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Based on the agency experience in implementing these threshold criteria, the EDO became concerned that the five NRC regional offices were applying the criteria differently. Another matter of concern to the EDO was that the regions were also not uniformly applying other criteria that had been adopted by the Commission regarding what priority should be assigned to a given investigation. With five regional offices, many different types of licensees that conduct activities with differing potential hazards, and guidance which by necessity is broad, it is difficult to establish uniform agency-wide priorities. Recognizing that regions may have issues of varying importance (for example, a high priority in one region may be a normal priority in another region), the EDO thought it was important to establish an agency-wide priority listing to assure that OI's investigatory resources were being focused on the most important safety issues. For these reasons, the EDO recommended to the Commission that the IRB be established as a management tool to ensure that the matters being referred by the NRC staff to 01 for investigation and the priorities being established were appropriate. Commission agreed with the EDO and permitted establishment of the IRB in November 1986 for a six month trial period. The IRB was comprised of senior representatives from five major NRC offices. It met every two weeks.

The six months trial period for the IRB has now ended. The Director of OI and the EDO have provided the Commission with separate analyses regarding whether the IRB has served a useful purpose. The Commission is currently reviewing the matter and will provide the Subcommittee with the results of its review after we reach a decision.

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Inappropriate Contact between Licensees, and Commissioners,

Commissioners' Staff and NRC Personnel

The Commission is concerned that there have been allegations that there has been inappropriate contact between licensees and NRC personnel. The Commission has long recognized that a prerequisite for public confidence in the NRC's regulatory decisions is integrity in its decision-making process. To this end, the agency has long operated under ex parte and separation of functions rules that are more stringent than those required by law and more restrictive than those adopted by most federal agencies. With respect to Commission licensing and enforcement proceedings, all communications to the Commissioners, their personal staffs, and other Commission-level adjudicatory personnel on matters at issue in such proceedings by the NRC staff, licensees, license applicants, or interested members of the public, must be in writing and served on the other parties to the proceeding. Any oral communications of such a nature received by the Commission from these individuals must be summarized and served on the parties. Throughout the years these rules have been scrupulously observed by the Commission and its staff.

In fact, many have criticized the Commission's rules, stating that the rules should be modified to allow greater communication between the NRC staff and the Commission, so that the Commission will have greater access to necessary technical expertise. The Commission has proposed revisions to its regulations which will give it greater access to the NRC staff.

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The Commission's ex parte rules do not limit communications between the NRC staff under the EDO and licensees. The Staff is the Commission's first iine of information on licensees' performance and requests. While mindful of their roles as regulators, the staff must be able to freely communicate with the regulated to assure the Commission has adequate information for decision making and to be sure that licensees understand our requirements. Nuclear power is not a technology where one can rely on after the fact enforcement as the primary way to assure regulations are followed. To assure the public health and safety we must be sure that licensees understand what our regulations require before a mistake is made. That requires communication.

Other Topics

The Subcommittee has asked the Commission to address three other topics: (1) Commissioner Roberts' involvement in the dissemination and destruction of documents regarding the Waterford Nuclear Power Plant; (2) the interaction between Steven White of TVA and Victor Stello, the Commission's Executive Director for Operations, and (3) the inspection and investigation of the Comanche Peak Nuclear Power Plant.

We cannot provide our views on those matters at this time. The United States Attorney for the District of Columbia is now examining issues concerning the provision of internal documents to the Waterford licensee and has asked the Commission not to investigate the matter at this time. During the pendency of the Department of Justice investigation, it would be inappropriate for us to comment on this matter.

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With respect to the other two matters, as you are aware, some aspects of them are already being considered in various ongoing investigations. The Commission has approved certain proposed actions by the EDO to address the problems raised by the Comanche Peak report. In addition, an OIA investigation found no improper conduct in the Stello conversation with Mr. White. The Commission is in the process of appointing an outside, independent investigator to investigate those matters and produce a report for Commission consideration. Until these investigations have been completed, it would be premature to provide further comment on those matters.

Thank you, Mr. Chairman. We appreciate this opportunity to appear before the Subcommittee today and are ready to answer any questions you may have.

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Mr. GEJDENSON. Is Bernthal next? I understand he is going to abandon ship and we appreciate his being able to be here today as he is going off to do some work elsewhere.

So, Mr. Bernthal.

Mr. BERNTHAL. Mr. Chairman, I appreciate your and the committee's willingness to allow me to take an early departure today. As you know, I have been asked to carry out other duties that require my absence to catch a flight this morning.

Let me just summarize briefly the comments that I have submitted for the record here. From the beginning, I have had a somewhat different perspective than my colleagues on the issues of statutory Inspector General for the NRC and the designation of the Commission's Office of Investigations as a statutory entity reporting to the Commission.

I don't see the need for a statutory Inspector General because I don't think that an impartial examination of the record suggests a need for such a change. But I must say that while it may not be strictly necessary, a statutory IG would relieve the Commission of a burden it can do very nicely without.

Three times now, under two different heads of the Office of the Inspector and Auditor, since I became a member of this Commission, I have seen inordinate diversion-that is counting the present circumstance-of Commission time and attention to deal with personnel matters associated with that office, to deal with assertions that OIA hasn't done its job properly.

If the Congress feels strongly that such an office, independent IG, would permit the Commission to carry out its statutory responsibilities more efficiently-and it very well may-I do not now and I never have objected to such a change. Congress is welcome to assume the burden of oversight responsibility for an NRC Inspector General.

With regard to the Office of Investigations, Mr. Chairman, if as Senator Glenn represented in a recent hearing on this issue chaired by him, the sole purpose in designating OI as a statutory office is simply to preserve the status quo in which OI reports to the Commission and is under the general supervision of the Commission, I have no difficulty whatsoever with that proposition.

I would note that the only practical effect of the designation of OI as a statutory office in the legislation submitted by you, Mr. Chairman, and on the Senate side as well, would be to prevent the Commission from ever requiring the head of the Office of Investigations to report to the EDO. I see that as the only practical consequence.

Since I have never supported such a change and since there seems to be little disagreement on the need for an Office of Investigation at this point, and since it is now clear as a practical matter that the Commission is highly unlikely in the foreseeable future to attempt to require the Director of OI to report to the Executive Director, I don't oppose at all formalizing in law the status quo with respect to OI.

Mr. Chairman, I am going to skip over the bulk and balance of my comments, and I would like to just comment finally that 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