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and untenable position taken by the Commission majority on the specific legislative issues here—establishment of an independent Inspector General and confirming in statute the Office of Investigations as currently constituted—the Commission now finds itself embroiled in seemingly interminable controversy. No less than four separate investigations are underway, in some cases investigations of investigations, and on and on. None of this was really necessary and most of it has occurred because of ill-considered, indeed almost unconsidered, Commission opposition to these two straightforward proposals that, for the reasons I have noted, would be of minimal practical consequence for the day-today operation of the Commission . Mr. Chairman, while this NRC may not be perfect, it is still the only NRC the country has. And to this day, when it comes to the professional integrity, credentials, and dedication of the employees of this agency, I will stack up the NRC against any organization in the U.S. Government. That concludes my remarks for now, Mr. Chairman. [Prepared statement of Mr. Bernthal follows:]

Remarks of Commissioner Frederick M. Bernthal,
U.S. Nuclear Regulatory Commission
before the
Subcommittee on General Oversight and Investigations
of the House Committee on the Interior and Insular Affairs

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From the beginning, I have had a different perspective than my colleagues on the issues of a statutory inspector general for the NRC and the designation of the Commission's Office of Investigation as a statutory entity reporting to the Commission.

I do not see the need for a statutory inspector general, because I do not believe an impartial examination of the record suggests a need for such a change. But I must add that, while it may not be strictly necessary, a statutory IG would relieve the Commission of a burden that it can nicely do without. Three times now, under two different heads of the Office of Inspection and Audit Since I became a member of the Commission, I have seen inordinate diversion of Commission time and attention to deal with personnel matters associated with that office -- to deal with assertions that OIA has not done its job properly.

Therefore, if the Congress feels strongly that such an office would permit the Commission to carry out its statutory responsibilities more efficiently, I do not now and never have objected to such a change. The Congress is welcome to assume the burden of oversight responsibility for an NRC Inspector General.

With regard to the Office of Investigations, if as Senator Glenn represented at a recent hearing on this issue chaired by him, the sole purpose in designating 0I as a statutory office is simply to preserve the status quo in which 01 reports to the Commission and is under the general

supervision of the Commission, I have no difficulty whatsoever with that

proposition.

I note that the only practical effect of the designation of 0I as a statutory office in the legislation now before the Congress would be to prevent the Commission from ever requiring the head of the Office of Investigations to report to the ED0. Since I have never supported such a change, and since there seems to be little disagreement on the need for an Office of Investigation, and since it is now clear as a practical matter that the Commission is highly unlikely in the foreseeable future to attempt such a change, I do not oppose formalizing in law the status quo with respect to 0I.

That said however, I feel compelled to note that the provisions of S.908 and H.R. 2126 concerning the Office of Investigations appear to me to be internally inconsistent. On the one hand, the proposed legislation requires the Director of 0I to report to and be under the general supervision of the Commission; on the other hand, it provides that no member of the Commission may prevent or prohibit the director of 0I from initiating, carrying out, or completing any investigation.

This language could be read as denying the Commission its responsibility and authority to set broad priorities for the use of the investigative resources of the Agency, and to apply those resources to matters which the Commission designates as having the highest priority for carrying out the Commission's public health and safety responsibilities. To the extent that such legislation could be so interpreted as denying the Commission its rightful authority, I believe such action by the Congress would be inappropriate, unwise, and may create an entity clearly responsible to no One.

It bears emphasis that, despite all the rhetoric we have heard on this subject in the past weeks, I do not know of a single instance in which the Commission has prevented the Office of Investigations from initiating, carrying out, or completing any particular investigation which the director of that office has recommended be pursued, and I believe the Commission would do so only in the most extraordinary circumstances.

In this regard, I believe it is important to set the record straight on the meaning of the term "independence" where the Office of Investigations is concerned. Everyone agrees that 0I should have adequate "independence" to carry out the responsibilities delegated to it by the Commission, or if elevated to a statutory office, by the Congress. However, it is now clear to me that the Director of 0I ascribes a different meaning to that word then do I, or perhaps than do any of my colleagues on the Commission. The Director seemingly believes his office should be free to "independently" decide what does and does not serve the regulatory and enforcement needs of the Commission, what is in the "best interests" of the Commission and what the priorities of the agency should be. He appears to view the word "independence" as endowing his office with a character more akin to a mini-FBI than to an agent of the Commission.

I strongly believe that 01 should have all the necessary independence to carry out its responsibilities as a service organization for the Commission. By that, I mean that for a particular case, 0I should have complete freedom from interference by the Staff or Commission in carrying out any investigation which is necessary to satisfy the regulatory or enforcement needs of this agency. 0I does indeed now have such freedom. But "independence" should not mean that as an organization, 0I is somehow detached from the Staff or the Commission. Indeed, it is critical that the Staff have significant input into decisions regarding which investigations are important for regulatory and enforcement purposes and which are not. For its part, the Commission must be free to determine broad agency policy, to supervise management, and to set management priorities for the use of limited agency resources. Commission decisions in such areas may in some circumstances conflict with the personal views of the Director of any Commission office.

However, no more and no less the any other Commission level office, 0I is and should remain responsible to the Commission, and must adhere to the

policy and management guidance of the Commission. The five Commissioners, as collective heads of this agency, are responsible for establishing such guidance and for making the ultimate decisions regarding the use of investigative resources. We sometimes make mistakes. We may one day make a wrong call with regard to investigative priorities. But the buck does stop at the Commission, and it is the responsibility of the Director of OI to provide the Commission the very best advice in his or her area of expertise, as should every agency office director. But the Commission must remain the ultimate judge of the wisdom of that advice.

Finally, I feel compelled to state that I am deeply troubled that as an indirect consequence of what I believe to have been at the outset an unwise and untenable position taken by the Commission majority on the specific legislative proposals at issue -- establishment of an independent inspector general, and confirming in statute the Office of Investigations as currently constituted -- the Commission now finds itself embroiled in seemingly interminable controversy. No less than four separate investigations are underway, in some cases investigations of investigations, and on and on. None of this was necessary and most of it has occurred because of illconsidered (indeed almost unconsidered) Commission opposition to these two straightforward proposals that for the reasons I have noted would be of

minimal practical consequence for the day-to-day operation of the Commission.

Mr. Chairman, while this NRC may not be perfect, it is the only NRC the country has. And to this day, when it comes to the professional integrity, credentials, and dedication of its employees, I will stack the NRC up against any agency in the U.S. Government.

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