ML20195G081
| ML20195G081 | |
| Person / Time | |
|---|---|
| Issue date: | 04/28/1987 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Glenn J SENATE, GOVERNMENTAL AFFAIRS |
| Shared Package | |
| ML20195G077 | List: |
| References | |
| NUDOCS 8705070135 | |
| Download: ML20195G081 (27) | |
Text
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.? fei' UNITED STATES
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NUCLEAR REGULATORY COMMISSION l
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l WASHINGTON, D, C. 20%6 4
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APR 2 81587
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The Honorable John Glenn, Chairman Comittee on Governmental Affairs United States Senate Washington, DC 20510
Dear Chaiman Glenn:
During the course of your Comittee's April 9 hearing you offered me the opportunity to provide a written response to a number of issues raised by I will appreciate your consideration
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witnesses who testified at that timo.
of my coments because the charges already on the record cannot be evaluated fairly in the absence of a response.
I do not believe any organization is perfect.
Mistakes are made and from time to time errers in judgment occur.
Put to cause such issues to reflect on the entire staff of the NRC is fundamentally wrong.
I am convinced that the NRC staff includes the nrost knowledgeable and professional experts on nuclear safety to be found anywhere in the world.
The staff is dedicated to essentially the single mandata of protecting the health and safety of the public.
I am confident that my response, which includes issues raised regarding certain staff actions, will resolve these issues to your satisfaction.
My sworn and notarized response is enclosed and is respectfully submitted for the Comittee's record.
In this regard, I am disappointed that my ability to provide more complete information for the record has been inhibited by the decision to limit access by my staff to deposition transcripts which the Comittee intendt to make public anyway.
The restricted transcripts are returned herewith.
Sincerely,
./
- C' llo, J /j Executive DirectV for Operations
Enclosures:
1.
Written Statement and Detailed Appendix 2.
Depositions of Hayes and Mulley cc:
Sen. William V. Roth, Jr.
l (97 o s o,o i 3 sie 17 pp.
j 1
SP 3 517 April 28, 1987 The Honorable John Glenn, Chairman Committee on Governmental Affairs United States Senate Washington, D C 20510
Dear Chairman Glenn:
During the course of your Committee's April 9 hearing you offered me the opportunity to provide a written response to a number of issues raised by witnesses who testified at that time.
I will appreciate your consideration of my comments because the charges already on the record cannot be evaluated fairly in the absence of a response.
I do not believe any organization is perfect.
Mistakes are made and from time to time errors in judgment occur.
But to cause such issues to reflect on the entire staff of the N R C is fundamentally wrong.
I am convinced that the NRC staff includes the most knowledgea ble and professional ex perts on nuclear safety to be found anywhere in the world.
The staff is dedicated to essentially the single mandate of protecting the health and safety of the public.
I am confident that my response, which inclu des issues raised regarding certain staff 6ctions, will resolve these issues to your satisfaction.
My sworn and notarized response is enclosed and is respectfully submitted for the Committee's record.
In this regard, I am disappointed that my ability to provide more complete information for the record has been inhibited by the decision to limit access by my staff to deposition transcripts which the Committee intends to make public anyway.
The restricted transcripts are returned heriwith.
Sincerely, Victor Stello, Jr.
Executive Director for Operations
Enclosures:
1.
Written Statement and Detailed Appendix 2.
Depositions of Hayes and Mulley DIS T RIB U T!O N :
W 0lmstea d/chron EDO JHurray/chron (2)
OCA V Stello OGC R/F W Parler N R C Central Files PDR EDO 2746 cc:
Sen. William V. Roth, Jr.
OK :
EDO NAME :VStello:dp DATE :04/
/87
1 I, Victor Stello, Jr., hereby swear that the statements 'in my "Written Statement Before the Senate Committee on Government Affairs" dated April 28,
)
1987 and the statements in the "Detailed Appendix to Written Statement" attached thereto are true and correct to the best of my knowledge and belief,
- g s
.s.
ctorSt611o,J Executive Director for Operations i
Subscribed and Sworn before me this 28th day of April,1987, at Bethesda, Maryland 1
Notary Public
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WRITTEN STATEMENT OF VICTOR STELLO, JR.,
EXECUTIVE DIRECTOR FOR OPERATIONS US NUCLEAR REGULATORY COMMISSION BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS APRIL 28, 1987 i
On April 9,1987, the U.'S. Sehate' Com51ttee on Governmental Affairs conducted a hearing on "The Need for an Inspector General at the NRC."
During that hearing three NRC employees. and a former Department of Justice attorney made a number of allegations concerning me personally and the activities of the NRC Senator Glenn invited me to respond in detail to the staff reporting to me.
Comittee after I had had an opportunity to review the record.
I believe a perspective concerning the relationships and responsibilities of three Comission offices
-- the Executive Director for Operations (EDO), the Office of Inspector and Auditor (OIA), and the Office of Investigations (01)
-- is required.
I have three observations derived from the testimony before the Comittee which I will discuss in some detail.
First, it is clear that 01, OIA, and the EDO and their respective staffs have not been working well together. Those relationships must improve.
Second, there is a reluctance among some agency employees to report allegations of internal misconduct to OIA or to use the agency differing professional opinion process.
Third, it is perceived by many of the NRC staff that O! places excessive emphasis on criminal matters as a first priority rather than obtaining information to permit the agency tn carry out its safety mandate, while at the same t'ime OI perceives that the staff does not sufficiently support investigations of wrongdoing.
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l President's Commission on the Three Mile Island Accident (Kemeny The Comission) stated, "The huge bureaucracy under the comissioners is highly compartmentalized with insufficient communication among the major offices."
(overview p.
- 21) The Comission's Special Inquiry Group (Rogovin) in its Conclusions and Recomendations on Safety Management Factors (p.
1239) recomended that the NRC "Examine and modify the NRC organization as required to... assure that safety is implicit in the functions of all offices." (p.
i 1241) As Chairman Zech pointed out at the hearing (Tr.,73), the NRC has many independent offices, comittees, and investigatory units and it is difficult to get all these independent bodies to focus on the agency's primary safety In spite of every major management study of the NRC recomending a mission.
single administrator, it is clear that Congress has not been willing to establish a form of organization that would enhance NRC's ability to effec-Recent efforts to tively focus and carry out the agency's safety mandate.
improve the organization of the staff offices reporting to the EDO reflect the The Comission's resolve to strengthen NRC's attention to its safety mission.
investigatory mission which ensures the integrity of staff and ifcensee The organizational structure of performance also.is important and necessary.
the investigatory functions, however, makes it difficult to prioritize and focus on matters which are of greatest importance to achieving the safety mission.
I need to digress for a moment to explain more fully the basis for my state-The ob-ment regarding the impact of your proposed legislation Tr. (168-9).
servations already noted and issues I will present later suggest to me that the language of the proposed legislation would put further emphasis on the Such em-isolation, independence and criminal aspects of OI investigctions.
phasis would serve to make resolution of the canagement problems we now face I am even more difficult. More tn the point, it would result in less safety.
Better working relationships have firnly convinced this need not happen.
recently been achieved between 1:RC and D0J.
Increased vanagement attention to, the underlying issues will foster increased understanding by OI and EDO staffs l
of each others' responsibilities and sharpen everyone's focus on the agency's 1
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This is a fundamental mandate to protect the health and safety of the public.
l management challenge.
Decreasing the Comission's management significant latitude, which I believe the proposed legislation with respect to 0I will do, will only compound the problem.
One final point in this regard: day to day safety oversight of facilities is an operational responsibility delegated to It is vital that safety issues investigated by 01 the EDO and staff offices.
be efficiently and effectively integrated into the day to day operations.
The reluctance of some employees to ho to OIA for fear of retaliation and damage to their professional careers is not a new problem in this or other The Comission has put in place "open door" procedures, a differing agencies.
professional opinion process, and has repeatedly informed employees of their right to go to OIA in confidence.
The Rogovin report suggested an agency "ombudsman" for employees who wish to have their safety concerns pursued without risk to their professional career.
If an independent IG could overcome the perception that "whistle blowing" is dangerous to one's career no matter how significant the safety concern the employee may have, I would endorse it without hesitation.
Whatever mechanism is decided upon, however, should not excuse anyone (the IG, the employee, or line management) from ensuring that the agency's senior responsible safety officials are fully rmed at the earliest opportunity of the management issues which could in'c affect the safety mission of the agency.
The principal allegations concerning the EDO and his staff made by witnesses before this comittee involved the agency's investigative function of licensee activities rather than its inspector general function.
Even the allegations related to NRC employee misconduct were related to "interference" with the investigative function.
Since the inception of the Atomic Energy Conniission, through the creation of the NRC and continuing until the present, an important tool used to fulfill the Comission's paramount responsibility to protect the public health and safety has been the inspection of licensees and their cctivities. While inspections identify violations of regulatory requirements, thus enabling prompt and effective enforcement action, the single most
important purpose of inspections, whether nr not a violation of requirements is identified, has been, is, and always will be the identification of safety issues so that appropriate actions can be taken to resolve them.
The individuals who are best quelified to perform this important function have education, training, experience, and knowledge which is primarily technical in nature.
Historically, these. technical
. inspectors occasionally encountered circumstances which involve wrongdoing and which could.have affected safety.
The technical inspectors,
- however, lacked investigatory training and competence to pursue deliberate licensee wrongdoing.
Therefore, trained investigators were hired to assist the inspectors in performing the primary functions of identifying and resolving safety issues.
As the number of This licensees increased there was more frequent need for such assistance.
led to hiring more investigators and eventually to the creation of OI as a separate organization.
More importantly, it was recognized that the qu611ty and, thoroughness of investigations needed substantial improvement.
OI is comprised of individuals whose background, training, experience and interest is in perfecting criminal investigations.
As professionals in that line of work, OI personnel are naturally oriented to obtaining information necessary to prosecute and convict individuals rather than being oriented to providing I
assistance in obtaining safety information for making regulatory decisions.
fully recognize the importance and deterrent effect that criminal investigations, referrals, prosecutions and convictions can have.
I fully I have consistently urged early referral of such support that deterrence.
matters to DOJ.
However, in my view the primary mission of OI and its focus That must be first on obtaining information to make regulatory decisions.
information can then be used to support the criminal process under the supervision and direction of 00J.
Problems which developed between 01, ar.d the EDO staff offices stem from a failure to accept the identification and :orrection cf safety problems as the primary focus of this agency.
That focus demands that OI and the EDO offices 1
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work closely together and share whatever information there is which could Should 01 fail to provide the staff with information affect safety decisions.
needed to make safety judgments and decisions, the staff cannot effectively discharge its responsibilities.
It should be noted in this regard that the director of 01 is not authorized to take necessary actions to correct safety problems;
- rather, his responsibility is to relay any safety-related information to the staff promptly.
Many of the concerns raised by Mr. Hayes involve matters which predate actions t6 ken by the Comission to. reorganize and refocus agency offices on the safety Earlier problems should not be mixed with whatever problems may mission.
If a safety issue is identified during an investigation. 01 exist todcy.
field investigators tend to provide the staff with such information pronptly.
For example. OI efforts have been helpful in achieving the safety mission of the agency in cases such as Radiation Technology, Wright Patterson Air Force Base, Bloomington Hospital Mercy Hospital, Peach Bottom American Testing, and Advanced Medical.
The in"omation from 01 permitted the agency to act promptly, frequently without waiting for the completion of the investigation There are also examples of cases where the technical staff provided report.
technical assistance to DOJ during its investipations and grand jury inquiries relating to cases referred to 00J by OI such as: TMI, Zimmer, D.C. Cook, Advanced Medical and International Neutronics.
Close wnrking relationships in these cases proved effective in discharging the agency's safety mission and helped to foster a better understanding and appreciation of the functions of In contrast, when the results of an investigation were needed 01 and staff.
to decide what regulatory action was necessary, delcys in the release of investigatory reports created tension and frustration for both OI and technical staff officers.
In my view, the fundamental reason for this latter problem was the undue enphasis on independence of the investigative function.
Examples of cases in which this occurred are Ferni, Sequoyah Fuels and the TMI The OIA Comanche Peak investigation, as explained, was of polar Crane issue.
special concern to me fron a ranagement perspective.
In my view, the agency's investigatory am should not have its prinary role defined as building a criminal case rather than developing safety infomation for those in the agency who need it to effectively discharge their duties.
The Chairman has made it clear to the directors of 01, 01A and the EDO that each has responsibilities and sufficient latitude to do their respective jobs.
Because the EDO offices have the responsibility to act on safety matters, iny desire and that of my staff to be promptly informed may be viewed by Of and DIA as "pressure to complete.an investigation".
Such perceptions are unfor-tunate but may be inherent in the conflict between the desire to make prompt safety decisions and the need to conduct a
thorough and complete I address this issue further in the Appendix. When management investigation.
or safety information is involved. OI and OIA are clearly required to pursue such information on a priority basis in order to ensure that I receive it as soon as possible in order to act in an infomed and timely manner.
Concentrating on any area of difficulty can have a tendency to exaggerate its Such is the case, I believe, with the' testimony before this significance.
The fact is that we Committee on the 01 function - including my own coments.
are well aware of the problem.
The Comission and all of its senior man-agement are comitted to its resolution.
Indeed, while we have made mistakes in the past, recent indications from the.00J suggest that matters are getting investigations are accomplished jointly with the technical better.
When staff, the results are readily accepted, regulatory action is accomplished promptly and feelings of contributing to the agency mission and job satisfaction are readily apparent.
DETAILED APPENDIX TO VRITTEN STATEMENT OF VICTOR STELLO, JR.
EXECUTIVE DIRECTOR FOR OPERATIONS Testimony of witnesses presented by the Connittee and its staff on April 9, 1987, asserted or suggested the following improper actions on my part or on the part of NRC staff reporting to me and for whom I am fully accountable and responsible.
In general.those. witnesses have asserted that:
- I [we] are opposed to, c at least soft on, criminal prosecutions in the nuclear industry; designed to frustrate successful criminal
'- I [we] engaged in action:
prosecutions;
- I [we) are "too cozy" with the licensees we regulate as demonstrated by:
- my telephone call with Mr. White of TVA
- attempts to control 01's investigations
- tipping licensees to OI investigations;
- I put pressure on OIA to complete an investigation.
I believe these charges, generally, reflect a misunderstanding of the agency's For principal obligation to protect and promote public health and safety.
that reason and also because the charges impugn my personal reputation ard performance, I have prepared this response for the record.
While the NRC has I am ne'ither opposed to nor sof t on criminal prosecutions.
an obligation not to obstruct a 00J criminal investigation, that obligation
... include a presumed duty on the part of NRC to conduct criminal does not investigations either on its own or at the demand of D0J for purposes unrelated to its safety mission. Therein is the problem, particularly because of the large backlog of pending O! investigations, the results of which are needed to resolve safety issues in a number of cases. Both Mr. Hayes and Mr.
It is, perhaps, Greenspun have criminal investigator / prosecutor backgrounds.
understandable that, given a lack of technical backgrounds, Mr. Hayes and Mr. Greenspun see things as they do.
The NRC is not primarily a criminal investigatory or prosecuting agency any more than are the agencies which regulate flight safety or food safety or mine g
But, as is the case with those other agencies, occasionally in the safety.
course of carrying out our regulatory responsibilities, we run across conduct which could amount to criminal wrongdoing. When this occurs the matter should be referred to D0J for appropriate disposition.
It is not the function of this agency to attempt to "make" a criminal case for purposes of conviction.
Nor is it our primary function to act as an agent of the 00J and pursue a criminal investigation for that Department.
We do, however, cooperate with DOJ and in appropriate cases provide resources to D0J.
Examples of such cooperation were cited earlier.
It must be recognized that when we do this, it reduces the limited resources available to us for carrying out our mission of protecting public health and safety. Thus, we have fewer investigators and inspectors to pursue issues directly related to our health and safety mission.
For this reason, we must exercise care in employing such resources only where the public health and safety benefits from successful prosecution warrant the resource expenditure.
Concerning the question of whether I took actions designed to frustrate suc-cessful criminal prosecutions, Mr. Greenspun addressed issues related to Three In Mile Island and accused me of acting improperly regarding those issues.
doing so, he resurrected old issues which have been thoroughly investigated I could respond and resolved by both the FBI and a Federal Grand Jury.
My specifically to each of his charges, but I do ret believe it is necessary.
. reading of the FBI report anc my understanding of the Grand Jury's actions lead me to conclude that all of the issues investigated by the FBI and grand jury were resolved by finding no wrongdoing on my part by design or otherwise.
I continue to be troubled by the fact that Mr. Greenspun, using his prosecutorial authority, could head an investigation into issues in which he was personally involved.
I think his personal involvement is clear from his own testimony before this Committee.
Certainly, his own conduct could have been an issue in such an investigation.
I leave to others to judge the propriety and ethics of 'such behavior.' I urge you, Mr. Chaiman, to obtain a I
S copy of the FBI Report No. 46A-11367, dated July 1,1986 and examine it.
trust it will demonstrate to your satisfaction that these old charges were resolved contrary to Mr. Greenspun's personal biases.
Mr. Greenspu'1 also stated that he personally requested that I not meet with a licensee under investigation, and that I subsequently engaged in a lengthy discussion with that licensee.
He further stated that the meeting "unneces-sarily derailed criminal prosecution," that I knew this would be the result, and that I and my deputy "confessed away the case."
Having reviewed the documentation cf events of over seven years ago, and after discussions with the other participants, I can state that Mr. Greenspun's interpretation is not correct.
The particular case referred to involved an NRC licensee named NuclearPharmacy.Inc.(NPI).
When I received the proposed enforcement package from NRC Region III in the sumer of 1979, it aspeared to me that NPI had comitted a very serious violation.
The Region had cited NPI for shipping containers of Xenon gas, which were not designated as fit for human use, to various hespitals to bc used on humans.
Review of records indicate that I decided to substantially increase the civil penalty proposed by the Region.
Also, I believe my staff and I considered revocation of the license.
In June of 1979 as the then Director of the then Office of Inspection and Enforcerrent (OIE), I referred the cese to the NRC Office of Inspector and Auditor (OIA) for possible refer-ral to D0J, but retained the right to continue investicating health and safety
4 The notice of proposed civil penalties was sent to the licensee implications.
The licensee responded vig'orously, insisting that there were no in August.
health and safety problems and that, given the wording of its license, its actions might not constitute a violation.
During the fall of 1979, numerous meetings were held with FDA and others. As these meetings progressed it began to look.as though NPI's actions were less serious than originally believed; NeVertheless, in October of 1979 OIA had referred the NPI case to DOJ.
At that point NRC lawyeis were in touch with At no time did the lawyers from 000 indicate that the NRC should refrain DOJ.
from contacting the licensee.
Within this time frame, we considered using a f
fom of consent decree in which the licensee would admit culpability. By the end of 1979 it became evident that NPI would not agree to the type of language l
in the consent decree that I deemed necessary.
As a result, NPI was infomed that no settlement would be forthcoming.
NPI thereupon requested one final meeting to present t' heir side of the case.
This meeting took place on January 21, 1980, and is the one referred to by
'ts only purpose was to hear whether NPI had any new in-I Mr. Greenspun.
Where the formation; not to make any concessions on the part of the NRC.
public health and safety is concerned. I believe it is my duty to elicit as much information as possible. During the meeting, NPI reiterated its previous No statements were made by either me or my staff that could be arguments.
construed as weakening the case against NPI. Subsequent to that meeting I was informed that Mr. Greenspun nad taken the position that there should be no contact between the NRC and NPI, and that the meeting had con. promised the DOJ I do not agree with Mr. Greenspun's interpretation.
In a letter dated case.
November 20, 1981, frem Mr. Greenspun to the attorney for NPI, he stated that DOJ had decided to defer prosecution, er.d that the decision "is substantially based on NPI's representation that it has rectified the activities in question and will continue to conpl." with NRC rules and reguletions".
In February of 1982, the KRC Staff irrposed its civil penalty en NPI.
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Another case cited by Mr. Greenspun (Tr.129) concerns the now abandoned Zimmer facility.
He states:
'For years NRC inspectors were finding serious problems at the Zimer plant ir, their inspections, and were told by the re-gional office in Chicago not to write it up and in reports but to keep a little notebook of violations he was finding. So, if the inspector got hit by a truck, nobody wculd know about the violations." This is a new allegation.
Current Region III personnel who were closely associated with the NRC in-spection of Zimmer during the late 70s and early 80s know of nd such allega-Had such an allegation been made to Region III, it would tion or occurrence.
have been referred to OIA. Had such a practice been identified, it would have been corrected.
Mr. Greenspun also alleges that "This plant was about to open, the Zimmer plant, shortly, but for a whistleblower by the name of Applegate, who twice At had to go to the NRC after they did a couple whitewash investigations."
the time of the Applegate allegations, construction of the Zimer plant was not complete and preoperational' testing of the plant was in the earliest stages.
Hence. the plant was not ready to start operations.
The Region III investigators initially reviewed all of Mr. Applegate's allegations and concluded that three warranted NRC investigations.
The other allegations concerned matters which were thought to be' teore properly addressed by other regulatory bodies.
The results are documented in Investipation Report No. 50-358/80-09.
In the second investigation, the NRC inspectors and investigators looked at all 19 Applegate allegations, four allegations made by quality control inspectors, three allegations received through site The results of the interviews, in addition to other areas of NRC cnneern.
second investigation cre documented in Investigation Report No. 50-358/81-13 and resulted in a $200,000 civil penalty against Cincinnati Gas and Electric Company, the licensee, and led to the NRC requiring major corrective action In programs and a verification of the quality of completed construction.
retrospect, receipt of the allegations which preepted the second investigation perhaps should have led to the staff's identification of the significant breakdown of QA activities.
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Finally, Mr. Greenspun concludes:
"So you had a plant that would have opened that was eventually found, the Zimer plant, to be so unsafe -- once they were publicly exposed, were found so unsafe that they could not allow it to open.
But for a whistleblower, that wouldn't have happened and it could have opened."
Although Investigation Report 50-358/81-13 documents many problems, These the report did not reach the conclusion that the plant was unsafe.
findings, subsequent NRC findings, and licensee inspection findings raised sufficient quality questions.that the> NRC required the licensee to submit a plan to verify the quality of construction of the plant.
Before this plan could be completely carried out, the licensee terminated construction of the nuclear facility with the intention of converting it to a coal fired plant.
In addressing the charges concerning whether my staff or I are "too cozy" with the licensees we regulate, it is necessary to understand that by necessity the technical safety staff and I have daily centact with licensee representatives.
We also have daily contact with other members of the public with interest in the 2t.tters we regulate. The purpose of these contacts is for the exchange of information.
When licensees have questions concerning NRC policy or rules, they do not have to speculate but are perfectly free to pick up the phone, i
call an appropriate NRC official and request information.
To suggest that such contacts are inappropriate reflects a misunderstanding of a public official's duty to be responsive.
In fairness one could criticize the staff fer being too concerned over the regulatory action needed to correct problems.
This in fact was one of the concerns expressed by the O! staff during the neeting I mentioned at the hearing.
(Tr. 169-70).
In this regard it is of interestthatChapterIVonSafetyManagementoftheRepovinReport(p.1241),
recommends that NRC announce as a matter of policy that prosecutorial discretion will be exercised to effect a meaningful balance between enforcement of rules to ensure their accerplishment and yet encourage close cooperatien with industry in coyunications to prevent accidents."
During early 1986 we were also being criticized for not being aggressive enough in identifying issues that needed to be resolved specifically on our
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review of the TVA issues.
This is an especially difficult issue.
If the staff recognizes actions that can be taken to resolve a regulatory concern, should such actions be identified? This is compounded further when the basis for action is derived from an ongoing investigation.
Frequently this also involves one or more specific individuals, the disclosure of whose identity could have the potential for interfering with an investigation or prosecution and therefore precludes the staff from identifying these individuals to the We are then faced with a difficult choice -- keep a facility shut licensee.
down for months or as long as it takes to complete the investigation and D0J review when applicable, or, risk compromising the investigation by renoving and
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thus disclosing the problem individuals.
If DOJ were to prosecute the case the shutdown may extend for years.
It is rny belief that the public interest is best served when we aggressively resolve regulatory issues.
I also believe this is what Congress interded but I recognize it contributes to the unfounded accusation of being "too cozy" with licensees.
We are currently working with 00J on a memorandum of understanding to structure such discussions to further the statutory missions of both agencies.
The proposed legislation involving an independent O! will serve to further distance its investigation efforts from the technical staff responsible for It is in fact important that O! and the staff work together to first safety.
identify and correct the safety problems and, by so doing, to assure that facilities can be restored to operation and public service.
For example, we frequently attempt to correct safety problems at hospitals or firms serving hospitals through use of our enforcement sanctions, in order that the practice of nuclear medicine can be resumed in the public interest. Examples are Mercy Hospital, Valley Radiological Clinic Advanced Medical Systems Bloomington Hospital, and Lakeview Hospital.
During the bearing there were two basic issues related to a phone call between nyself'and Mr. Steve White of TVA.
(As in this case, I routinely return phone calls in the presence of senior staff.)
The first issue deals with the adequacy of the CIA investigative process itself in which I had no involverent
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The second issue other than being interviewed and therefore have no coment.
In relates to Mr. Hayes' characterization of the phone call as improper.
contrast, the OIA conclusion regarding this matter as stated in the report "There was no information developed during this dated August 28, 1986, is:
on the part of STELLO during investigation to substantiate any impropriety his telephone conversation with WHITE..."
Mr. Hayes' concern over this matter was, as noted in the DIA report, "in light
, false statement in-of the fact that we already had an ongoing material The existing investigation he mentioned in testimony relates to E
vestigation."
the prior senior TVA nuclear manager attesting to Watts Bar Unit I readiness for fuel load in April 1985.
That investigation deals with the state of that manager's knowledge of the plant at that time.
Subsequent to that, many employee allegations and TVA inspections have indicated that potential quality problems exist at Watts Bar.
In fact, the NRC staff's letter to TVA in Janu-ary 1986 questioning compliance with Appendix B at Matts Bar was based on the work of TVA's own Nuclear Safety Review Staff.
Thus, these matters crose subsequent to tt)e April 1985 letter and were not a part of the ongoing OI investigation referred to by Mr. Hayes.
Clearly, the telephone call from Mr.
1(hite was not related to the investigation of the prior senior TVA nuclear To suggest otherwise would imply the entire NRC review of TVA manager.
problems is likewise related to the ongoing investigation of the TVA's April 1985 letter on Watts Bar.
Specifically, now referring to my sworn deposition taken relative to this mat-ter dated July 30, 1986, I identify at least two telephone conversations In one conversation I indicated to Mr. White related to Appendix B issues.
Mr. White thr,t he ought to finish his job and then respond to the letter.
indicated that he made the comitment to respond by a specific date and would As the facts related te this matter show, Mr. White did in fact do so.
respond on March 20, 1986.
Mr. White had taken over the leadership of TVA in My January 1986 and was therefore en the job only a relatively short time.
concern was that he should have taken the time to urderstand the overall i
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status of 0/A problems at TVA before responding.
Apparently, he felt con-In fact, con-strained by the commitment to respond in a certain timeframe.
versing on technical issues is part of my job and indeed that of the NRC staff
-- as long as the matter itself is not under investigation.
As previously stated, this matter was not under investigation.
For cases under investiga-tion, we have procedures which cover how such discussions are to be conducted to assure safety issues are resolved while not prejudicing ongoing investigatory activity.
A second conversation with Mr. White concerned the need to assure that he
'L needed to continue to pursue Appendix B issues and to infom the NRC of any Indeed our significant problems identified related to the Appendix B issue.
regulations require such activities as discussed during the conversation.
By the way of background, I knew Mr. White's previous experience was with the nuclear navy program, which is not governed by the code of Federal regulations used for corrnercial nuclear facilities.
In summary, both my conversations with Mr. White of TVA, only one of which has been the subject of criticism by Mr. Hayes and about which two of my senior staff members felt "uncomfortable":
were initiated by Mr. White; 1
transmitted no substantive infomation to Mr. White; centered upon emphasizing the needs of the NRC for full and complete information; and were in the interest of the regulatory functions of this agency.
In those circumstances I did not then and do rot now see anything approaching inpropriety in the conversation.
Indeed, the sort of contacts with licensees and others which are not aporopriate have been set forth in a set of m.
a have proposed to be added to those which already have be,tn guidelines I Those guidelines do cover such mattert as staff adopted by the Comission.
review of draft responses to enforcenent related documents but they cannot be reasonably construed to cover telephonic admonitions to provide the NRC with the fullest and most complete information available -- the sum and substance of my conversations with Mr. White.
As discussed in part earlier, Mr. Hayes must view my demand to be informed about safety infonnation in his possession and to have investigations with significant safety implications pursued on a priority basis as "attempts to The Investigation Referral Board (IRB) was control DI's investigations".
established not. to control O! but as a management tool to assure that matters referred to 01 for investigation met the dual threshold test established by the Comission of (1) a reasonable basis to believe that wrongdoing occurred, i.e., the violation at issue appears more likely to have been intentional or to have resulted from careless disregard or reckless indifference than from error or oversight, and (2) there is a regulatory need for an investigation.
The first threshold is important to differentiate what cases should be handled The by the staff inspection process in contrast to the investigation process.
second threshold is important because in some cases there may be sufficient evidence available to make a regulatory decision without the need for an investigation.
In making its recorrendations the IRB considers the various perspectives and views of senior managers in the offices of NRR, NMSS. EDO, IE, and OGC O! was invited to participate in the IRB deliberations because they would offer issues and perspectives on what matters need to be insight on wrongdoine However, while they were given notice of meetings, O! chose not investigated.
Nevertheless, 01 is given a copy of each to participate in IRB activities.
case that the IRB considers as well as a copy of the decision of the IRB.
This preserves 01's option to self-initiate an investigation if it believes one is appropriate.
. i It should be noted that the IRB serves in a advisory role.
In an emergency, regional administrator can initiate c-investigation without first consulting In addition, if not satisfied with the views of the IRB, a regional the IkB.
administrator may refer a case to 01 anyway, after discussions with the Execu-tive Director for Operations.
Another important function of the IRB was to establish a national priority of cases for 01 investigation based on regulatory significance and need. The Comission has established guidance for establishing priorities for investiga-However, with five, regional offices, many different types of licensees tions.
with differing potential hazards, and guidance which by necessity is broad, it g
is difficult to establish uniform priorities.
Recognizing that, regions may have issues of varying importance (for example, a high priority in region X to establish a may be a nomal priority in region Y), it was important national priority listing to assure that the agency's investigatery resources were being focused on the most important safety issues. The IRB with the assistance of senior managers from the regions established a national listing i
which is expected to be updated periodically, In response to the concern about the change in the referral rate since the IRB, a tabulation of regional requests for investigations by month was devel-oped. A formal O! referral process was instituted by the EDO in the summer of 1985 requiring written requests.
Consequently, there is a paucity of records prior to this time period.
Based on our statistics the regions showed the following number of cases referred to OI for the 141 month period prior to the IRB:
I II
!Y Y
14 31 10 15 17 T O T AL (87)
Prior to the IRB, during the 9/85 to 11/10/86 tineframe nationwide there were 87 regional referrals; this number is equivalent to 72 referrals on an
f.
annualized basis.
A breakdown of the historical numbers shows that the TVA cases have had an impact in that Region II has essentially twice as many re-ferrals as any other region. Of the 31 cases in Region II, 22 dealt with TVA.
Putting the TVA cases aside, it leaves an annual rate of 54 cases. Similarly, it is of interest to note that ir. the Si month period before the formation of the IRB, both Regions I and III had only two referrals each. After femation of the IRB, Region I had two cases referred to 01 and Region III had five cases referred to 01.
For the five month period of the IRB examined herein (11/10/86 to 4/9/87, the regions have submitted a total of 25 requests, two of which were sent directly to O! in accordance with emergency referral provisions.
The cases identified by the regions during the five month interval are :
I II III IV V
,2 5
5 10 3
TOT AL (25) i However, there is a unique situation in Region IV that warrants special con-sideration.
In response to 01, the region classified one request as eight in-dividual referrals since eight different dockets were involved.
One could view, as the Region IV originally did, that this should be counted as one This affects the statistical comparison since the volume during the request.
5-month period could be viewed as 17 requests. The 25 cases identified by the J
regions are equivalent to 60 on an annual basis; adjusting for the above noted anomaly equates to about 40 cases annually, as compared to the previous year's 4
annual rate of 54 cases when TVA is excluded.
4 However, the rate at which regions identify possible cases is not indicative of what is fomally transferred to 01.
Although OI has been provided copies of all submittals to the
- IRB, not all cases receive IRB approval; rotwithstanding, experience has shown that the regions have accepted the IRB recomrrendations in all cases.
Consequently.13 cases have been referred to
-n.-
.a
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. 01; two of which have been emergency referrals.
This volume is equivalent to abnut 30 referrals on an annualized basis.
This reflects a decrease of about one-balf from what has been experienced historically.
However, the cases reviewed by the IRB have undergene a more thorough screening for completeness and prioritization such that they should not be rejected or denied by 01, as has been done on occasion before the inception of the IRB.
As an example, four of the six requests made by Region II in May 1986 were denied by OI.
From 9/85 to the establi.shment of. the,,IRB 55 of the 87 cases referred to O!
were treated as inquirias to detemine whether a fomal invest 1ation should be made. Thus, less than a third (22) were treated as femal investigations.
g Based on five months of IRB data it is difficult to draw statistical lusions that there is a dramatic decline in regional referrals.
For r.r
.aple, Region I had referred only two requests to OI in the five months s.
interval prior to the inception of the IRB.
In the five month period since j
the IRB was established. Region I has had two requests forwarded to 0! through the IRB. However, the IRB in reviewing cases against the Comission's thresholds have. reduced the number of cases referred to 01 by about 50%.
Cases were rejected for referral because there was not a belief thet wrongdoing occurred, investigations were not necessary to pemit appropriate J
regulatory action, or because 01 was actively pursuing the matter such that a referral was not necessary.
In sum the IRB has not had a chilling effect on the number of cases identified by the regions. Cases are not hidden. Rather, the cases are being considered 1
in a professional manner.
O! is made aware of each action and invited to participate. The IRB is still in its six month trial period and n pears to be serving the management function it was intended to serve.
However, the staff is in the process of determining whether the IRB should continue past the trial period.
Mr. Hayes' adoptien of Comissioner Asselstine's cement that the IRB appears to be a "... thinly veiled attempt by the EDO to control 01 by controlling what i
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='-
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e 4
14 -
referrals are made and thus what O! investigates" is yet another example where there is failure (1) to understand the real purpose of 01 investigations and Mr. Hayes (2) to appreciate the management problems within the agency.
reluctance to participate in the IRB process is another lost opportunity that could have fostered better communications with the staff, thereby improving Perhaps more importantly, the real purpose of the IRB -- to relationships.
function as a management tool to assist both OI and the sti.ff -- could have It is indeed disturbing that Mr. Hayes does not see the been more effective.
In fact it is the staff need for investigations as derived from staff needs.
who identifies the nee; for investigations.
If there is not a regulatory need This should be a rhetorical (safety), should an investigation be conducted?
question; unfortunately it is not.
Answering this question and assigning priorities is a legitimate management activity, the fundamental reason for the IRB.
I indicated during the hearing LTr. 369.184-5) my surprise that any manager cculd harbor the ill feelings Mr. Hayes did for apparently as lor.g as A manager should recognize the conflict and. arrange a meeting to he has.
discuss and resolve the issue.
If it coe?s not be resolved it should have
~
been escalated. 'I also noted during the hearing two meetings I arranged with Mr. Hayes' senior staff to discuss issues.
I invite Mr. Hayes to our periodic It is difficult to resolve meetings to interact with my senior staff.
In all candor, I cannot differences and manage conflict without cooperation.
recall a single instance during my tenure as EDO (15 months) when Mr. Hayes has made an effort to resolve these conflicts.
I find this to be a disappointing management attitude, which must be overcon:e to resolve the The purpose in providing the foregoing information is to clarify conflicts.
the difficult nature of the management problem.
However, it does not change my resolve to continue in whatever way I can to improve working relaticnships to an acceptable level.
I intend to continue my monthly meetings with Mr.
Hayes and expect Mr. Hayes will participate in our next senior staff meeting Furthermore. I util look for additinrel opportunities to foster in June.
enhanced cormunication and an improved working relationship.
Mr. Hayes cites the Milford Hospital case as an example of where a licensee was "tipped off" about an investigation because the technical staff tried to investigate rather than requesting that professional investigators, such as 01, conduct the investigatien.
The investigation for the Milford Hospital case is still pending, so I cannot discuss the details.
In response to the "tipping off" claim, however, it is sufficient to note that during the course of a routine technical inspection at Milford Hospital, an NRC inspector, in the presence of the licensee's radiation safety officer, identified obvious, uncontested wrongdoing which was admitted by the licensee and the (nvolved individuals and which, therefore, could not, by definition involve "cipping".
0! was not requested to conduct an investigation because the charge was already substantiated by the licensee's admission to NRC technical personnel.
Concerning Mr. Mulley's testimony on pressure on 01A concerning the ongoing safety issues surrounding Comanche peak, on November 26, 1986, O!A issued its Report of Investigation 86-10 addressing allegat,ons of Region IV management wrongdoing relative to inspection activities at Comanche Peak.
I will sunnarize my activities with regard to issues related to that DIA Report.
About March 19, 1986 I was informed that DIA had comenced an investigation s
addressing allegations of Region IV management wrongdoing relative to Comanche Peak inspection activities.
Based on that, the Director CIA and I reached agreement that Region IV would cease further staff action to resolve the inspection issues in contention.
In addition, I made arrangements that subsequent inspection findings of Mr. Phillips, the involved Resident Inspec-tor, would be reviewed by Headquarters staff and management rather than the involved Region IV managers.
For about 4 or 5 months OIA continued their investigative work.
I became j
increasingly aware of the negative impact it was having on the morale and effectiveness of both staff and ranagement in Region IV.
I became increas-ingly concerned that the irvestigation was detracting Region IV personnel from Scme of performing their basic job of protecting public health and safety.
the managers for Comanche Peak activities also have responsibilities covering the seven operating nuclear stations in their Region.
I ex-In the early summer of 1986, I met with Mrs. Connelly and Mr. Mulley.
I offered staff as-pressed my concerns to get the investigation completed.
sistance to OIA and asked if there were anything else I could do to help them conclude their work.
At that time, I was informed the, report riight be fin-1shed in August.
In fact, the report kas not finished until November.
Mr. Mulley chose in his testimony to characteriza my actions as pressure.
Frankly, I think I was only doing my job as the responsible staff manager considering the~ negative morale impacts the CIA work was having in the Region.
Further, in a personal sense. I kept a humane balance.
Upon hearing in late July from Mr. Mulley that a member of his family was undergoing surgery I
strongly suggested that Mr. Mulley consider his priorities and take whatever time he needed.
It was also suggested by two witnesses that the OIA Peport of Investigation 86-10 was indiscriminate 1y distributed throughout the agency.
In reference to a December 4,1986 Comission directive to take action as a result of the Re-port, the Report was initially distributed to only a limited number of senior i
staff management officials and selected staff mmbers who were charged with the task of reviewing the Report and its very volumircus attachments in a j
short timeframe for the purpose of assessing:
(1) whether the Report identified any issues that were of such a nature in terms of safety that imediate action was called for; (2) whether the Report identified any grounds for imediately initiating any personnel actions; (3) whether the Report could be released to the public in its entirety or whether deletions were necessary in order to prevent unwarranted
invasions of persnnal privacy, to preserve the NRC's ability to l
effectively inspect or investigate any matters identified or refer l
matters to the Department of Justice for action, or otherwise to
~
preserve the ability of the NRC to act on the Report's findings (i.e.,werepredecisional);and, (4) what bearing the Report might have in the ongoing licensing pro-ceeding related to the application for operating licenses for Comanche Peak.
Very shortly after the initial limited distribution, I requested and obtained 3
the Comission's approval to provide copies of the Report and its attachments to six named Region IV staff members who were central to the OIA investiga-tion.
I did this for two reasons: first, out of concerns of fairness, to pemit these persons to have accurate information concerning the Report prior to its release so that they could knowledgeably deal with the anticipated public inquiries that would most likely follow any public release of the document; and, second, so that management could discuss the Report with them in addressing the issues stated above.
On December 11, 1986, the Comission approved the public release of a redacted i
version of the Report, with the names of all individuals and certain other infomation potentially relevant to the conduct of an investigation deleted.
l 1 considered the allegations to be very serious and, with the approval of the t
)
Comission. I established the Comanche Peak Report Review Group (CPRRG) and charged it with conducting a comprehensive review of the issues raised in the I
Report and making recomendations to address the issues.
I gave the Chairman of the CPRRG special authority to draw upon whatever staff or consulting resources were necessary or appropriate to comprehensively address the issues.
l Extensive efforts by senior management and other staff personnel resulted in j
the CPRRG Peport dated March 12, 1987. On April 14, 1987, I transmitted to the Comission ny recomerdations and proposed actions, and on April 16th, I l
l i
5
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I briefed the Comission and requested its approval to implement the recomended actions.
I also urged prompt release to the public of the CIA Report, the CPRRG Report and my April 14th recomendations.
Because this matter is still I can pending with the Comission, I cannot discuss the details further.
assure you, however, that the issues raised by the 01A Report have received the closest scrutiny and will be the subject of appropriate action as approved by the Comission.
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