ML20154E052
| ML20154E052 | |
| Person / Time | |
|---|---|
| Issue date: | 02/19/1988 |
| From: | Hayes B NRC |
| To: | NRC |
| Shared Package | |
| ML20154D958 | List:
|
| References | |
| FOIA-88-237 NUDOCS 8809160203 | |
| Download: ML20154E052 (30) | |
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QUESTION'18.* In April 1987, the 01 01 rector submitted SECY 87-93 to the fd 23 totutO' ion.
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(d) What arrangements were reached as a result of the manage-ment meeting held to discuss the SECY paper?
ANSWER The Director. 01, and his staff met with the Comission on July 29, 1987, to discuss SECY-87-93. During that meeting the Cemission re affirred its support for the existing 27 01 Policy. Statements. The Comission particularly re-emphasized the authority of 01 to self-initiate investigations. Prior to that management meeting, but subsequent to the submission of SECY-87-93, the Investigation Referral Board was disestablished, and the Comission announced that neither Comission nor Office of General Counsel review of proposed O!
referrals to the Department of Justice would be required. Based on the foregoing, as well as the advice of Comission staff. O! submitted SECY-87-93A which formally withdrew SECY-87 93. Ol's withdrawal of SECY 87-93 was based on its understanding that the issues raised by that paper had been favorably resolved by the above-described actions.
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.)w e rsso -ZQ QUESTf0M'22. Please explain the relationship between wrongdoing and
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- l'.saVety issues in the centext of Ol's responsibilities to l
..,.,, .,, ' investigate wrongdoing. In the Comission's view, does wrongdoing always have safaty significance? Does O! share the f l
Comission's view of the relationship between wrongdoing and l safety issues?
l ANSWER i
f 01 offers the following observations regarding the interrelationship of '
wrongdoing and safety. The NRC does not prescribe requirements for non safety i
reasons. As wrongdoing in the NRC context always involves the deliberate violation of NRC requirements, it must always have safety significance.
Wrongdoing is not a randon chance event. A component does not just happen to fail, nor an individual just happen to make a mistake. To the contrary, an individual, or more ominously, a group of individuals, sets out not only to j violate a safety requirement, but in virtually all instances, to concea) er cover up this violation. The underlying violation may vary in significance from falsification of QA records relating to cceponents that are, in fact, of !
sufficient quality to falsificat, ion of QA records thst conceal actual defects. l But the safety significance of the wrongdoing does not turn only on the l apparent magnitude of the violation per se. The real safety significance lies f l
with the person or persons who comitted the violation. In other words, the issue is character and integrity. l l
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f QUESTION 22 (CONTINUED) ;
l The nuclear industry is largely self-regulating. For the most part, our !
regulatory assumption is that most licensees will comply voluntarily with NRC l requirements, and that their comitment to the protection of the public health and safety is as vigorous as that of the hRC. We do not disagree with this assumption. But, this is what makes character and integrity so important. l The NRC must be able to rely on persons in the industry to comply with, not circumvent NRC requirements. Industry employees who engage in deliberate j violations of NRC requirements represent a safety threat in terms of their f unreliability. .
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It is difficult enough for NRC inspectors to detect non-compliance when it is f not deliberate given NRC resource constraints. When such violations are done l
on purpose, and covered up, such ncn-compliance is highly unitkely to be discovered during routine insper.tiens. Thus, the licensee employee who engages in wrongdoing is like a Trojan horse within the regulatory system.
Whatever character traits that may lead them to comit such violations render ,
t such employees safety hazards of the first order. -
Thus, it is 01's view that wrcngdoing, as defined by the NRC, always has a j degree of safety significance. (
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,, QUESTION 16. Since Ol's inception in 1982 there has been consideret1r :
. discussion of O! authority to self-initiate investigattert, j ,
) (a) Specifically describe the extent of authority to self-initiate irvestigations, j 1 t
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l (b) 9 hat decurent . .ontifies O!'s self-initiation authority? l l i ANSWER.
j The authcrity of O! to self-initiate invertiertions is set forth in O! Policy l 1 l i
4 This policy codifies the authority tr trif-initiate investigations that !
l i j was granted 01 at the tire of itt lapp erentier. The Cemissier re-affireed :
this authority in resperse to an April 1987 01 Cemissien Paper (SECY 87-93).
At this point O! has ttr tetherity to initiate investigatiens in the absence i j of a staff request er even ir, the face of staff oppositier. The Comission, I ;
j of course, rey direct 01 not to continue any invettigatten, h'ith the realign- '
r4nt of O! as an NRC Staff Office, this authority, as well as cther 01 l operatierai erd ercarizational aspects, will t,e censidered by the 01 f I
Organizatien Feview Group recently appointed by tre Chaiman, j
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l' QUEST 10!.. ., in eril 1987, the O! Director submitted SECY 87-93 to the l J
- a. mission.
j; I (d) What arrangements were teached as e result of the manage- l i
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j nent meeting held to discuss the SECY paper?
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l l pt.& "yw$ L '7-u Y i The Director. 01, and his staff met with the Com.ission en July 20, 1987, to t
1 discuss SErY C7 !;. During that meeting the Comission re-affimed its l 1
) support for the existing 17 CI Policy Statements. The. Corrission particularly (:
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i re-erphasized the autherity cf O! to self-initiate investigatiers. Prior to -
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i Investigatien Referral Board was disestab1khed, and the Comission announcec l l that neither Corr.issier rer Office of General Cour.sel review cf proposed O! .
d i referrals to thit Cepartrent of Justice would be required. Based on the j j foregoing, as well at the advice of Comission staff, O! submitted SECY 87-93A I 1 '
j wt.ich femally withdrew SECY E7 93. Ol's withdrawal of SECY-27 C3 was based cr. its urterstanding that the issues raised by that paper had been fave,rab'," ;
resolved by the atnve-described actiert, j i I
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q QUESTION 18. In April 1987, the O! Director. submitted SECY 87-93 to the
'; s. s Comission.
(d) What arrangements were reached as a result of the manage-t j ment meeting held to discuss the SECY paper? j l ;
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ANSWER !
l The Director of 01, members of his staff, and the EDO met with the Comission j i
on July 29, 1987 to discuss policy issues pertaining to the authority and {
responsibility of 01 discussed in SECY-87-93. The discussion centered on the questien ef whether OI. under its authority to self-initiate investigations.
had "primary standing among NRC offices to detemine whether an investigation l
is needed for NRC purposes when the matter involves alleged or suspected wregdoing." The Co raissioners repeatedly questioned O! on its need to
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Mh establish "primary standing" for deciding NRC regulatory need in circumstances i N of wrongdoing when O! clearly had authority to self-initiate irvestigations.
O! expressed concern for potential disagreement with hRC staff concerning
[ regulatory need for an investigation but could not recall specific instances !
where this had impeded its self initiating an investigation. Subsequent
,n discussion centered on the responsibility to bring such matters to the attention of the Comission if any such 01 staff disagreements impeded Ol's Breaux/Sirpson/0!
2/22/88
QUESTION 18(continued) authorfty. The meeting teminated with general agreement that Ol's existing 27 policy statements did not need further supplementing by any of the seven ,
listed statements of O!'s authority and responsibility contained in SECY 87-93.
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QUESTION 20 What has the ultimate authority, within NRC, to open a i full-scale investigation under O!'s jurisdiction? Who has the i i !
l prie.ary responsibility to detervire whether or not an 01 i l
investigation is needed? ;
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i ANSWER l I
i Ultimate authority of ccurse rests with the Comission. Altheugh the EDO and Regional Adrinistre.ters rey request investigations, cr.ly the Comission nay l direct O! ta cpen an investigation. Thus, en a practical basis, the Directer.
01, detemines whatner er
- rot te initiate an investigation. Similarly. l authcrizec requestors have a respcnsibi n ty tn request 01 investigations wher.
the threshold criteria of NRC Manual Chepter 0517 are net. The Director. 01, ;
i rust also remain aware of ratters that may require investigatien and be ;
l preparec tc inittete investigations in the etser.ce of a request. The fore- !
going precedures have heer fellowed in the past. TFe recent transfer of O! to
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the Staff of the ECO nay alter these arrangerents deterdirg, inter alia, on (
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the recom endatirr$ ef the recently chartered 01 Crganization Review Group. l i
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- 3. QUESTION 21. Has the Cerrission ever denied an 01 request to initiate an i
- I 4 investigationunderitsjurisdictier? If so, describe the ;
l q specific incidences and why the request (s) were denied. .
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I The Comission has never denied an O! request to initiate an investigation I under its jurisdictier but did decline to support the initiation of an j investigatten involving two senior r,anagers at the Wolf Creek Generating l l df Statien, Burlington, Kansas, ir early 1905. In accordance with Comissicn f 1
(\ ef persons for reasons of character and l
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. hq pclicy regarding the investigat' !
integrity, O! bacught to the C Mirr'r attention certain actions on the l t
j N part of these two senist officiels - elleged sexual harassrent, alleged j
! i l blackballing of a ferrer erployee, and the a11ered 41tegal search and riizure '
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! of docur.ents fror, that erpleyee's vehicle (without that employee's knowledge). !
l CI did rot sp?cifically recomerd a course of action in the Corrirsicr. paper j settirt ferth the above allegatier.s. s,; Cem.ission Asselstine propcsed er i h !
irvertisatten be conducted. The Comission voted not to support this actier. '
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. QUESTION 22. Please explain the relatiership between wrongdoing and safety issues 1,n the certext of OI's responsibilities to investigate wrergdoing. In the Cormiission's view, does wrongdcing always ha,ve safety significance? Dces 01 share the Comission's view of the relationship between wrongdoing and safety is:,ues?
ANSWER i
J r O! offers the following observatiers regarding the interrelationship of wrongdcing and safety. The NRC does not pre?rrite requirements for non-safety l d
i reasons. As wrongdoing ir the NRC context always involves the deliberate '
. violation of NRC requirerents, it must always have safety significan:e.
Wrongdeirs is ret a random chance event. A component does not just happen to fail, nor an individual just happen to nake a nistake. To the errtrary, an indiv W el, or core ominously, a group of individuals, sets out not only to violate a safety requirement, but in virtually all instances, to correr.1 cr ;
cover up this violation. The underlying violation may vary in significerce frcr falsification of QA records relating to components that are, in fact, of sufficient quality to falsification of QA records that conceel actual defects. l But the safety siCnificance of the wrongdoing coes not turn oniy on the ,
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apparent magnitude of the violation per se. The reti safety significance lies l with the person or persons who cemitted the violation. In other words, the issue is character and integrity.
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. The nuclear industry is largely self-regulating. For the mcst part, our l
regulatory assumption is that most licer. seer will comply voluntarily with NRC requirements, and that their comitrer.t te the protection of the public health and safety is as vigorous as that of the NRC. We do not disagree with this assumption. But, this is what makes character and integrity so important.
The NRC must be able to rely on persons in the industry to comply with, not circumvent NRC requirements. Industry employees who engage in deliberate l violations of NRC requirements represent a safety threat in terr.s of their unreliability.
l It is difficult enough for NRC inspectors to detect non-compliance when it it l not deliberate given NRC resource constraints. When such violations are done i
on purpose, and covered up, such non-compliance is highly urlikely to be l discovered during routine inspections. Thus, the licensee employee who engages in wrongdcing is lil.e a Trojan horse within the regulatory system.
Whatever character traits that may lead them to commit such violations render such erployees safety hazards of the first order.
Ttics, it is OI's view that wrongdoing, as defined by the WRC, always'has a l -degree of safety significance.
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'itESTION 24. In his Octcber 6,1987, testinony before the Subconrittee, Mr. Peyes r.cted 01's mission of providing thorough, objective, and timely reports to the staff to assist them in making regulatory decisions. What criteria is used to suspend an investigation based uper a regulatory need? Who nakes this decision? Please give specific examples of OI investigations that have been suspended.
ANSUER The Director, 01, may elect to susper.d ar investigation based on a lack cf regulatory need, but this would be a rare action for the following reasce.
Virtually all current 01 investigatiers have been carefully reviewet by the Staff ard Of prior to initiation. Eacn open case represents a ,ioint Staff /01 decision that the facts available to the NRC at the outset represent e reasonable belie' thr.t wrongdoing has occurred. As by definition, regulatory need attaches to all wrongdoing within 01 jurisdictien, tp c.nly factor that could lead to a decisier that a regulatory need no longer exists would be cenpelling evidence supporting a reasonable belief that wrongdoing did ret, in fact, exist. This normally would be a result of the investigative process.
Under those circumstances, the assigned investigator would, with the concur-
! rence of his supervisor, discontinue the investigation % rite a final 1
report of investigation that would be issued in accordance with stancard procedures ,
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. 2-Although the original requestor of an investigation may assert that he or she no longer requires an investigation, the investigation would be discontinued by the Director. 01, pl.Myere"tes:a feesonable bel.ief that thertgs no
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On the other hand, the Director, GI, may want to close a case due to a requestor's assignment of a lower priority to the investigation. For example, the requester of an investigation initially assigned a high priority may, based on the belief that the investigative results nc longer are recessary, requert it be treated as a low priority case. Under those circumstances, the.
case could become a candidate for 01 administrative closure for lack of resources. Thus, although 01 would not close a case solely on the basis tFat the Str.ff asserts that there no longer is a regulatory need, the practical results of such a Staff action would be to cause the matter to be c1csed administrative 1y for lack of resources.
As of December 31, 1987, 01 has closed 39 cases administrative 1y for lack of resources.
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. I OVESTION 14 In testimony before the Subcommittne er October 8, 1987,-
Chairnn Zech stated that there were a number of reasons, other ,
than the lack of trained investigators for establishing 01.
Please describe other reasons or specific incidents which led to establishina 01.
ANSWER.
In the face of mounting Congressional criticirn of the NRC investigative progran in late 1981 and early 1082, the Comission elected to establish an Office of Investigations that would repert directly ta the Corr.ission. The Comissien arneunced that it was taking this r.tep to inprove NRC's capability to perform credible, thereuph, timely, and obiective investigations. Although the staffing of the nes' office with trained investigators var. an ir.portant step in schievirp this goal, the Comission recognized that the past problers were a product also of the organizaticnal placement of the investicetive furetier, its degree of functienci independence, adequacy of staffing levr1 5, and the arcunt and quality of investigtive authority and perfortnance standards. Thus, the decision to establish O! was predicated or. tFe Corrirrien's desire to strengthen all of these areas rather than confine the remedy only to recruiting trained investigators. l I .
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OVESTION 15. Please prcvide~to the Committee the follcwirg, since 1982, by year:
(A) the total number of alleged violations of NRC rules and rasu lations referred to 01.
(B) the tetal number of'the alleged violations which resulted in the epening of 01 cases.
ANSWER.
OI has not kept records of the number of investigative reouests that have been declined by 01. It is a rarity fer O! to decline investigative requests, especially since the greater forr.ali:stien of investigative request procedures over ti.e pact two years. Consequently, the below cited case initiation statistics also serve as a fr.irly accurate indication of all matters brought to 01's attention.
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4 OVESTION 15 (A) (B). (CONTINUED) :
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YEAR NUMBER OF CASES OPENED ^ i l
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! 1982 164'
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186 1983 1984 158 t
1985 150 [
1986 86 1987 87
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i TOTAL. YEAR TO DATE: 831 l 1
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QUESTION 15. Please provide to the Comittee the following, since 1982, bLyeg:
(C) the-total number of cases 01 referred to the Department of Justice.
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YEAR CASES _ REFERRED 00J 1982 0 1983 12 1984 14 :
1985 15 1986 15 1987 y )
i TOTAL TO DATE: 81
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QUESTION 15. Please provide to the Comittee the following, since 1982, i
by year:
- (d) the total number of cases referred to the office of
,j . InspectorandAuditor(OIA)by01. ,
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I ANSWER, 1
O! Referrals to OIA I
) i i i 1982 --- 0 i l i
! 1983 --- 0 i
1984 --- 0 1985 --- 5 1
1986 --- 3 1
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! 1987 --- 11 i i s'
j i 1980 .-- 1 l
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.0 OUESTION 15. Please prcvide to the Comittee the folicwire, since 1982; 1
hy year:
(E) the total number of cases 01 and OIA collaborated on.
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ANSWER.
L'e assurre that "collaboration" mear,s irstances where both OIA and 01 jointly work the same investigation or portions thereef, such as the conduct of joint !
interviews. We can find no record of any such OIA/0! collaboratien.
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QUESTION 18. In April 1987, the OI Director submitted SECY 87-93 to the Commission.
(a) For what specific reasons did the O! Director submit the SECY paper to the Commission?
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(b) What events led to submitting the document to the Commission?
ANSWER SECY-87-93 arose out of an 01 concern that certain Staff and Come.issier actiert tr.Len from 1986 on had the effect of creating confusion regarding the scope of 0! authority and responsibility. Two actions in particu' tar -
Cerristier approval of a Staff proposal (SECY-85-369) regarding the initiation, establishment of priorities, and the termination cf irvestiga-tions, and osteblithrent of an Investigation Referral Beard - appeared to conflict with long standing O! policies and procedures, particularly in such areas as the authority of the Director. 01, to initiate investigations sua sponte, or the obligation of MRC eroleyees to report wrongdoing matters to 01.
The need for clarification became acutely evident in February 1987 when controversy over O! self-initiation of an investigation over the obje:tions of some Staff officials led to at least one Conmissioner severely criticizing the O! actinrs and suggesting the need for disciplinary action for the Director, OI.
PREAUX/SIMPSON-0!
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QUESTION 18. In April 1987, the OI Director submitted SECY 87-93 to the Commission.
(c) What did the OI Director ask for in the SECY paper?
5 ANSWER OIasked,(1)thattheCommissionreaffirnOI'sauthorityandresponsi- l l
bilities, and (2) that the Connission direct O! and the Staff te develop joint '
guidar.ce to ensure that all NRC employees are_ informed of the scope of 01 authority 4;id responsibility so that all natters of wrongdoing ere brought to O!'s attentier. OI then provided a list of seven statements of 01 authority and responsibility for Conmission affirmatter.
BREAUX/SIltP50fi-0!
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QUESTION 19. What NRC document (s) define the procedures for conductirg e
investigations under 01's jurisdiction?
(a) Define the thresholds for conducting OI irvestigations.
< ANSWER
- i 01 investigations are conducted in accordance with the 27 Comission-approved !
01 Policy Statements, implementingpreceduresareconttainedinthe OI/Irvestigative Procedures Manual, j
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, QUESTION 19. What NRC document (s) define the procedures for corductirg investigations under CI's jurisdiction?
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(b) Define the priorities for conducting O! investigations.
ANSWER t
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The thresholds for conducting O! investigations are found generally in Part i
i III. B.1. of the Appendix to NRC Manual Chapter 0517. The thresbc1d for a Staff ir.vertipative request is a reasonable basis for belief of wrongdoing ard a Staff deterrination that an investigation is necessary for enforcement or l other regulatory action. The Director 01, may self-initiate er investigation based on reaserable belief of wrongdoing in accordance with 01 Policy 4 i.
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! BREAUX/S!MPSON/01 02/09/8E 1
o QUESTION 25. Please provide to the Subcomittee the follcwing data by fiscal year through 1987. l (a) the number of positions requested by 01.
(b) the number of positions requested for O! by the l Comissinn. ,
(c) the nunber of positions allocated to 01. ;
(d) the number of positions allocated to 01 by the Corgress, !
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ANSWER :
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The fc11ering information is respor.sive to thic question:
l Fiscal Corris s ic r. President's t Year Rast to OPB Budget Rqst FTE FTE j i
1982 38 38 a
- 1983 38 38 a a
l 1984 42 38 b
1985 49 49 b
1080 38 44 1987 44 43 h l b
1988 44 44 '
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1989 44 44 1
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The Office of Investigations perserrel ceiling was held to 38 FTE's until FY 1986.
l J. Asselstine.) (See attached 1/24/85 retro from C. Kamerer to b
Congressional Authorization Act and Appropriations Act did not reduce the President's Budget ree.uest for the Office of Investigations.
BREAUX/SIMPSON/01 0;/Ct/CC
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,UESTION Q N. The NRC and the Department of Justice (00J) are develerine e menorandum of understanding to provide for coordinttfor rf investigations between the two agencies.
(a) Describe what problers existed between the NRC and 00J which led to the need for a memorandum of understanding.
ANSWER l
l l The decision to negotiate a Memorander of Understanding (MOU) arose not so l ;
l much cut of specific probler.s as it did fren the mutual recognition of the
! desirability of femalizing the precedures for the exchange of investigative infomaticn between the two agencies. Both agencier fcit that an MOU provided for a greater degree of censistency and understanding in these areas.
Moreover, the develocr.ent of an MOU allowed bnth apercies to arrive at an j l
agreement regcrding such issues as the tining of investigative referrals and l
the mechanisms and criteria for either agency to defer actions until the cther l l has teken its action. l l \
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d QUESTION 26. The NRC and the Department of Justice (C00) are developing a memorandur of understanding to provide for coordination of investigations between the two agencies.
(b) Describe what priorities have been tentatively agreed to with respect to NRC referrals to 00J.
t J ANSWER There has beer no discussion of priorities, per se, with respect to NRC !
referrals to 00J. The Director. 01, refers to 00J those matters for which the O! investigation has produced sufficient evidence to support a reasonable susricier, that a criminal violation has occurred. Although this is nortnally !
done at the completion of the investigation, the Director, O!, ray elect to advise DN rrier to cenpletion of the O! investigation. Such a decision nay be made on a case by case basis to allow 00J additional tire te evaluate the matter. This rey eccur in highly visible cases such as when there has been considerable Congressional or media interest, or wher 00J intervention may be necessary to prevent additional criminal activity or the destruction of evidence. The NRC does not have a fornal pricritiration systen for its criminal referrals to 000.
I BREAUX/SIMPSCf:/CI 02/09/2P i
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o QUESTION 27. In testifying before the Subcorrnittee on October 8,1987 Mr. Hayes said he would favor legislation codifying O!
authorities and responsibilities as ler.g as certain "guaranters" were included. Describe ecre fully the "guarantees" envisioned, j ANSWER
! i Mr. Hayes has provided the following explanation:
My remark about "guarantees" was in respnnse to a question from Senatcr f Sir.pser (Fearing Transcript, at page 90, line 21) as to whether "providing e statutory underpinning for 01" would be a satisfactory solutter. !
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l My retrorse was that it would be satisfactory were the legislation to "incorporate the guarantees of the Inspectnr General to the extent...that ar, i
- IG Pill dces...". This would include at least the authorities currently grented O! in the original 27 Comission-approved O! Policy Staterents ard l cther delegations of authcrity. A most important feature would be the establishment by statute of 01 as a Cerr.ission-level office.
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In addition to codification of its existing authorities and responsibilities, I was also referring to at least three important authorities given to
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j Irspectors General, but currently not given to 01. These are: (1) the BREAUX/ SIMP!0t'/0!
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, authority of the Director 01, to appoint, direct, and supervise all sub- ,
ordinate 01 personnel, (2) statutory autberity to conduct crininal investiga- '
tions, and (3) a separate appropriations acccunt to assure 01 independence.
My testimony was meant to reflect my belief that a statutory 01, reportable ;
1 and accountable to the Connission as we were prior to February 1, 1988, that I
was granted authorities as described above, would be a satisfactory alterna- l tive to making O! a part of a statutory NRC Office of Inspector General.
Without these authorities. I am no longer confident of 01's ability to continue to provide the quality and quantity of investigative support that it :
j has provided this agency and the Ar.erican public for the past five years, i
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