They

-

was not Just

when they asserted something.
-the-wall assertion, they really knew what they were

alking about.

COMMISSIONER ROBERTS: Let me ask you a question:

What is the propriety of their taking documents from the company and then our relying upon documents that may have been orgperly taken from their former employer? I just raise the

question.

MR. DENTON: Well, we didn't know at the time we decided to get into it how it would turn out. But at least they were able to show us evidence that we thought showed that : Commission regulations had not been complied with in a number of areas, and that appeared so strong, we said it warranted a special effort to look into it and investigate it, because we were expecting Waterford to be completed in a few months, and we were trying to avoid the Diablo Canyon syndrome of allegations continuing to run on and on, and so we were going to make a full effort to get to the bottom of it ourselves. and now let me turn it over to Darrell to tell you how we

to

where it stands today.

Let me make one comment. Just

to avoid any future problem, I think we ought to have the

that the documents may have a problem.

hink there's any problem with us using them..

COMMISSIONER ROBERTS: Say that again.

MR. MALSCH:

People who have the documents may have

a problem themselves

COMMISSIONER ROBERTS: The impropriety of their

taking those documents?

MR. MALSCH: That's right. There's no difficulty in

our using them.

CHAIRMAN PALLADINO:

And then could you confirm your

position on whether this constitutes intervenor funding? I'm not saying it does.

MR. MALSCH: Oh, sure. I think

CHAIRMAN PALLADINO:

I just don't want it to come

later as a bugaboo. I think it's much better to address it right now and deal with it as soon as wa

MR. DENTON: I don't think we have found that they

Maybe I

did anything improper, when I mentioned documents.
wasn't precise enough. They had copies. They had taken
certain copies of records when

in the course of the

interviews with Ben, when you-d ask them to prove something, tney d say, "Well, I think, I can prove that that went on," and I don't think we are talking about a lot of paper, but they

they were sole to escacitan credibility of trei

Mr. GEJDENSON. Let me ask you a question. This is a quote. Do you remember asking this to Mr. Denton?

Mr. ROBERTS. And this occurred in 1984?

Mr. GEJDENSON. 1984; right.

Mr. ROBERTS. I can assure you I won't remember, but I would be happy to have my memory refreshed.

Mr. GEJDENSON. "Question: What is the propriety of their taking documents from the company and then our relying on the documents that may have been improperly taken from the employer?"

It is my understanding that about 2 weeks after you had spoken to your staff about the leak, the leak from your office, and after you requested all of the copies of the documents in question, the NRC received a Freedom of Information request from a New Orleans newspaper reporter. The newspaper requested all documents regarding the Waterford investigation.

Is that correct?

Mr. ROBERTS. I believe that is correct, but I must tell you, I had no knowledge of that FOIA request.

Mr. GEJDENSON. Mr. Cutchin handled the request for your office. Mr. ROBERTS. That is correct, and that is a routine circumstance. Mr. GEJDENSON. Mr. Cutchin must have known that you had the documents regarding the leaks, since you had requested them from your staff; is that correct?

Mr. ROBERTS. No, that is not entirely precise. I did not know about the FOIA request. It was handled by my staff and my legal assistant, Mr. Cutchin. But the request, as I understand it, asked for documents generated by the Office of Investigations in connection with the Waterford plant.

The letter of instruction to Mr. Cutchin and other legal assistants from the Office of the Secretary of the Commission with regard to the FOIA request directed the production of all documents that originated from each Commissioner's office.

At the time the request was filed, there was then pending an investigation of Waterford with respect to alleged material false representations made in connection with quality assurance reviews. Mr. Cutchin, I believe, read the response to require only the production of documents written or prepared by my office. I believe that Mr. Cutchin at no time considered the White memorandum to be responsive to the request.

I also believe that other Commissioners' staffs may have construed the scope of the request to be in a similar fashion; that is, limited to the production of documents written and prepared by I each respective Commissioner's office.

My attorneys have prepared an analysis and chronology for Senator Breaux with respect to this matter, and I will be happy to supply this committee with a copy of that analysis.

Mr. GEJDENSON. So you feel that Mr. Cutchin did his job as best he could at that time?

Mr. ROBERTS. Yes.

Mr. GEJDENSON. That it was not unreasonable that he didn't make a greater effort to respond to that Freedom of Information request?

Mr. ROBERTS. Well, I can't speak for Mr. Cutchin. He has my total faith and confidence, and I think he is a very able person in what he does. And I rely on him.

Mr. GEJDENSON. At the time the NRC responded to the request, did it indicate that it had such documents in its possession? Mr. ROBERTS. I don't follow the question, sir.

Mr. GEJDENSON. Mr. Cutchin could have responded by saying that there are some documents that exist that they were not forwarding. Is that what happened? Did it say there are other documents; we are not forwarding them; we are only forwarding this particular document?

Mr. ROBERTS. It is difficult for me to speculate on what he did. He assured me, he responded to the best of his ability and knowledge to the request.

Mr. GEJDENSON. So there wasn't an indication that there was an exemption to the Freedom of Information Act requirements for this other information.

The reason that he didn't give them everything wasn't that he felt he was exempt from that in any way? He just didn't know there was anything else available.

Mr. ROBERTS. He thought he had been fully responsive to the request.

Mr. GEJDENSON. So there is no exception from the Freedom of Information Act that asserted that leaked documents or others would be withheld.

Mr. ROBERTS. Mr. Chairman, that is a legal matter and I am not a lawyer. All I can tell you is my legal assistant whom I relied upon, I had faith in and trust, tells me he complied with that request to the best of his ability and properly.

Mr. GEJDENSON. At Senator Breaux's hearings, you indicated that you were unaware that Mr. Cutchin said that no pertinent documents existed; is that correct?

Mr. ROBERTS. Until I went before Senator Breaux, I didn't know anything about that FOIA request.

Mr. GEJDENSON. And since that time, have you discussed this with Mr. Cutchin?

Mr. ROBERTS. I think my attorneys have. As I said earlier, I have prepared and submitted to Senator Breaux, and I am delighted to give to you, a chronology of those events, all of which took place without my knowledge.

Mr. GEJDENSON. But you made no effort to ask Mr. Cutchin what he did or what he didn't do regarding this?

Mr. ROBERTS. Well, I am in a ticklish situation about who I can and cannot talk to.

Mr. O'DONNELL. Mr. Chairman, if I might, we told Senator Breaux that we would amplify the testimony. We conducted an inquiry. We prepared a letter from counsel to Senator Breaux, setting forth as accurately and fully as we could the facts relating to that FOIA request. That letter was in itself amended by additional facts and those two letters are available to the subcommittee.

Mr. GEJDENSON. Are you saying that it is your impression, Mr. Roberts, that it is improper for you at this time to question Mr. Cutchin about what happened or didn't happen?

Mr. ROBERTS. I didn't say that. I am just saying I am advised that I have to be careful, very careful, about what I say to anybody. [Laughter.]

I assure you, it is not a very pleasant situation to be in.

Mr. GEJDENSON. In 1986, you paid a visit to David Martin, Director of the Office of Government Ethics?

Mr. ROBERTS. Yes.

Mr. GEJDENSON. At that time, was the OGE conducting an investigation of conflict of interest allegations against Steven White, the head of TVA's nuclear program?

Mr. ROBERTS. Yes, and that is why I went to see him.

Mr. GEJDENSON. Wasn't there speculation at that time of your possible appointment to the TVA Board of Directors?

Mr. ROBERTS. Yes?

Mr. GEJDENSON. Did you tell Mr. Martin that the basis of your interest was your longstanding concern about TVA and that your possible appointment was irrelevant?

Mr. ROBERTS. I called Mr. Martin for two reasons. First, as a Commissioner at the Nuclear Regulatory Commission, I was concerned from reading various press accounts, that the General Counsel of TVA, a Mr. Herbert Sanger, was taking a position with respect to certain TVA matters that were directly inconsistent with which he had provided to me and the Commission in March 1986.

We had a hearing before TVA. The Board was there and Mr. White was there. And at that time, the issue of the legality and appropriateness of his contractual arrangements with TVA were being aired publicly. Congresswoman Schroeder was quite vocal about it.

So when we met with the TVA Board and with Mr. White, we finished the bulk of the meeting, and is generally the case, then the chairman turns to the various Commissioners, do you have questions? And he turned to me and I wanted to know-the question was addressed to Mr. White.

I said—and I will find a transcript for you—but in effect I said, look, can you assure me and tell us that your arrangements with TVA are right and proper and legal? Are you going to be able to go down there and do your job and turn the nuclear program around? He gave me a lengthy answer. The lawyers had looked at it and so forth. Director Waters was rather flippant and said, well, I will give you the opinion of a very good country lawyer-me-that it is OK. And then Mr. Sanger gave a lengthy explanation of why all of these contractual arrangements were right and proper.

Well, in the summer, I was reading press accounts quoting Mr. Sanger, that he was saying no, no, this arrangement with Mr. White is all wrong and improper. And I thought that was surprising to me in view of the strong statement he had made in March. And I had read that the Office of Goverment Ethics was looking into this matter, and I called Mr. Martin to apprise him of what Mr. Sanger had previously told the Commission in a public meeting.

I also, it is true, my name was being mentioned in the press as possibly going to TVA, and I frankly wanted to get a sense of how