As you requested, I am providing my comments on your March
8th memorandum.

I agree with your conclusion that the licensee's letter of
March 27, 1981 did not contain a material false statement.
Although one may argue whether the licensee's statement,
"[t]he attachment to this letter demonstrates that the Cook
plant is already in compliance with applicable provisions of
Appendix R, is false, it is not materially false. As is
clear from the affidavits of Messrs. Miner, Wambach and
Fioravante, the staff's experts knew that D.C. Cook could
not possibly be in compliance with Appendix R provisions
relating to separation criteria for associated circuits.
Under the Commission's holding in North Anna, materiality is
to be judged by whether the information provided by the
licensee has a natural tendency or capability to influence a
reasonable agency expert when considered by him or her in
the facts and circumstances of the particular case. By this
standard the statement in the licensee's letter of March 27,
1981 would not be a material false statement, even if
actually false and willfully made with knowledge of its
falsity, because the staff's experts knew that D.C. Cook
could not possibly be in compliance with Appendix R.

I also agree with your view that the Commission's
concurrence should be obtained before possible material
false statements are referred to DOJ. The Commission has
decided that only a false statement that has a natural
tendency or capability to influence a reasonable NRC expert
is punishable as a material false statement under the Atomic
Energy Act. However, only such of those material false
statements as are knowingly and willfully made would be
punishable under 18 USC 1001. To avoid an awkward situation
should the Commission decide that a statement already
referred to DOJ under 18 USC 1001 does not constitute a
material false statement under the Atomic Energy Act,
Commission concurrence should be obtained before referrals
of possible material false statements are made.

DISSENTING VIEWS OF COMMISSIONER ROBERTS ON D.C. COOK

4/20/84

так

I do not agree that in the circumstances obtaining, where the NRC's experts knew that D.C. Cook could not possibly be in compliance with Appendix R provisions relating to separation criteria for associated circuits, the Licensee's letter of March 27, 1981 contains a material false statement. Furthermore, since the letter was not submitted under oath or affirmation as contemplated by Section 182 of the Atomic Energy Act, I do not believe that any incorrect statement in the letter is properly punishable under Section 186 or 234 even if it were otherwise viewable as a material false statement.

Moreover, I do not agree that the standard for judging materiality in criminal cases and the standard for judging materiality under the civil enforcement provisions of the Atomic Energy Act must be similar. The courts in the criminal cases cited in North Anna, in deciding whether a statement is punishable as a material false statement under the criminal statutes, appear to focus on both the intrinsic capabilities of the statement and the state of mind of the maker of the statement. However, a material false statement is civilly punishable under the Atomic Energy Act without regard to the state of mind of the maker of the statement.

I believe that the NRC should consider not only the intrinsic capabilities of the statement, but also the state of knowledge of the NRC's "reasonable agency expert," in deciding whether a statement has a natural tendency om capability to influence the expert and is punishable as a material false statement under the Atomic Energy Act. Unless the state of knowledge of the expert is considered, or a Licensee is held liable only for written statements submitted under oath or affirmation

2

or for failure to satisfy reporting requirements in NRC regulations and orders or its license, a Licensee cannot successfully defend against a material false statement citation for any written or oral statement or any omission it makes. Therefore, the standard established in North Anna is essentially meaningless. Under that standard as currently applied, regardless of what the NRC's experts may already know, a material false statement has been made if the NRC views any incorrect statement as having an intrinsic capability to influence a reasonable agency expert on a licensing decision or any omission as arguably related to an issue of importance to a licensing decision. Such an approach is patently unreasonable and in my view is not what the Congress intended. Nor is such an approach necessary to enable the Commission to carry out its obligation to assure that public health and safety is adequately protected.

This will confirm several matters we discussed by phone last
Wednesday, September 11.

I understand from our conversation that no firm date has
been established for possible Commissioner testimony before
the D.C. Cook Grand Jury. Indeed, you have not yet decided
whether you will request such testimony. If you decide to
request such testimony, you will advise me far enough in
advance of the date you select so that the Commissioners, if
they desire, may discuss the matter further with appropriate
Justice Department officials. I also understand that you
hope to make your decision in this matter within the next
two weeks.

Also, enclosed is the memo to file which I read to you last
Wednesday.

Sincerely,

Lin

William H. Briggs, Jr.
Solicitor

Enclosure:

As stated

He

First, I asked him the status of DOJ's request that the
Commissioners be available for Grand Jury testimony on
October 3 & 4, 1985. He advised me that those dates were
out, because of problems with the Grand Jury. He further
advised me that the situation was the same now as it was on
September 11 when we last spoke: no decision had yet been
made regarding whether to call the Commissioners before the
Grand Jury. He assured me again (as he had on 9/11) that he
would give the Commission enough advance notice so that the
Commissioners could, if they so desired, discuss the matter
directly with appropriate levels at the Department of
Justice. He made it clear that in his view such a
discussion was to be a direct NRC/DOJ discussion without any
outside political pressure. I told him that that was all
anyone at the Commission had ever suggested to me.
informed me that he would be discussing with Barry Blyvus,
the decision not to call the Grand Jury for October 3 & 4.
He also asked me to request SECY to seek from the
Commissioners a range of dates in October when they would be
available to testify before the Grand Jury, if his decision
were to have them do so. I assured him that I would pass
that information along to SECY. I advised him that the
Chairman and Commissioner Bernthal would be in Europe from
Wednesday, September 18 to approximately October 2.
Accordingly, I advised him that it would not be
inconvenient, from the Commission's perspective, for him to
take until at least October 2 to decide whether he wanted
the Commissioners to testify before the Grand Jury. He
seemed happy to be able to have the extra time.

Secondly, I read to John the letter confirming our

September 11 telephone discussion regarding the enforcement