ML16341D028
| ML16341D028 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/13/1984 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Markey E HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML16341D029 | List: |
| References | |
| NUDOCS 8501080513 | |
| Download: ML16341D028 (32) | |
Text
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'Q 0 CHAIRMAN UNlTED STATES NUCLEAR REGULATORY COMMlSSION WASHIMGTOM,D. C. 20555 December 13, 1984 The Honorable Edward J.
- Markey, Chairman
,Subcommittee on Oversight and Investigations Committee on Interior and Insular Affairs United States House of Representatives Washington, D.
C.
20515
Dear Mr. Chairman:
In your Commissi Asselsti public c
predecis Canyon.
D.
C.
Ci is a mat the foll letter of November 14, 1
on answers to concerns e
ne's views on the NRC's ertain transcripts of cl ional memoranda related Since the significance rcuit's review of the Di ter still in litigation, owing information.
- 984, you requested specific xpressed in Commissioner decision not to release to the osed Commission meetings and to the licensing of Diablo of the transcripts for the ablo Canyon licensing decision our response is.limited to Several of the matters raised by Commissioner Asselstine have already been addressed in my October 29, 1984 letter to you (p. 5).
Others are addressed in a recent filing to the Court of Appeals for the District of Columbia Circuit, a copy of which is enclosed for your information.
In particular the enclosed filing explains the respective roles and responsibilities of the Commissioners and their legal and technical support staff (pp. 7-9) and demonstrates that the Commission's earthquake/emergency planning decision was based on the record in the Diablo Canyon proceedings (pp. 4-6).
That filing also sets forth the importance of maintaining the confidentiality of the Commission's deliberative process (pp.'0-12).
It is to serve that
.important goal that the Commission has refused to make its deliberations public.
The Commission
- has, however, provided copies of the transcripts of the closed Commission meetings and the related predecisional memoranda to you, in confidence.
In your review of this material, you should keep in mind the points that the Commission has made in its filing with the Court of Appeals.
We believe.you wil'1 find,that the Commission conducted the Diablo Canyon decisionmaking properly and reached a conclusion that has substantial support in the record.
850i0805i3 84i2i3 t
PDR CONNS NRCC CORRESPONDENCE PDR
I r
i
~
t
Commissioner Asselstine disagrees with the Commission's response to your letter.
He will provide his. own response in more detail in,a separate letter within the next few days.
Sincerely, Hunzi o J.
Pal l adino
Enclosure:
As Stated cc:
Rep.
Ron Narlenee
4 r
IN THE UNIT D STATES COURT 0 APP~~S FOR TEE DISTRICT 0" COLUMBIA CIRCUIT Vo
)
SAN LUIS OBISPO MOTEERS FOR
)
PEACE, et al.,
)
)
Petitioners,
)
)
)
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION 'and TZE UNITED STATES
)
OF AMERICA~
)
)
Respondents,
)
)
~ 'PACIFIC GAS AND ELECTRIC COMPANY
)
)
Intervenors.
)
Ho 84-1410 RESPONDEHTS 'PPOSITION TO PETITIONERS MOTION TO SUPPLEMEHT ~~
RECORD Petitioners have asked this Court to supplement the record with transcripts of certain meetings between the Commissioners, attorneys in the NRC's Office oZ General Counsel@
and technical advisors in the, Commission' OfAce of Policy
~: Evaluation.
These meetings were part of the formal agency proceeding to determine whether an operating &cense should be '
i'ssued for the Diablo'anyon plant.
These pa~cular meetings
'I addressed the cpxestion of whether the possible complicating effects of earthquakes on offsite emergency preparedness plans
at Diablo Canyon vere material to issuance of the license.
They were held specifically to discuss views on'his issue which the Commission had solicited from the parties m the course of this on-the-record proceeding.
CLI-84-4, 19 HRC 937 (1984).
Petitione s'otion reflects a basic misunderstanding of the issue before this Cou&, the role of the Commission s
advisors in the deliberative process, and the importance of.
protecting that process from unwarranted probing..
Xn.short, petitioners seek to supplement the record with material that is irrelevant to judicial review of the Diablo Canyon license and that is not, properly before the CouW denied.
Their caution should be I
TRANSCRIPTS OF THE COMNlSSXON'S DELIBER'~ PROCESS ARE IRRELEVANT TO THE ISSUES 'B"FORE THIS COURT A.
The Issue Before 'This Court Xs Whether The Commission's Articulated. Decision Is Lawful For purposes of considering this motion, the issue before the Court is,'simply the lawfulne'ss of t3xe Commission's decision not to allow petitioners to litigate Me possible complicating effects of earthquakes on offsite emergency This issue has been fully bziefe'd and azgued.
- see, e.cC.,
Respondents 'rief at Argument IXX.
I ~
0 planning.
The manner in which this Cour" should resolve this issue has been clearly set forth.by the Supreme CouM:
The validity of [the NRC's] action must, therefore, stand or fall on the propriety of [the NRC's] finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then
[the HRC's] decision must be vacated and this matter remanded to [it] for further consideration.... It is in this context that the Court of Appeals should determine whether and to what extent,'in light of the administrative records further explanation is necessary to a proper assessment of the agency's decision.
Cams v. Patts, 411 U.S. 138, 143 (1973).
Thus, the E decision at issue, CLI 84 12'0 NRC
'Allg 108 1984)
(i7 A S ~
~ >$1) must. stand or fall on its articulated basis and the record now before the Court.
Apparently oblivious to.the sole issue before this Court and to the Supreme Court's instructions regarding the manner'n which that issue's to be resolved, petitioners contend that the transcripts are relevant to this case because they allegedly will reveal whether "the Commission has knowingly acted in disregard of the insufficiency of the record to justify its'ction," Pet.
Motion at 3, and because they will allow Court to determine whether "the Commission has knowingly zelied in its decision on material outside the record."
Id.
Bath of petitioners'ssertions of relevancy are without merit.
The
. petitioners'otion is simply an undisguised attempt. to initiate an impermissible probing'f the minds of the decision-maker.
r See United States
- v. Morcaan, 304 U.S.
1, 18 (1937).
If the reco'rd the Commission has certified to the Court is insufficient to support the Commission's decision 8
Cou t has before it all that it needs to make such a determination, i.e. the zeco d itself.
Hone of the cases relied upon by petitioners involve situations where the Court had before it the agency's decision at issue as well a's the record upon which that decision must be evaluated.
Re would concede that a failure by the Commission to adequa ely explain its actions could require a supplementation of the record, if not a remand.
Pet.
Motion at 5-8.
However, the Commission's decision at issue, CLX-84-12,
~su ra, is a full and contemporaneous explanation of why the Commission took the acti.on which it did.
Xt is that explanation, and only that explanation, that is now at issue.
Similarly, had the Commission s decision noted its reliance upon.some document not ia -the present record.,
we again agree. that that document could properly be made"the subject of an effort to supplement the present record., Pet. Motion at 8-10.
Again, however, that situation is not, presented by ~s
~ case.
The Commission's decision, CLI-84-12/ does Dot purport tQ
'ely upon extra-record material; nor do we see3c to justify the Commission s decision on such a basis to this Court The thrust of petitioners'rgument on. the earthquake-emergency planning issue is that the record does support the decision.
It is self-contradictory for &em to claim that the Court must supplement the record. in order to
\\
review such an argument.
The Court has before it. the record on which the Commission relied in concluding that specific accident sequences involving an earthquake's possible disruption of emergency planning need'not be the subject for litigation in
th's administrative proceeding, and the Court can see for itself that the necessary support for the Commission's conclusion is there.
The Commission's decision rests in large part on its conclusion that the likelihood of the contemporaneous occurrence o
a radiological emergency and an earthquake severe enough to disrupt emergency planning is very small.
The record fully.y supports this conclusion..
LBP-79-26, 10 HRC 433 (1979);
ALAB-644, '13 NRC 903 (1981);
CLE-84-12, stnza.
See alsci, E
Much of the Diablo Canyon licensing proceeding was devoted to determining that an earthquake is highly unlikely to cause a radiologicial release..
Similarly, the record.supports the. gommission's conclusion that
. the occurrence of an earthquake large enough to disrupt emergency planning coincidental with an unrelated radiological emergency is an accident sequence too remote to demand its'.inclusion among the events. which. emergency planning should explicitly address.
The 'Commission noted in its order that there is specific record support establishing that the Diablo Canyon area is one of "low to moderate seismicity."
ALM-g44 13 'RRC 903, 994 (1981).
CL3-84-12,
~su za, sliy oP.'at 8 (J.A.S.
258).
Simple mathematics dictates that the chance occurrence of a remote and speculative radiological emergency and the coincidental occurrence of a serious earthquake in a "low moderate" seismic zone is an event which, although theoretically possible, is of far ess probability than the overall risk for I
which emergency planning is designed.
0
Finally, petitioners have nowhere disputed the fac that emergency planning is a flexible tool that,:"is generally designed to account
~or those common recurring disruptive phenomenon such as "fog, severe storms and heavy.:rain."
CLI-84-12, slip op.
a 5-6 (Z.A.S. 255-56).
Zt was reasonable for the Commission to conclude that this fle~ilsi+ provides some assurance that an emergency plan would be able to handle the disruptions which might be caused by earthcpza3ces.'etitioners'llegations Of Misconduct Do Not Support Their Effort To Probe The Commission's Deliberative Process In a final effort to justi y their rapxest to probe the HRC'8 decision-ma)zing process, petitioners assert that the deliberative -process transcripts will demonstrate whether "the II Commission has knowingly misrepresented the record and the basis
'I for its decision, both in its August 10, 1984 Grder and in it,s brief filed with this Court.
Pet. Motion at, 3 Even'putting aside the obvious fact that the Court has before it all the fac"s it needs to review the merits of the Ccnumi.ssion's decision'nd our arguments to this Court as Ze Administrative Procedure Aot provides, see Arpument I, A, ~su ra, this aLIIegation of misconduct does not justify adding transcripts of the Commission's de'liberative process to the recorQ.
To justify inquiring into the mental processes of the administrative decisionmaker. particularly where the decision being attacked is supported by published contemporaneous findings "there'ust be a strong showing of had faith'or
imp oper behavior befo e such incuiry may be made."
Citizens Presezve Overton Pa k v. Voice, 401 U.S. 402, 420 (1971).
Petitioners'llegations, even if "~e, would not amount to a-showing of bad faith or improper behavior justifying their effort to probe the Commission's deliberative processes.
The allegations of bad faith being leveled, here are'ot assertions of an improper deliberative process tainted by, foz example, ex parte contacts oz illegal "personal relationships" with a party to the administrative proceeding.
See United Savin s Bank v. Saxon, 209 F. Supp.
319 (D.D.C.
1962).
Nor do petitioners assert that the Commission was aware of some material which demonstrated, 'or even raised the possibility, that its Occision was -contradicted by facts not in
~ the public record.
What is alleged here is that. the transcripts may reveal that the Commission did not share the views or take the advice of some of its.attorneys and. other
'advisors.
Even if true this would not evidence bad faith or misrepresen ation.
- Indeed, the suggest,'on. that, it Goes Petitioners do assert wholly without support from any"
. quarter
-'that "the Commis'sion,has apparently received a number of ex parte communications on the issue from the NRC Staff."
- Petitioner's Motion at 15 n.12.
We:have no idea to what this unsupported assertion refers, although it does not appear from
..its context to be linked in any way to the Diablo Canyon
'roceedings.
Nor could it.be; petitioners had. before them the
.same materials as the Commission had before it when i5 made its August 10, 1984 decision.
- See, e
cC,CLI.-8.4-4, 19 NRC 937 (1984).
Certainly, were.this'the
- case, Commissioner Asselstine, who obviously feels strongly about the issue, would have called his colleagues to task.
0
epresents a fundamental misunderstanding of the NRC's deliberative p ocess, the respec ive roles of the Commission3s advisors and the Commissioners, and the nature of jucLi.cia review of administrative actions.
It is not the job of the attorneys in the NRC's Office of General Counsel to'ake the agency's decisions in the Diablo Canyon, or any other adjudicatory proceeding.
'That cLifficu3.t and demanding task falls squarely on the ive Commissioners, who are appointed by. the President..
It is, however, a duty of the General Counsel and his attorneys to advise the Commissioners of the nature and extent of the litigative risks which accompany their alternatives. 'hat advice must be rendered clearly and forcefully, to ensur'e. that the Commissioners know full wel3. the possible legal consequences of the decision they are r
contemplating.
That important advice-giving xole was properly performed in the Diablo Canyon proceeding on a11 the issues.-
.The Commissioners thereupon arrived at a collegial resolution of lt is particularly relevant here that in the ~Nor an cases, in which the Supreme Court established that it is "not the
'unction of the court to probe the mental processes of the
[decisionraaker)",
United States v. Morcaan, 304 U..S.
1, 18
~ '1937), the Court, specifically held that allegations that the Secretary of Agriculture had disregarded advice did not justify an inquiry into the deliberative process.
Much was made of'is disregard of a memoxandum from one, of his officials who, on reading the proposed order, urged considerations favorable to the market agencies.
But the short of the business is that the Secretary should:never have been subjected to this examination.
United States
- v. Morc)an;.'13 U.S.
409',
422 (1940).
those issues, including the issue of whether to allow 3.itiga~~on on the possible effects of earthquakes on emergency preparedness plans.
These Commission decisions are set forth in the agency orders under review. in this action.
The judicial evaluation Qf those orders must now focus on their legal anQ. technical merits as presented rather than on the deliberative process by which they were developed.
The Commission s decision regarding Diablo Canyon must, stand or fall on the record which this Court'lready has befoie-it not a record supplemented with bits ance pieces of the deliberative process.
Once the Commissioners made their decision, the job of the attorneys in the NRC's General Counsel's office moved from an advice-giving role.to the role, of defenders of that decisis.
within the adversarial process.
The NRC's attorneys are required to defend the Comm'ssion's decisions in accordance with the law and the canons of 'ethics.
That job has been done in the
briefs and arguments presented in this case, and it has been I
done lawfully, ethically, and entirely properly.
Thi.s Court can "
readily confirm this fact, for itself, by comparing-Me Commission's decision in CLZ-84-12 with the analysis and, defense of'hat decision in the Commission's brief.
He know full well our obligations as officers of this Court; we strongly resent
.. both personally and professionally the allegations that we have
. made misrepresentations to the Court.
II.
ZP'ORTAÃT PUBLIC POLICY CONSID.RATIONS PROTECT THE COMMISSION '
DELIB" ESTIVAL PROCESS" S FROYi UNNARi~TZD PROBING Wholly apart from the petitioners'ailure to show relevance of the Commission's deliberations to 'the issue before I
the Court, their motion ignores the ixaportant policy reasons that generally prohibit the probing of the Camznission's deliberative processes.
This Court ha.s long xecognized and respected these important policy considerations.
Xt is "not the function of the court. to probe the, mental processes" of aaministtative officers, ~reran
- v. United States....
Agencies are no more bound. to.
enter foz the record the time, place and. content of their de3,iberations than are courts.
The general rule remains that a party is aot entitled to probe the deliberations of administrative officials,. oversee their relationships mph their assistants,
'or screen the internal documents and communications they utilize.
"Just as a judge cannot be subjected to such scrutiny...
so the integrity of the administrative process must be equally respected."
Braniff Aizwa s v. C.A.B., 379 P.2d 453, 460, 462 (D C. Ciz.
1967).
This Court's past recognition of the. importance of confidentiality of the decis'ion-making process is well grounders in law and, public policy.
Opinions, recommendations, and advice generated in the process of formulating policies and making
. decisions are protected from judicial probing hy the well-established deliberative process privilege.
The privilege rests in part on the -same need for uninhibited communication that underlies the attorney-client privilege.. See 2 %einstein s Evidence f 509[05] at 509-34 'It's basis is a recognition that
I
~
~
ank and open discussions within Qe Govern will be sti.fled disclosure of ~Me deliberations leading to a decision is compelled in litigation.
- See,
- e. c.,
Ca"1 Zeiss Stiftnn v.
V.E.B. Carl Zeiss,
- Jena, 40 F.R.D.
318 (D.D.C. 1966), aff'd on opinion below, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S.
952 (1967).
The result of such a chilling on input to the decision-makers is that the quali y of Government
'decision-making will decline.
See H.L.R.B. v. Sears,'oebuck g
5
~Comoan, 421 U.S.
- 132, 150-51 (1975).
Commissioners must depend on their legal and technical advisors to offer frank and candid advice regarding the options available to them and the risks accompanying those options.
Knowledge that, opinions are given in confidence encourages the
~ kind of open, forceful, even blunt advice that the Conm)ission needs in order to fully understand its options and the risks The court in Carl Zeiss cited "another policy of ecpxa3.
vitality an scope" underlying the privilege, seemingly 'founded on the doctrine of separation of powers:
The judiciary, the courts declare, is not authorized probe the, mental processes" of an executive or administrative officer.'his salutary rule forecloses investigation into the methods by which a decision is
- reached, the matters considered, the contributing influences, or the role played by the work of others results demanded by exigencies of the most imperative character.
No judge.could tolerate a incpu.sition into.'the elements comprising his decision indeed, "fs3uch an examination of.a judge would be destructive of 'judicial responsibility" and by the same token "the integrity of administrative process must be ecpzally respected.."
40 F.R.D. at 325-26.
(Footnotes 'omitted.)
See also, United States v. Nixon, 418 U.S.
683, 705-06 (1974).
which each. option en ails.
On the other hand, even a perception that advice will be scrutinized by li"igants md, if rejected, will be used to undermine the agency's ultimata;decision, encourages eauivocation,
- hedging, and posturing".that destroys the utility of the delibezative process and ultimately harms the public's right to a decision made by an agency Sully aware og all the. relevant considerations and risks.
Nothing even alleged by petitioners ~stifies departure from the important. policies embodiecL ~ the general.
rule that "a party is not entitled to probe the deliberations of'dministrative officials....
3t sniff Airwa m
'~sn xa, 379 p.2d at 462 ~ 6 Regardless of the resolution of petitioner=s'unshine Act claims, the HRC's deliberative process transcrxpts are not properly a part of the record to be reviewed in this acti.on.
Accordingly, we do not address petitioners'rmament that those transcripts should be released under the Sunshxne Act.
Zt i.s
- clear, however, that petitioners Sunshine Act claim is wrong These transcripts "specifically concern... the agency's
'participation in a civil action or proceeding
. or the conduct, or disposition by the agency of a parLicular case of'ormal agency 'adjudication pursuant to'he procedures
[of 5 U.S.C.
5 554]."
5 U.S.C.
g 552b(c)(10}.
The earthcpzakes/emergency pla'nning issue discussed..~
the
- transcripts at issue w'as the resolution of a,specific Commission re~est for the views.of the parties in the Diablo Canyon adjudicatory proceeding.
CLl-84-4, 19 NRC 937 (1984).
Moreover, this issue was also then pending in Me low power briefs which had been. filed before this Court a< the time of the
~
' ~l
. 81-2 34 San Luis Obispo Mothers for Peace, et al. v. HRC, Hos 81-2035, 83-1073 f 84-1042.
CONCLUSION Po
,the reasons set forD herein we urge the Court to deny Petitioners'otion to Supplement the Record.
Respectfully submitted, WILLIAM H.:BRIPGQ g J Solicitor P
HEHR HABICHT'r II Assistant Attorney General E
LEO SLAGGIE
'Deputy Solicitor Office of General Counsel U.S. Nuclear Regulatory Commission
. - Washington, D.C.
20555 PETER R.
STZENLAlH3~ JR~
Chief, Appellate Section Q3KS B.
GEL32P'ttoMey APg Land and Natural, Resources Div.
U.S. Department of Justice Washington, D.C
CERTZFICAT" 0 S"RVICE I hezeby certity that on this 13th day: of November, 1984, copies of the foregoing "Respondents 'ppo'sition to Petitioners'otion to Supplement 'the 'Record" were served on counsel for all parties by placing a copy in the mai3., postpaid, to the following:
Michael J.
Stnunvasser, Esq.
3580 Wilshire Boulevard Los Angeles, CA 90010 Joseph B. Knotts, Jr.,
Esq.
Bishop, Libexman,
- Cook, Purcell 6 Reynolds 1200 17th Street, N.W.
Washington, DC 20036 Douglas A. Oglesby, Esq.
" Law Department Pacific Gas
& Electric Company P.O.
Box 7442 San Zrancisco, CA 94120 John R. Phillips, Esq.
Joel Reynolds, Esq.
Center for Law in the Public Interest 10951 Hest Pico Boulevard Third Floor Los Angeles, CA 90064 (By Express Mail)
David S. Fleischakex, Esq.
P.O.
Box 1178 Oklahoma City, OK 73202 Jacques B. Gelin, Esq.
Appellate Section Land.and Natural Resciurces Div.
U.S.. Department of.Justice Washington, DC 20530 November 13, 1984 WILLZLl'1 H. BRZ~QQ JP'.
Solicit.or U.S. Nuclear Regula ory Commission Washington, D.C. 20555