ML20024B975
| ML20024B975 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 07/08/1983 |
| From: | Goldberg S, Matt Young NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8307120072 | |
| Download: ML20024B975 (27) | |
Text
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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COMMONWEALTH EDIS0N COMPANY
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Docket Nos. 50-454
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50-455 (Byron Station, Units 1 and 2)
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NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION 1
Steven C. Goldberg Counsel for NRC Staff l
l Mitzi A. Young I
Counsel for NRC Staff July 8, 1983
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-454
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50-455 (ByronStation, Units 1and2)
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NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION
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l Steven C. Goldberg Counsel for NRC Staff Mitzi A. Young Counsel for NRC Staff July 8, 1983 l
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TABLE OF CONTENTS Page 1.
INTRODUCTION..............................................
1 II. BACKGROUND................................................
4 III. DISCUSSION................................................
8 A.
Testimony Regarding the A11egations...................
10 B.
Disclosure of Documents Related to Ongoing Inspections and Investigations................
16 IV. CONCLUSION................................................
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TABLE OF AUTHORITIES PAGE Court Cases:
Abney v. United States, 431 U.S. 651, 658 (1978).................
3 Cohen v. Beneficial Industrial loan Corp., 337 U.S. 541, 546 (1949).......................................................
3 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)...........
3 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)...........
16 Bristol Meyers Co. v. FTC, 424, F.2d 435, 439 (D.C. Cir.1970),
cert. denied, 400 U.S. 824 (1970)................................
17 Irons v. Bell, 596 F.2d 468, 473 (1st Cir. 1979).................
17 Pope v. U.S., 599 F.2d 1383,1386 (5th Ci r. 1979)................
16 Well ford v. Hardin, 444 F.2d 21, 23 (1st Ci r. 1978)..............
17 Sears, Roebuck & Co. v. GSA, 384 F. Supp. 966, 1004 (D.C.D.C.
1974), aff'd, 509 F.2d 527 (D.C. Cir. 1974)......................
17 NRC Cases Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units.1-4), CLI-80-12, 11 NRC 514, 516 (1980)....................
14 Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-20, 16 NRC 109 (1982),
petition for reconsideration denied, CLI-83-4, 17 NRC (February 18, 1983)..............................................
7, 15 Consumers Power.Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 606 (1977)............................................
10 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469 (1981)..............................
3, 9, 10, 13 Kansas Gas & Electric Co. '(Wolf Creek Generating Station, Unit 1),
ALAB-327, 3 NRC 408, 413 (1976)..................................
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- iii-PAGE OffshorePowerSystems(FloatingNuclearPowerPlants),ALAB-489, 8 NRC 194, 202 (1978)............................................
14 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plants, Units 1 and Z), ALAB-514, 8 NRC 697, 698 (1978)..................
10 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).......
10 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1162 (1981).............
10 Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, 17 NRC (February 24, 1983)............................................................
8 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-183, 6 AEC 520 (1973).............................
5 NewEnglandPowerCo.(NEP, Units 1and2),LBP-78-9,7NRC271, 279-80 (1978)....................................................
14 U.S. Statutes 5U.S.C.9552(b)(7).............................................
3, 16 Regulations 10 C.F.R. 5 2.718(i).............................................
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10C.F.R.92.740(c)(1),(4).....................................
2 10 C.F.R. 5 2.785(b)(1)..........................................
9 10 C.F.R. 5 2.790(a)(7)..........................................
3, 16 10 C.F.R. % 9.5(a)(7)............................................
16 Congressional Materials Memorandum to Members, Sub' committee on Oversight and Invertigations from Staff, Subcommittee on Oversight and Investigations Regarding Subcommittee Hearings on June 20, 1983:
Nuclear Regulatory Commission Investigative Practices, dated June 17, 1983, at 1..............................................
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iv-PAGE Miscellaneous Johnston v. NRC, No. 83 0003615 (N.D. Ill, filed May 25, 1983)............................................................
12 Rockford Recister Inc. v. NRC, No. 83C 20074 (N.D.111. filed May 25, 1981)....................................................
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CORilSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of COMMONWEALTH EDIS0N COMPANY Docket Nos. 50-454
)
50-455 (Byron Station, Units 1 and 2)
)
NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION 1.
INTRODUCTION On July 1, 1983, the Atomic Safety and Licensing Board (" Licensing Board") issued an order in which it clarified its ruling on the Rockford LeagueofWomenVotersandDAARE/ SAFE ("JointIntervenors")motionto reopen and directed the Staff to present a full evidentiary showing and explanation of pertinent investigations of a Byron electrical contractor's quality assurance program and subsequent reinspections during an August 9, 1983 hearing session. Memorandum and Order at 1-3.1/ Specifically, the Licensing Board directed the Staff to provide a full evidentiary presentation on allegations made by confidential informants referred to in NRC Region III testimony presented during the operating license hearings in April, 1983. Memorandum and Order at 2.
Pursuant to requests by the other 1/
The Licensing Board issued two companion orders regarding the Joint l
Intervenor's motion to reopen. See Memorandum and Order Reopening Evidentiary Record, dated June 21, 1983; Memorandum and Order Ruling on Intervenors' Motion to Admit Testimony of John Hughes, dated June 21, 1983.
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parties, the Board also directed the Staff to produce relevant documents pertaining both to allegations which have been documented in inspection reports and to allegations which are the subject of ongoing inspection by Region III and investigation by the Office of Investigation (01).2_/ Id.
at 4.
The Staff agreed to provide testimony concerning allegations from confidential informants regarding the subject contractor which have been inspected and documented in inspection reports. The Staff objected, however, to providing information, including documents, regarding allegations received from confidential informants which are the subject of ongoing investigation by the OI and inspection by Region III until the allegations are resolved in NRC investigation and inspection ~ reports.
During a conference call between the Board and parties, the Staff requested the Board.to refer its directive to the Staff to the Appeal Board. The Licensing Board denied the Staff's request for referral because the Board believed the Staff had not provided enough information J
about the basis for the Staff's objection to disclosure of information regarding allegations which are still under NRC inspection and investigation beyond i
the asserted policy grounds that such disclosure would compromise Staff inspection and investigation processes.
Id. at 3.
The Staff also moved for a protective order, pursuant to 10 CFR H 2.740(c)(1), (4), with
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Throughout this motion the Staff will refer to both inspections and investigations. Traditionally, inspections are done by NRC Regional personnel and investigations by the Office of Investigations (0I).
While OI is not represented by the Office of the Executive Legal Director, reference to investigations is appropriate because the potential compromise of NRC activities is equally important with respect to both inspections conducted by the Staff and investigations
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undertaken by OI.
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respect to requested infonnation and documents related to these same ongoing inspections and investigations on the grounds that the documents are exempt from disclosure and fall within the scope of the investigatory privilege set forth in 10 CFR 6 2.790(a)(7).3/ The Licensing Board similarly denied that motion.
_Id,. at 4.
The Staff is currently filing a separate appeal of the Licensing Board's decision on the basis that the directives of the July 1 Board Order are final for appeal purposes.1/ n the event that the Appeal Board I
determines that an appeal as of right from the Licensing Board's order is premature at this time, the Staff hereby requests that the Appeal Board direct certification _/ and vacate the Licensing Board's ruling requiring the Staff to 5
present testimony on, and produce documents related to, allegations which are the subject of ongoing inspections and investigations.
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This exemption is derived from the Freedom of Information Act.
5 U.S.C. 6 552(b)(7).
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That appeal is filed pursuant to the " collateral order" doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541, 546 (1949). Under that doctrine, orders are innediately reviewable on appeal where they " conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); accord, Abney v. United States, 431 U.S.
651, 658 (1977). The Staff recognizes, as stated by the Appeal Board, that "whether a disclosure order of the kind in question" qualifies under the collateral order doctrine "is an issue about which the federal courts are themselves divided." Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13NRC469,472(1981)(footnoteomitted).
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See Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 472-73 (1981).
II. BACKGROUND As litigated, Joint Intervenors' Contention IA alleges that the Applicant does not have the willingness nor the ability to maintain a quality assurance and quality control (QA/QC) program as evidenced by its past noncompliances and that the QA program does not require sufficient independence from other functions within the Applicant's organization.6f Testimony on Contention 1A was presented March 28-April 1, April 5-8 and April 11,1983. On April 28, 1983, after the QA/QC phase of the hearing had concluded but before the QA/QC record had been officially closed, Joint Intervenors filed a motion to allow the testimony of a Mr. John Hughes, a former QA inspector at Byron, on matters pertaining to QA/QC.
In a sworn statement attached to the motion, Mr. Hughes alleged that he was employed at Byron as a QA electrical inspector for Pittsburgh Testing Laboratory and assigned to Hatfield Electric Company (HECo), a subcontractor for Byron construction. Mr. Hughes alleged that:
(1)he received inadequate training; (2) he was given correct answers to a test he failed and was then retested; (3) he was asked to " sign off" on l
6f League Contention IA states:
Intervenors contend that Edison does not have the ability or the willingness to comply with 10 CFR Part 50, Appendix B, to maintain a quality assurance and quality control program, and to observe on a continuing and adequate basis the applicable quality control and quality assurance criteria and plans adopted pursuant thereto, as is evidenced by Edison's and its architect-engineers' and its contractors' past history of noncompliance at all Edison plants (whether or not now operating).
In addition, Applicant's quality assurance program does not require sufficient independence of the quality assurance functions from other functions within the Company.
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documentation for inspections he did not perfom and implied he was discharged for refusing to sign such documentation; and (4) he observed improper welding practices.
The Licensing Board applied relaxed standards for reopening a closed.'
evidentiary record to the Joint Intervenors' motion. Because the Hughes affidavit was not sufficiently specific, but concerned what the Licensing Board believed to be important safety issues, on May.26, 1983, the Board presided over a deposition of Mr. Hughes in order to explore further the safety significance of the alleged matters and whether Mr. Hughes' information would affect the outcome of the proceeding.U The transcript of the Board-conducted deposition included a party stipulation regarding testimony of two asserted corrobative witnesses for which Intervenors' had requested subpoenas. Based upon the record of the deposition, the stipulated testimony, the deposition exhibits and oral and written arguments of the parties, the Board denied in part, and granted in part, the motion to allow the Hughes testimony. Memorandum and Order Reopening Evidentiary Record, dated June 21, 1983. The Board found that Mr. Hughes' statements and testimony relating to HECo training and certification procedures for QA inspectors and the possible use of rupplied answers on 7)
The Licensing Board reasoned that under Vermont Yankee Nuclear Power Corp (. (Vermont Yankee Nuclear Station), ALAB-183, 6 AEC 520, 523, 524 1973), the burden of a movant for reopening a record is comparable to the burden of a party avoiding a motion for sumary disposition under 10 CFR 6 2.749. Staff and Applicant affidavits filed in opposition to the Joint Intervenors' motion led the Board to conclude that Joint Intervenors' must demonstrate that a triable issue remains either by factual response or by showing that no factual response can be made. Memorandum and Order Setting Special Deposition Session, dated May 12, 1983, at 6.
inspector qualification testing raised significant safety issues and granted Joint Intervenors' motion as to the respective Hughes testimony and any related exhibits.N Id. at 18. The Board also " reopened" the record on several other issues. The Board asked to receive evidence on (1) the reinspection program, which is taking place at the site, referred to in Applicant and Staff affidavits filed in opposition to the motion to reopen, (2) the Office of Investigations' inquiry into potential wrongdoing by HEco and (3) allegations about HECo in several areas, including QC inspector qualification and certification, that the Region III Staff generally alluded to in its written direct testimony in the QA/QC hearing.
Memorandum and Order Reopening Evidentiary Record, dated June 21, 1983, at 3.E 8]
The Board received into evidence portions of tir. Hughes testimony relating to (1) his certification and training and (2) his being permitted to have a corrected test before him during retest and his observation of the same practice regarding other trainees. The Board denied the motion with respect to testimony about welding quality, a brace welded to pressure pipe, language on inspection forms and the circumstances surrounding Hughes' discharge.
y The Board quoted from the pertinent Region III testimony on page 3 of t
l its Order as follows:
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Three additional persons have provided allegations related to work performed or being performed by the Hatfield Electric Company and these allegations are now under NRC investigation.
These allegations are in the areas of records, QC inspector qualification and certification, hardware, design and drawing control, corrective action, housekeeping, and inspector independence. Approximately half of these allegations were previously identified by routine and nonroutine inspections, and will be resolved by routine inspector followup. The remaining allegations are being evaluated jointly and severally by the Office of Investigations and Region III. The results of the inspections or investigations will be documented at some future time.
NRC Region III Testimony, ff. Tr. 3586, at 6.
,-m, The subject areas of the allegations in question are not confined to inspector training, certification or testing and did not supply part of the grounds for the motion to reopen. Nevertheless, the Board considered the fact that a reinspection program was in effect at the site.
to address NRC identified deficiencies in QC inspector certification and that OI was investigating potential wrongdoing in the testing of inspectors by HECo.
In addition, the Board reread the written testimony of the Staff regarding allegations about HECo. From the reconsideration and review, the Board concluded that the reported information established that it would be an " improper delegation of the Board's adjudicatory responsibilities to leave the resolution of the problems raised in the reports to the Staff's enforcement program" and, accordingly, as the Board notes in its July 1 Order, directed the parties to present "a full evidentiary showing and explanation of the pertinent investigations of Hatfield Electric's quality assurance program and subsequent reinspections."E The Staff informed the Board during the two conference calls that it would be prepared to present testimony with respect to allegations which l
10] Id. at 3.
The Board explained during the telephone conference Balls of June 29 and 30,1983, that it believed that had it not been for the expedited pace of the Byron hearings to correspond to the Applicant's original August 31 fuel load date, it would have inquired about the Region III testimony regarding the HECo allegations when the Staff testified in April 1983. Consequently, l-as it stated in its Order, the Board could not " determine from the record before it whether all the... reports are related to the j
same investigation or set of investigations."
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. havebeeninspectedandoocumentedininspectionreports.E The Staff, however, objected to presenting an evidentiary explanation of allegations as yet uninspected and uninvestigated.
III. DISCUSSION The Staff is not asserting that the results of its inspection efforts are not fit subjects for litigation if otherwise relevant to a contestedissue.E Rather, this appeal is the latest in a number of actions seeking to reconcile the proper obligations of a licensing board presiding in an adjudicatory proceeding with the conduct of NRC extra-judicial inspection and enforcemer.t responsibilities. See e.g., Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
-11/ The Staff did not inform the Board about the number of allegations during the call. Of an original 88 allegations concerning HECo, 64 are unique (i.e., not repetitive of other allegations). Of the 64, 29 have been inspected and documented in Region III inspection reports. Thirty-five allegations are still under investigation and 9 of these have been referred to 0I to investigate possible misconduct by the contractor.
It is with respect to the 35 unresolved allega-tions that the Staff maintains it cannot present testimony until the pertinent inspection and investigation are completed and necessary administrative or enforcement actions resulting therefrom are taken.
12/ The Staff appreciates the present Licensing Board's dilenina in attempting to ascertain from the limited infonnation presented in the above-quoted Staff testimony whether the totality of the Staff inspection and investigation into Hatfield Electric Company is either relevant or significant, or both, to the subject of the reopened session.
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ALAB-714, 17 NRC
,(February 24,1983); Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), ALAB-639,13 NRC 469 (1981)
(informant's privilege claim). This is a natural product of the balance that must be reached between the public hearing process and the necessarily nonpublic inspection and investigation process which relies, in part, on confidential allegations and the ability not to prematurely alert the party under inspection of the inspection's pendency with the concomitant risk of that party's alteration or redress of alleged safety problems which would thus thwart the inspection process. Although ultimately all proper and relevant issues must be fully litigated in the public hearing process, it is now premature to disclose detailed information regarding allegations which are the subject of ongoing inspection and investigation.
It is the Board's directive to present testimony and produce documents in advance of the August 9 hearing about allegations as to which neither Region III has completed its inspection nor 01 has completed its investigation, that prompts the present motion. Accordingly, the Staff requests that the Appeal Board:
(1)directcertificationoftheLicensing Board's rulings that the Staff provide a full evidentiary presentation on, and produce documents related to, allegations which are the subject of ongoing, but presently incomplete, Staff inspection and investigation and (2) reverse those Licensing Board rulings.
Pursuant to 10 CFR 5 2.718(i), questions may be certified to the Comission in the discretion of the presiding officer or upon the direction of the Comision. The Comission's authority to direct certification has been delegated to the Appeal Board pursuant to 10 CFR 6 2.785(b)(1). Directed certification has been held to be appropriate
1 "where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in pervasive or unusual manner." Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977)
(footnoteomitted). Accord, South Carolina Electric and Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1162 (1981).J3/Similarly, the Appeal Board has held that directed certification is appropriate where the ruling "must be examined now or not at all."
South Texas, supra,13 NRC at 473; Kansas Gas & Electric Co.
(Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 413 (1976) (review of an order denying protective order and compelling disclosure of proprietary information).
A.
Testimony Regarding the Allegations In the instant proceeding, the Staff has determined that the disclosure of detailed information regarding allegations which the NRC has not yet inspected or investigated could seriously compromise the inspection and investigations of the pending allegations and the i
i 13/ The Appeal Board has further instructed that directed certification is reserved for cases involving " exceptional circumstances",
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 606 (1977), and directed certification is granted "most sparingly." Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697, 698 (1978).
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Comission's ability to pursue future investigations of safety-related matters, thereby injuring the Comission's ability to protect the public health and safety. This serious adverse impact upon the Comission's primary goal of protecting the health and safety of the public falls precisely within the standards applicable to directed certification, and requires appellate review at this time. Moreover, given the iminence of the directed staff presentation, appellate relief must be obtained promptly or the incomplete investigation and inspection will be unalterably compromised.
The present dispute is not one of whether the Sta.ff.will supply the information requested by the Board. Rather, it is a dispute about when such information will be supplied. The Board insists that the Staff disclose the nature of as yet uninspected and investigated allegations before completion of the inspections and reports thereon. The Staff believes that to do so could compromise the conduct of the inspection and has indicated its willingness to provide a full explanation of the allegations and the outcome of the Staff inspection thereon upon its completion if the Board deems it necessary to reach a proper decision in the case.
b ndicates, As the cited paragraph of the prepared Region III testimony i
the Board is already aware of the general subject areas of the allegations.
The basis for the Staff's desire to refrain from providing additional 14f See n. 9, supra.
testimony about the details of the allegations at this time rests entirely on its need to accomplish an effective inspection and investigation of the matters. NRC inspections and investigations play a crucial role in assuring safe construction and operation of licensed facilities. There is a risk that the Staff inspections and investigations could be compromised, even if information about the allegations is disclosed to the parties in camera, because once the information is disclosed to individuals n
other than the Staff, that information could be comunicated, either inadvertently or othemise, to individuals who are the target of the investigation or inspection.1_5./ If potential targets of NRC inspections are apprised of the areas of concern before the inspections and investigations canbeperformed,theinspectionofthematterscouldbefruitless.E Records could be put in order or documents destroyed. The ability of the NRCtoprotectthepublichealthandsafetycouldbecompromised.E 15/ It is also unlikely that an attempt to hold in camera proceedings will go unchallenged. The ACLU and the locaT newspapers have previously filed suit in Federal Court to prevent an in camera session fromtakingplaceontheQA/QCissueinvolvedintheFresentdispute.
Rockford Register, Inc. v. NRC, No. 83C 20074 (N.D.111. filed May 25,1983); Johnston v. NRC, No. 83 0003615 (N.D. Ill, filed May 25, 1983). ~
16/ Under Staff practice, when special inspections into allegations occur they are treated routinely. Applicants and their contractors are not infonned that the inspection involves allegations.
Applicants are made only generally aware of the records that require NRC review and are requesced to make specific individuals available for interview.
_17f The NRC has been severely criticized for premature disclosure of information to targets of its investigations. Recent hearings before the House Comittee on Interior and Insular Affairs Sub-comittee on Oversight and Investigations have highlighted Congressional sensitivity to the inviolability of NRC investigative practices. Memorandum to Members, Subcomittee on Oversight and Investigations from Staff, Subcomittee on Oversight and Investigations Regarding Subcomittee Hearings on June 20, 1983:
Nuclear Regulatory Comission Investigative Practices, dated June 17, 1983, at 1.
This is not to say that an jn_ camera procedure might not be suitable under a different set of circumstances or that proceeding jn camera or the use of protective orders would not minimize the risk of compromise.
However, balancing the needs of the Licensing Board to know now the nature of the allegations in order to timely conclude the adjudicatory proceedings and the imperative of preserving the confidentiality of the allegations so inspections and investigations are not compromised, the Licensing Board's approach of disclosure now is not desirable. The balance must favor the Comission's statutory duty to protect the public healthandsafety.E Moreover, at this early stage of the inspection process, there is little value to the hearing process and the adjudicatory resolution of the allegations in disclosing detailed information about bare allegations and the status of inspection and investigation by Region III and 01. The results of the status of inspection and investigation may disclose that the allegations are wholly unjustified and without foundation. Until the Staff can provide the Board a position on the demonstrated merit or safety significance of the allegations, no purpose can be served by the Licensing Board being informed prematurely about 18/ In South Texas, supra, the Appeal Board stated that a party's need for disclosure in a discovery dispute must " overcome the acknowledged importance of the need for confidential informants."
13 NRC at 475.
In that case, the Appeal Board concluded that the party's showing was " legally insufficient to override the informer's privilege." Id. at 477.
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the matters which clearly fall within the province of the Staff inspectionandenforcementresponsibilities.E If the Licensing Board's position were to become the accepted practice, those investigatory offices within the agency that have primary responsibility for policing licensed activities may expect considerable interference in the discharge of their duty. Such interference could strain already limited agency resources because instead of providing testimony at the conclusion of inspections and investigations which are documented in reports, there would be delays in inspector efforts to resolve the allegations.
The Staff is mindful that, for those allegations as to which the Staff has not completed its inspection, the record likely must remain open should the Board deem the mere existence of uninspected and uninvesti-gated allegations against a contractor sufficient to warrant resolution 19/ The disparate roles of the licensing board in presiding over the hearing phase of the process and the Staff license application review and general regulatory responsibilities has been comented upon in past adjudications. As the Appeal Board noted in Offshore Power Systems: "It is a virtual watchword of the Commission's system that '[t]he responsibilities of the board are independent of those of the Staff.' But in fulfilling its obligations during licensing proceedings, neither the boards nor the Staff may be irresponsible or totally insulated." Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 202 (1978).
A Licensing Board is not empowered to direct the Staff in the performance of its independent responsibilities, including the performance of its administrative functions. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4),
CLI-80-12, 11 NRC 514, 516 (1980); New England Power Co. (NEP, Units 1 and 2), LBP-78-9,7 NRC 271, 279-280 (1978).
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oftheallegationsontherecord.b If the Board does not, and decides to close the record, yet still maintains jurisdiction in the case, the Staff would inform the Board of the eventual inspection results.2_1/
In sum, disclosure in testimony now of the details of the uninvestigated allegations and of the status of the Staff's and OI's inspection and investigation, as directed by the Licensing Board, could severely compromise the inspections and investigation result in improper disclosure to the targets of the inspections and investigations, and ultimately result in possibly significant health and safety problems 20/ While the Staff's inspection and enforcement program is not immune from exposition in the litigative process, it does not necessarily follow that a presiding board cannot decide a case without submitting the inspection outcome to litigation as this board has apparently assumed in its order on reopening (see discussion supra at 7).
See Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No.1), CLI-82-20,16 NRC 109 (1982),
. petition for reconsideration denied, CLI-83-4,17 NRC (February 18,1983) wherein the Comission reversed a Licensing Board's ruling granting an intervenor's motion to reopen the hearing sua sponte to consider several new contentions in Zimmer pertaining to construction quality assurance. The Commission noted that the issues raised in the several new contentions were being dealt with in the context of an ongoing NRC regional investigation and in the Staff's monitoring of that applicant's quality confirmation program.
It thereby concluded that the Licensing Board had not set forth adequate justification to consider the eight contentions as Board issues and dismissed them from the proceeding.
16 NRC at 110-11. The Board has recently granted a new Intervenor motion to reopen regarding this matter.
21/ The Staff presently cannot predict when its inspection will be 1
concluded. The fuel load date for the plant is currently scheduled for December 1983. Region III believes that many, if not all, of the allegations would require resolution before that date. The Staff has been advised that.due to severe manpower constraints, 01 cannot now provide a date certain by which its pertinent investigation can be completed. The Board has requested and the Staff has endeavored to facilitate that office's potential future participation in this proceeding.
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being undiscovered. Disclosure now of the uninvestigated allegations and the status of the investigation, in itself, would be of little or no value to the hearing and to the adjudicatory resolution of QA issues yet, once the details of the uninspected allegations and inspection /investiga-tion plans directed thereto have been revealed, the harm cannot be alleviated by later appeals.
In contrast, were the Licensing Board's Order directing Staff testimony now on the uninvestigated allegations and investigation plans to be reversed, the impact would be primarily schedular in nature -- a delay in the adjudicatory resolution of QA issues.
In these circumstances, it is the Staff's view that the standards for directed certification of the Licensing Board's ruling are net, that directed certification is warranted, and that, on directed certification, the Licensing Board's ruling should be reversed.
B.
Disclosure of Documents Related to Ongoing Inspections and Investigations Sections 2.790(b)(7) and 9.5(a)(7) of the NRC regulations codify the F0IA exemption from disclosure of " investigatory records compiled for law enforcement purposes"E o the extent, inter alia, it could interfere t
i with enforcement proceedings E or disclose the identity of a confidentialsource.E Both types of hann could ensue from the present disclosure of documents related to the uninvestigated and uninspected allegations since those documents contain informant statements, interview 22/ 5 U.S.C. G 552(b)(7).
l g 5 U.S.C. 9 552(b)(7)(A); see, el, NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978).
24/ 5 U.S.C. 9 552(b)(7 (D); see.. e.g., Pope v. U.S., 599 F.2d 1383, 1
1386 (5th Cir.1979.
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sumaries and inspector notes, compiled as part of the regional inspection into the allegations in question.
The requirement of a law enforcement purpose serves as a condition of exemption from disclosure of records under this section if an agency has both administrative and enforcement functions.
Irons v. Bell, 596 F.2d 468, 473 (1st Cir.1979). This exemption applies to civil and regulatory proceedings as well as to criminal proceedings. Pope v. U.S.,
supra, 599 F.2d at 1386. This exemption is intended to confine the discovery prerogatives persons charged with violations of federal regulatory statutes to those available to persons charged with violations of federal criminal law. Bristol Meyers Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir.1970), cert.
denied, 400 U.S. 824 (1970). The purpose of the exemption is to prevent premature discovery by a defendant in an enforcement proceeding.
We11 ford v. Hardin, 444 F.2d 21, 23 (1st Cir. 1978); see Sears, Roebuck
& Co. v. GSA, 384 F.Supp. 966,1004 (D.C. Cir.1974), aff'd, 509 F.2d 527 (D.C. D.C. 1974).
The cited regulatory provision applies to the situation at bar and i
serves to protect the premature disclosure of documents compiled as part l
l of an ongoing agency inspection.
If the Staff were compelled to comply with the Board's directive to provide those documents related to the uninvestigated allegations, it would have the same compromising effect on the viability of the inspection as the directed Staff evidentiary l
presentation.
It is not possible to conduct a meaningful investigation if the party under investigation has prior knowledge of, and access to, i
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information defining allegations against him and the nature and scope of the investigation. As is the case for the Staff testimony directed
- by the Licensing Board, provision now of the documents related to 4
uninspected allegations could severely compromise the inspections and investigations, result in improper disclosure to the targets of the 4
investigations and ultimately result in possibly significant health and safety problems being undiscovered, yet provision of such documents now would be of little or no value to the hearing and to the adjudicatory resolution of QA issues. Again, once the documents related to the uninvestigated allegations have been provided, the risk of compromise of the investigation cannot be alleviated by appeal at the end of the case. On balance, directed certification of the Licensing Board's ruling that the Staff must provide all documents related to the uninpsected allegations is warranted and, on directed certification, that ruling should be reversed.
f IV. CONCLUSION For all the reasons set forth above, in the event the Appeal Board determines that an appeal as of right is premature at this time, the Staff urges that the Appeal Board take directed certification and reverse the Licensing Board's rulings directing the Staff to testify concerning allegations which are the subject of ongoing inspection and to produce documents pertinent thereto.
In addition, because of the upcoming scheduled 4
e
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reopened hearing, it is further requested that the foregoing be considered on an expedited basis.
Respectfully submitted,
.7k[
Mitzi A. Young Counsel for NRC Staff N
Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of July, 1983 h
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CONilSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of COMMONWEALTH EDISON COMPANY Docket Nos. 50-454 50-455 (Byron Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first. class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, or an indicated by double asterisks, by express mail, this 8th day of July, 1983.
- Stephen F. Eilperin, Chairman
- Dr. Richard F. Cole Administrative Judge Administrative Judge Atomic Safety and Licensing Appea_1 Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555
- Christine N. Kohl
- Michael Miller, Esq.
Administrative Judge Isham, Lincoln & Beale i
Atomic Safety and Licensing Appeal Board Three First National Plaza U.S. Nuclear Regulatory Comission Chicago, IL 60602 Washington, DC 20555 Mrs. Phillip B. Johnson
- Dr. Reginald L. Gotchy 1907 Stratford Lane Administrative Judge Rockford, IL 61107 Atomic Safety and Licensing Appeal Board t
U.S. Nuclear Regulatory Comission Ms. Diane Chavez Washington, DC 20555 326 N. Avon Street Rockford, IL 61103
- Ivan W. Smith, Chairman Administrative Judge Dr. Bruce von Zellen Atomic Safety and Licensing Board c/o DAARE U.S. Nuclear Regulatory Comission P. O. Box 261 Washington, DC 20555 DeKalb, IL 60015 1 r. A. Dixon Callihan Region III Administrative Judge U.S. Nuclear Regulatory Comission Union Carbide Corporation Office of Inspection & Enforcement P. O. Box Y 799 Roosevelt Road
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Oak Ridge, TN 37830 Glen Ellyn, IL 60137
Doug Cassel, Esq.
o
- Jane Whicher, Esq.
109 N. Dearborn Street Chicago, IL 60602 Hs. Pat Morrison 5568 Thunderidge Drive Rockford, IL 61107 Joseph Gallo, Esq.
Isham, Lincoln & Beale Suite 840 1120 Connecticut Avenue, NW Washington, DC 20036
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Mitzi'A. Toung e
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