ML19206B330
| ML19206B330 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/04/1979 |
| From: | Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ahearne J NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7905090218 | |
| Download: ML19206B330 (4) | |
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UNITED STATES
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April 4, 1.079
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Memorandum for:
Commissioner Ahearne Prom:
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Carlton Stoiber Assistant General Counsel
Subject:
Legal Aspects of NRC Inquiry into the Three Mile Island Incident This morning Len Bickwit relayed your request that we.take a quick look at some of the legal issues which are presented
~by the Commission's effort to structure an internal investigation into the Three Mile Island incident and related matters.
The following is a preliminary look at some of the key questions.
Complete analysis has not, of course, been possible in the short time available.
This paper merely notes the major issues and suggests some possible approaches.
A.
Legal Authority to Establish an Internal Review The Commission possesses ample authority under Section 161 (c) to establish a suitable mechanism for examining the issues arising from Three Mile Island.
The statute provides that:
(I)n the performance of its functions the Commission is authorized to--(c) make such studies,and investigations, obtain such information, and hold such meetings or hearings as the Commission may deem necessag or proper to assist it in exercising any authority provided in this Act The authority which the Commission would be exercising in this situation is found in numerous sections of.the Atomic eo Energy Act, most particularly, Section 103 which provides O
that the Commission's licensing of utili::ation or production C
facilities is conditioned on its continued determination that issuance of the license would not be inimical to the o
(4 health and safety of the U.S. public.
B.
Legal Authority which may be Granted to an Internal'
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Review Body 9
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The general delegation provision of the Atomic Energy Act set forta in Section 161(n) broadly enables the Commission 24 115
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the Commission any of those functions assigned to it under i
thms Act A specific exception is the establishment j
of advisory boards under Section 161(a), a provision we shall mention shortly.
However,' this does not mean that 3
the Co= mission's authority cannot be delegated to such i
an advisory body, but only that delegees cannot create j
such bodies.
For purposes of the inquiry the Commission is contemplating, this broad delegation provision permits the Commission to give an investigating body the authority 3~
which it possesses under Section 161(c) of the Act to administer oaths and affirmations, and by subpena to i
require any person to appear and testify, or to appear and produce documents, or both, at any designated place."
It does not appear that the Commission may delegate its authority. to grant access to Restricted Data under Section 145 (b) of the Act.
However, if it were felt necessary for such access to be granted, a request from any review body established could be handled through ordinary NRC machinery.
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C.
.Petential Lecal Constraints in Establishinc a Review Body One significant factor to be considered in setting up an internal NRC review is whether the mechanism so created would have the r.tatus of an advisory committee under the Federal Advisory Committee Act and Part 7 of the Com=ission's own rules.
Although the requirements of FACA would not be a long-term obstacle to an investigation, the Act does contain a number of procedural requirements which would celay the effort.
I shall not. detail all. these requirements, but mention only the key ones.
First, FACA comes into play only if the advisory committee to be set up includes persons who are not full time federal government employees.
Thus, its provisions may be avoided if all individuals assigned to the effort are NRC employees, or employees of other agencies.
Thus, an....itial question is the extent to which it is believed necessary or desirable to include non-federal employees in the review.
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A second important requirement is that any federal advisory committee which an agency proposes to create must possess a relatively detailed charter, including the names of those expected to serve, objectives and other relevant 24 116-
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information.
This charter must be filed with the Director of the Committee Management Secretariat, new a part of the General Services Administration.
If, after consultation with the Secretariat, approval for creation of the advisory committee is received, the body can begin its work.
However, meetings of the advisory committee must be public,<:with 15 days notice of such meetings.
The Government in the Sunshine and Freedom of Information Acts (and the exemptions. contained therein) are also applicable to the meetings and records of advisory committees.
This discussion has assumed that any body created to review the Three Mile Island and related matters would be expected to " render advice and recommendations" to the Commission.
'This is another of the requirements which wocid bring such a body within the scope of FACA.
However, if the Commission only wanted the compilation of an investigatory record, without such advice and reco=mendations, it might be possible to treat the body as something other than an advisory committee.
D.
Nature of the Record to be Comniled Since the inquiry cente= plate here would not constitute either a licensing proceeding, a.ulemaking or proceeding for c=
the imposition of a penalty, the provisions of Section 189 of the Atomic Energy Act concerning' hearings would not appear applicable.
Therefore, the Commis5 ion has broad discretion to structure the procedures to be used by the reviewing body in any way it believes necessary to achieve the ends sought.
This means that the proceedings need not be adjudicatory in character; that the findings or recommendai-
'tions of the body need not be for= ally "en the record"; and that the body need not admit persons as pa.rties or participants or extend the right of cross-examination or cany other procedural rights.
This is the legal picture.
However, on prudential grounds, the Co= mission would 'a well-advised to consider carefully how it wished the reco.
of the investi-qation to be _ developed.
Whether public participation at some stage would be envisaged is another matter which should be-resol'md at the outset.
c.
key legal issue which we have not had time to research is whether the Commission or its review body can extend to any persons contacted in the course of the
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investigation some type of assurance that any information they provide will not be used against them in any future criminal or civil proceeding.
Such grants of immunity could be important inducements for persons who might be nervous 2t 117
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about their potential liability for acts taken or omitted during the Three Mile Island incident to cooperate fully in the investigation.
It is not clear that the Commission, alone, -has authority to extend such im=cnity.
Therefore, in addition to further legal research, it would be desirable to contact the Department of Justice for its assessment of this issue.
The Attorney General's Office of the State of Pennsylvania should also be consulted, since there are potential liabilities which might arise under State law.
E.
Relation to Broader Efforts We have not identified any provisions of federal law which bear upon the ability of any NRC review body to-coordinate its efferts with any other investigatory proceedings which may be launched by other federal agencies, the Congress, private organizations, or the President.
As a matter of policy there is a tension here between the need to retain a measure of control over the efforts of one's own employees, and the need to assist others in fulfilling their responsibilities.
The potential for wasteful and duplicative efforts in this incident is i=mense.
Many voices will clamour for. attention in the effort to obtain every scrap of information related to Three Mile Island.'
Since tensions are bound to emerge during the review of this complex incident, it would be of great utility.to seek an agreement (through a formal memorandum of understanding or other instrument) with the other major players before
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the state of play becomes too far advanced.
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