ML20237B787

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Forwards,Per 860212 Memo,Draft Ofc of Investigations Rept of Investigation on Plant & Ofc of Inspector & Auditor Rept.Rept Does Not Contain Info Unknown to EDO & Routine Circulation of Repts to EDO Not Necessary.W/O Encls
ML20237B787
Person / Time
Site: Fermi DTE Energy icon.png
Issue date: 02/21/1986
From: Hayes B
NRC OFFICE OF INVESTIGATIONS (OI)
To: Stello V
NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML20237B682 List:
References
FOIA-86-244 NUDOCS 8712170151
Download: ML20237B787 (4)
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Text

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February 21, 1986 e%.e MEMORANDUM FOR: Victor Stello, Jr.

Acting Executive Director Operations

_rn FROM: en .Ha'yed,# Director Office of Investigation

SUBJECT:

01 REPORT OF INVESTIGATION ON FERMI NGS Your February 12, 1986 memorandum to me on this subject (enclosed) indicates that you require a copy of the draft OI report of investigation on Fermi as well as the-interrelated OIA report. During the course of at least two con-versations on this subject, you informed me that you believed the issue of possible willful false statements to the NRC by certain licensee officials tn be of sufficient safety significance to justify having OI . depart from its normal' procedures that pertain to the distribution of reports under prepara-tion or review. You also raise the broader issue as to what 01's procedure should be in future cases. I will deal with the case-specific matter first.

Because of your assertion that you require an advance copy of the report of investigation because of the safety significance of the subject matter with which it deals, I have elected to provide you a copy of the final report as well as the memoranda of transmittal. It should be noted that we consider this report still to be in the review cycle until completion of coordination of this matter with OGC, and the Comission. Thus, this report, although not

  • a draft, is not yet officially issued. As such, it should.be accorded the same handling restrictions that would apply to draft reports. It should not be duplicated, and this copy should be returned to 01 when you are finished with it. Please note that the requested OIA report is an exhibit to the 01 report.

Both your memorandum and discussions that we have had imply that the subject report may contain information hithertofore not known by the Staff. I do not believe this to be the case. Our records reflect that the Staff was kept fully informed of the progress of this investigation from the outset. Most of this interaction was in the field between the 01 Field Office, Region III and Region III officials. This is consistent with 01's normal procedures, as 01 Policy 15 requires OI to keep requesters of investigations informed of signif-icant developments during ongoing investigations. Because of the investiga-tive visibility, your predecessor, Bill Dircks was personally briefed on September 5,1985, and the Commission was subsequently briefed on at least two occasions. It should be noted that the Staff position at that time was that even if the investigation were to prove that the licensee deliberately mislead the NRC in July 1985, it should not affect a restart decision. We are prepared to document, if necessary, the frequency of 01/ Staff interaction during this investigation. We do not recall any complaints from Jim Keppler, the lI I

21 1 071211 j PUNTENN96-244 PDR

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Stello, Jr. 2 requester of this investigation, about the quantity or quality of investigative information provided him or his staff during the course of this investigation.

Let me turn to your suggestion that 01 routinely provide you copies of OI reports at the time they are sent to OGC or the Comission in accordance with the Commission's August 14, 1985 instructions regarding the processing of cases that 01 believes warrant referral to the Department of Justice. I do not find such a course of action acceptable for the reasons that I will set forth, below.

Although you are correct in noting that the Comission's August 14 in-structions do not speak to the distribution of the reports, 01 Policy 24 does.

The policy in essence states that 01 reports in preparation or review will not normally be circulated to other NRC offices. The policy does provide for such circulation when 01 perceives a need to do so such as the reporting of safety concerns that would require prompt Staff attention, or when the accuracy of the report would be enhanced. This does not mean that the Staff does not receive OI-generated information during the pendency of an 01 investigation.

Policies 15 and 17 speak directly to this issue. OI has scrupulously adhered to these policies. No regional administrator has complained to me that we have not complied with these policies. As far as we know, the system is working just fine. The net effect of these three policies is that the Staff is kept informed of significant investigative progress and 01 is able to maintain its independence. It is the latter that would be jeopardized by your proposal.

When 01 was established 31 years ago, great care was taken to develop policies that preserved a balance between its ability to provide investigative support and its need for organizational independence. The latter was crucial in view.

of the controversy that surrounded the NRC investigative program prior to the establishment of 01. Policy 24 is one of the cornerstones of this indepen-dence. By allowing OI to decide, on a case by case basis, when to allow a draft or unissued report to be sent outside 01, we preserve not only the reality of an independent 01, but the appearance as well. It is my view that we must be especially conscientious in preserving both qualities if OI inves-tigations are to continue to be accorded the credibility that they now enjoy.

Let me summarize. 01 reports that are in preparation or under review, in accordance with Policy 24, will not normally be circulated outside 01. The policy does allow exceptions to be made - on the initiative of 01. I am perfectly willing to exercise that discretion in favor of releasing such reports to you when you indicate a compelling regulatory need (such as an immediate safety concern or impact on an imminent licensing decision) so long as it is done on a case by case basis. I cannot agree, however, to do this as a matter of routine for the reasons that I stated above, viz. that I do not believe that the Staff has been deprived of significant investigative informa-tion in the past, and because of the errosive impact this would have on 01's independence, both real and perceived.

I I

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V. Stello, Jr. 3 Lastly, you have alluded to the need to seek Commission approval for the routine distribution of reports that are still under review. As I do not agree with your proposal, I see no need to seek Cammission approval to e#fect a change in the policy. To the contrary, I would be opposed to any modifica-tion of Policy 24 and would request that any initiatives that you may wish to undertake unilaterally be coordinated with 01 so that I may be prepared to explain our position to the Commission.

Enclosures:

As stated cc W / enclosure (referenced memo)

Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech H. Plaine, 0GC Eugene T. Pawlik, 01:RIII Jer+s G. Keppler, RIII Distribution:

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2: 5.f MEMORANDUP FOR: Ben B. Hayes, Director Office of Investigations FROM: Victor Stc11o, Jr.

Acting Executive Director for Operations

SUBJECT:

01 REPORT ON DETROIT EDIS0N COMPANY (FERMI)

You mentioned to me Monday that completed O! reports are provided to OGC for its review of OI proposed referrals to 00J,'and that 01 awaits. completion of such review before providing the reports to the staff. This could result in significant delay before the staff receives information requiring regulatory action. The August 14, 1935 memnrandum establishing this review does not address the distribution of the reports. Thus, in the future, I would appreciate re:eiving copies of the completed report at the time you send to OGC. If you believe such a course of action requires Comission approval or is not acceptable to you, please notify me 50 that approval of the Comission can be obtained.

In addition, I require a copy of the draft O! report on Fenni with the OIA report, if available, with which it is interrelated iii order to determine if there is a safety issue that needs to be addressed by the staff. I will treat it with appropriate c,nfidentiality.

... .- q- w . .

[ c h [ /.

Y tor Stello, Jr.

Acting Executive Director for Operation.c cc: G. Edles, CIA

      • Faxed to Eugene Pawlik on February 14, 1986.

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