ML20215F017
| ML20215F017 | |
| Person / Time | |
|---|---|
| Issue date: | 05/18/1987 |
| From: | Hayes B NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | Glenn J SENATE, GOVERNMENTAL AFFAIRS |
| References | |
| NUDOCS 8706220202 | |
| Download: ML20215F017 (10) | |
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4 g"% l j g 4 kNITED STATES y ( j'"Eg j 3 NUCLEAR REGULATORY COMMISSION j i
~ 5' WASHINGTON, D. C. 20555 E l
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May 18, 1987
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1 The Honorable John Glenn Committee on Governmental Affairs United States Senate j Washington, D.C. 20510-6250 !
Dear Mr. Chairman:
During my testimony before the Government Affairs Comittee on April 9,1987, I indicated that I supported the establishment of a statutory inspector general for the NRC, and that my staff and I were in the process of preparing a paper reflecting the views of the Office of Investigations regarding that office. You stated that such a paper would be welcome and included in the Hearing Record. This is that paper.
The Office of Investigations supports and endorses the provisions of S.908 that would provide for the establishment of a statutory Office of Inspector General in the NRC; however, we believe that S.908 requires some modification if it is to assure the integrity and independence of the NRC investigative program. Although we appreciate the intent of those provisions of S.908 which would provide certain statutory protections to the Office of Investigations, my entire staff and I strongly believe that the most effective and expedient way to achieve the objectives of this legislation would be to combine the personnel and functions of the existing Office of Investigations and Office of Inspector and Auditor within a statutory NRC Office of Inspector General.
Thus, we urge that S.908 be modified in the following manrer:
- 1. Change Section 4(a)(6)(P) to read:
"(P) of the Nuclear Regulatory Commission, the offices of that commission referred to as the ' Office of Inspector a d Auditor' and the ' Office of Investigations'";
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- 2. Delete the following subsections of Section 8B (" Specific Provisions Concerning the Nuclear Regulatory Commission"): 8B(c),8B(d),and 8B(e).
We recognize that combining both the external and internal investigative functions of an agency in an office of inspector general, although certainly not without precedent, is not the norm within the inspector general community.
Nonetheless, we believe there are compelling reasons to depart from what may be customary in view of the extraordinary importance of the NRC investigative function to the protection of the public health and safety and the common defense and security, coupled with the well-documented problems that have attended the NRC investigative program since the earliest days of the agency.
Those of us in the Office of Investigations, some of whom have been with the NRC since 1975, are particularly knowledgeable of the depth and breadth of these programmatic problems. For this reason, we respectfully suggest that our views may be of particular value to the Committee in its deliberations.
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/ The Honorable John Glenn May 18, 1987 In enclosure 1 to this paper, we discuss eight major points in favor of this i combined office of inspector general. These points are:
- 1. IT WOULD PROVIDE STATUTORY INDEPENDENCE AND AUTHORITY FOR THE NRC (
INVESTIGATIVE PROGRAM.
'2. THE CURRENT BIFURCATED NRC INVESTIGATIVE PROGRAM FAILS TO DEAL EFFICIENTLY AND EFFECTIVELY WITH COMPLEX NRC INVESTIGATIONS.
- 3. THE INSPECTOR GENERAL ACT OF 1978 DOES NOT DISTINGUISH BETWEEN INTERNAL AND EXTERNAL INVESTIGATIVE FUNCTIONS. RATHER. IT SPEAKS TO IG AUTHORITY REGARDING THE CONDUCT OF INVESTIGATIONS RELATED TO THE
" PROGRAMS AND OPERATIONS" 0F AN ESTABLISHMENT.
- 4. 01 INVESTIGATIONS ARE PRIMARILY RELATED TO NRC PROGRAMS AND OPERATIONS. THE NRC ITSELF 15 THE " VICTIM" 0F DELIBERATE VIOLATIONS OF NRC REQUIREMENTS AS SUCH ACTS DEPRIVE NRC 0F THE " TOOLS", I.E.
ESSENTIAL INFORMATION, THAT IT NEEDS TO PROTECT THE PUBLIC HEALTH AND SAFETY.
- 5. ANY NRC INVESTIGATIVE FAILURES ARE OF POTENTIALLY GREAT SIGNIFICANCE DUE TO THE PUBLIC HEALTH AND SAFETY IMPORTANCE OF NRC OPERATIONS.
- 6. THE INVESTIGATIVE PRODUCTS OF THE INSPECTOR GENERAL COULD BE USED TO SUPPORT NRC REGULATORY EFFORTS AS 01 INVESTIGATIONS NOW ARE USED EVEN THOUGH 01 IS NOT PART OF THE NRC STAFF APPARATUS.
- 7. COMBINING 01 AND OIA WITHIN AN OFFICE OF INSPECTOR GENERAL ENSURES THAT THE NRC INVESTIGATIVE PROGRAM IS STAFFED WITH PROPERLY QUALIFIED INVESTIGATIVE AND MANAGERIAL PERSONNEL. 4
- 8. THERE WOULD BE AN ECONOMY OF SCALE IN COMBINING THE OFFICES DUE TO REDUCED OVERHEAD AND TRAVEL.
In sum, it is our belief that the problems associated with the NRC investigative j program that were discussed on April 9, would not be remedied by the current j provisions of S.908, nor by any other current initiative of which we are aware. >
It is for this reason that we urge that the proposed NRC Office of Inspector )
General encompass the functions of both the Office of Investigations and the H Office of Inspector and Auditor. l The problems or shortcomings that we are attempting to resolve are endemic and longstanding. They predate the tenure of any particular NRC executive. Thus our recommendations should not be construed as criticism of either current'or former members of this Commission. Indeed, it -is precisely because these problems have persisted throughout the history of this agency that we feel so strongly about the need for statutory relief. It is encouraging that the Commission has issued its April 20, 1987 public statement of concern and support
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? l l The Honorable John Glenn May 18, 1987 I for the NRC investigative program. We are convinced that the Commission sincerely intends to fix what may be broken. But the issue here is not sincerity; rather, it is a matter of consistency over the long haul. A combined NRC Office of Inspector General-should ensure this consistency.
Five years ago, the Commission unanimously established the Office of Inves-tigations in reaction to severe Congressional criticism of the NRC's investi-gative program. The date of that public announcement was April 20, 1982. As your Hearing established, the professed enthusiasm for such a program waned as ;
the years went by. By ironic coincidence, the Commission finds itself once l again issuing a public announcement stating its intention to remedy Congres- '
sionally-identified problems in its investigative program five years later to
- the day -- April 20, 1987. We suggest that the statutory protections that would be afforded the investigative program were it to be combined within an office of inspector general should be sufficient to preclude the need for future announcements of this nature.
Sin ely, Ben B. Hayes, i ect r Office of Inves iga ions
Enclosure:
As Stated cc w/ encl.:
Sen. William V. Roth, Jr.
Chairman Zech Commissioner Asselstine Commissioner Bernthal 3 Commissioner Carr I 1
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8 OFFICE OF INVESTIGATIONS VIEWS ON THE NEED FOR AND COMPOSITION OF A STA 0FFICE OF INSPECTOR GENERAL FOR THE NRC i
The Office of Investigations favors the establishment of a statutory Office of Inspector General for the NRC.
We believe that such an office should combine the personnel and functions of the NRC Office of Inspector and Auditor (01A) and the Office of Investigations (01). We offer the following statements'in support of our position:
1.
IT WOULD PROVIDE STATUTORY INDEPENDENCE AND AUTHORITY FOR THE NRC INVESTIGATIVE PROGRAM. 4 Currently, neither 01 nor 01A are statutory offices. Either.. could be disestablished by a Commission vote. Although an unlikely event regarding the latter, the future of a non-statutory 01 is less certain in view of the fact that the Commission has considered placement of OI under the Executive Director for Operations on three occasions. Moreover, the current Executive Director for Operations once proposed in writing that 01 be made a part of the Office of Inspection and Enforcement rather than remain a separate office.
(The Office of Inspection and Enforcement, a non-statutory office itself, was disestablished by Commission vote effective April 11,1987.)
Neither 01A nor 01 have any authority other than that delegated to them by the Commission. Whereas an inspector general has statutory authority to issue subpoenas or to administer oaths or affirmations, the Directors of OIA and 01 must have this authority delegated to them by the Comission which could choose to limit the exercise of this authority. This has in fact happened with 01 which must seek Comission review of any proposed subpoenas.
This partment hasof also been the case with the referral of criminal matters to the De-Justice.
It is just recently (April 20,1987) that the Commission elected to allow OI to refer matters to the Department of Justice without mandatory consultation with the NRC Office of General Counsel and in the case of material false statements, allowing 01 to make referrals without consulta-tion with the Commission.
1 Each of the above concerns would be alleviated if both offices were part of a j statutory office of inspector general as the Inspector General Act of 1978 provides clearcut statutory authority and independence.
2.
THE CURRENT BIFURCATED NRC INVESTIGATIVE . PROGRAM FAILS T0_ DEAL EFFICIENTLY AND EF/ECTIVELY WITH COMPLEX NRC INVESTIGATIONS.
j NRC currently has a bifurcated investigative program that is apparently based on the assumption that NRC investigations are either internal (in which case 3 they are OIA jurisdiction) or external (in which case they belong to 01). In- 5 fact the distinction between them in practice is blurred.
One of_the purposes of an NRC investigation is.to identify the causes.of the problem that is the focus of the investigation. In some_ cases, the root cause of the by problem may be ineffective regulation by the NRC as.well as' wrongdoing a licensee. Any investigation that focusses on only one of these aspects i would fail to present a balanced picture regarding the real dimensions of the l
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i problem. Yet, this is precisely what happens so long as an artificial dis- i tinction is made between internal and external investigations.
On several occasions, 01 investigators conducting an " external" investigation have developed .or received allegations of NRC misconduct related to the matter !
being investigated. Typically such.information might suggest that NRC employ-ees were aware of the wrongdoing that OI was investigating and helped to con-ceal the matter from the NRC, or that an NRC employee has lost his or her objectivity. Although 01 investigators would document such information and provide it.to CIA, this approach presents certain difficulties. !
First, it imposes a delay. Such .information may arise spontaneously, some-times because of the rapport the OI investigator has managed to establish with an interviewee. A subsequent interview by an 01A . investigator may not be as productive because of the delay caused by the need to contact DIA and for 01A to arrange for an interview. Second, 01 investigators feel uneasy developing such information. They. fear being accused of having overstepped their authority and having intruded into a matter of OIA jurisdiction. Third, regardless of i the degree of. cooperation that may exist between the two offices, the chances of a matter " falling through the crack" are far greater than if there were only one NRC office re aonsible for conducting.all investigations.
There are also problems that arise when both offices are investigating matters related to the same facility such as has happened with the Tennessee Valley Authority, Fermi, and Comanche Peak. Licensee employees may be interviewed by investigators from both offices which in itself could create unnecessary con-fusion and frustration on the part of interviewees who generally are not familiar with the functional distinctions between the two offices. At the "
same time, there is usually little if any coordination of either interview arrangements or results. Although this may be understandable given the need for 01A to hold employee misconduct information closely, it nonetheless does not make for an integrated or efficient investigative program. i In sum, the NRC investigative program does not lend itself to a neat cleavage i between internal and external investigations. As noted above, there is 6 frequently overlapping jurisdiction so long as- the NRC investigative program is divided along these lines. Combining 01 and 01A.within an office Lof inspector general would provide for a.truly integrated investigative program that could deal with the full dimensions of any investigative matter.
- 3. THE INSPECTOR GENERAL ACT OF 1978 DOES NOT DISTINGUISH BETWEEN INTERNAL.
AND EXTERNAL INVESTIGATIVE FUNCTIONS. RATHER, IT SPEAKS TO IG AUTHORITY REGARDING THE CONDUCT OF INVESTIGATIONS RELATED TO THE " PROGRAMS AND - ;
OPERATIONS" 0F AN ESTABLISHMENT. i The Inspector General Act (at 6 "4) states that the Inspector General has the'-
" duty and responsibility" to, .... conduct, . supervise, and - coordinate -l
... investigations relating to the programs and operations of such establishment." The Inspector General Act does not differentiate between -
internal and- external functions. In reality, no Office of Inspector General (0IG) conducts investigations only of agency employees. Rather, they conduct-investigations of matters affecting the integrity of agency programs. Thus, ;
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l considerable office of inspector general investigative effort is directed to instances of fraud against the government, typically, but not invariably, contract fraud. Although one of the purposes bf such investigations is the recovery of government monies and the prevention of fraud and waste, the underlying rationale is the protection of agency programs. li I
For example, the Department of Defense Office of Inspector General conducts l investigations of Defense contractors to assure that the products or services provided the government are of sufficient quality that the Department of Defense mission is enhanced rather than degraded. Thus, the primary ;
i Department of Defense interest in a case such as substitution of substandard !
fasteners in Army tanks is not just the waste of government money; it is to !
ensure that the tanks are safe and can perform as originally designed, j Similarly, NASA Office of Inspector General investigations are motivated by a concern that shuttle components are safe rather than merely concentrating on cost overruns. inspectors general of agencies with loan programs (such as HUD, VA. Commerce, EPA, etc.) are concerned that their agency appropriations are being used to further agency (and societal) programs. Dollar recovery is important, but in the context that dollars diverted diminish the effectiveness of agency programs.
There also are some inspectors general (such as Agriculture) whose inspectors I general are involved in the investigations of " external" offenses such as Food Stamp violations, fraud in food inspection programs etc. Thus, the NRC {
l combined office Office of Inspector General would not be onc of a kind (not l that being one of a kind is necessarily a flaw given the nature of the NRC mission).
i It should also be noted that 01 investigations are primarily fraud investiga- )
tions. A licensee or other entity is investigated because of an attempt to '
defraud the NRC. Thus, falsified documents, material false statements, and willful violations of NRC requirements, like the contract frauds investigated by other agency inspectors general, represent an attempt to degrade the efficacy of the NRC regulatory program. Money is almost always a factor in our investigations, but not the theft or diversion of government money per se.
Rather, the offenses are motivated by the savings of money - the avoidance of out-of-pocket costs by licensees that attend delay in licensing, replacement costs / debt service during outages, or costs of backfits, upgrades, or technical fixes. On balance, in form and substance, 01 investigations are similar to inspector general investigations. They are also of similar impact on program integrity.
4.
01 INVESTIGATIONS ARE PRIMARILY RELATED TO NRC PROGRAMS AND OPERATIONS. '
THE NRC iTSELF IS THE " VICTIM" 0F DELIBERATE VIOLATIONS OF NRC 3 REQUIREMENTS AS SUCH ACTS DEPRIVE NRC 0F THE " TOOLS", I.E. ESSENTIAL INFORMATION, THAT IT NEEDS TO PROTECT THE PUBLIC HEALTH AND SAFETY. !
Traditional investigative organizttions such as the FBI, U.S. Customs, or the U.S. Secret Service conduct investigations of violations of criminal statutes within their jurisdiction. These agencies are not the " victims" of the violations they investigate. A counterfeiter, for example, does not victimize the Secret Service. Secret Service programs are not directly degraded by such '
criminal activity. In contrast, the NRC is !' victimized" by deliberate violations of NRC requirements. When the NRC is deprived of complete and
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' 'l accurate information, as would be the case with falsified records, material false statements, failure to comply with reporting requirements, or even .
instances of discrimination against employees who report safety concerns, the integrity and efficacy of NRC programs intended'to protect the public health and safety are seriously affected. The foregoing examples represent the vast 3 majority of 01 investigations.
Finally, there may be occasions when allegations are made against the Office !
of Inspector General or-its personnel. If this were..to happen, it would be handled in the same manner the inspectors general in other agencies- resolve these matters. Allegations against non-supervisory _ field personnel . are -
normally investigated by the inspector general using investigators from the headquarters staff. Investigations of headquarters personnel or supervisors would be done by another agency inspector general. Both practices are used in the inspector. general community.
- 5. ANY NRC INVESTIGATIVE FAILURES ARE OF POTENTIALLY GREAT SIGNIFICANCE DUE
- TO THE PUBLIC HEALTH AND SAFETY IMPORTANCE OF NRC'0PERATIONS.
Few if any federal agencies have greater public health and safety responsibil-ities than the NRC. A regulatory breakdown could set the stage for a nuclear accident that could affect the safety of large segments.of the population. As '
noted in the Commission's press statement of April 20, 1987,.the NRC relies on j thorough investigations to accomplish its regulatory activities. Any weak- i nesses in the NRC investigative process could adversely affect the ability of the NRC to fulfill- its regulatory responsibilities.
Thus, weaknesses or i shortcomings in the NRC investigative program could have a direct effect on 5 the public health and safety, common defense and security, or protection of- ;
the environment.
1 Given the foregoing, it is reasonable to conclude that the NRC investigative i program is extraordinary if not unique with respect to its direct relationship !
to the public health and safety. We suggest, then, that it is not unreason-able to structure .the NRC investigative program in an extraordinary manner if that is what is needed to assure its integrity and independence. Whether the i structure of the NRC investigative program comports with that of other federal 2 agencies is at best a secondary issue.
Inspectors general were created in recognition of. the need to assure the integrity of government programs. Based on the record established'since the Inspector General Act of 1978 established the first inspectors general in i various federal agencies, it is reasonable to conclude that inspectors general !
are a highly effective way to structure agency investigative programs to ensure program integrity. Given that,-it is reasonable to conclude that the 1
inspector _ general concept would be especially suitable for the protection of.
HRC program- integrity - particularly in view of the safety . implications alluded to above.
- 6. 'THE INVESTIGATIVE PRODUCTS OF THE INSPECTOR ' GENERAL COULD BE USED T0. :
SUPPORT NRC REGULATORY EFFORTS AS 01 INVESTIGATIONS NOW ARE USED EVEN THOUGH 01 IS NOT PART OF THE NRC-STAFF APPARATUS.
It has been suggested that if 01 were to become part of an office of inspector general, its investigative products could no longer: be used by' the NRC in-support of enforcement actions, licensing' actions, or-other NRC efforts.. That-
.is not correct.-
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L First, it should -be noted that inspectors general d_o work for their agencies, and the bulk of their investigative products are used by the agency i heads / program managers to remedy agency or program problems. The inspectors general work for neither the Congress nor 0MB. They report to the agency head. The process for appointment of inspectors general and the requirement for reports to Congress help protect the independence of the investigative process, but do not remove any office of inspector general from the primary role of providing investigative support to his or her. agency.
Second, even if the office of inspector general were independent of the agency, the investigative support could be the same. This is the situation with the various federal law enforcement agencies that support. Department of Justice prosecutors. For example, the Secret Service is not part of the Department of Justice, but cooperates with the Department by providing the requisite investi-gative support for the prosecution of counterfeiting cases or other matters within Secret Service jurisdiction. '
Third, the Office of Investigations currently is independent of its major client, the NRC Staff much in the same way an inspector general would be. Yet 01 investigations are conducted in support of the NRC . enforcement program which is an NRC Staff function. The Office of Investigations provides .its reports of investigation to the Staff which then is responsible for preparing and presenting the enforcement case. The Office of Investigations may assist the Staff when requested, but by and large, the NRC enforcement program has functioned well for almost five years, even though the Office of Investiga-tions has been independent of it. Thus, it is reasonable to assume that an office of inspector general could provide the same degree of investigative support.
- 7. COMBINING 01 AND OIA WITHIN AN OFFICE OF INSPECTOR GENERAL ENSURES THAT THE NRC INVESTIGATIVE PROGRAM IS STAFFED WITH PROPERLY QUALIFIED INVESTIGATIVE AND MANAGERIAL PERSONNEL If Congress is concerned about preserving the integrity and independence of the Office of Investigations, S.908 leaves a loophole that could allow this independence to be eroded. There is nothing to prevent the replacement of 1 current 01 management and/or investigative personnel with other NRC personnel l who may lack investigative training or experience, or who may be opposed to the very concept of an independent Office of Investigations. Thus, although the office may appear to be independent on paper, it 'could be partly or substantially staffed by persons who would cause 01 to operate essentially as fj a part of the NRC Staff.
At the present, not only does the Director of the Office of Investigations 1 serve at the pleasure of the Commission, but he lacks the statutory authority i to appoint subordinate investigative or managerial personnel. It is possible, perhaps even likely, that the Office of Investigations could be forced to accept personnel that the Director did not 'want. . Were the -Office of Investigations to be part of the Office of Inspector General, the Inspector i General would have sole authority to appoint his or her own subordinates.
This is not merely a theoretical concern. There have been several suggestions i over the past two years that technical personnel should be assigned to the Office of Investigations. Indeed, at a time when requests for additional qualified investigators were rebuffed, it was made clear that the Commission would approve the transfer of certain technical personnel to 01. On three j l
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,' i occasions, the Director of 01 was. offered the services of certain senior l executives without regard to the current 01 staffing ceiling. This. eventually culminated in the reassignment of a seniorf executive to 01 who lacked an investigative. background and whose services had not been sought by - the Director.' .
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- 8. THERE WOULD BE AN ECONOMY OF SCALE IN COMBINING THE OFFICES DUE TO REDUCED OVERHEAD AND TRAVEL.
First, it would be reasonable to assume that there could be.a reduction in the number of secretarial positions, at ;the headquarters level. ,Similarly, operations: support functions such as FOIA/PA, personnel, and budget could be 4 consolidated. There could be a reduction in some managerial positions as I well. Second, the. current 01 field structure could provide a field structure .
for the new Office of. Inspector General. . This' could reduce travel -costs I significantly as 'much of travel by OIA investigators is 'to NRC regional ';
offices. There'also would be a cost saving in not havingfto send two sets of NRC investigators to work related cases at the same facility. : As described 1 above there could be additional. cost savings due to the increased efficiency ]
of 'the investigative process. - There would also be the direct' savings of .!
reducing the number of investigators traveling to any one: location. '
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