ML20039G767
| ML20039G767 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/13/1982 |
| From: | Bishop L, Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | |
| Shared Package | |
| ML20039G768 | List: |
| References | |
| NUDOCS 8201190111 | |
| Download: ML20039G767 (18) | |
Text
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wrrED STATES OF MERICA N
NUCLEAR RDGUIATORY OCei4ISSION
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BEFORE THE COFf4ISSION i
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In the Matter of
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METPOPOLITAN EDISON CCMPANY
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(Three Mile Island Nuclear Station,
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Unit No. 1)
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BRIEFHiG OF OCbMISSION AND C
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RENEVAL OF bOTION FOR AFFIDAVITS 9
CONCEFNING EX PARTE CDt7flLTS On Deccmber 21, 1981, the Conmission participated in three " briefings" by the staff on untters relating to the restart proceeding. Those three briefings ware: 1) a meeting open to the public (but not public coment),
to discuss the "infomation flow during the 7MI accident". This neeting consisted solely of a colloquy between Mr. Victor Stallo and the Ccnnissioners (Transcript of Proceedings, Discussior, of Information Flow During IMI i
Accident (Dec. 21, 1981); 2) a meeting also open to the p.iblic but not 3
Ds50 for public ccmnent, to allow the staff, headed by the Executive Director
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for Operations (hereinafter referred to as "EDO Staff"), to brief the hD Ccmnission on alleged " uncontested issues" in the TMI-l Festart Proceeding
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(Transcript of Proceedings, Staff Briefing on IMI-l Festart (Dec. 21, l
1981);
- 3) a closed nueting bet.een the Omraission and the Officn of Policy Evaluation (hereinaffer " OPE Staff") on contested issues in the restart procc 4 g.
Inapleadingfiledond'ocnber 18, 1981, the Union of cancerned o!hhodh9 OC i
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3 briefing to " uncontested" issues muld ranedy any perceived constitutional "due process" defects. Id. Finally, with regard to the third (closed) briefing on contested issues, both the General Cbunsel and Conmissioner Ahearne felt that as they would be briefed by theTE Staff, which is not nonunally a party to the restart proceeding, tha issue of g parte "never even arises." Transcript of Proceedings (Staff Briefing), at 3.
As we explain below, the General Counsel is incorrect in his opinion that the Comnissied s ex parte rules do not apply. Moreover, both those rules and constitutional requiranents of due process require that all parties who participated in these meetings place affidavits in the public record detailing the substance of those contacts, so that an appropriate renedy can be deternuned.
A.
The Comnission Rules Prohibiting Q Parte Contacts Apply To 'Ihese Comuunications.
The assumption underlying the General Counsel's opinion, that 10 C.F.R. S2.780 does not apply, is that the Omnission is not engaged in an adjudicatory process in the restart proceeding. This position is sure to be news to all of the parties to the restart hearing, which has been conducted in its entirety under the Omnission's adjudicatory procedure regulations, at 10 C.F.R. Part 2.
The Ocmnission. initiated this proceeding by suspending the operating license for 'IMI-1, finding that there was no
" assurance" that the facility could be operated "without endangering the health and safety of the public." Order July 2, 1979.
In essence, the Comnission acted entirely consistently with 10 C.F.R. S2.202, which provides for an adjudicatory hearing following an innediately effective order; to show cause why a license should not be suspended. Such a hearing is clearly governed by all of the adjudicatory procedures of Part 2, including the g parte rule. ~
There is no question that a party to a
l 5
This characterization is supported by the Administrative Procedure Act, which defines " adjudication" as an " agency process for the formulation of an order." 5 U.S.C. S551 (7).
" Order" is also defined to include " licensing." S551 (6). In mntrast to rulemakings, which generally resolve " broad policy questions" and revolve around questions of
" legislative fact", adjudications "are used in individual cases where the outcnne is dependent on the resolution of particular adjudicative facts." Independent Bankers Association of Georgia v. Board of of Governers of FPS, 516 F.2d 1206 (D.C. Cir.1975).
It should be beyond dispute that the TMI-l restart proceeding is indeed one to decide
" adjudicative facts", i.e., the rights and valigations of specific parties in a specific factual situation, and not " legislative facts" which involve non-specific, broad prospective policy judgments. Therefore, the g parte rules apply.
B.
The Comnission Briefings Violated UCS's Due Process Rights.
Although the General Counsel asserted that the Ccanission's g parte rules do not apply here, he acknowledged that constitutional protections of due pro ss proh2bited substantive cunmunications from one party to the decisionmaker absent on opportunity to the other parties to reply.
Transcript (Information Flod at 3. Although he does not explain his reasoning, the General Counsel appears to 1;ase his position on the line of cases which hold that notice and written omment procedures meet due process requirements for legislative type proceedings. See, e.g., Pickus
- v. U.S. Board of Parole, 543 F.2d 240 (D.C. Cir.1976). However, as we have explained in the previous section, the proceeding in which we are t
eagaged is not legislative, but adjudicatory. In such a situation, the requirunents of due process are nt>re strict. In Camero v. United States, l
1
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375 F.2d 777 (Ct. C1. 1967), the attorney who represented the agency is an employee grievance proceeding engaged in ex parte contacts with the decisionmakers regarding the substance of the grievance.
The court found these contacts to be improper, and struck down the decision upholding the dismissal of the employee because of the ex parte contacts.
The court reasoned:
Failure by Agency to observe these procedures or standards of fairness implicit therein makes the attempted unfavorable resolution of an employee's grievance abortive and of no effort...Of course, one of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merits of tne case with those responsible for the decision...It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendation to the decision makers.
To allow such activity would be to render the hearing virtually meaningless.
We are of the opinion that due process forbids it.
Id, at 780-81 (emphasis added) (Citations ommitted).
See also Sangamon Valley Television Corp. v United States, 269 F. 2d 222, 224 (D.C. Cir. 1959) (in a rule-making, " private approaches to members of the [ Federal Communications] Commission vitiated its action and the proceeding must be reopened").
The facts of the two staff briefings fall squarely within the conduct proscribed by these cases and 10 C.F.R.
S2.780.
In the second briefing (Staff Briefing on TMI-l Restart, December 21, 1981), despite the assurances given by the General Counsel, the Commission was given the EDO Staff's position on many issues which are hotly contested in the proceeding, severely prejudicing UCS's right to a fair, impartial hearing.
The details of each improper communication are described in Part II of
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2 Scientists (UCS) objected to the latter two briefings (on " uncontested" and " contested" issues), as they appeared to violate the Comnission's rules prohibiting e.1 parte contacts between a party to a proceeding (in 4
this case, the EDO Staff) and the decisionmaker (the Gmmission).10 C.F.R. S2.780. That Objection also requested affidavits frcxn all involved 1
i to allow for proper review.
I j
The Cmmission did not formally rule on UCS's Objection and Fbtion l
for Polief. Instead, in a memorandum to the parties dated December 23, i
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1981, the Comnission asked for caments frcm the parties on transcripts
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of the first tw meetings ("information flow" and " uncontested" issues).
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'Ihe Comnission also requested caments on four documents relating to the water level indicator issue.
These conments address both the ex parte issue, raised by UCS and I
referenced by the Comnission, as well as the water level issue, raised by the Comnission.
I.
The Cmmission Engaged In Improper Ex Parte Contacts.
The only explanation for the Comnission's apparent denial of UCS's
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Objection and Motion for Iblief is contained in the renarks of the i
General Counsel in the two transcripts made available to the parties.
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In those remarks, the General Counsel advised that since the Ocmnission 1
was considering whether to lift the immediately effective August,1979, I
shutdown order, the Comnission was acting in its "enforcenent" role and j
the ex parte rule.,did not apply. Transcript of Proceeding (Open Meeting),
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at3.*/ In any event, the General (bunsel advised that asking for 1
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conment frcm the parties on the transcripts and limiting the second 1,
- /Although Comnission rules prohibit the citation of transcripts, the
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I Cmmission's Decenber 23, 1981, mmorandum to the parties suspends that prohibition by inplication, as it requests coments on the December 21,
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transcripts.
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'1 Show Cause hearing may not engage in 'g parte contacts with the l
Licensing Board or with the Comission.
It is improper and fundamentally
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unfair to initiate and conduct what is plainly an adjudicatory proceeding for two years, only to inform the litigants prior to decision that i
certain unaamfortable adjudicatory requircrnents will be disregarded. If 3
the Comnission meant to conduct this proceeding as a legislative hearing,
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l and for g parte rules not to apply, it should have informed the pa2 ties l
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of that fact at the outset - as it did in the Indian Point inquiry.
In fact, the Comnissiods g parte rules apply, by their own terms, to " quasi-judicial" functions, and not only those proceedings required 4
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to be mnducted pursuant to 10 C.F.R. Part 2.*/
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If nothing else, this proceeding must be classified as " quasi-judicial",
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as the Comnissioners are reviewing a remrd and making a judgment regarding i
2 an adjudicatory issue. As the 'IMI-l restart proceeding involves the I
" modification of a license," it is a " licensing proceeding" under S2239 of 1
the Atcznic Energy Act. The NBC has historically interpreted licensing
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proceedings to be adjudications for purposes of 42 USC S2239 hearing i
lj requiranents. Siegel v. AEC, 400 F.2d 778, 785-6 (D.C. Cir.1968).
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See also Citizens for a Safe Environmnt v. AEC, 489 F.2d 1018 (3rd Cir.1974).
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- /Neither Comnissioners, members of their immediate staffs, or other NRC
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officials and employees who advise the Ccanissioners in the exercise of their quasi - judicial functions will request or entertain off the remrd...,
any eviden
, explanation, analysis, or adviw, whether written or oral, j
regarding any substantive matter at issue in a proceeding on the record j
then pending before the NPC for the issuan, denial, amendmnt, transfer, renewal, nodification, suspension, or revocation of a license or permit.
i For the purposes of this section, the teun " proceeding on the record then i
pending before the NPC" shall include any application or matter which has i
i been noticed for hearing or concerning which a hearing has been requested pursuant to this part. 10 C.F.R. 52.780(a) (emphasis added).
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7 these coments. For example, the Staff repeatedly reassured the Ccmnission that tM Licensee's start up procedures and tests were adequate, and tMt the Comuission could have confidence that the Licensee would not take any shortcuts in achieving its schedule. That may be the EDO Staff's position, but it is surely not that of UCS. 'Ihe PID has expressly asked for the EDO Staff to prepare a proposed start up schedule and list of restart requtrements, and has reserved the intervenors the right to review and coument on those requirenents prior to decision (PID S1217). To allow the EDO Staff to present its version of those requirenents to the Comnission in advance of this procedure, and to characterize that position as " uncontested", has given the EDO Staff an unfair advantage and has deprived UCS of its due process rights.
In addition, the third briefing is likely to have involved yet another prohibited set of.ex parte communications.
The General Counsel justified the briefing on " contested issues" as one between tha Comnission and its OPE staff, not involving the EDO Staff (which is the party to the restart proceeding). Transcript (Staff Briefing) at 3.
How did the OPE staff learn of the details of the contested issues, to allow it to brief the Comnission? In the Staff Briefing transcript, the General Counsel leaves the implication that the EDO Staff were expected to be included in the third briefing.
In discussing the limitations on the issues discussed by the EDO Staff in the second briefing (uncontested issues),
the General Counsel stated:
If we appear to be going on to a contested iten, we will do our best to recognize that and notify the Staff and the Comnission, and we trust the Staff will also participate in trying to identify such issues regarding the third nueting. Id.
(enphasis added).
8 If the EDO Staff did " participate in trying to identify" contested issues for the third meeting, that implies a close working relationship between the t',o staffs. 'Ihe Comnission's ex parte rule makes clear that the Comnission, as well as its personal staff, is prevented frcm receiving ex parte cmmunications regarding even " explanations" of contested issues fran any one party.10 C.F.R. 52.780(a).
C.
'Ihe Ccmnission Must Ibquire Affidavits Frcm All Individuals To Allow Proper Poview.
As we do not know the extent to which the EDO staff might have been involved in the third meeting, or whether that staff may have ocmnunicated with the OPE staff regarding any of the meetings, it would be prenature to request that the entire proceeding be reopened, as was ordered in Camero and Sangaton. Instead, we renew our Decerber 18, 1981, motion for any manber of the Cbanission and OPE staff wto may have had a ammunication with any party, including nanbers of the EDO staff, about any issm involved in the restart proceeding, to place in the public record sworn affidavits about the substance of those contacts. This is required not only by NRC rules at 10 C.F.R. S2.780(c), but also by the Achtinistrative Procedure Act. Ebr example, in Grolier Inc. v. PIC,615 F.2d.1215,1222 (9th Cir.1980), the PIC ordered the relevant parties to provide affidavits to allow it and the reviewing court to determine the extent of any due process violations. The same must be dme here. Once these affidavits are prepared and reviewed by the parties, we will be able to advise the Cmmission on the steps necessary to remedy any due process violations.
II.
The Ex_ Parte Staff Briefing on " Uncontested" Issues Did Not Fairly Pepresent 'Ihe Issues Involved In The Festart Proceeding.
In an attanpt to cure any due process violations caused by the-
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4 staff briefings, the conmission has asked for crrment on the transcripts of tw of the three briefings.
I A.
'Ihe "Infonnation Flow" Briefing
'Ihe Conmission should not demean itself by giving any credence to -
Mr. Stello's clumsy attspt to distinguish GPU's admitted " knowing i
misrepresentation" of the seriousness of the amMent from a " knowing misrepresentation" including an elment of " intent". Of murse, " knowing misrepresentation" includes, by definition, an " intent" to mislead.
- i According to Webster's New World Dictionary, Semnd College Edition (1974), to " misrepresent" is to " request falsely, to give an untrue or misleading idea of".
bbreover, to do an action " knowingly" is meant to do it " deliberately; intentionally." 'Ihus, Mr. Stello's admission that t
bbt Ed " knowingly misled" the authorities (Public neeting transcript at 9-10) also admits that the misrepresentation was " intentional". Any attspt to distinguish betwen the two is contrary not only to camon sense, but also to ommon English usage.
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B.
The " Uncontested Issues" Briefing i
l As stated above, the EDO staff used this briefing to give the Conmission its position on a number of mntested issuas, in violation of.
Camission rules and UCS's wil-rewgnized duc process rights.
1.
Start Up Pequircments 01 airman Palladino and Cbnmissioner Ahearne questioned the Staff concerning the adequacy of the tests and start-up procedures that rmain i
to be performed at 'IMI-l and the schedule for. perforning that wrk. Mr.
Eisenhut assured the Conmission that "it is not a probim or a question of having confidence in what he [the Licensee) is going to be doing and how he is going to go through it."
(Transcripts, at 5). Mr. Denton i
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i assured the Cartission that the Staff is " satisfied with [what] is l
intended to be done during this period" and that no shortcuts would be i
'taken because of the schedule.
Transcript, at 6. "urthermore, in response to a question whether the Staff had "enough detail... on the
, actual tests so that you have confidence that carrying out those steps will be the driver, rather than, the [ schedule] dates," Mr. Denton gave an unqualified affirmative response:
"Yes, that is correct." (Id.)
Whether'
&a (bmnission has adequate confidence in the Licensee's plans to start up Unit 1 is one of the central issues in this proceeding, and one of the issues with which UCS differs strongly with the EDO 4
Staff. Not only does the EDO Staff mischaracterize its position as
" uncontested", bbt it fails to provide any documents in support of its s
position. Thus, the EDO Staff has avoided its obligation to provide detailed support of this argument, on the record and subject to rebuttal s
and subsequent Board decision, as required by the Board. (PID 11217).
On a related issue, the staff stated that it was in the process of developing an." inspection matrix", by reviewing various requirenents, including tinse derived rmn the PID.
(Transcript, at '; Staff Slido f
- 4).*/ This " inspection mtrix" presupposes the adequacy of the Board's 7
' creation of conditions as a result of intervenor contentions (PID 11200), a critical issue to UCS.
1 4
- /lhe Staff slides wre not circulated by the Cbmnission for cament in its
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i Dec. 23 FLvrorandum. UCS obtained a ccpy solely because of its presence at the briefing. Thus, the Comnission did not provide the other interested i '
parties with a complete set of information on which to crmment. (bpies of the slides are attached.
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11 Finally, the EDO Staff's assurances to the Ormicsion tMt it is well on the way to developing restart requironents and an inspection matrix are merely wishful thinking, and totally ignore the contentions of otMr parties in the hearing. Their position must first be set down in detail, be reviewed and ccrmented upon by the parties, and subject to the ultimate decision of the Board. Then, and cnly then, can the ccamission properly review this issue.
Ib allow UCS and the other parties to responsibly conment on the EDO Staff's bland assurances, the Staff must provide all documents, reports, and testimony in support and allow arment. Only then can the Camtission be sure that the start up procedures and tests are adequate, and that the pressure of an optimistic schedule will not result in
" shortcuts" further ocmprcmising public safety.
2.
Pcstart !bdifications The EDO Staff alco discussed the major restart nodifications and mischaracterized their status with regard to whether and, if so, when the modification must be ocmpleted. Transcript, at 20 to 30 and staff slides 8-13. The EDO Staff characterizes the nodifications as " required by the August 9th order and/or IIUREG-0737 type nodifications." Transcripts at 20.
This discussion goes to the heart of the entire proceeding - i.e.,
whether the nodifications which have been (or will be) made are necessary and sufficient to provide adequate protection of the public health and safety. The Staff's " status report" was, in reality, only its position in this EDO proceeding and definitely does not fairly represent UCS's view.
Furthernore, the EDO Staffs characterization of certain nodifications m.
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12 as "cnnplete" presumes tint the modification is adecuate. Ebr example, UCS disputes the Staff assertion that the upgrading of pressurizer heater an2rgency powr supply has been completed except for testing.
(Staff Slide 8). This was the subject of UCS Crotentions 3 and 4.
Similarly, UCS rejects the Staff's assertion that safety grade autanatic initiation of an2rgency feedorater has been "pemitted" to be deferred to the first refueling after restart.
(Staff Slide 12). 'Ihat may be the Staff's position, but it is definitely a contested issue in this proceecling.
UCS continues to believe, and will so argue to the Board, that this puxxxlure must be perform 2d prior to restart.
Indeed, the original
" deadline" for this itan was Jan'nry 1,1981. (NUPE - 0578, at B-4).
For the Staff to have the opportunity to present its position and portray it only as a " status report" is not only misleading, but is prejudicial to UCS.
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3.
" Licensee Initi ated "
Actions The Staff asserted that the Licensee has initiated modifications "that wen t above the minimum NRC requir emen ts. "
(Transcript, at 24 and Staff slide 9)
The Staff also creates the impression that there were many Licensee-initiated modifications that went beyond NRC requirements.
( "this [ slide 9] is j us t a sampling of the type of things he is doing. " Transcript, at 24).
Since Utb has no information about the nature of most of the alleged modifications listed on Slide 4 and cannot identify the 36 specific items alluded to by the Staff, we cannot reach any position about the importance or existence of these modifications.
However, we take particular offense at the Staff's characteri-zation of these items as "above minimum NRC requirements. "
Transcript, at 24.
First of all, the " requirements " referred to are not minimum NRC requirements, but are in reality only Staff recommen-j
.1 dations.
Whether they should be NRC requirements is a contested issue before the Commission.
In addition, the only reason items suc h as H2 recombiners can be char acterized as "L ice nse e -i ni ti a ted "
modifications is that the Commission prevented UCS from litigating the adequacy of H2 control systems before the Board.
This so-called " Licensee initiated modification" is nothing more than 1
j the installation of equipment to deal with a problem which was indentified by UCS, but which UCS has not been allowed to litigate as to its adequacy.
Thus, the " improvement " cited by the Staff results in the installation of one H2 combiner in TMI-1 which is S
14 physically incapable of preventing the H2 explosion which occ urr ed in the TMI-2 containment bulding.
4.
Financial Constraints on Licensee The Commission also questioned the EDO Staff about the pace and schedule on the Licensee 's modification work and whether financial constraints have led to deferral of work.
Tr an scr ip t,
at 21 to 29.
In view of the Commission 's ruling (March 2 3, 1981) that intervenors can not raise contentions relating to j
Licensee's financial situation, this matter should not have i
been discussed at all.
Now that the Commission itself has resur-rected this issue, UCS is entitled to f ully brief it.
To allow the parties to be fully aware of the Staff position on this issue, the Commission should order the EDO Staf f to set out its position, with supporting documents, in the public e
record.
This is particularly necessary given the contradictory i
testimony given by the Staff in the December 21 briefing.
i Mr. Denton stated that the Licensee "has paced his completion r
dates and expenditure of funds and scheduling recognizing what I
he thought to be the schedule of the proceeding... " Tr anscript,
at 21-21.
In contrast, Mr. Jacobs stated that he h as not seen any indication that financial constraints have led to deferral
[
l of modification work and an unidentified Staf f member stated i
that " Based on what the [IE] region has seen, there have been l
no observations in that regard. " Transcript, at 23.
l l
15 r.
UCS continues to believe that the financial ability of the licensee to safely operate TMI is a valid issue.
Now that the Commission has r aised it, and the staff has given testimony on both sides, the parties should be given the op-portunity to brief it carefully and present testimony.
5.
Plant Staffing Plant staffing is a contested issue in this proceeding and the Board has noted the importance of operator training throughout its December 14, 1981 P artial Initial Decision.
Never the les s,
the subject was discussed by the staff during the Commission briefing. Tran script, at 7 to 20.
However, the EDO Staf f 's discussion of the details of the status of TMI-l staffing presented only tho se aspects of the staffing issue favorable to the Licensee.
For example, the staff reported (See slides 6 and 7) that six of the ten individuals who passed the October 1981 Senior Reactor Operator Exam were not normally used as shift operating personnel by the Licensee.
These six individuals ale normally assigned to plan t operations, training or shift technical advisors.
The EDO S taf f neglected to point out that the Licensee will not rely solely on passing the exams to qualify its SRO 's but plans to conduct an additional educational program to ensure that four of these individuals are also fully aware of current plant status and operation.
Thus, an accurate status report or staffing would have alerted the Commission to a potential deficiency in the NRC 's licensing process for senior reactor operators--i.e.,
whether passing the exam alone ensures that an individual is fully
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aware of current plan t status and operation.
The issue of whether the Licensing Board (or Special Master) should have developed an evidentiary record as a basis for determ.ning whether the Staf f 's RO and SRO license exams are a valid l
measure o f the knowledge of prospective operators will be one sub ject of the immediate ef fectiveness comments.
The Staf f 's selective status report could prejudice the Commission 's obligation to impartially consider that issue.
6.
Governor Thornburg Letter As a final example of how the Staf f 's presentation was not an impartial status report, but was in fact a statement of the EDO Staff's position as a party in this proceeding and therefore prejudicial to UCS' r ig ht s, we note the discussion regarding a response to Governor Thornburg 's letter to the Commission.
Tr an s cr i p t, at 30-41 and 43-45.
Mr. Denton asserted that "receip t of adequate assurance [of safety], that certainly will be achieved at the end of our [the Staff 's] process when we [the Staff] ar e able to certify plan t readiness to res t ar t. Transcript, at 40.
As noted above, the EDO Staff has not yet compiled the list of rectart requirements, the parties have no t yet had an opportunity to commen t on the completeness of that list, and the Licensing Board has not yet ruled on whether tnat list contains all the commitments, requirements and conditions upon which the Bo ar d 's Decem be r 14, 1981, P ar tial Initial Decision is dependent.
(See, e.g., PID, at S590 and 1198, et seq.) T h us, the Sta f f 's ass ur ances that an "ade qua te assurance of safety" will be achieved is at best prem at ur e, and probably misleading.
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III.
Commen ts on TMI'-l Water Level Instrumentation.
1 The Commission has 2.4so requested comments on four documents, enclosed in the December 23 Memorandum, relating to the " water level indicator issue ".
As even the Staff recognizes, this issue is "very much within the contested issues in this proceeding ".
Tr an scr ip t,
Staff Briefing, at 28.
Nevertheless, the documents, which are i
not a p ar t of the record, evidence a series of ex parte communications between the Staff and the Commission.regarding TMI-1.
They are l
clearly relevant to the water level indicator issue, and as such I
are prohibited outside the formal hearing process.
l Due to the numerous demands on UCS, we have not been able to give these memoranda the detailed review they deserve.
- However, our preliminary review has revealed that the generally favorable discussion of progress toward an acceptable water level indicator design contrasts sharply with a December 29, 19 81 Memorandum for the Commissioners ( SECY 5 8 2 A), not provided to the parties, which states flatly that the Licensee 's current planned water level indicators for TMI-l do not meet Staff reqpirements. Id, at 3.
As this issue is a critical one in the restart proceeding, the staff must make all other documents available to the parties so that the issue can be dealt with in the context of the i
hearing.
The Staff and Commission should also prepare affidavits r eg arding the January 11, 1982 meeting referenced in the December 29 I
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10 Memo rat au m, if the discussion in that mee ting str ayed from "gener i c " water level indicator questions to issues relevant to the TMI -l restart proceeding.
The Commission and staff simply c an no t continue to confer privately about an issue involved in the formal proceeding.
Conclusion The facts as contained in the transcripts and other documents evidence a series of prohibited ex o ar t e communic ations which may ver y well have substantially prejudiced UCS' due process rights in this proceeding.
As required by the court in Grolier, supra, the Commission must order that all persons who participated in these co mm un i ca tio n s prepar e comprehensive af fidavites reg arding their activities.
Only then will the par ties and the Commission be able to determine if this proceeding h as been irrevocably damaged,
or whether some remedy can be devised to prevent prejudice to UCS.
Respectfully submitted, h
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Ellyn 4. Weiss Lee L.
Bishop Harmon & Weiss 1725 I Street N.W.
Suite 505 Washington, D.C. 20006 Attorneys for Union of Concerned Dr.e Scientists