 MS BERNABEI: I will tell you, there are some things 14 that I don't know right now and I could review again about the h is welds. I am not tne best person to ask about the welding ll 16 history.
17 f When I originally went through this back in December I-l 18 we did come up on some questions we believed were not addressed t I, l[ 18 quite right in the OIA report about the welding history.
l 30 t Again, I am not sure we would agree with IE's critique, the 21 subsequent critique of the CIA report and what they meant.
l 22 But there were some issues that I think we would 23 take issue with but I can't remember right now exactly what 24 they were.
25 MR. ALOOT: But you recall these being focused on
_ _ _ _ _ _ _ _ _ _ _ _ i
7, n ,
i I welds. What about the other parts of the report? You must 1 -
2 have looked at something else except the weld history. -
. *
- T T.* . 9 g- .
g We.l.1 . one of Jthis. . . . .. things',. "as . I s' aid, 3
,hE gE _. .. . . . . -
g 4 uJons Msr .5.MtAstlFMRtt.;.t@pr, .coK;.out. t referencesc to i5sf ,l 5 ,,rguyhgeman,t a f;tl'th'o3@ ~lit"that,was .a. significant change and I,
..va.q:.Sc.u:.u .w.- . - . . .. . -
6 . thinkTdf55]difgitidn$~ibilhNb7 Y1E55I5n'Ei. t -that that change-7
~df..dT. O.W..alr"12.tacciffsfiY$
8 MR. ALOOT: What did they replace NRC management ;
I 9 with? !
i 10 MS. BERNABEI: I believe it was put in a negative f
. 11 way, as I can remember. This is like six months ago back-12 that we went into this kind of detail. So, I am a little 13 foggy on this.
14 As I remember, it was put in a passive voice. So
$ 15 it.said, you know, a problem was discovered instead of 5
l 16 saying NRC management.was responsible to some extent for the 17 problem.
1 18 ._A.id_ .d._iffite7 hisMErRf2ng dn. the #
19 f , to say the problem was acceptance of f.
20 three bad welds, that was the focus in the report, just seems 21 to me to misstate what the investigative effort was and f3 l
22 what the findings were, and in ti-i.jp,,i.;: ire-'inaccordte tiii me.9 23 MR. ALOOT: I have an almost off-the-wall question.
24 (Laughter) 25 MR. ALOOT: One among many. Did you ever discuss l
\
22 I with your client, Mr. Applegate, whether he had received a $
4 2 letter in March of 1980 regarding the scope of Region III's 3 original investigation?
4 MS. BERNABEI: Well, let me say this, I don't think 5 I should tell~you that, okay? I think that is attorney-client 6 privilege.
7 MR. ALOOT: Whether he received a letter?
8 MS. BERNABEI: Yes, or whether I discuss ed whether he 9 received a letter.
10 MR. ALOOT: Let me ask a general question --
11 MS. BERNABEI: You can ask him. I mean, if he wants 12 to tell you, that is fine.
13 MR. ALOOT: Well, I won't ask the question. I have 14 to.make my-own judgments.
l 15 JUDGE HOYT: You feel it was the tone of the
-j.
- j. 16 report -- I do want to see if I am getting you correct on 17 that, so it is repetitive. But I want to be sure I got it in
'l ll 18 my own mind.
<a
- j 19 You feel the tone of OIA's inve.stigation was such f
i
,'. ; 20 that it did not solve the problem of the errant ways of Region I II 21 in the past and indeed would not solve them in the future.
t l 22 It served little purpose, I will put it that way, little 23 purpose?
24 MS. BERNABEI: Well, I don't know if I would say 25 it in quite those words .
4 e
v m -- , - -
e r- - .-,--+-.w-s--,.w, --- --- - - v----- - - ,
. 23 l l .
l .
1 JUDGE HOYT: I hope not.
l 2
,.,&%, 4__ = = - -
nKnhtinRIr,=ledoni_t = ?.thinp,.it wast severe"enough..-
~ - -
.j
........a.,- ..-a .-
3 ;&h'd%@5tMD hE.[TETddressind'yh"at I 'tInderstood' the ' scope 4 4 tgyiggpng3G,tgsjHg'gyg yeasonsifBEDai 'faiItire. D 5
I don't think it did address the reasons for the failure. .
~
D IM M hE S Dt2.h,";,I"il"E* ML geo_n . -
R ..
7 7lQQM 9
! l 8 g y-=--- y 'r A S
. g ,ps.$n,3 art {thaE] Mas'due j 9
g o g ,wa q f gHogt_he3cOgy@iBCre~giori. ,
I 10 i
To say it was better not done, I certainly would 11 not agree with that. I think the focus was -- you know, it 12 was important to focus on the bad Region III investigation.
L 13 But I think it could have been a lot more effective and 14 significant if it had a broader focus and focused on why these
! 15 I hings t occurred.
l 16 JUDGE HOYT: Let me pick up on Mr. Alcot's off-the-3 17 l wall type question and ask you: Could you not really i
! 18 characterize practically any report of another investigation
>Ir 18
[ pretty much in the same way unless it really came out in i
20 l damning terms that would put a real " black hat" on the j 21 o riginal investigator?
2 22 MS. BERNABEI:
I. No because I do not think it is an 23 individual problem. I think it is an NRC problem, and IE 24 problem. That is why I think the Harpster interview is so 25 important, and that is why I think this investigation could have i
2 '4
~
1 been so important because I think the problems at Zimmer and ,
2 the problems at Region III may be endemic to NRC.
3 a ,seyygygyrashattthan..r.eport_co.ul,d-have
.~s.,,s..sm ~ come.out with -
4 -kind n:/.g. i.~ u:.w ..kexamination.6f'iwh'y hot only tha a nd did pot-wamvw ac:.+ ~psu:n ,
4
- WMUWWATM9"tiO,*A.AP.?)*98te,f,,s7;allegTitio68, but ' ' i 6 ,jgAQQ&aryrstrIntMiggggt. intybe dhat0 is'Ihopin'g'*
7 _ ,;i 6 - muefri '
I 8 JUDGE HOYT: Did you say "isn't" an isolated 9 incident?
10 MS. BERNABEI: Is not, and that is wTi.. at'Harpste , e m ..l 11 n sMM .
w,w,n.~
At .. been.
-there? had- in,eff. ectite.'NRC,'nidhitorliig 12 -"
.ankthauafm.
m ~mgm;s,LQ 'Mi; ant-vas'!5%df.Ic~ontroTTa'fidTif in n~ -
jFart"GX.t" f
. x .--- .e-w.
rush' to get4 the 13 g-- yg.n.vnn.;pe1pe,en;IE.'.andciNRR1to' u--
14 pMA u _s @..'suNth@Nihe*cliori effortTtfireh!
-3 15 p d lems ,g i3 l 16 It seems to me that an examination of those things 3
17 could have or should have been the basis for the report.
l !
i 1
- 18 I mean obviously Mr. Applegate's allegations by the time the
't
'! 19 OIA report came out were old. You know,. the three welds i ,
20 are not going to make the plant fall down or stay up. But !
'{ 21 an examination of what was the cause for Region III's bad 1
22 investigation would hopefully lead to an idea of what Region ll 23 .III should do better in the future.
24 I mean, my personal feeling is that, you know, I N don' t 'think Phil is not a good investigator but I don't think l
l
., . _ _ _ _ . . .o s. . , _ , _ -,,
e
- 25
.6 1
the focus of the court should have been on him. I think the
~
2 focus was right but unfortunately it was sort of led off 3 before they got to the conclusions that they got to.
4 JUDGE HOYT: Do you feel the problem has now been 5 solved?
6 MS. BERNABEI: With Zimmer?
7 JUDGE HOYT: Yes.
I 8 MS. BERNABEI: No. I don't think it has been solved 9 at Region III, either.
10 JUDGE HOYT: Well, that was of course the next 11 question. Thank you for the rapid answer.
12 (Laughter) 13 MS. BERNABEI: I mean, one of the reasons for feeling 14 as strongly as we do about the OIA report is that this is an j- 15 opportunity to examine in some detail OIA investigations f ,
j 16 IE. investigation, and Region III investigation- and why it
.i 17 was not done properly. Every indication we have is, that is
(
18 s till the case.
i, 19 JUDGE HOYT: And the I&E investigation at Re.gion III 20 was not done properly because of the standard that it had of 21 its own, that is the investigative manual chapter that was i
1 22 deleted from the report that would have been the standard i 2 against which to test.
24 MS. BERNABEI: Well, it seems to me Region III
, 25 should have figures out back in 1977 and '79 that there was l
h
26 4
1 a QA breakdown in Zimmer and that the utility, not Kaiser -
was responsible. And yet, we get Mr. Kepler saying in 1981 5 2
3 and '82 that the contractor is out of control and CG&E l l 4 does not know what is going on.
5 It seems to meethe.rs-
.- *is~somethin0wrongt;.withTaW t
~
6 investigativaaproceqs;.thatc. takes.*Whatdoirs of a"'pTadEI2nder i ,
1 7 construc&f = htkusemeer!.1SS2*ThenritFbterfN d ht En's'pe'8 i,. u-Y tor- l said thgyatteWYNYW&"flf""JJE_TIEg"'tfEg[lFEe' failure oP '-
~
8 e
9 <ew msv .=*_tr.P.
10 de -- mu safinfTX"thatnhopeful-If0IA copid. ._ .
11 .ha.va =i=" * " 1 & "4ook uwe,bava.p.AasidenA inspector.. ,
12 thattql.Q.ow the 3&t e W tyswasp_ blame-,c_tjigry. yam._a- break-down, 13 4* R.Mi" <=t +-d *ha w Nyt
" - ms&c;X,e~ncrg;,;,,
dMng: its;doERT
- 246 2 m s~n-' -
14 Me2 -- - "2
- havewto-wait
= -- .=thr.*ee
. =u .w,a .s.,;,, ~~ years .:at? Iqan;' thre9
--- -~~- - -
l 15 T198tf40RPti-1. ? ^ fa==4 sic. ..du_ts-thet pidiETd6E an~d"si~yT," /
<<m;; w w ~ c . .x -
6 3
'l 16 "Whativas:M M 3B H Q F* @ ~e'~e"f grs?p _
3 17 +N==M#WMiWilfisifd3have said and'thati i% .
I -
{
18 6dW
)
l 19 JUDGE HOYT: Do you view OIA's mission with the e
f 20 C ommission as an Inspector General-type of operation?
I 21 MS. BERNABEI: Yes, I would say to some extent i-l 22 although I think it is probably a little narrower from what 23 I understand. But in general I think they are the " internal 24 cop" and are supposed to investigate how the offices could 25 do their jobs better.
= _ - _ . _ _ -- , _ . . _ - - .- .. -
o- 27 1 JUDGE HOYT: In your view, if the OIA's " Inspector a
2 General" powers we,re broader, would that have in your opinion
-r 3 probably put an end to the problem in the early months of '81
, 4 when this investigation was going on, and the subsequent 5 report would have focused on that? ,
6 Would that.have been what you would hoped to come 7 out in the August 7th report, if that had been their mission?
8 MS. BERNABEI: Well, I think they had all the 9 authority they needed to come to the conclusions the 10 Commission came to in November'of 1982.
11 In other words, I don't see too much difference 12 in the jurisdiction of a statutory IG and OIA at this time.
13 JUDGE HOYT: Well, then you are assessing the i
14 responsibility to individuals, then.
l 15 MS. BERNABEI: In the sense that I believe different
- j.
ll- 16 people could have come to the right conclusion. I guess 17 that is true.
[
- [ 18 JUDGE HOYT
- You want to name those people?
- j 19 MS. BERNABEI: Well, from what.we know about the OIA
- 20 report it seems to me had a lot to do with 21 the final shape of the OIA report, he took a very directing 22 role .
23 JUDGE HOYT: But would you not expect him to as the 24 Director of the OIA?
26 MS. BERNABEI: That is fine, but I think that he did
, , _ _ . _ _ _ _ . _ _ _ _ , , , , , , - ,, _ - , _ ..,y,,,,,._. ,,,_,-.__, ,_- . ___-,--__y.--- % - - , _ _ - -
,- , - , _ . _ _ - - , _ _ . _ _ - . _ _ . - - _ , - , _ ._,_,m,
+ .
l 28 I .
I a number of things wrong that would cause me -- well, that ;
2 have caused us great concern, AgeAt4pLtcheinarrowid'[the-focus
~.- s 3y - " ' ' ?ited.
4 rTwapnthstiEhe'?-Bifehfrfir.eis'po. nded--
.. - . tepressures
- .. .-. . -.f. rom /
5 gtjeplen to,1,qbang.a.Af.Keportihand/.th'a't 2t@Qngf&.sego me 6
_ good _ inves ti,gagig, practice;yhethe, r%".you'.:aretinv. -. .. -,. .estigating ,
7 thutiJi_hyntractorggr. ;;inve s ticja'tinO p eople ' w'ithin . ,
y - ,. ,
8,,the agenen__to changegngegt,i,ews. and5tisiin; . -:- t.fa'ct change the, 9
_ Ejecut tyn. c"-af yr.s EEM"E- th2t was.-one-cof :ithe most-crucial,%. 9. . ,
~ _ I 10 g%_ _W 11
%bgeg. eyiden tlEQijggjECuniiiifEcfs
- pa s'--
12 4tting.emthephomor shorjQg.afj;:eEhe';*Mai1f.incj.birtpe 13
,.ph%w&_k- ," ;,'M.. .".7Q
-him;'
g Cng-at.2, ,, Q$755tssnoE:seem td me 14 sgJgjgggfMSigajn t obieddv. mweand"di'spasW6rtate., . ,
15 ' repor.t,
. r.. ?;-
l 16 JUDGE HOYT: Was that the conversation that occurred
'3 17 on August 4, is that the one you are referring to?
s t
- l 18 MS. BERNABEI: Right. And then, the other thing I
19 that I would fault him for is in general.he did not appear l 20 to want any public scrutiny of the way OIA or he does his
! 21 job, and I think --
- s j 22 MR. ALOOT: That is understandable.
23 MS. BERNABEI: It was understandable, what has 24 happened. I believe there was a delay in issuance of the 25 OIA report in the sense that it was publishing it in August
I
\ -
. 29 l
~
1 of 1981 and it did not come out until November.
2 Now, I think that the timing of the release of 3 the report -- which I understand he may not be totally 4 responsible for -- but the timing -- ,
8 MR..ALOOT: The OIA report, August report, was 6 not publicly released until November? :
7 MS. BERNABEI: That's right. i i
8 MR. ALOOT: But it was forwarded to the Commission --
.9 MS. BERNABEI: Right.
10 MR. ALOOT: -- at an earlier time.
11 MS. BERNABEI: Right.
12 MR. ALOOT: Is not release a decision on the part 13 of the Commission?
14 MS. BERNABEI: I assume they have, you know, final 15 d etermination. But I think if the OIA director had said, "I
- l 16 believe it should be released, that would be good regulatory 0
practice," could have an influence. I am not sure he did that.
l 17 1
E 18 MR. ALOOT: You have no evidence that Mr. Cummings G
h 19 or any other official in OIA or any other office in the 20 Commission sought to improperly influence the Commission to E 21 decide not to release the report.
I 22 MS. BERNABEI: Not improperly. I mean, all we 23 can judge from is the OIA management attempts not to have 24 any of these materials become public after our FOIA request 25 came in and his manipulations in the FOIA process. That is
m
- 30 1 the only evidence we have. I mean, I don't know of anything -
2 in particular about the release of the report.
3 But I will say when it came out, which was in 4 November 1981, it came out together with -- not together
~
5 with b'ut a short time, I think it was prior to the release of 6 the big IE report, so nobody really looked at it. You know, 7 IE was coming out with their new interim report and they 8 said, "Oh, look, they are doing their job," and no one '
9 really looked to see, are they doing their job?
10 And then we find out, after issuance of these 11 t wo reports, that the problem is even more serious than IE 12 found. And in fact the IE reported that it is really 13 sensitive.
14 So, you know, we were too heavy with the timing l 18 and the release of the OIA report. I can't point any fingers I
l 16 because we don't know, but I think it is in keeping with
]i 17 Mr. Cummings' efforts to keep the materials out of the public
'. 18 domain.
'i j 19 MR. ALOOT: In a proper NRC investigation, properly 2
20 with the proper scope, and within the jurisdiction of the j 21 NRC authority as you understand it, would it have been proper
- t 22 for Region III to investigate Mr. Applegate's allegations, 23 the raffling of guns at Zimmer?
24 MS. BERNABEI: Yes, in a~ sense that I think a 25 licensee should be responsible for physical control of the
L 31 1 site. I think'there are a number of allegations that Mr.
2 APP l egate and others made about illegal activities on site j 3 whibh are not directly he'alth and safety concerns but I believe ,
4 the NRC should be concerned when there are physical activities 5 going on at a site under construction over which the licensee 6 has no control.
i
.7' MR. ALOOT: You feel that if the NRC had conducted l 8 an investigation and determined that, yes indeed "a" gun or 9 several guns had been raffled among the employees, that the
',i 10 NRC would then have the authority and jurisdiction to cite l l
11 the licensee for that conduct?,
4 12 MS. BERNABEI: Well, I don't think it happens in 13 isolation. I think you probably could write up a noncompliance. j 14 MR. ALOOT: Can you identify or have you identified any regulatory provision that the NRC has that would be l is
.3 l 16 violated by that kind of conduct', other than this general 8' 17 feeling that the licensee should be -- or applicant as the a
1 Li 18 case would be -- should be responsible for everything that.
,{.
'[ 19 happens on site? ,
3
! 20 MS. .BERNABEI: I could not cite anything now, but i 21 I am sure I could find something.
's 22 (Laughter)
. 23 MS. BERNABEI: No, I am serious. I don't do 24 inspections, but I --
25 MR. ALOOT: The reason I ask is, the GAP petition l
. . . _ _ . _ . _ . . _ . . _. ~ ,,. - _. . . . .
32 l
1 to the special counsel did cite their interpretation of the 2 NRC's-authority and included such things as the theft of 3 copper wire, 'the making of belt buckles -- :
l 4 MS. BERNABEI: For instance, there was some' 5 safety-grade material 6 MR. ALOOT: -- raffling drugs. ;
7 MS. BERNABEI: You see, I am not as familar as a I should.be with some of the original allegations. But it 9 seems to me that control of safety-grade materials is certainly!
10 within some QA criterion.
. 11 MR. ALOOT: Unless the safety-grade material is 12 ' considered to be waste, that.is possible.
13 MS. BERNABEIT Right. That'is right, but I think 14 the way the allegation worded you would have to do an
) 15 investigation to determinfe vi S ther or not it was.
,I l 16 I am sure tL t . C.c;,js like that would be a violation
'i l' 17 of, you know, certain control procedures and lay-down areas, i
- l. 18 or whatever. I can' t believe they wouldn't be if you had li j' 19 known all the facts.
20 .MRa ALOOT: So you believe that some of these were 21 viewed as not within the NRC jurisdiction with evidence of a
.i.
J 22 breakdown in site security requirements that you believe are El aapplicable as soon as the CP is granted.
24 MS. BERNABEI: Right.
25 MR. ALOOT: That's all.
l
- 33 i J
. i 1 JUDGE HOYT: Let me take you back to the Region III .
2 report, this is November of 1980. Region III's report is out, 3 as you characterized it, heavily censored. You have the OIA 4 investigation that has been completed and transmitted to the 5 Commission on August 7, and that is out at the same time. t.
t
.6 Mr. Devine with Mr. Applegate went to Region III 7 on February 26, 1981 to a meeting. Now, if you had known all 8'
the evil-things that you have described to us about th,e 9 two reports, the OIA investigative report and the Region III [
l 10 investigation, the first investigation -- l l
11 MS. BERNABEI: You are on February 26, 1981? I 12 JUDGE HOYT: 1982.
13 MS. BERNABEI: 1982, okay.
14 JUDGE HOYT: If I said '81, let me correct that to a
5 ~15 '82.
I'
~g 16 MS. BERNABEI: She is right because she said '81
{ rr originally and I was trying to get --
l' 18 JUDGE HOYT: I could check that date to be sure, it I,
- }. 19 is in my desk.
20 MS. BERNABEI: Well, after the issuance of the OIA 21 report, right?
l 22 MR. ALOOT: Was there a meeting with Region III 23 after the OIA issued its report?
24 JUDGE HOYT: Let me check that.
25 MS. BERNABEI: I don't know.
,s '
34 1 JUDGE HOYT: Let's go off the record a minute and ',
4
~
2 let me get that date to be sure just once and for all.
3 (Discussion off the record.)
4 JUDGE HOYT: We will go back on the record.
5 I want to strike all of the above question of this 6 interviewee because I correctly-stated'the date as February f 7 26, 1981. The question I had in mind is not pertinent here !
8 and I have stricken it from the record.
9 MR. ALOOT: Even though it is going to appear in 10 the record.
11 JUDGE HOYT: That's all right.
12 I believe you indicated to us just as we were going 13 back on the record, Ms. Bernabei, you had no idea of any of 14 - the events that occurred at the February 26, 1981 -- underline l 15 "1" -- meeting. So, you can't give us any information about I
l 16 that.
l 17 MS. BERNABEI: That is correct.
s t
l 18 JUDGE HOYT: Were you with the GAP organization f
). 19 at-the time?
e
! 20 MS. BERNABEI: No.
t
'I 21 JUDGE HOYT: No. All right.
i l 22 MR. ALOOT: I have no further questions.
23 JUDGE HOYT: Let me see if _I can pull this out of 24 my hair. Yes, I had only one additional area that I wanted to 25 explore with you, and only briefly, Ms. Bernabei.
^
l I
35 t That is the monitoring responsibility that had 4
2 been, I believe, as you have seen in the interview with Mr.
3 Applegate, in a memorandum that was transmitted to the 4 Chairman on November 16, 1982 which we showed you earlier.
5 In No.' 2 of Mr. Applegate's essential allegations -- as Mr.
6 Malsch characterizes them -- there was an allegation thdt OIA .
7 had failed to monitor properly Region III's activities !
s here, with regard to.the Applegate allegations. .
g I wanted to get your understanding on what i responsibility OIA would have in the organizational structure 10 it of the Nuclear Regulatory Commission to perform such a 12 monitoring function.
13 MS. BERNABEI: Well, let me say first, when I read 14 this I don't remember that the issue was phrared exactly that I 15- way and I guess I would not say OIA had a mon.toring function.
j 16 What I understand that OIA does is that it is doing
- n
[ 17 inspections and audits of individuals or offices. So, I 18 would not expect it has any on-going monitoring function.
i
[ is I believe what was discussed -- regardless of the r
20 words it was put in -- I think what was discussed was, as we 21 talked about the failure of the report to document the cause
.j. 22 db the break-down in Region III's investigative procedures.
23 I would say the other failing that we have not 24 discussed that I think is quite important was that certain 25 Lnterviews conducted by OIA which I believe were some of the most 4
- 36 .
i i .
1 important interviews were not transmitted to IE until a short -
~1 2- time prior to issuance of the November 1981 IE report.
{
3 Those had to do with CG&E and Kaiser management people and
{
4 contained, I think, significant information in terms of 5 CGEE management's role in the QA breakdown and Kaiser 6 Construction pressure on Kaiser QA.
7' I think neither of -those issues were adequately i 8 daressed in the final IE report. And certainly, having those l 9 interviews at a time in writing the report could have aided l
. \ \
10 the report. l l l
11 So, I think that was what was being talked about.
12 As I read Section 2 of the November 16, 1982 memo, I think j 13 that is what they are really talking about, the fact that CG&E l
14 Imanagement had a role, a determining role in QA breakdown at l 15 - Zimmer,. and those interviews would at least suggest that.
l l- 16 The way I read the Gittings interview and some of f 17 the other interviews in that package was that the Kaiser
't 18 Construction had an overbearing role or had some role in V
ll.
!=
19 the Kaiser QA which was improper. That was sort in a l 1m structural way, not in sort of a way particular individuals f
l- 21 didn't understand the criterion of Appendix B. It was in a i
l 22 structural way that that was true.
23 I think neither of those ideas came out in the IE 24 report very clearly. Those interviews would have aided 25 - both those ideas coming out. In fact the IE report, as you
37 t know, allowed Mr. Keppler to tell the Commission that in $
2 fact this was a case of a contractor, that it was out of 4 3- the control of the licensee when in fact CG&E was often-times i 4 determining the staffing of the QA and determining how far 5 Kaiser could go in doing QA, and in fact it was the bad 6 actor.
ll 7 MR. ALOOT: Would your concern be less if the lead !
i 8 Region III investigator, the individual responsible for ,
I
(
g preparing the Region III report, knew of the substance of g
10 all those interviews at the time those interviews wer.
11 conducted?
12 MS. BERNABEI: Knew of the substance?
13 MR. ALOOT: In other words, that OIA investigators 14 had orially briefed the investigator on anything that those 15 People had said.
I' j 16 MS. BERNABEI: I think it is probably a little 8
17 different, and again I would be looking at it in the way I I
18 'vould write a report of this type.
I
.j 19 I believe if you have an interview and you have access l 20 to attach it as an exhibit, and you have used it throughout r.
21 the investigation and the writing, and the revision of the report, 5
l 22 it becomes more of an integral part of the report than it does 23 Af it is something you have orally heard from someone else.
24 Somehow, I think, having it in a written form raises 3 .t to the standards of the other interviews snd the other
+
38 ;
1 investigative materials you are using. So, I think it would a
2 be different.
3 MR. ALOOT: Do you know a James McCarten, or know of 4 a James McCarten?
[ 5 MS. BERNABEI: I think I have heard his name before.
I 6 MR. ALOOT: You have no personal knowledge of him !
i 7 as an investigator.
8 MS. BERNABEI: No, j
9 JUDGE HOYT: May I borrow this just a moment from i 10 you? Thank you.
11 Always the one last question.
l 12 MS. BERNABEI: Sure.
13 JUDGE HOYT: Let me see if I can ask one of the 14 last questions. What would be the significance of interviewing l 15 all witnesses under oath? I mean, that,is just an investi-
.I
- [ 16 gative technique which might be helpful but it certainly cannot
]
- l 17 be said to be magical; do you think?
j 18 MS. BERNABEI: No. You are referring now to the memo?
II
')e 19 JUDGE HOYT: I am referring that to No. 3,.let me I 20 show you that.
21 MS. BERNABEI: Again, Item 3 was not the way I
's l 22 would certainly phrase the issue today.
23- Let me tell you the concern there, and whether it 24 was accurately phoperly phrased at the meeting I can't 25 remember now. I think the concern was that there were possible> !
= , - - - - - ~ , -re-- , e,-> a--e,-p n -me,---.em - ,,.,,,--,~g,x-w---y---n,--,e .,-m-----r---,--asm,-gm-- , , - , , , , . ,
- 1. 39
-1 criminal overtones to the falsification of QA records in ;
2 terms of, this could lead'to a criminal investigation.
3 As we understand it, OIA being the part of the 1
4 agency before the creation of OI that dealt with criminal 5 violations or at least should lead in criminal investigations, 6 was looking into falsification and focusing on Kaiser and ,
l 7 ~CGE management. I 8 Under those circumstances it seemed to me that the 1
9 interviews whould be formal and as formal perhaps transcribed -N
. I lo and they may have been, I can't quite remember whether all 11 of those, Schwiers, Gitting and Oltd were all transcribed 12 Because you are doing a criminal investigation, 13 certain formalities should obtain. The concern, though, 14 was not so much that the statements were not taken under oath,
! 15 the question is whether or not the people could be held to j 16 anything in their statement because of the fact it was not j 17 signed and it was hot under oath, a
i 18 Considering the subsequent lack of progress in the f
l e
19 investigation, that becomes a considerable concern.
I am E
j 20 sure you have heard this from other people, f- 21 The concern was that there were a number of~ interviews 2
l 22 conducted by OIA. Both investigations are to stop in the 23 whole criminal angle and we believe, you know, CIA did not 24 pursue it as vigorously as it should have. And then, when 25 the investigation starts up again, basically a year later in j
J
', 40 1 June of 1982 by the U.S. Attorney, there is some concern that ~,
2 you are working with old information, witnesses know exactly
-3 what you are looking at and you have statements now that are 4 not signed even by the few people you bothered to interview.
5 It seems a very poor way to investigate very serious 6 allegations thac could possibly lead to criminal prosecution. i l
7 I think that was the concern in this whole thing, !
l s that if you are going to say, as OIA did, "We are going to -
l 9 take the lead in this and we are going to take the lead in ;
10 criminatlinvestigations,"doitrightandattachallthefor-l 11 malities, and do it aggressively.
12 MR. ALOOT: Do you think that criminal investigation, 13 the right criminal investigation, always uses signed, sworn 14 s tatements?
! 15 MS. BERNABEI: No. I mean, in fact it does not.
'I
.l 16 Some investigators tell you that sometimes they think it j 17 frightens people. But I think in the circumstance it would I
i$ 18 have been better to do that.
I 19 I think certainly, given what we know later on, I- 20 that the criminal investigation was not pursued and God knows t
2' 21 hwere it is today, if anywhere, that it would have been I
l 22 better to do so.
23 I think there are differing opinions about when 24 and how effective that is.
26 MR. ALOOT: What you are expressing is your
- - - - - , - - , - - - - e---- -- e -ms - - - ~
&-- -c -r- . , - -------x- -, , - , . - - , - - . -m-- - - - - - - - - , , , , , _ , -
. 41 1
1 judgment as to how a good criminal investigation in these .
2 circumstances should have been structured? 2 3 MS. BERNABEI: Right.
4 MR. ALOOT: There is a contrary view.
5 MS. BERNABEI: I understand that, I know that.
6 But let me state also, I think the concern is not 7
so much that one particular statement was not signed and f g taken under oath, the concern is how the whole criminal l l
investigation was --
g l 10 MR. ALOOT: Or was not.
MS. BERNABEI: -- or was not conducted, that is 11 12 right, and especially OIA's role. I am sure you have heard 13 from other people about this sort of " buck passing" -- that is 14 what we can call it because we do not know where the
- l . 15 responsibility lies between OIA and IE, over who was to do the I criminal investigation and what appears to be a sort of l 16 putting off the U.S. Attorney while the NRC did its job.
]'
I g7 Then neither branch that could do it, appeared to do it.
1 18 I
Now we are left, two years later, with not much.--
l 19 1
l 20 an on-going investigation by OIA, excuse me.
r
.j 21 JUDGE HOYT: I'm sorry?
I 22 MS. BERNABEI: An on-going investigation by OIA.
l MR. ALOOT: Like waste storage, you have to project 23 24 out eight-thousand years.
25 MS. BERNABEI: Well, I hope it does not take that long.
s
, 42 g JUDGE HOYT: What do you understand OIA's review -
4 2 function to be, or have you described it pretty much in your 3 previous discussion that you just went through? Is that the 4 way you view the review function?
5 I understood you to say somewhere in that last 6 answer that they had been committed to do something, OIA 7 had been committed to doing something and I want to go back g and see if I can pick up on that with you.
g MS. BERNABEI: Okay. I think while in general OIA 10 conducts discreet investigations or audits, I think --
11 JUDGE HOYT: You are thinking about personnel-types 12 of investigations.
13 MS. BERNABEI: No. No.
14 JUDGE HOYT: Cheating on travel vouchers or something 15 like that.
5 16 MS. BERNABEI: I assume they do that too. My 17 understanding is they do that too.
- 18 But what I meant is, although they conduct
- l
- i 19 investigations into particular issues or problems, or poor 20 investigations come to their attention, I think it is their
- j 21 responsibility within those investigations and audits to find
.i
- ! 22 out if there are root causes for the poor investigation.
23 That is in a sense what we are saying they should have done 24 on Zimmer.
26 % W2. it} y,- j p g a y d~R{g,ilok Iii investir ,
v
+
~ -
- 43 1 gationI;itiwasIL T Wglod[Iif investigation.,that.did..notJfind
- 2 8'.ggis21ish...--M =-*e.E5'67.97and' *' :, A_L . '
3 tb74 ga.#r=E-- '" -
^~
4 @ i - L u'uxdown) in :-t3FaiNegio,nal .,
% ms 5 Db W # M sif MAT M I N tM55~tsd2in:looking a.t, I
6 yi-?, ;a.mhthink-tcvsomE'36 Ware. finA % &h2t .in !
.m - _ .~__.m.-- , - . , .
7 otnef.pInGTTIsfr"'ftniN_orr-Trr! !
8 If mayb'e OIA had taken a>look at it and said, " Gee, I
9 'what happened in this case, is there a root casue for this l l
10 bad investigation," it could have helped down the road . '
11 What I am saying is, they should be able to get 12 the root causes from a specific investigation, it seems to me.
13 It seems to me more than describing it as a monitoring 14 function, it is more sort of a review of an office to see
$ 15 whether it is performing adequately.
<4 l 16 MR. ALOOT: So -- let me see if I understand you --
based on what you told us in the last hour is, the OIA report f 17 1
l 18 of August of 1981 identified the problem but never touched on I 1 h 19 the cause -- the problem being, the first investigation of !
- l I 20 Zimmer was bad. i e
21 : I think I would phrase it a little
{
1
~
l 22 differantly. e d
. When nm.m + hay. 3 fqua.g, y---problatas E~s.Tafticular. --
. . - . .. . 3 a
23 i, gseticS.Anstoad..or.goXnfo~nSan i saying, ~"i'he problems
,- is-th.i" 4"-=tigationNiiraiTuhd3y some iendemic problems 7
24 25 iMI1DegIon IIY' infeli't'igativesprogr,am'*-- _
- -. -,,-- , _ , , , , , , - ~ - - - , - - . - , - - - - - , , - , ,, ,,-a,.-----, . -- , - . -
44 !
I l l 1 MR. ALOOT: Or that we have a bad investigator, or -- !
! 2 2 MS. BERNABEI: Whatever --
3 MR. ALOOT: Whatever the problem would have been. ,
i 1 4 MS. BERNABEI: Right. Obviously we have our
? !
! l
} !
5 conclusions now what the deal was. But I mean if that is what !
6 they concluded, that would be fine.
7 MR. ALOOT: It didn't go far enough.
8 MS. BERNABEI: Well, I think its focus was wrong.
I g
I mean it is sort of like, you know, you are telling the i i
10 utilities, the NRC tells the utilities that they should find :
11 a root cause.in engineering problems in plant. I think OIA 12 has much the same function in terms of the NRC,.theggshould 13 b@difiip.~the f 'rooricauseEi%artic kp, agig.s, 14 jr ,tha.gengy,3&ps,eiff6rTMNT itet problems, anspecially Il 15 ehen you are seeing QA breakdowns around the country in
{ 16 t ilfferent plants and apparent NRC ine. ectiveness in light of
!! 17 his.
- i
i !
18 l
It seems to me it would be real concerned about
\
l; 1g dinding out why is this happening.
20 JUDGE HOYT:
{ And you would attribute it to a poor 21 i nvestigative effort and techniques used in Retion III where you
'i
! 22 have been focusing your efforts?
23 MS. BERNABEI: I think it has to do with more than that.
24 4s:Behescrords;- sogd{t}ie,.thlEfs7bh JT_ 7F of 26 KhP eWfe"F,'Fth66gh'tFWre: werej; instructive r - Part o'f
45 1
wit.,,has.to,.,dogw,@,cthe.A a ent tensi'on within.the Nuclear .
2 . Segula'ti6E65S5!I.Ulon95T-iet f thef.'plahtaFIi~ censed fast. ' g 3 MR. ALOOT: That is not limited to Region III; is it?
4 MS. BERNABEI: No. That is right. That is right.
5 I di not limit it to Region III. There is the., tension between s.- au. ,.r.: . ,
6 the feeling or responsibilijty, yougggo etga,gs, ,, ,
7 licanee&-f, _1;pgM78Ma~49ME.and. ensure-Eh'e public h% -- ~
8 -
h ____
g I think the only way -- I think there has to be a 10 real hard look at that to determine how would you sort of 11 resolve this tension, and hopefully in the interest of the 12 public health and safety.
13 So I think -- I mean, I am not saying Region III 14 alone has these problems, but I think that is what OIA should
[ 15 be looking at, why are there not only problems in Region III l 16 but all over the country.
'S 17 For instance, I can give you an example from Midland, o
I e
is and the inspectors on site have identified this for a long j gg time. This is exactly what Harpster said in his interview.
I 20 He said what Consumers Power has done at Midland is go to the a
{ 21 party in the NRC that will get it what it wants, and then s
22 create a division and deviciveness between.the different 23 affices at NRC, usually between NRR and IE, in an attempt to 24 circumvent requirements that one branch of the NRC will put on 25 them. That that is a bad attitude and led to bad construction
46
~
g and poor quality practices. -
2 Now, that is exactly what Harpster was saying in 2 3 the more general sense and in a different sense in Zimmer; 4
but that is exactly what he said.
3 It seems to me IE could look at that and say, "Well, e
look, what can we do to create better relations or more fruitful 7 relations between those two of fices" such that you do not get l a a Zimmer. -
f
, MR. ALOOT: Do you believe the creation of the 10 Office of Investigations solved some of these problems?
. gg MS. BERNABEI: Well, all I can tell you is - */
12
'will tell you my personal viewpoint, and I think if you talk 13 to other people you will get different answers or slightly g4 different answers.
is I cannot see any way in which it helped, and in fact gg from our experience -- my experierice with it has not been so 17 great. We have:an OI inv4stigation going on in Palo Verde l
! gg where it is obvious that the utility had advance knowledge i
g, of the investigation.
f.
g We have an OI investigator who apparently is destroying drafts of reports of another investigation in 21 i
t g California.
g We have in Midland an oI investigator who was y working for Region III at the time he came out with one of g his reports but says he cannot draw any conclusion who, from i
47 >
I a cursory reading of the report, didnotdoagoodinvestigation.)
2 2
In Zimmer we do not know what is going on, it basically is 3 an on-going OI investigation.
4 Well, I and I think Tom Devine as well have great 5 respect for John Sinclair and Dave Gamble also for their 6 work in the OIA investigation, and have not seen any results, 7 and it han been a while.
s So, I cannot see that that office has fulfilled any I I
9 of the hopes and promises that were made. In effect, it seems 10 like things are getting bottle-necked there, it does not 11 seem like things are happening.
12 JUDGE HOYT: Ms. Bernabei, are you saying that this 13 ccmmission in ar.y of its investigative functions is J.ncapable 14 of performing an investigation which would pass your muster?
l 15 MS. BERNABEI: Well; I hope not.
I l 16 JUDGE HOYT: Well, that wasn't my question. I am -
1 f 17 not asking for your hopes, I am asking for your opinion.
I 18 MS. BERNABEI: Well, whac you are saying is, do I I
l 19 believe that it could do a good investigation?
f 20 JUDGE HOYT: I will repeat it the way I phrased it.
! 21 c nep_m 22 gv-_ _ rapygepu==ts"M*N= heel [-peeshb[mhs eh?
23 6 ,ttrat,.m- i 24 u-e..C *a-= 4 9 . .* . - <.
s .r - that is my personal 25 f eeling - - igz= ^*= .es.p*=6 =H L' G'Mn .
That is my e
i -
48 1 personal opinion.
2 JUDGE HOYT: Why do you make that? That'is a very 3 sweeping allegation. If you will please back it up for me.
4 *' U t D U grg = T-N id M kehav E to go_r.-11 3 5 g A ~ N*NMifF"'EBM=wm15'sE'>Ylimn'erKfI do 6 not see that as very promising in terms of making --
l 7 JUDGE HOYT: That was two years ago now and every- I
! 8 one changes a little bit; don't you think?
V!4bL%
. +
11 12 JUDGE HOYT: That is what I wanted.
l 13 He not only- defended, 4 M Sth_e A 14 ( MMY?"Neeme-thingdf-ibgccurxed again. I think wc -,y j
i 15 that is pretty instructive.
I l 16 He said that he would delete the Harpster interview; O
i
- 17 that he would maybe pass it on to OI. But my reading of I
18 everything he said is that he would not do anything different
( Iin
') 19 today than he did back then, including any of the FOIA i
j 20 procedures.
t 21 I asked him that question. I said, do you think 3
5 l, 22 that you would handle this request differently today, and he 23 ,said, no. He said Harpster was a mistake, he probably should 24 have given that out but everything else, no.
25 Now to me, my reading of the evidence in this case
1 2 49 i
~
1 shows that someone was told to take home documents, and I
-1
~
2 would be alarmed by that if I was a manager such as he is. He~
3 is not alarmed. In fact, he says that he believes that was 4 okay. That is the way I read the deposition. I do not think 5 that is the kind of person we want in charge of OIA.
6 JUDGE HOYT: Anything else?
7 MS. BERNABEI: Let me really just state for the !
i 8 record, I am not saying this in a personal sense at all, and 9 I think'-- .
10 JUDGE HOYT: Oh, no.
11 Mr. Cummings is a very personabic 12 man and I do not have anything against him personally. I','fus.t;
~%s g .
t--
=t=te inr+h* otigina1 14 g,semem .,_wgastygir,mer 15 with* M M 5-f tr6t@ep@girryr to- ,,
16 Tho w # , #^
-- NAMbN$ $[t thAE -W- exhibited.pgor,,,,,4
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f 17 l.Pr ~9 +"" "^ f " "
- 4 Ear 1
8 18 JUDGE HOYT: Do you know Mr. Cummings' background, I
h 19 he is an auditor?
! 20 MS. BERNABEI: I have heard that is true, yes.
I 2 21 JUDGE HOYT: Would you in your opinion think that i
22 a person whose qualifications are somewhat different -- and 23 by "someone" I mean 180 degrees different, a trained, 24 investigative, inquiring legal mind would be a better selectior 25 for a position of that type, which is the Director of OIA?
4
4 50 t MS. BERNABEI: I think that would help.
2 JUDGE HOYT: You don't offer us much hope, do you, 3 Ms. Bernabei?
m.m~.- 7 T=-w ';~~ ,
.. . .. y: ~ :suirira staLui.w.y ZG.-wou$d--be#
4 MSuiB&BMABBFr I
- r - m =::?.
5 batter le-the l segsWe -aitewou .. .
M. :: -m . -t *'toep'en' dent. ,
6 MR. ALOOT: Appointed by thes President?
l 7 MS. BERNABEI: Appointed by the President. !
8 MR. ALOOT: Subject to having the morals of a junk-9 yard dog? -
10 MS. BERNABEI: I tell you, we are not real happy 11 with all the 3Gs. But I would say structurally I think it 12 would be better, it is a better structure. I mean, if you 13 get somebody appointed by the President, that requires somebody g4 with certain experience.
l 15 MR. ALOOT: You do know that Mr. Cummings -- just to
'I l 16 balance out the record -- that Mr. Cummings was an FBI agent?
'3 17 MS. BERNABEI: Yes, I know that. That was one of
. s I
i 18 the facts I was going to mention.
I j Ig JUDGE HOYT: And I think he also had some investi-l 20 gative function as a bank examiner.
f
.i 21 MR. ALOOT: And he was also a Deputy IG at NASA.
i l 22 MS. BERNABEI: Again, you know, it is nothing 23 personally against him. I am sure his background, ycu know, 24 makes him qualified. .
25 I just have not seen, in my opinion, adequate
I 51
~
t respect for the stringencies and rules of the laws, especially .
l 2 in the FOIA procedures. .
3 I mean, I was fairly shocked -- and that is no 4
secret -- when he said he would handle it the same today as 5 he handled it back then. I think that is shocking, especially 6 in light of Judge' Hogan's opinion which, I think, he should i I
7 take real seriously and the NRC should take seriously. !
t e
I don' t think you want people, you know, running.
g an office of that sensitivity and seriousness, you know, that to maybe don't understand the seriousness of laws -- whether it it be the Freedom of Information Act or criminal laws. ,
12 JUDGE HOYT: One of my last questions.
13 I will say to you, Ms. Bernabei, that I do not know 14 of any investigation that I&E performed on Mr. Appelgate
! 15 personally, and Mr. Appelgate did not point .out one to us at 0
[ 16 the meeting with Mr. Malsch in November of ' 82.
8 17 Do you know of any resources that were devoted by
'g 13 I&E to investigate Applegate?
I j gg. MS. BERNABEI: I tell you, I don't know personally.
5 I was at the meeting and I did hear, and I had discussed c 20 I
i 21 with him at a prior time that there had been some investigatier, 7
22 of him by IE, that is talking to his land-lady and things of g that sort.
24 I don't know any of the details or substantiation 26 for that. Probably the best person to talk to would either be
1 52
~
1 Applegate or Devine. I just do not know anything about that ,
2 other t'an h what I heard at the interview and conversations 3 with Tom Applegate. l l
4 JUDGE HOYT: Do you have any questions of us before i 1
5 you leave. Des. Bernabei? !
l 6 AS. BERNABEI: Yes.
7 JUDGE HOYT: I thought you did. I i
8 MS. BERNABEI: What kind of report are you going to 9 come out sith?
10 (Laughter) 11 MS. BERNABEI: What are you doing after interviewing 12 everyone?
13 MR. ALOOT: Nobody is going to be editing our 14 report.
15 (Laughter) 16 JUDGE HOYT: We have, as you will see in the charter, 9 17 Ms. Bernabei, we were given the responsibility to perform an 8
18 investigation now. We have conducted, as you obviously know to by now, at least one or two interviews with your and Mr. Devine, so and there are others, of course.
i! 21 Of course, the report will be written from a variety
[0 Et of materials that we have hopefully absorbed. Our findings 23 then, our recommendation, will be transmitted in accordance 24 with the direction of the Chairman of this Commission to the 2s commission. Its subsequent transmittal will be the prerogative
i 53 1 of the Chairman and his associates in releasing it. ;
I 2 If you question is what would the content of it be, s
.3 Practially everything we have heard in these weeks that we
-4 have conducted the investigation. Obviously, it has been 6 some time _ since the office charter was May 6.
6 MS. BERNABEI: And what kind of action can you 7 imagine the Commission would take?
3 JUDGE HOYT: Ms. Bernabei, I would have to have a
~
p very, very good crystal ball, and I don't possess one.
to (Laughter) 11 MS. BERNABEI: Right. So, there is not any 12 indication of the options for action. I guess that would 13 basically depend on what --
14 JUDGE HOYT: That is the prerogative of the
$ 15 Commission and I certainly would not try to speak for the l' Commission in that context.
l- 16
'3 17 MS. BERNABEI: Will we -- I mean the interviewees --
l 18 be allowed to see copies of the report?
I j 13 JUDGE HOYT: The disposition of the report will be l 30 made, the determination of that will be by the Commission a
l' 21 itself.
i l gg MR. ALOOT: Each individual interviwee, to the 23 extent he or she desires, will be allowed to review their i 24 statement.
26 JUDGE HOYT: I think we have Mr. Devine's ready now. i
- i 54
-o 1 No, let me retract that. I was thinking that his was one ,
2 that had been recorded by a reporter, but it was not. But 3 yours will be and it will probchly be ready tomorrow.
4 MR. ALOOT: Perhaps Mr. Devine's also.
5 JUDGE HOYT: Mr. Devine's also will probably be 6 ready and you may have them at that time to review, if you wish.
7 You have so indicated, and we will see that you get them. l 8 MS. BERNABEI: Okay, fine. l l
9 MR. ALOOT: As I say, whether it is a public
- 10 report or not --
11 JUDGE HOYT: Th&t is up to the Cotamission. No one 12 will tear it from me, and I will not retain any copies of 13 it, it will all be given to the Commission. Let me get that 14 up front.
l 15 MR. ALOOT: No notice here for a deposition.
i l 16 (Laughter) 17 JUDGE HOYT: I am not a good deposition subject.
f 1
l 18 MS. BERNABEI: By this time it will be the I
) 19 investigation of the investigation, of the investigation.
20 MR. ALOOT: It would not be surprising if there lI 21 is an investigation of this investigation.
'I l 22 MS. BERNABEI: Very true. Well, hopefully not.
tl JUDGE HOYT: If it is, that is again without our 24 control, obviously.
26 MS. BE RNABEI Maybe one thing I just should make
r.
3[ ,
55 ;
1 clear in the record. I mean, any comments I made are not ,
2 directed to Mr. Cummings personally. I have always found 3 him --
4 MR. ALOOT: You bear no animosity towards him.
8 MB. BERNABEI: Well, no. I am sure that he has 6 good. reasons for doing what he has done in terms of the OIA 7 report and the subsequent FOIA action.
I 8 .I just do not think that what he has done in terms 9 of the DIA~ report' and*the subsequent FOIA request and the i 10 subsequent FOIA litigation indicate that he is not the best 11~ person to have as Director of OIA.
12 That is again my personal opinion, it is.not an is organization opinion, and it is based on basically what I 14 g ,52ve learned through the FOIA litigation and comparison of l 18 the OIA report.
.j' l 16 So, I just want to make it clear that I have nothing I think maybe that did not come clear
'l
) 17 against him personally.
18 when I answered your previous questions.
.[.
l 19 JUDGE HOYT: Organization opinion as opposed to 2
to personal opinion, the organization being GAP.
~
- 21 MS. BERNABEI: That is right.
- s l 22 JUDGE HOYT: Fine.
I 23 MR. ALOOT: Does GAP have an official position?
24 JUDGE HOYT: Can I retrieve that from you?
26 MS. BERNABEI Oh, I am sorry.
.- . - - - - ._. . __ . - . = _ - -
'g'.
. 56 .
7 g JUDGE HOYT: Thank you. -
.. j 5
2 -MS. BERNABEI: Could we also get a copy of that, would 3 that be okay?
4 JUDGE HOYT: I will give you a copy of this very 5 ' easily.
I e MS. BERNABEI: If you have already given it to Tom, 7 there is no problem. !
g' JUDGE HOYT: No, I do not think we gave him a copy
,~ of that.
10 MR. ALOOT: To be honest with you, what we were 11 doing was showing this document to people.
12 MS. BERNABEI: Okay.
13 JUDGE HOYT: We have been using it for the purpose 14 of refreshing their recollection of certain events and how
- l. gg ,
these events fitted in.
~! I will be happy to give you a copy of the
-l la 3 ty memorandum to us, which is our charter; if you would like that .
o gg MS. BERNABEI: Sure.
I ij gg JUDGE HOYT: Do we have anything else, Ms. Bernabei?
g r g MS. BERNABEI: No.
E
~
21 JUDGE HOYT: Very well, that will conclude the .
interview with Ms. Lynne Bernabei, and we thank you very much.
- l .
n g MS. BERNABEI: Thank you.
24 (Whereupon, at 12:25 P.m. the interview in the
, y above-entitled matter was adjourned.)
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s', I C,E RT :: - -n . :. OF PROCTEO:::33 i -
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4 3
This is to certify that the attached proceedings before the
, ::RC CO:Ct:55 ION r-s In the matter of: Interview of Lynne Bernabei o Date of Proceeding: Wednesday, June 15, 1983 7 Place of Proceeding: Washington, D.C.
, were held as herein appears, and that this is the original
, transcript for the file of the commission. -
to
,, Elizabeth Hansen official Reporter - Typed it
't3 [
Official Reporter - Signature is-is i7 to ls 20 ,
at 22 23 ,
4 24 l 23 TAYLCE A550CIAft5 naciststeam peorassioNAL mtpomvens NoRFoLM. VIRGINIA
.