ML20211P590

Responds to 860211 Request for Review of Gap Allegations of False or Misleading Statements by Region V Regional Administrator.Conclusions in Ofc of Inspector & Auditor Rept Not Supported by Evidence Cited

ML20211P590
Person / Time
Site:	Diablo Canyon
Issue date:	02/26/1986
From:	Cunningham G, Heltemes C, Ross D NRC OFFICE FOR ANALYSIS & EVALUATION OF OPERATIONAL DATA (AEOD), NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES), NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML20211P508	List: ML20211P502 ML20211P537 ML20211P553 ML20211P570 ML20211P582 ML20211P590 ML20211P600 ML20211P615 ML20211P630
References
NUDOCS 8607230301
Download: ML20211P590 (9)

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j-e UNITED STATES '

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MEMOK/.hDUM FOR : Victor Stello, Jr. Acting Executive Director , for Operations FROM: Guy H. Cunningham, III

                                                  , Executive Legal Director D. F. Ross, Deputy Director Office of Nuclear Regulatory Research C. J. Heltemos, Jr., Director Office for Analysis and Evaluation of Operational Data St'iiJ1 CT -

• REVIEW OF GAP ALLEGATIONS OF FALSE OR MISLEADING STATEMENTS DY THE REGION V

> REGIONAL ADMINISTRATOR As you reouested in your memorandum of February 11, 1986, we have carefully

eviewed the OIA Report, "Diablo Canyon - Allegations of Misconduct by NRC

           ..       Employees" and the supporting documents attached to the report. In this report,        OIA concluded that in two instances the Region. V Regional Administrator failed to give a direct answer or provided inaccurate information during " testimony" before the Commission. Another instance was cited where, in OI A's view, a Region V official provided inaccurate information to the Commission regarding the receipt of material in support of a Government Accountability Project allegation concerning hydrostatic test
    .               records. OIA found this last instance'to be apparently unintentional; though
                    *hc report is silent regarding intent in the first two instances, a fair reading of the report would lead one to believe that OIA thought they were intentional.

f Our analysis and conclusions regarding these three instances are attached. In summary and in response to your questione to the Committee. we find that the OIA conclusions are not supported by the evidence cited. Our task was made difficult by the extreme lack of organization in the OIA analysis. Nevertheless, we conclude that there is no evidence of false statements or any attempt to intentionally mislead the Commission, although we did find that the Reg. ion V policy of closing out issues with allegers when practical was overstated. The latter instance was in a narrow context, was spontaneous, and involved an ongoing process that was not yet completed. Thus, we believe that no great importance should be placed on this discussion. While disagreeing with OI A's conclusions, we believe that OIA considered all the appropriate evidence, that sufficient information is available and that no additional investigation by OIA is warranted. 8607230301 860711 PDR COMMS NRCC CORRESPONDENCE PDR

2_ FEB 2 61986 While our detailed analysis of the three cases in which OIA found staff culpability is attached, we believe that certain generic matters should be noted. The first is OIA's apparent failure to note the give-and-take nature of Commission meetin gs . This is most clearly evident from the repeated reference to staff " testimony" before the Commission. All three of us have extensive experience with testimony before a broad range of boards, panels, the Commission and Congress. The formality implied by the term "testiniony" reflects an entirely different concept than the spirited oral discussion among many people regarding a broad range of issues which takes place' at just about any Commission meeting. Our second major concern relates to the-complete lack of contexting information in the OIA report. The GAP letter at issue was received late on Friday, March 23, 1984. It had three inches of supporting material involving an estimated 150-200 allegations. Region V had to review this information over the weekend and travel to Washington for the Ioarch 26 and 27 meetings at which the alleged false statements were made. 19' o notice is taken in the report of the Regional Administrator's comment at the _ beginning of discussion of the letter that "we haven't done a definitive excmination (of the packaCel." though he did indicate that all of the supporting material had been read. In an even broader sense, it must be remembered that the March 23 letter from GAP was just part of hundreds cf allegations regarding the Diablo Canyon plant which 'both Region V and the Commission were receiving as the plant's operating license seemed to be nearing a vote. We believe that you should provide the OIA report and our analysis to Mr. . Martin and ask for any additional views that he might have, particularly with respect to allegation 2 in light of our findings. You should then provide our analysis and any additional comments from Mr. Martin to the Director of GIA with a cover letter informing him that you have had the report reviewed by three senior managers, that you agree with them that the principal conclusions of the report are simply not supported by the evidence, und that you propose to take no further action 'as a ~ result of the report. You might also emphasize that you regard accuracy in communications with the Commission to be of utmost importance, and since assuming 6ffice, you have emphasized that point to the senior staff a number of times , especially admonishing that if the answer is "I do not know," then that is what the Commission must be told.

FEB 1. 6 1996 3-o Please let us know should you need additional information or if we can $e of further assistance.

                                                       - _ - . . , . . J by Gus H. Cunnin ham, til Guy H. Cunningham, III Executive Legal Director           -

6 D. F. Ross, Deputy Director Office of Nuclear Regulatory Research b C. J. Heltemes, Jr., Director l Office for Analysis and Evaluation of Operational Data

Attachment:

As stated 9 0

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i Attachment ALLEGATION NUMBER 1 , On March 26. 1964, the Recion V Regional Administrator made a false or IIiisleading statement to the Commission regarding the use of ANSI N45.2.6 as the applienble standard for Nondestructive Examination (NDE) personnel. FACTUAL SETTING Section 2 of CAP's letter of March 23, 1984 is captioned " Qualifications of quality control personnel." It alleges that PG 6E and its contractor Pullman contend that NDE personnel have been qualified under ANSI N45.2.6. The letter correctly identifies NDE personnel as those who do x-rays, magnetic particle, and ultrasonic or other tests. Nowhere in the three paragraphs of section 1. is there reference to Quality Assurance (QA), as opposed to NDE, personnel, nor is there a cross-reference to any of the three inches of supporting material accompanying the letter. a At the March 26, 1984 Commission Meeting, the Region V Regional Administrator

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was asked to respond sequentially to the seven categories of charges made in the March 23 letter. He stated correctly (as OIA acknowledges) that NDE personnel are not required to be qualified to ANSI N45.2.6. At a Commission meeting the following morning, March 27 a representative of GAP said that the reference to NDE personnel in the letter was incorrect as a l result of an inadvertent, typo or "thinko." In his view, however, the Region V j Regional Administrator should have known what was intended, since he indicated that all of the supporting' material accorupanying the letter had 1 been read. . At the Commission meeting on the afternoon of the 27th, the Region V Regional Administrator (with no advance notice) was asked to respond to the morning cominents of the representative of GAP. The Region V Regional Administrator replied that he simply responded to what was written, not what the author ruight have intended. EVIDENCE, ANALYSIS BY OIA, AND COMMENT , The OIA report says that section ' 2 of G AP's letter " outlines G AP's belief

that the licensee provided false statements to the NRC concerning the i qualification of quality control inspectors." (Emphasis added.). This is not a proper characterization -- the only set of inspectors mentioned in the whole three paragraph section are NDE inspectors. Moreover, by pointing out i

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_g_ that ND1' inspectors do x-ray, magnetic particle and ultrasonic testing, G AP reinforces- that it really is referring to NDE (not QA) personnel. Finally, i section 2.makes no cross-reference to the supporting material accompanying the letter.- OIA next turns to the Lockert effidavit which, as noted, is not referred to in sectien 2 of the letter. (The point here, is that the Region V Regional Administrator. ' working over a weekend, did not have the road map to the supporting information which OIA was later able to draw for itself.) The Lockert affidavit does fairly allege that some QA people, qualified only for NDE, did not iaect the ANSI standard for QA work. OIA refers next to a Region V inspection report, dated February 29, 1984, which concludes thut two welding inspectors did inspect before being fully qualified. The relevance of this is far from clear, given that the allegation is that the Region V Regional Administrator misled the Commission

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in his oral response _sto the GAP letter. Neither the GAP letter ncr the Lockert affidavit referred to the inspection report. GIA then turns to a PG EE letter, also dated February 29, 1984, acknowledging that one inspector did start to work before being fully qualified and committing to reinspect his work. PG LE denies that the second inspector started to work before being qualified. As with the previous item, the relevance of this is not clear. Moreover, there is no clear indication that GAP even takes issue with this letter. The connection to statements made at the Commissior. meeting is extremely tenuous. OIA CONCLUSIONS The statements of the Region V Regional Administrator before the Commission were factually accurate. But, OIA believes that GAP, in its letter, was trying to raise the issue of the qualifications of QA inspectors, not just NDE personnel. Theref' ore, OIA concludes that,the answer of the Region V Regional Administrator was not " straightforward." COMMITTEE CONCLUSION In light of the context (see cover memorandum to the EDO), the very short time available for review of the G AP letter, the fact that the Commission was focussing on all seven items in the GAP letter, the lack of any " road map" to the mass of material provided by G AP, and the inevitable lack of total or absolute precision in communication in a spirited oral discussion among many people regarding a broad range of issues (e.g., just about any Commission meeting), andr the acknowledged factual accuracy of what the Region V Regional ., Administrator said, we believe that the OIA conclusion, with its implication of intentional obf uscation, if not outright deception, is not supported by the evidence. Thus we conclude that no action by the EDO is warranted in this case. l i

ALLEGATION NUMBER 2 On March 27. 1984, the hegion V Recional Administrator made a false er misleading statement to Commissioner Gilinsky regarding closeout interviews with allegers. According to GAP the Regional Administrator implied there were several follow-up interviews with an alleger, when in actuality, there had been only initial interviews. Furthermore, Martin allegedly stated to Commissioner Gilinsky that follow-up intervicus had been conducted with alle;;crs e subsecuent to Region V's resolution of the issues. , FACTUAL SETTING At the March 27, 1964 morning Commission meeting, Mr. Clewett of GAP told the Commission that Region V had made "no effort whatsoever" to get back to allegers and see that resolution of their concerns was adequate. (This statement was made in a generic sense.) He then turned specifically to the 1:rdson case and said that the " staff has made no effort whatsoever to. get a hold of him" and, while report 83-f,7 was in preparation "didn't ask him (Hudson) an/ questions about that nor did they get back to him on any of the issues he brought up...." At an afternoon Commission meeting on the same day, Commiscioner Gilinsky said to the Region V Regional Adr.inistrator "I think what the man from GAP was saying was not that no effort had been to talk to these people, but I think he was sh jing that no contact had been made subsequent to your

                ,.              resolution of the issues."

The Region V Regional Administrctor said "that's not true in all cases." Then, in an apparent change of subject, he went on, "Another assertion was msde th6t no effort was made to get ahold of Mr. Hudson. hell, that's not We talked to him at least nine hours with several people at several t true.... time s . . . . So, to paint the picture that, we made no effort to talk to the man or plumb him for his concerns is just not true." The Region V Regional Administrator seems to have gone beyond Commfissioner Gilinsky's question to uake to separate points: (1) the staff does do closecut interviews with allegers, and (2) the staff did talk to Mr. Hudson. . EVIDENCE ANALYSIS DY OIA, AND COMMENT OIA reviewed the November 14, 1983 letter from Mr. Hudson to Commissioner ! Gilinsky. This appears to have no relevance to the foregoing exchange at tne Commission meeting. It simply establishes that Mr. Hudson had concerns. OIA cites the. January 31, 1984 affidavit of Hudso'n as evidence of his serious "

concerns with Pullman's QA/QC program. They do not quote liudson's statement

! that "Although O! never called, on January 6, 9, and 12 I was interviewed i extensively by a series of NRC inspectors from Region V." i

c OIA reviewed the inspection report of February 29, 1984, which appears to be of no relevance. . OIA reviewed SSER 22 which sets forth the Region V policy of conducting closecut interviews with allegers where practical. , OIA looked at the transcript of the March 26 Commission meeting where the staff said that it had looked at GAP's March 23 submittal. Attachment 2 to that submittal uns hudson's affidavit, referred to by Clewett. . The Region V Regional Administrator was interviewed by OIA and stated that he was addressing what he perceived to be two different points raised by Clewett: (1) lack of followup with allegers (a generic concern) and (2) the absence of any effort whatsoever to talk to Hudson. Furthermore, the Region Y Regional Administrator pointed out that the March 27 afternoon discussion was not intended to be a resolution or complete response to all of Clewett's

           -        . concerns; rather it was a spontaneous response to a Commission reqdest for his reaction to the oral c0ncerns rcised by Mr. Clewett that morning.

OIA notes that Regiora V's list of meetings with allegers shows only one

     -                "closecut" interview prior to March 26, 1984; this was witt '                 This is correct -- this is the example give by the Region V Regional Aamintatrator to the Corr. mission of the staff's practice of conducting closeout interviews where practical, but it seems to be the only case up to that time, not just an exampic.

OIA CONCLUSIONS OIA concludes that the hegion V Regional Administrator was " inaccurate" when he denied . Clewett's assertions and cited the closeout interview with as an exampic. OIA found no other record of Region V closeout interview prior to April 19H. Also, 01A found that Martin did not directly address Commissioner Gilinsky's question when he discussed Region V's initial intervicus with Hudson and not Cleitett's assertion that Region V did not conduct a .closecut interview with Hudson. , COMMITTEE CONCLUSION It is not at all clear that Clewett was claiming that there was no "closecut" with Hudson. It is a fair reading of his statement that he had a generic concern about a lack of closeouts, and a specific concern about lack of followup, during the investigation of the allegation, with Hudson. The situation is further confused by the fact that both Hudson affidavit.s refer l. to several meetings with the staff, though apparently not enough to suit - him. l l l \ l

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Given the context (Martin , without prior notice and with only brief notes, was giverr three minutes to respond to oral charges made that morning, af ter , having had only limited time to review the March 23 submission of GAP) the i record certainly does not support a conclusion of intentionally attempting to mislead the Commission. , However, it does appear that the Region's policy of attempting to conduct closeout interviews wh ere practical" (OIA mistates the policy as "where possible") was overstated. Only one case of closeout interview with an-alleger had occurred as of that time cnd there is no indication that " hours and hours" were spent on that case ns indicated by hartin. The record does indica.te that Region V subsequently conducted more closeout interviews. ALLEG ATION NUMBER 3 On ?! arch 26, 1984, the Region V Regional Administrator, was present when a 4 1:egion V official made~a false staterient to the Commission that he had not been provided supporting material by GAP for an allegation concerning hydrcstatic test records. FACTUAL SETTING At the Narch 26, 1984 Commission meeting, Thomas Bishop stated that "we have not yet been provided that additional supporting material to the best of my knowledge." The relevant affidavit was received in Region V on P. larch 5, 1984. EVIDENCE, ANALYSIS BY OIA, AND COMMENT Eishop was interviewed by OIA and pointed to his caveat "to my knowledge," and says that he was not personally aware that the Region had received the ! riaterial. Bishop was ort travel when the material was received in the Regions j it apparently never went to him, though it did -go to the Regional Counsel.

When Martin was interviewed by OIA, he noted Bishop's caveat and, stated that, i to the best of his own knowledge, Bishop's statement was accurate. He was

! auare that GAP's originui 2.206 petition was missing an attachments he was ! not personally aware that it had subsequently been received. Region V had properly processed the allegation addressed by the originally

missing document (concerning the hyrostatic test records) and had classified i it as a " totally new issue."

i ~ - O!A CONCLUSION j OIA concludes that Bishop's statement was false, but not shown to be intentionally so. In OI A's view , Region V should have been more i conscientious to be sure that the Commission was provided accurate i

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• l information. There is no reference to the Region V llegional Administratoi-(i.iartin) in the conclusion.

                               -               COMMITTEE CONCLUSION The aliegation and the OIA conclusion are not supported by the evidened and wntrant no action. Bishop's statement is qualified by the statement "to my

, knowledge." In fact he had no contrary knowledge; therefore his statement

could not be false.

h!artin had no independent knowledge that the documentation had been received and thus, had no basis for questioning Bishop's statement. 9 0 0 m h e e}}