ML19294A439
| ML19294A439 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 10/26/1978 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Erwin T, Rosalyn Jones, Trowbridge G AFFILIATION NOT ASSIGNED, CAROLINA POWER & LIGHT CO., Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7811130213 | |
| Download: ML19294A439 (1) | |
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'1 NUCLEAR HEGULATORY cOMMISslON 4-f, f WAM O N Gl ON, D. C. 2 WM s+a, a
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October 26, 1978 George F. Trowbridge, Esq.
Thomas Erwin, Esq.
Shaw, Pittman, Potts & Trowbridge 115 West !!argan Street 1800 M S treet, II.W.
Raleigh,llorth Carolina 27602 Washington, DC 20036 e
Richard E. Jones, Esq.
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Raleigh, florth Carolina 27602 f$$Y In the liatter of
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Docket Hos. 50 /100, 50-401, 50-402, 50-403 Gentlemen:
Enclosed are memoranda dated October 19, 17, 10, 5 and 2 and September 28, 1978, which relate to the Commission's Order of Septenber 5 rer.:anding the Harris CP proceeding to the Licensing Board for further evidence on the capability of CP&L to design, construct and operate the proposed facili ty.
Sincerely,
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Charles A. Barth Counsel for llRC Staff Enclosures As Stated cc w/ encl:
Ivan W. Smith, Esq., Chairman Mr. Glenn 0. Bright Dr. J. V. Leeds, Jr.
Wake County Public Library Mr. Jessie C. Brake Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Board Docketing and Service Section Mr. Edward L. Jordan James P. O'Reilly Charles E. Murphy 7 81113 0Al 3 7 81113 0 m 3
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Chairman Hendrie
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SUBJECT:
IMPLICATIONS OF OIA INTERVIEW OF SHEARON HARRIS LICENSING E0ARD I am bringing this matter to your attention because of its serious impact on the functions performed by the Commission's adj udicatory boards.
I have attached a copy of the transcript and papers relating to the inter-view of the Shearon Harris licensing board conducted on October 12 by representatives of OIA.
OIA felt this interview necessary to the inquiry of the propriety cf the Staff's conduct in the Shearon Harris proc'eeding tinich the Commission's Order of Seprember 5,
- 1978, directed it to carry out.
The negotiations leading to the interview and the ground rules under which it was conducted are reflected in the opening pages of the a
tranceript.
As is evident from the transcript, the stated purpose of OIA in conducting the intervicu was to deterr:ine tite seriousness of the omission from certain Staff testimony of the concerns of a line inspector with regard to the technical qualifications of Carolina Power and Light Company to construct and operate the Shearon Harris facility.
This issue was remanded to the lfcensing j
board by the Commission's Order of September 5, and to some extent may be intertwined with the inquiry being conducted by OIA (see Mr. Eilperin's ac orandum to the Commissioners of September 5, 1978, pp. s-10).
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- I The Commission October 19, 1975 While the Shearon Harris board was most reluctant to neet with the OUs representatives, it did so with my endorsement and with the knowledge that the appeal board had agreed to an interview.
It did so because it felt that it might be able to assist their investigation by clarifying its August 30 letter to the Cocaissioners and in turn might be assisted in the conduct of the remand hearing if CIA could suggest possible areas of inquiry to i.t.
But during the interview despite the fact that the board repeatedly indicated to the OIA representatives that it could not fully evaluate the seriousness of the omission until it had an opportunity to hold a hearing and take evidence (Tr. 22, 23, 32, 33, 35, 36, 37, 39-40), these representa-tives persisted in attempting to probe the board's thout c process and force it to explain and defend its action in communicating its concerns to the Commissioners by its letter of August 30.
The Commission has emphasized that these boards must inde-pendently exercise their authority to receive evidence, ask i
questions, and reach decisions.
The Cocaission's regula-J tions prohibit eg parte communications, require that adjudicatory boards remain separate from and independent of other Commission functions, require that decisions he reached on the record, and provide for formal appeals from those decisions.
While the Panel recognices, as did the Shearon Harris board, its obligation to cooperate with CIA representatives in the discharge of their duties, these represcatatives must also recogniac that their duties may tread on sensitive areas of the adjudicatory process,
possibly infringing provisions of the Administrative Pro-cedure Act as well as the Commission's regulations.
l There is no better way to destroy the independence and
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credibility of the Cocaission's adjudicatory boards than j
to permit inspectors to probe the thought processes of and require justification _ from a board with regard to an 4
action taken in an adjudication.
All actions of a licensing board are subject to intensive review by the appeal board, j
and may ba reviewed by the Commission itsel'f.
- However, if board actions are subjected to investigation and report outside.the adjudicatory process, then that process as a t
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The Cc=ri.ncion October 19, 1973 means for fairly determining on the record the matters placed before the board by the parties will be seriously jeopardized.
Enclosures:
As stated cc w/o encls:
Alan Rosenthal James L. Kellcy O. Gene Abston I
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MDIORANDUM TO:
James R. Yore, Chairman, ASIBP l a g_ M y RE:
SHEARON HARRIS REtAND A situation has arisen which I think falls within the scope of your standing request to be advised of natters which could have an effect upon the responsibilities of the Panel, f
Tie thought we had an agreement for appropriate conditions under which the Shenron Harris Board would be interviewed by the Office of Inspector and Auditor.
The conditions were:
t 1.
Ouestions or subject matter of the interview would be submitted to the Board in advance.
2.
The Board would be interviewed together as a collegial body.
3.
There would be a continuing recognition of the Board's responsibility to decline to answer inappropriate questions, 4.
The parties to Shearon Harris may be present.
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A transcript of the interview would be filed on t;., public record.
Subsequently )IA submitted a memo outlining two subjects to be covered la the interviews.
OIA proposed to ask about the seriousness of the omission of the line inspector's views from the hearing testimony, and, in general, how do we believe dissenting views should have been presented at the time of the Shearon_ Harris hearing.
Fortunately OIA dropped their demand that we comment upon the Appeal Board 's decision.
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James R. Yore October 17, 1973 l
1 While we had reservations about the extent that we could i~
connent upon the significe"ce of the omission of the in-spector's views from the testimony we recognized that some clarifica tion of our letter night be helpful.
Furthermore general inquiries as to how dissenting opinions should sur-face in a hearing are appropriate.
So we met with OIA's Messrs. Fortuna, Foster and Ganble in our conference roon on October 12.
Mr. Fortuna was in charge of the OIA contingent and was assisted by Mr. Foster.
Several minutes before the time set for the start of the interview Mr. Fortuna attenpted to begin his questioning.
When I pointed out that it was early and that all of the parties were not yet present, very forcefully he said that he would control the interview and would proceed immediate'y with his questions.
I told him that, before his questions began, I had a prelininary statement to read into the transcript.
He replied that I may not read a statement and that there would be no transcript nade.
I resolved that impasse simply by waiting until 3:30 when I ordered the reporter to record the interview.
I read the statement, which included our understanding of the conditions of the interview.
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Ur. Fortuna cade a statement in response in which he stated that contrary to the Board 's unders tanding, nenbers of the board would be interviewed individually but that the others nay be present.
He also stated that the Board members would be required to answer each question put to then except for answers that are constitutionally protected.
He did not again object to the transcript.
The interview lasted for one hour and forty-five minutes.
The tenor was accusatory, as if we were under investigation for nisconduct.
In f ac t Mr. Fortuna believed it was necessary to remind us of our rights under the Privacy Act and the United States Constitution.
(He later tempered his reference to the Constitution.)
With the exception of one question about dissenting professional opinions in general, every question was designed to demonstrate that our letter to the Connission was irresponsible and without basis,
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October 17, 1978 There was a fundamental error in the theory of his interview.
OIA assunes that we have accepted the line inspector's views as being the best evidence in the dispute.
'Jnd er that assumption the questions were for the purpose of demonstrating that the line inspector's notes were not reliable.
For i
example, on Page 3 of our letter to the Connission we quote the line inspector as stating, "As a result persons have been promoted or reassigned to positions for which they are not qualified as the Tech. Spec. or FSAR may imply."
Mr. Fortuna made a pointed issue of the use of the rather inept phrase "... as the Tech. Spec. or FSAR may imply "
In answer to these and similar questions we tried repeatedly to explain that we have nade no judgment as to the reliability of the inspector's notes; that it would not be appropriate f or us to do so now.
We explained that, to us, the inspector's notes were only an important indication that the matter should have been fully developed on the evidentiary record.
4' Our explanations were useless.
None of the I & A people 3
seemed to understand that we function as an adjudicative body.
l It seems that they viewed us as irresponsible accusers wi ch questionable motives.
They seemed to think that the only issue presented by their interview was related to e.1 parte communications.
They pointed out that the Acting General l
Counsel said ex parte would not be a problem (based upon his very narrow assumption of the scope of the interview).
In fact, with notice to the parties and a p'ublic transcript of the interview, ex parte was not a problem.
But other i
problems relating to the Integrity of the adjudicative i
process were involved and it didn't seem that any of the OIA investigators recognized any of those problems.
For example, the principle that the mental processes of adjudicating officers may not be p~ robed where those processes are not revealed by the opinion itself is universal and timo-honored in the Western system of juris-prudence.
(See e.g., Ernest Gellhorn, Administrative Law and Process in A Nutshell, page 224, West publishing,.1975).
Several issues were raised by OIA's actions which I believe to have important implications to the panel.
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James R.
Yore 4-October 17, 1978 If it were not for the strong rule in the NRC and under the Administrative Procedure Act that licensing boards have a very high degree of independence, the effect of the OIA interview could be intimidating.
It seems clear that OIA has a position on the merits of the issue and believes that our letter to the Commission was inappropriate.
The effect of a similar interview on personnel who do not enjoy our independence could in fact be intimidating, and could dis-tort the evidentiary record.
Such interviews certainly do not encourage differing professional opinions.
It was wrong for OIA to expect us to defend the line inspector's views.
We cannot preserve the appearance of impartiality if we argue now that his notes are reliable evidence in the controversy, then later decide the facts of the controversy after the remand hearings.
It could be said that the nore we argue now for the line inspector the more we might feel inclined to find that our concerns were justified.
Other than recognizing that the line inspector's notes were a basis for further inquiry it is our responsi-bility not to prejudge the reliability and correctness of his views.
OIA simply does not understand this point.
Which raises another point.
Why is it that these gentlemen, cxercising the power of the Commissioners themselves, are so insensitive to the adjudicative process.
OIA doesn't seem to understand what licensing boards do and what cur responsibilities are.
Some training is needed.
The men-bers of the board went very far to cooperate with OIA recognizing that they have a job to do, but OIA was in-patient with us when we did our job.
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MEMORANDUM FOR:
John H. Frye, III, Legal Counsel, ASLED f/-
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- 0. Gene Abston, Acting Director Office of Inspector and Auditor h#
SUBJECT:
SHEARON HARRIS MTTER This memorandum is ir. response to your telephonic request of October 6, 1978, to which OIA agreed to provide you with the general areas to be covered in our interview with members of the ASLB that sat for the j
Shearon Harris hearing.
These areas which were previously cornr.unicated telephonically to Mr. Smith on October 3 are as follows:
1.
Explore in detail with the ASLB members their views with respect 1
to the seriousness of omission of the line inspector's views from the written and oral testimony.
l 2.
Explore in detail with the ASLB members how they believed dissenting views should have been presented in licensing proceedings at the time of the Shearon Harris hearing.
As we previously discussed.vith you on October 4, it is impossible to supply ycu with a detailed list of questions because our questions for the most part will be predicated on the responses received from the ASLB members during the course of the interview.
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J. Kelley J. Yore A. Rosenthal I
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I Ii CONTACT: W. Foster, CIA, 49-27051 D. Gamble, 0IA, 49-27170~
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k<&rf i' ATO*,4C C AFETY AfJD LICEfJ0lf4G BOARD ',JJEL i(5 wAsw.c ron. c. c..ws co t g October 5, 19 M
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s, Mr. O. Gene Abston g4 M,3 fjh Acting Director
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20355
Dear Mr. Abston:
On October 3, 1978, Mr. William Foster cf the Office i
i of Inspector and Auditor called Ivan Smith for the purpose of arranging interviews with the members of the Shearon Harris licensing board concerning the Commission s Uraer i
,i of September 5, 1978.
Your office also provided us with copies of the memorandum dated September 28, from you to Acting Gene 1 Counsel Kelley, and the responding memo-randum dat<
actober 2 fron Mr. Kelley to you.
For com-pleteness we are attaching copics of these memoranda.
At Mr. Smith's request Mr. Foster briefly outlined three areas he proposed to cover in the interviews.
These are:
1)
In addition to the reasons set forth in our letter to the Conniission dated August 30, 1978, pro-vide information as to why we believe the omission of the line inspector's views from the testimony was rele-vant.
Explain our basis for writing to the Corrlission because our reasons are not clear in the letter.
2)
Answer questions about our views of the Appeal Board decision in the Shearon Harris proceeding.
3)
In~ separate interviews each board member would be asked his opinion of how he thought the supervisory inspectors should have testified in light of the line inspector's notes.
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r 2-October 5, 1978 Mr. O. Gene Abston In considering OIA's request, the members of the board decided that the request for interviews should be cade in writing because we did not wish to rely upon Mr. Smith's notes and memory of Mr. Foster's informal comments.
We understand now that DIA has advised the Panel's Legal Counsel, John Frye, that OIA will not make its request in writing nor in advance so that the board members may not prepare " canned" answers.
Therefore, we cust depend upon Mr. Smith's understanding of Mr. Foster's request.
The members of the board must decline to be interviewed on the subjects proposed by Mr. Foster.
The nature and tenor of your proposed investigatory interviews vould require us to defend and explain our judicial actions, mental processes,
and attitudes outside of the adjudicative process.
While it may not be your intent, the effect would be to threaten the independence of this Commission's adjudicative process.
We are, of course, required to uphold that process.
i For the members to submit to investigatory intervicus would violate the Cocmission's Regulations, the Administrative Procedure Act, and the American Bar Association's Code of Judicial Conduct with respect to separation of functions and e-g carte communications.
While it may be true that OIA is not a fornal " party" to the proceeding, this fact does not remove your proposed communication from the ex carte rule.
Indeed the problem is exacerbated by the fEctdnat, under the Commission's Order, CIA is required to file the results of its inquiry with this board.
We must then consider whether these re-sults have a bearing on the merits of the remanded issue.
i Your proposed Laterviews would create inherent conflicts.
We would be simultaneously the investigated, the investi-gators, and the judge of the results of the investigation.
l Our position on this consideration is mandated in particular by 10 CFR 52.719,5554 of the Administrative Procedure Act, and Canon 3 A (4) of the Code of Judicial Conduct.
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f Mr. O. Gene Abston October 5, 1978 i
In addition we note that the subject of your proposed interviews significantly exceeds the scope of the inquiry assumed in the memorandum from the Acting General Counsel.
Very tnily yours,
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Attachments:
As stated cc:
Docheting and Service Section i
for Service Mr. Eilperin, Solicitor Mr. Kelley, Acting General Counsel Mr. Rosenthal, Chairman, ASLABP i
i Mr. Yore, Chairman, ASLBP s.
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- ,,**n October 2, 1978 MEMORMDUM FOR:
- 0. Gene Abston, Acting Director 0ffice of Inspector and Auditor
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FROM:
Cfrygames L. Kelley, Acting General Counsel
SUBJECT:
INQUIRY INTO STAFF TESTIMCNY AT THE SHEARON HARRIS CONSTRUCTION PERMIT HEARING This is in respense to your memorandum to me of September 28, 1978, on the above subject.
I do not believe thtt the interviews with the Licensing Board members, as described in your tr andum, would vio-late the ex carte rule.
For one thing, you are n_.
a " party" to the proceeding witnin the meaning of the rule, since you are an c'fice reporting directly to the Co raission.
Secondly, although it..cy be impossible to totally separate the subject of your inquiry from the merits issue re. Ended to the Board, I believe that the two subjects are sufficiently distinct that you can proceed without seriously compromising this aspect of the rule.
Finally, the results of your interviews will ultimately be placed in the public record of the proceeding and the parties will have an cpportunity to comment.
That prosoned procedure is fully inconsistent with the spirit of the ex parte rule.
In view of the forecoinq considerations, I believe that your proposed inte' *iews of Board bembbrs will be consistent with the Cor.ission rules, including the ex car:e rules, and that, indeed, such interviews are necessary in order for you to carry out the Cormission 's directive.
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( 27ggf,V IG!ORAllDLI! FOR:
James 1.. Kelley, Acting General Counsel Office of the General Counsel l
- 0. Gene Abston, Acting Director /S/ ) 7'a# 'y.;.:. -
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Office of Inspector and Auditor SUSJECT:
INQUIRY INTO STAFF TESTIMONY AT THE SHEARON PARRIS CONSTRUCTION PER1IT HEARING During our conduct of the subject inquiry in response to the Cc=ission's September 5,1978, order (Attachment), we contacted a rember of the At.onic Safety and Licensing Ecard Panel, Dr. J. Venn Leeds, to set up an interview cppointmnt.
Dr. Leeds declined to speak to us because in his i
view them was a possible g parte probles..
The purpose of our interview of Dr. Leeds and all other involved tror.hers of the Atcaic Safety and Licensing Board Fanel and Istcaic Safety and Licensing Appeal Panel will be to clicit all relevant information froa these individuals pertaining te the basis for and seriousness of the clieged caission of concerns of the line inspector frca the testinony given at the Shearon Harris hearing.
He do not plan to touch upon the issue to be raised on rcmand, i.e., the management capabilities of Camlina Pcuer and Light Company to construct and operate the proposed Shearon Harris facility.
Accordingly, we request your detemination as to V:hether the ex parte rule precludes Panel cr.bers, the NRC staff, or other parties to this mtter free speaking to us.
Our opinien is that these contacts would be pemitted since, by the Cccmission's order, the report of our inquiry will beccce part of the public record in this matter.
The obvious effect of precluding these contacts would be the frustration of GIA's ability to conduct a cceplete inquiry in compliance with the Cccmission's order.
Attachment:
As stated CONTACT:
D. Gamble, OIA 49-27170 H. Foster, OIA 49-27051 i
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