ML19309C039
| ML19309C039 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 03/31/1980 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML18044A719 | List: |
| References | |
| FOIA-80-150 NUDOCS 8004080067 | |
| Download: ML19309C039 (11) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter-of
)
1 Docket No. 50-255 CONSUMERS POWER COMPANY (Civil Penalty)
(Palisades Nuclear Power Facility)
)
NRC STAFF'S OBJECTIONS TO CONSUMERS POWER COMPANY'S "FIRST ROUND OF INTERR0GATORIES AND REQUEST FOR THE PRODUCTION OF DOCUMENTS,"
DATED FEBRUARY 21, 1980 A.
Objections to Licensee's " Instructions and Definitions" Instruction 9:
"[T]he term ' identification or [ sic) a person or entity' includes stating...his or her most recent home address and telephone number...."
The Staff objects to this instruction insofar as it applies to current NRC employees identified in response to CPC's interrogatories. Such information is neither necessary to sufficiently identify NRC employees, nor would such information be generally subject to disclosure if CPC were seeking records that contained such infomation. See 10 CFR 2.744 and 2.790(a)(6).
Instruction 10:
"[T]he term ' document' includes non-identical copies (whether different from originals by reason of notation made on such copies or otherwise)... notes.... stenographers ' notebooks,... desk calendars, appointment books, diaries,... logs...."
This instruction seems to request generally the personal, handwritten notes and drafts made by Staff members in perfoming their daily tasks.
The Comission's regulations make it clear that such personal notes and I
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drafts are not final NRC records and do not, therefore, have to be made available in the Comission's Public Document Rooms.
10 CFR 2.790(a) n. 10.
Under the Freedom of Information Act, handwritten notes of individuals are not considered agency records at all and do not have to be disclosed.
porter County Chapter of the Izaak Walton League of America, Inc. v. AEC, 380 F. Supp. 630, (N.D. Ind.1974). Disclosure of such documents would invade the privacy of and impede the working habits of individual Staff members, because they could never comit anythig to writing which they would not, for whatever reason, want disseminated publicly.
Izaak Walton League, supra, 380 F. Supp. at 633. The criteria for determining whether such notes are agency records are: (1) whether they are prepared by a Staff member for his/her own use; (2) whether they are circulated to or used by anyone other than the author; (3) whether they are discarded or retained by the author at his own discretion in his own personal file; and (4) whether anyone other than the author exercises control over them.
Izaak Walton League, supra, 380 F. Supp. at 633. Application of these criteria to the general class of requested documents--personal notes taken on documents read by a Staff member and notes marked in personal diaries--indicate that such " documents" are " personal" and need not be disclosed under 10 CFR 2.790. Similarly, they should not be reachable by a request under 10 CFR 2.744, since they are not NRC records.
Instruction 11:
"[T]he tem ' identification of a document' includes stating...(c) the date, if known, on which the document was prepared....(f) the number of pages comprising the document, (g) the identify of each
. person who wrote, dictated or otherwise participated in the preparation of the document....(j) the identify of each person who received the document or reviewed it....(1) the identity of each person having custody of the document."
With respect to each document identified in response to CPC's interrogatories the Staff has provided sufficient detail to nake each document reasonably identifiable to CPC and, in many cases, has provided the document to CPC. Although CPC may define " identification" broadly out of an excess of caution, it is unnecessary for purposes of identification to specify the information cited above for each document asked to be identified.
In the absence of some justification for the CPC's request for these details regarding every document, the Staff does not see how the identification of such minutia in every instance will yield information of significance in this proceeding. The Staff would, of course, be prepared to answer other appropriate interrogatories concern-ing the documents identified in its answers, and it may be that in the context of a particular document additional information concerning that document should be provided.
Instruction 13: " identify all documents which relate to these documents and all persons who have knowledge of these documents".
Instruction 15: " stat [e)...the identity of each person who...has knowledge of the consnunication...."
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_4 For the same reasons stated in its objection to Instruction 11, the i
Staff objects to the broad, vague requests made in instructions 13 and 15.
In identifying documents and communications, the Staff has reason-ably given sufficient detail to identify documents or communications in response to specific interrogatories. The Staff is not obligated to conduct a massive search of the agency's files to discover every possible document that refers to other documents or to poll the Staff to detennine every person who may know of certain documents or consnuni-cations.
It is difficult to fathom how, for example, knowing that a person has knowledge of the existence of atranscript of the press brief-ing on the Three Mile Island civil penalty (see interrogatory 16) would be relevant or lead to admissible evidence concerning imposition of penalties against CPC.
B.
Interrogatories Which Are Objectionable Because In Form They Do Not Comply With 1p CFR 2.720(h)(ii)
Consumers Power Company (CPC) filed its interrogatories in an admittedly informal manner. Technically, the interrogatories do not conform to the Commission's rules of practice,10 CFR 2.720(h)(ii), which nonnally contemplate that:
a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Din!ctor for Operations, tipon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from another source, the presiding officer may require that the Staff answer the interrogatories.
In a letter sent to CPC's counsel on March 6,1980, the Staff stated that it would accommodate CPC's discovery requests without insisting on CPC's strict compliance
with the Commission's formal discovery mechanisms. The Staff indicated in that same letter, however, that it did not intend to answer certain interrogatories posed by CPC which appeared to be unnecessary to a proper decision in this pro-ceeding.
In those instances, as discussed later in this filing in which answers to CPC's interrogatories are not necessary to a proper result in this proceeding, the Staff believes it is appropriate to insist on CPC's compliance with the Com-mission's rules of practice governing discovery requests with respect to the following interrogatories: 2(b), 2(c), 2(d), 2(e), 3, 4, 5 (as to communications among NRC personnel regarding the decision by the Director of I&E to impose civil penalties), 9,10,12(f) and 12(g),13(f) and 13(g),14(a)(iv),14(a)(v),
14(a)(viii),14(a)(ix), and 17.
C.
Interrogatories Which Are Objectionable Because Answers to the Interrogatories Are Irrelevant and Not Necessary to a Proper Decision in this Proceeding.
Several interrogatories (specifically, 2(b), 2(c), 2(d), 2(e), 3, 4, 5) essentially ask the Staff to lay bare the internal deliberative process that led to the Director of the Office of Inspection and Enforcement's (I&E) decision to propose and finally impose civil penalties against CPC. 3/ The issues in this case do not concern the personal opinions of members of the NRC Staff who may have given advice to the Director of I&E. These persons - and, indeed, the Director of I&E himself - are not the decisionmakers in this case.
Under the Commission order noticing the licensing, the Administrative Law Judge must determine in accordance with the Commission's specification of issues in this case (1) whether CPC committed the alleged violations, and (2) if so, whether civil penalties are warranted.
J/ The Staff objects to Interrogatory 5 only to the extent it requests identifi-cation of communications that reflect the deliberations that led to the Director of I&E's decision to propose and then impose civil penalties.
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The NRC Staff, of course, has the burden of going forward on these issues in this proceeding. An inquiry into whether or not individual members of the Staff agreed or disagreed with the Director's decision to prosecute this case is simply unnecessary to the Administrative Law Judge's findings on the issues in this case.
The Appeal Board has recognized this principle in another civil penalty matter under analogous circumstances.
RadiationTechnology,Inc.(By-productMaterial License No. 29-13613-02), ALAB-567, 10 NRC 533 (1979), petition for review denied j
on January 4,1980.
In Radiation Technology, the licensee argued that its due process rights had been violated, because the licensee did not have an opportunity to cross-examine the Director of I&E regarding statements made to him by other NRC personnel during his deliberations leading to his decision to impose civil penalties.
The Appeal Board rejected the licensee's argument:
"The answer to this contention is that it rests on a misconception. The Director is not the ultimate fact finder in civil penalty matters.
Comission regulations afford one from whom a civil penalty is sought the right to a hearing on the charges against it.10 CFR 2.205(d) and(e). At that hearing, the Director must prove his allegations by a preponderance of the reliable, probative and substantial evidence.
It is the presiding officer at that hearing, not the Director, who finally determines on the basis of the hearing record whether the charges are sustained and civil penalties warranted." 10 NRC at 536.
The Appeal Board went on to say "A licensee who thinks the Director has been ill-advised or mistaken has a remedy.
It is not to cross-examine the Director's thought processes but to make him prove his case at an impartial hearing". Id at 537.
Similarly, the function of this proceeding is not to delve into the thoughts of individual members of the NRC Staff to detemine whether their advice concerning _
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the selection of enforcement sanctions was poor or was ignored. Such an inquiry into the deliberative process is inappropriate and should not be undertaken.E To be sure, CPC is entitled to notice of the charges against it and the basic reasons for institutt'g a civil penalty proceeding against it.
CPC has, of course, received such notice in the Director of I&E's November 9,1979, and December 20, 1979, enforcement letters which generally state the violations allegedly comitted and the essential reasons for seeking a civil penalty.
D.
Interrogatories Which Are Objectionable Because They'Are Not Relevant to Matters in Controversy in This Proceeding.
In general, discovery is obtainable regarding any matter which is relevant to the issues in controversy in a proceeding or is reasonably calculated to lead to the discovery of admissible evidence. 10 CFR 2.740(b). The Staff objects to the following interrogatories on the ground that they are not relevant to any issue in this proceeding.
Interrogatory 2(a)(1): This interrogatory asks the Staff to identify each person within the NRC who has knowledge of the facts relied
'-2/
For the same reason, the Staff objects to interrogatories 12(f)&(g),13(f)&(g),
and 14(a)(iv), (v), (viii) and (ix). These interrogatories are directed toward inquiry into the thought processes of various members of the NRC Staff who participated in other enforcement cases involving violation of containment integrity or similar significant violations of the Comission's requirements.
CPC should not be pennitted to delve into the thoughts of individual Staff members in this case, much less the recomendations and thoughts of Staff members in other cases of tangential relevance to this proceeding. The Staff also objects to the proouction of cocuments requesteo in Interrogatories 2(f), 3(c), 4(c), 5(b), and 12(k) that relate to the objectionable portions of interrogatories 2, 3, 4, 5 and 12. CPC requests through these interroga-tories memoranda and documents reflecting the deliberative process that led l
to the Director's decision to impose civil penalties.
Insofar as these documents embody the recomendations and deliberations of various Staff mem-bers, the documents would not be subject to disclosure under 10 CFR 2.790(a)(5).
See ' Renegotiation Board v. Grunrnan Aircraft Enaineerina Coro. 421 U.S 168 Again, tne recomendations of these statt memoers are not on trial in this (1975').
l proceeding, and the knowledge of their recomendations to the Director is not necessary for the Administrative Law Judge to reach a proper decision in this case.
In that the requested doctments are irrelevant, not subject to dis-closure under 10 CFR 2.790 and unnecessary to a proper decision in this pro-ceeding, the documents are properly refused under 10 CFR 2.744.
upon by the Staff which show that CPC breached containment integrity from April 1978 to September 1979.
In answering this interrogatory the Staff has limited its answer to persons in the NRC, generally from the Office of Inspection and Enforcement and the NRC's Region III office, who have been directly or indirectly involved with this civil penalty case. The Staff has also indicated whether any of the Conynissioners know of these facts. Whether other persons in the NRC, say, persons in the Office of Nuclear Reactor Regulation, know of the circtanstances of this case is irrelevant, since these other persons do not have responsibility for prosecution of this case or for gathering or assessing the relevant facts. Knowing whether these other persons have knowledge of the facts would probably not lead to other admissible evidence, because these persons would for the most part have learned of the incident at Palisades through the Office of Inspection and Enforcement or the I
licensee's own reports.
Interrogatory 9: CPC asks that the Staff identify consnunications or criticisms of the NRC's civil penalty practices to which Dr. Hendrie, then Chainnan of the NRC, referred in his remarks during the press conference on November 9,1979, at which the proposed imposition of civil penalties against CPC was announced. Whether other licensees, inembers of the public, or other government agencies have criticized the NRC's practices in imposing civil penalties has no bearing on the issues set for hearing in this case: whether the cited violations occurred and wnether the imposition of civil penalties should be sustained.
i Moreover, it does not appear that the interrogatory is reasonably cal-culated to lead to discovery of admissible evidence. Again, general criticisms of the NRC's enforcement practices do not fonn a basis for the Administrative Law Judge's determining whether a civil penalty is appro-priate in this case.E Interrogatory 10:
CPC asks the Staff to identify criticisms of the NRC's use of civil penalties as an enforcement sanction. While criticisms undoubtedly exist, the Staff does not believe, for the reasons stated in response to interrogatory 9 above, that interrogatory 10 is relevant.
Intermgatory 12(f)&(0):
In these portions of interrogatory 12, CPC seeks discovery of the recommendations of various NRC personnel to impose sanctions on other licensees for other violations of containment integrity.
Although the interrogatory as a whole may have some relevance to CPC's arguments concerning the propriety of imposing civil penalties in this case, the Staff does not understand how the recomendr.tions of various NRC personnel to impose sanctions in other cases are relevant here.
CPC requests in the same interrogatory infomation concerning the sanctions ultimately imposed, and the Staff has no objection to providing this infomation or information, if it is available.
To the extent that 3/
In that interrogatory 9 is apparently directed to Comissioner Hendrie, the Staff believes that the interrogatory is improper in light of 10 CFR 2.720(h)(2)(i):
"The attendance and testimony of the Commissioners...at a hearing may not be required by the presiding officer...."
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t other cases have relevance to CPC's arguments concerning " abuse of dis-cretlon", only the actual imposition or non-imposition of, as opposed to mere recomendations of, sanctions, would appear to have any direct rele-vance to this proceeding.
Recommendations are just that--recomendations--
and not actual decisions to impose sanctions. To the extent that CPC seeks infonnation regarding enforcement action in other cases, it has fairly covered the relevant aspects of other enforcement cases in the remainder of interrogatory 12, Interrogatory 13(f)&(g): CPC seeks again recomendations of various I&E personnel concerning the selection of enforcement sanctions in other cases of "similar severity" to CPC's violation of containment integrity.
For the same reasons stated in response to interrogatory 12(f)&(g),
the Staff does not believe that the cited portions of interrogatory 13 are relevant to this proceeding.
Interrogatory 14(a)(iv), (v), (viii) & (ix): CPC asks the Staff to identify particular instances of violation of the Comission's require-ments in other enforcement cases. Once again CPC asks the Staff to identify the persons who recomended sanctions and their recomendations in other enforcement cases, The process of deliberation in these other enforcement cases is not at issue in the instant proceeding. Since CPC already asks the Staff to identify the sanction and categorization of non-compliance used in the cases, these portions of the interrogatory are not likely to lead to other admissible evidence concerning the use of enforce-ment sanctions in other cases.
. Interrogatory 17:
CPC asks in this interrogatory that the Staff identify comunications among NRC personnel regarding CPC's perfomance as a licensee in tems of CPC's record of compliance with NRC requirements.
Because CPC operates or constructs other nuclear facilities, this interrogatory could be construed to request information regarding those other facilities. This proceeding does not, of course, concern CPC's perfomance at these other facilities.
In view of the more limiting statement in subsection 17(a) of the interrogatory, the Staff intends to answer interrogatory 17 only to the extent that communications regarding CPC's perfomance relates to the imposition of civil penalties against CPC.
Respectfully submitted, Stephen G. Burns Counsel for NRC Staff U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Dated at Bethesda, Maryland this 31st day of March, 1980.
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