ML16341A365

Responds to 841025 Request for Commission Views on Whether Public Interest Would Be Better Served by Continuing to Maintain Confidentiality of Plant Transcripts. Confidentiality Should Be Maintained

ML16341A365
Person / Time
Site:	Diablo Canyon
Issue date:	10/29/1984
From:	Palladino N NRC COMMISSION (OCM)
To:	Markey E HOUSE OF REP., INTERIOR & INSULAR AFFAIRS
References
NUDOCS 8411150120
Download: ML16341A365 (16)

Text

Esvt

~ e -yies (7 I

I I

on

~O CHAIRMAN UNITED STATs CLEAR REGULATORYCOMMIS WASHlNGTON, D. C. 29555 0

ober 29, 1984 go 4>5

$0 3~~

The Honorable Edward Harkey, Chairman Subcommittee on Oversight ana Zavestigations'ommittee on Znterior and Znsul~ Affairs United States House of Representatives Washington, DC 20515

Dear Chairman Narkey:

This is in response 'to your letter of October 25, 1984

,requesting the Commission's urthe views on whether the public interest would be better served by continuing to maintain the confidentialitv of the Diablo Canvon tran-scripts rather than by releasing those transcripts to the public in their entirety.

The Government in the Sunsh'n

.=ct is based on the policy that, "the public is entitled -o the ullest prac+ical information regarding the decis'.onmaking process of the Federal Government." while a

=he same time "protecting the*ability of the Government to carry out, its responsibil-ities. "

5 U. S. C.

552b note.

Zn order to accomplish this dual purpose, the Congress tempered the general presumption of openness articulated by the Act by ten permissive ex-emptions.

5 U. S. C.

552b (c).

Zn so doing, Congress sens'bly "recognized that there are agency actions for'which general public scrutiny may not be appropriate."

Pacific Le al Foundation v. Council on Envi pigmental Qualit 636 F.2d

1259, 1265(D.C.

Ca.r.

1980).

Among those ten exemptions is one preserving the confidentiality of collegial discussions which, inter alia, "specifically concern

. th agency's participatron an a civil action or proceeding

. or the initiation,.conduct or disposit'on by the agency of a particular case of formal agency adjudication 5 U.S.C.

552b(c) (10).

The Commission's meetings on Diablo Canyon involved both aspects of this exemption.

Zn recommending enactment of th's exemption, the House Committee on Government Opera ions noted that

[a]mong the reasons for h's exemption are the need to allow an agency to discuss in private its strategy in litigation'n which it is involved 'and the fact that, when acting in an adjudicatory proceeding, the agency is relying upon the written record and acting in a quasi-judicial fashion.

8411150120 841029 PDR COMMS NRCC I

CORRESPONDENCE PDR

P

'p l

I I

H. R. Rpt.

No.94-880 (Part 1),

94th Cong.,

2d Sess.

12 (1976).

Similarly, the Senate Committee on Government Operations concluded, in "support of this exemption, that it would be inappropriate for several reasons to require agencies to open meetings discussing specific cases of adjudication.

Public disclosure of an agen-cy's legal strategy in a case before the agency or in the courts could make i:t impossible to litigate suc-cessfully the action.

Adjudications of the type covered by this paragraph must already be decided solely on the information in the record.

Unlike other

cases, the entire record on which the agency must make its decision in adjudication is open to inspection by any member of the public.

• *

• Finally, many aspects of the adjudicative process, such as the trial before an administrative law judge or appellate arguments before the Commission are generally open now to the public.

S. Rpt.

Ho.94-354, 94th Cong.,

1st Sess.

26 (1975).

This

-legislative historv makes clea that agencies such as the Commission have. a valid interest in p eserving the integrity of litigat've or adjudicatory deliberations by maintaining the confidentiality of those discussions.

As recognized by the Sunshine Act, the public interest with respect to agency litigation/adjudication has two compo-nents.

The public has a right to observe the Commission's decisionmaking; however, public observance should not destroy or effectively impair the underlying purposes of the collegial deliberations.

The public has a right to expect that the Commission will preserve the integrity and quality o~ its quasi-judicial decisionmaking.

The wholesale disclo-sure of the candid, sometimes pointed, deliberations among the Commissioners and between the Commission and its prin-cipal policy and legal advisors would most likely cause the p rticipants to temper their advice or statements in future meetings and thus would adversely affect the quality of the Commission s judicial deli,berations.

Yet, it is the exchange of these very differences of opinion that is the hallmark and purpose of litigative or adjudicatory decision-making by a collegial body; To subject these preliminary views, rather than the reasons ultimately adopted by the Commission in taking action, to public scrutiny would make it impossible for the'agency to litigate successfully and'ould divert any proper review away from the decision of the Commission and 'toward the isolated comments of individual Commissioners or Commission employees.

In the Commission's view, neither the Sunshine Act nor the public is served when satisfaction of +he first component of the public interest is had at the expense of the second component.

r

In assessing the public interest with respect to the release of the transcripts at issue here, the Commission has dete-mined that the public inte est is better served by protect-ing the quality of its collegial adjudicatory deliberations rather than by the disclosure of a particular predecisional example of that process.

I Below are Commissioner Assel'@tine's comments and Commission views regarding his comments:

Commissioner Asselstine has the followin comments:

I agree *with the general principle, stated in the Commission's

response, that there is a benefit in preserving the confidentiality of the Commission's deliberations in adjudicatory proceedings and the Commission' discussions of litigation options in pending judicial proceedings.

Preserving the confiden-tiality of such discuss'ons encourages candid and op n discussion among the members of the Commission as we'1 as the frank adv'ce of our legal and techn:cal advisors.

However, I believe that "here is a broade",

and overriding, public interest in this case which calls for ~he public release of the transcripts of the Commission'.s deliberations on the question of the complicating effects of earthquakes on erne gency planning in the Diablo Canyon proceeding.

This is the public, interest in identifying and correcting serious abuses by the Commission in the conduct of its adjudi-catory proceeding, and taking steps to assure

that, similar abuses do not recur in the future.

'n that regard, I agree enti ely with the descriptions of the Commission s deliberations in the Diablo Canyon case which were contained in Chairman Ottinger's October 26, 1984 letter to the Commission.

In reaching its decision in the Diablo Canyon. case, the Commission ignored the advice of its legal advisors that the question of the complicating effects of earthquakes on emergency planning was most probably a material issue, and that intervenors were entitled to a hearing on the issue under section 189 a. of the Atomic Energy Act of 1954.

The Commission distinguished between the complicating effects of earthquakes on emergency planning and the complicating effects of other natural phenomena, even though the Commission's legal and technical advisors told the Commission that there was no factual basis in the record of the Diablo Canyon proceeding for doing so.

The Commission concluaed that the probability of an earthquake which could affect emergency planning is much lower than the probabilities of other natural phenomena which are.routinely

4

considered by the Commission even though the Commission's legal and tec..nical advisors told the Commission that there was no factual basis in the Diablo Canyon record to support this conclusion.

The Commission ignored the possibilitv o the simulta-neous occurrence o

an erne gency at the plant (e.g.

a fire) =which could require emergency esponse and an unrelated earthquake which could a feet emergency response features such as communication and emergency response to the site, even though the Commission's legal and technical advisors told the Commission that th'is approach was fundamentally different than the Commission's approach for considering the complicating effects of all other natural phenom'ena on emergency planning and there was no factual basis 'n the Diablo Canyon record for adopting this diffe en" approach for earthquakes.-

The Commission elied on material not in the record of the Diablo Canyon proceeding to conclude that the Diablo Canvon erne"gency plan is sufficiently flexible to accommodate the complicating effects of earthquakes on emergency planning despite repeated warnings "hat such reliance on extra-record material was inappropriate and legally. impermissible.

Finally, the Commission's decision was motivated solely by the objective of avoiding delay in issuing a full-power license for the Diablo Canyon plant.'he Commission refused to recognize the right to a hea ing on this issue because such a hea ing could delay. the issuance of a full-power license fo" the plant.

To provide a

semblance of public comment on the issue of the compli-cating effects of earthquakes on emergency planning, the Commission decided to conduct a generic rulemaking on this issue.

However, it is apparent from the proposed rule that the Commission is intent on merely codifying its Diablo Canyon decision, and any oppor-tunity for public comment on the issue will be meaning-less.

The foregoing abuses

-j.n the Commission's conduct of the Diablo Canyon adjudicatory proceeding are readily apparent to any objective reader of the transcripts of the Commission's deliberations in this case.

The public interest in'bringing this extraordinary situa-tion to light, and in preventing similar abuses in future cases, weighs strongly in favor o making the'se transcripts publicly available and outweighs any argument that could be made in favor of confiden-tiality.

4 4

Commission views regardincr Commissioner'sselstine comments:

I It goes without saying.tha the Commission strongly disagrees with Commissi'oner Z sselstine's criticisms of its Diablo Canyon decision process.

The Commission believes that there have been no abuses and rejects categorically Commissioner Asselstine's speculation as to the motives of the majoritv in reaching its deci-sion.

Simply because Commissioner Asselstine did not prevail is not a valid reason for him to castigate the majority, impugn their motives, and use his disagree-ment as a basis to urge release of the transcripts to the publ'ic.

As a matter of fact, his statements are disturbing because this kind of disclosure of prelimi-nary exchanges of views and thoughts of Commissioners and tneir advisors is destructive of the collegial exchange of Commissioner views and frustrates the testing of preliminary adjudicatory positions in closed meetings before they becom final.

The Commission also strongly disagrees with Commissioner Asselstine's assertion that future oppor-tunities for comment on a proposed rule will be mean-ingless.

The Commission is proceeding with this rulemaking in good. faith in accordance with established procedures.

Sincerely,

~0/

Nunzio J. Palladino, Chairman cc:

Rep.

Ron Marlenee

ygG zz SL4 ISTRIBUTION LDocumen.t Control.r PRC System JLee (2)

DOCKET NO(S).:

50-275/323 The Honorable Yorris K. Udall, Chairman Subcommittee on Energy and the Environment" Committee on Interior and Insular Affairs United States House of Representatives ttashington, D.C.

20515

SUBJECT:

PACIFIC GAS AND ELECTRIC CONPANY, DIABLO CANYON NUCLEAR POWER PLANS, UNITS 1 AND 2 The following documents concerning our review of the subject facility are transmitted for your information.

D Notice of Receipt of Application, dated D Draft/Final Environmental Statment, dated D Notice of Availabilityof Draft/Final Environmental Statement, dated Eg Safety Evaluation Report, or Supplement No.~ 25~~ dated aod P7 D Notice of Hearing on Application for Construction i ermit, dated D Notice of Consideration of Issuance of Facility, Operating License, dated D Monthly Notice; Applications and Amendments to Operating Licenses Involving no Significant Hazards

. Considerations, dated D Application and Safety Analysi's Report, Volume D Amendment No.

to Application/SAR dated D Construction Permit No. CPPR-D Facility Operating License No.

, Amendment No.

, Amendment No.

dated

, dated D Order Extending Construction Completion Date, dated D Other (Specify)

Enclosures:

As stated cc:

Representative Hanuel Lucan bog'j OCA Office of Nuclear Reactor Regulation or Frca>

SURNAME%

DATE+

NRC FORM 318 i1/84) NRCM 0240

I I

V N

J

~

1 a

~

k

~

C

~ f

\\'

• I'

,@UG ys 1984 DISTRIBUTION gDocument. Controls PRC System JLee (2)

DOCKET. NO(S).:

50-275/323 The Honorab1e Richard Ottinger, Chairman Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States House of Representatives.

Washington, D.C.

20515 PACIFIC GAS AND ELECTRIC COMPANY', 'DIABLO CANYON NUCLEAR POHER PLANT, UNITS 1 AND22

~The following documents concerning our review of the subject facility are transmitted for your information.

D Notice of Receipt of Application, dated D Draft/Final Environmental Statment, dated D Notice of Availabilityof Draft/Final Environmental Statement, dated IX Safety Evaluation Report, or Supplement No.2~25 25, dated and 27 D Notice of Hearing on Application for Construction i'ermit, dated D Notice of Consideration of Issuance of Facility Operating License, dated D Monthly Notice; Applications and Amendments to Operating Licenses Involving no Significant" Hazards Considerations,'dated D Application and Safety Analysis Report, Volume D Amendment No.

to Application/SAR dated D Construction Permit No. CPPR-D Facility Operating License No.

, Amendment No

, Amendment No.

dated

, dated D Order Extending Const'ruction Completion Date, dated D Other (Specify)

Enclosures:

As stated Office of Nuclear Reactor Regulation cc:, Representative Car1os Itioorhead bcc:

OCA DP'FICE+

SURNAME+

DATE+

NRC FORM 318 (1/84) NRCM 0240

B¹3 h

e ~ ~

~

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

C 8/I'

~

~ ~ I ~ ~

~

~ \\

~

~ ~ ~

~

~

~

~

~

r 5

F

~

4

yUG 1S 1984 I ~

ISTRIBUTION document Cont'rol,Q PRC System JLee (2)

DOCKET NO(S).

50-275/323 The Honorable Alan Simpson, Chalrman Subcommittee on Nuclear Regulatlon Committee on Environment and Public'Morks United States Senate Washington, D.C.

20515

SUBJECT:

PACIFIC GAS AND ELECTRIC COMPANY, DIABLO CANYON NUCLEAR POMER

'LANT UNITS 1 AND 2 I

'I The following documents concerning our review of the subject facility are transmitted for your inform'ation.

C3 Notice of Receipt of Application, dated D Draft/Final Environmental Statment, dated I

'3 Notice of Availabilityof Draft/Final Environmental Statement, dated 00 Safety Evaluation Report, or Supplement Novi~6, dated and 27 C3 Notice of Hearing on Application for Construction i'ermit, dated C3 Notice of Consideration of Issuance of Facility Operating License, dated O Monthly Notice; Applications and Amendments to Operating Licenses Involving no Significant Hazards Considerations,'dated D'pplication,and Safety Analysis Report, Volume

'C3 Amendment No.

to Application/SAR dated Cl Construction Permit No. CPPR-C3 Facility Operating License No

, Amendment No.

, Amendment No.

dated

, dated C3 Order Extending Construction'Completion Date, dated CI Other (Specify)

Enclosures:

As stated Office of Nuclear Reactor'Regulation cc Senator Gary Hart bcc:

OCA B¹3-

.ch 0 F P'I CS+

SURNAME+

DATE+

, 8/<5/84 NRC FORM 318 {1/84) NRCM 0240

~

~ I

~

~

~

~ ~ 0

~

~ ~ ~ ~ ~ ~ P ~ ~ ~

~

~ ~

~

~ ~ ~ ~ ~ \\ ~

~

~

~ ~ I ~ ~ 0

~ I ~

~

~

~

~

~ ~

~ ~

~ ~

~

~

~ a ~

~

8 1

~ I ~

k

, ~

II ~