ML20056G518
| ML20056G518 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/26/1993 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20056G519 | List: |
| References | |
| CON-#393-14242 OLA-3, NUDOCS 9309030221 | |
| Download: ML20056G518 (11) | |
Text
__
c
/t} &f b August 26,1993 i
e i UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION 93 y 26 i 15 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-424-OLA-3 I
) 50-425-OLA-3 GEORGIA POWER COMPANY, et al. ) :
)
(Vogtle Electric Generating Plant ) Re: License Amendment ,
i Units 1 and 2) ) (TransfertoSouthernNuclear)
I i l
NRC STAFF RESPONSE TO GEORGIA POWER COMPANY'S MOTION ;
TO COMPEL PRODUCTION OF NRC STAFF DOCUMENTS INTRODUCTION On May 3,1993, Georgia Power Company ("GPC" or " Licensee") served upon the Staff a request for the production of documents. On June 18 and 24,1993, the Staff responded to the request, identifying documents that it would release and those documents that would be withheld.' As grounds for withholding the documents the Staff stated:
The Staff, at this time, will withhold information which might jeopardize the ongoing investigation by OI into the GPC reporting of diesel testing following the March 20,1990 site emergency. Our response consists of a list of material which we will not release at this time, the principle [ sic]
basis for withholding being the Policy Statement and 10 C.F.R. I 2.790(a) footnote (prohibits release of handwritten notes and drafts),2.790(a)(5),
2.790(a)(7) and 2.744.
5 "NRC Staff Response To Georgia Power Company's First Request For Production Of Documents By The NRC Staff," dated June 18,1993 (" Staff Response"), at 2; "hTC Staff Supplemental Response To Georgia Power Company's First Request For Production Of Documents By The NRC Staff," dated June 24,1993.
A 93o9o3o222 930826 0 gDR ADOCK 05000424 PDR b
i l-l .- ;
Staff Response at 2. On July 21,1993, Staff counsel wrote counsel for GPC that no :
NRC Office of Investigations (OI) documents would be released until the investigation ;
l was completed and the Office of Enforcement had made a determination as to whether l
(
l enforcement action was appropriate.2 l On August 9,1993, Licensee timely filed " Georgia Power Company's Motion To Compel NRC Staff Production Of Documents" ("GPC Motion"). The Staff opposes granting the GPC Motion at this time because (a) release of the documents could I
compromise ongoing investigation and enforcement activities and (b) Licensee fails to I demonstrate that it will be prejudiced if the documents are not now released. For the i reasons set forth below, the Staff requests that the Board, upon a balancing of factors i l
discussed below, defer rulirn on the motion for 75 days, during which time it is anticipated that the 01 investigation can be completed and the Staff can determine whether l l
to recommend enforcement action to the Commission. Release of the documents at this I
time could prejudice the possible enforcement action. If the Board denies this request, the Staff requests that it be permitted to make an in camera presentation of the withheld information prior to the Board issuing a order compelling production of such documents.
DISCUSSION The documents which GPC seeks to have pmduced in this licensing proceeding were gathered during the course of an investigation of GPC to determine if an
)
enforcement action should be instituted against GPC. From the initiation of this l I
proceeding, all panies and the Licensing Board were well aware that OI was investigating l
2 Letter from Charles Barth, NRC, to John Lamberski, Troutman Sanders, dated l ~
July 21,1993.
l l
l
c
- Mr. Mosbaugh's allegation that GPC made false statements to the NRC regarding diesel 1
engine reliability at the Vogtle site following the March 20,1990, site area emergency.
l E.g., Tr. 91 ff. (January 12, 1992, Prehearing Conference). The Staff has repeatedly maintained that it would not disclose the specific information held by OI until Ol's ,
l investigation is completed and the NRC decides whether enforcement action is l
appropriate consistent with the rationale underlying the Commission's " Statement of Policy: Investigations, Inspections and Adjudicatory Proceedings," 49 Fed. Reg. 36032 (1984), and the provisions of 10 C.F.R. 6i 2.790 and 2.744.3 l Discovery of documents or records from the Staff is governed by 10 C.F.R.
f 2.744, and is not similar to discovery of other parties. Pennsyhania Light and Power Co. (Susquehanna Steam Electric Station Units 1 & 2), ALAB-613,12 NRC 317,325 (1980). Where the Staff objects to the production of a record or a document not available I
elsewhere, the presiding officer is to determine if the material is relevant and whether it l
l is exempt from disclosure under 10 C.F.R f 2.790; and ifit is exempt from disclosure, I
whether its release is necessary for a proper decision in the proceeding. 10 C.F.R. 62.744(d). In performing this task, the presiding officer examines the record or 1
document in camera to determine its relevancy, whether it is exempt from disclosure under 6 2.790, whether the document is necessary for a decision in the proceeding and whether it is obtainable from another source. 10 C.F.R. f 2.744(c). Moreover, where 5 "NRC Staff Response To Licensing Board Memorandum And Order (Admitting A Party)," dated March 8,1993; "NRC Staff Response To Allen L. Mosbaugh's Amendments To Petition To Intervene And Request For Hearing And Contingent Motion To Defer The Staff's Reply To Contentions And Rulings On Contentions," dated December 30,1992 at 7; Transcript of January 12,1993 Prehearing Conference at 91 ff.
l
these tests are passed, a determination of whether discovery of investigatory materials should be deferred or released, with possible harm to enforcement proceedings, depends on "the facts involved in a panicular case and requires a balancing of competing ,
interests." Oncology Services Corp. (Byproduct Material License No. 37-285440-01),
CLI-93-17, 28 NRC _ (Slip op. at 8, Mgust 19,1993).* ;
In Oncology, the Commission affirmed LBP-93-10,37 NRC (June 23,1993),
granting an additional 90 day stay of discovery in response to a Staff motion filed in that post-suspension proceeding. The Licensing Board had granted the stay on the basis that i
discovery would interfere with an OI investigation by prematurely disclosing witness interview transcripts and documen*.ary information gathered by the investigators.
LBP-93-10, slip op. at 2. In affirming the Board's ruling, the Commission noted that the I l
Staff (by means of an OI affidavit) had sufficiently demonstrated that release could :
l interfere with the ongoing investigation and that the Staff was diligently pursumg completion of its investigation. CLI-93-17 at 19-21. Moreover, the Commission emphasized that the NRC has a strong interest in ensuring the truth and accuracy of information provided by NRC licensees. Id. citing Randall C. Orem, D.O., CLI-93-14, slip op. at 6-7. As the Commission stated:
The agency has a strong interest in ensuring the truth and accuracy of information provided to the Commission by a licensee. Allegations of this
' Oncology Services involves an enforcement proceeding where the licensed activities were suspended and, thus, there was a much more pressing need for the l investigatory information than in this proceeding, wherz the licensee only seeks what it has represented to the Commission as "little more tN a ca.me change." See Georgia Power Co. (Vogtle Electric Generating Plant, Units ?, 2), CLI-93-16, 38 NRC _ ,
(Slip op. at 16-17, August 19, 1993). l
l
.- type may form the basis for further enforcement action, e.g., pursuant to 10 C.F.R. $ 30.9 and i 30.10, and criminal prosecution, e.g., pursuant to 18 U.S.C. 61001. Therefore, during the course of such an l investigation, the government has a strong interest in preventing premature release of information which could jeopardize the integrity of interviews yet to be conducted, and which could allow witnesses to tailor their testimony or statements in subsequent interviews so as to explain previous ,
statements in order to avoid culpability or to conform testimony with the testimony of others who have been interviewed.
i CLI-93-17, slip op. at 20.5 The Commission's regulation concerning discovery against the Staff particularly references the Commission's regulations codifying the Exemption provisions in the Freedom of Information Act (10 C.F.R.16 2.744,2.790,5 U.S.C. i 552(b)), and make i those Exemptions and the cases applying those Exemptions particularly apt in determining ;
whether Staff investigatory records sought should now be released or whether release should be deferred so as not to jeopardize pos:ible enforcement actions. Cf. GPC Motion, at 10-11. In NI.RB v. Robbins Tire and Rubber Co., 437 U.S. 214, 239-43 (1978), the Supreme Court held it was error to order the release ofinvestigatory records l l
which might interfere with agency enforcement proceedings in an ancillary suit under the Freedom ofInformation Act (FOIA),5 U.S.C. i 552, as those records were exempt from ,
l disclosure under Exemption 7(A) of that Act, 5 U.S.C. 6 552(b)(7)(4). The Court j l
l further concluded that a consideration of each record prepared for a possible enforcement j act was not necessary, but that, instead, a categorical balancing could be performed and l
a determination made that a premature disclosure of the records might interfere with the s Analogous provisions are contained in 10 C.F.R. Part 50. Licensees are required to provide complete and accurate information in accordance with 10 C.F.R. I 50.9 and 10 C.F.R. I 50.111 provides that licensees can incur criminal penalties for wilful violations of certain regulations in Part 50. ,
l l l t i
6- [
enforcemer' proceeding. 437 U.S. at 239-43.6 See also U.S. Depanment of l Justice v. Reponers Committee,489 U.S. 749,776-78 (1989).' In FTC v. Grolier, Inc., j 462 U.S.19,27-28 (1983), the Court held that under Exemption 5 of FOIA,5 U.S.C. !
6 552 (b)(5), which protects " inter-agency and intra-agency memoranda or letters which j would not be available by law to a party other than an agency in litigation with the $
agency," work product material prepared for an enforcement proceeding need not be ,
revealed as a categorical matter, and that one must show a strong need for the document.
t 462 U.S. at 27-28; see also Reporters Cummittee,489 U.S. at 77578. Cf.10 C.F.R. !
f 2.790(a)(5). Thus, it would be improper to now order the release of the investigatory records, under 10 C.F.R. f f 2.744 and 2.790(a), in this ancillary license amendment proceeding where the movant is the target of the investigation when such an action might ;
interfere with the enforcement proceedings under consideration. l Further, contrary to Licensee's assertion, see GPC Motion at 18-20, a determination of whether information gathered by NRC's Office of Investigations should I
be released is also guided by the Commission's " Statement of Policy: Investigations, Inspections, and Adjudicatory Proceedings," 49 Fed. Reg. 36,032 (September 13, 1984) i 6
As stated in GPC Motion, at 13-14, the Court in Robbins did consider the " strong presumption in favor of disclosure" against the agency's enforcement interest. However, it concluded that enforcement records should not be made available prior to the time when they might be made available in the enforcement proceeding.
7 In Reponers Committee, the Court held that a categorical determination might be made under Exemption 7(C) of FOIA,5 U.S.C. 6 552(b)(7)(C) that records were exempt from release as an unwarranted invasion of privacy. 489 U.S. at 780. Cf.10 C.F.R. ,
f 2.790(a)(7)(iii). !
1 l
\
(" Policy Statement"), regardless of the means by which disclosure is sought.' The 1
Policy Statement was the Commission's second pronouncement of its policy for adjudicatory proceedings in which a " conflict" arises "between the duty to disclose the investigation or inspection information to the boards and parties and the need to protect that information." 49 Fed. Reg. 36,032. As the Commission stated:
However, the Commission recognizes that there may be conflicts between this responsibility to provide the boards and parties with information an )
investigating or inspecting offices's need to avoid public disclosure for either or both of two reasons: (1) to avoid compromising an ongoing l investigation or inspection; and (2) to protect confidential sources. The importance of protecting information for either of these reasons can in appropriate circumstances be as great as the importance of disclosing the information to the boards and parties. i With regard to the first reason . . . it is important to informed licensing decisions that NRC inspections and investigations are conducted so that all relevant information is gathered for appropriate evaluation. Release of investigative material to the subject of an investigation before the I completion of the investigation could adversely affect the NRC's ability to
, complete that investigation fully and adequately. The subject, upon ,
[ discovering] what evidence the NRC had already acquired and the
- direction being taken by the NRC investigation, might attempt to alter or ,
limit the direction or the nature or availability of further statements or .
8 GPC argues that the Policy Statement " simply establishes a procedure by which ;
a Licensing Board may consider whether parties should be notified of significant ,
investigative developments" and is not applicable to discovery. GPC Motion at 18-19.
The Policy Statement does more. It provides the mechanism for disclosure of OI and OE information which may be relevant in any administrative proceeding. While GPC asserts !
that Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 2), CLI-86-1, 23 NRC 1, 7 (1986), supports its position that the Policy Statement applies to board notification responsibilities and not discovery obligations, the case did not address ,
I whether the Policy Statement could be relied on in discovery disputes. Rather, it addressed the standards for reopening a proceeding and whether the existence of an ongoing investigation could form the basis of a motion to reopen. In addition, in keeping j with its duty to disclose information to the Board and parties, the Staff stands ready to l present in camera information material to the admitted issue in this proceeding so as not .
to compromise the ongoing investigation. See Policy Statement paragraph 2 dealing v.ith !
procedures. 49 Fed. Reg. 36,034.
- i
evidence, and prevent NRC from learning the facts. The failure to ascertain all relevant facts could itself result in the NRC making an ;
uninformed licensing decision. However, the need to protect information developed in investigations or inspections usually ends once the investigation or inspection in completed and evaluated for possible i
enforcement action.
49 Fed. Reg. 36,032-33. The stated purpose of the Policy Statement is "to establish a ,
i procedure by which conflicts can be resolved" between the production of information in ;
licensing proceedings and the need not to jeopardize enforcement actions. 49 Fed. l Reg. 36,032. That procedure includes an in camera presentation to the board by the NRC Staff or OI, with no other party present. 49 Fed. Reg. 36,033. The Commission f expected that most potential disclosure conflicts could be resolved once the board "has i been advised of the nature of the information involved, the status of the inspection or investigation, and the projected time for its completion." Id. ,
i GPC has not made a particularized showing of harm warranting the production of the documents at this stage of the proceeding. While GPC asserts that the information is necessary to provide "exculpatory" material (GPC Motion at 24 and 29), the agency's need to execute its regulatory responsibilities and the potential to compromise an ongoing investigation outweighs the consequences of temporarily withholding the information sought.' Further, GPC does not show any actual harm from any delay in the issuance I
\
of the subject amendment which might be caused by a delay in discovery. / the !
1 Commission stated, GPC has represented that "the transfer would not result in any I
' GPC's reliance on the Staff's actions in the Parks and Husted proceedings is misplaced. See Motion at 21 n.ll. As indicated in each of the documents attached to the GPC Motion, the investigations had been completed and enforcement action initiated at the time of the release of the 01 notes and drafts.
)
i l l significant change in nuclear operations personnel or support organizations," and that the [
?
license amendment would result "primarily in a name change, not a change in the l individuals managing the Vogtle Plant . . ." Vogtle, CLI-93-16, slip op. at 4, see also !
slip op. at 16-17. Thus, the Licensee has shown no harm of substance should this j i
proceeding be delayed because discovery of the Staffis deferred.'
i Public disclosure at this time is premature and prejudicial to investigation and l enforcement functions. See Affidavits of Ben B. Hayes, OI, and James Lieberman, OE, I l
l attached hereto. OI is endeavoring to complete its investigation, and OE its evaluation ,
I of possible enforcement action, within the next 60 days. Hayes Affidavit at 3; Lieberman 1
( Affidavit at 2. While OI field work is nearing completion, some additional investigations may be initiated as a result of questions raised during the formulation of Ol's l
conclusions, the drafting of the final report, and the Office of Enforcement review of the evidence for possible enforcement action. Hayes Affidavit, at 2. Lieberman Affidavit, l at2.
There is a strong governmental interest in having these activities proceed without
! potential interference caused by the premature release of information gathered during the investigation. Oncology, slip op. at 19-20; 49 Fed. Reg. 36,036; see also Robbins, 437 U.S. at 238-42. The Board should give the Staff the opportunity to get a complete l
l l
l 5" As the Commission recognized in Vogtle, CLI-93-16, slip op. at 17-21, a license l transfer might not have the benign effect licensee foresees should the allegations premising the contention be valid.
1
picture of a licensee's culpability in the reporting of diesel start reliability without the results being influenced or directed by the parties ia this proceeding."
The Staff has made clear and all parties concerned were fully informed that OI's ,
investigations were relevant to the diesel issue, that the contents of those investigations 4 would determine the Staff's position on the issue, and that such investigations would be L disclosed later in the proceeding. See note 3. The Staff will make publicly available (
information that is relevant to the issues in this proceeding and will include in the record e
in this proceeding to the extent germane to the admitted contention, information it relied ;
on in taking any enforcement action against the Licensee. Thus, Licensee will not be prejudiced by the release of the information after the NRC decides what enforcement action, if any, is appropriate. Further, the Staff is not be in a position to take a position on the proposed license amendment and proceed to hearing until after it evaluates the information collected by OI and determines if it is in the public interest to transfer operations of Vogtle to SONOPCO.
" Release of the tapes and documents requested here could, as alleged in the 1
Oncology proceeding, " jeopardize the integrity of interviews yet to be conducted and allow personnel an opportunity to tailor their testimony or statements in subsequent interviews so as to explain previous statements in order to avoid culpability or conform 2
testimony with the testimony of others who have been interviewed." CLI-93-17, quoting, J Barry Letts (OI) Affidavit at 4. As stated in Oncology, slip op. at 21:
I It is clearly in the public interest and to some extent in OSC's interest that l a decision concerning further wrongdoings is not made with excessive haste. Cf. [FDIC v.J Mallen, 486 U.S. [230] at 243. Therefore, we do :
i not find that in order to show a compelling interest staff was required to reach a conclusion regarding the possible wrongdoing prior to concluding its investigation.
l l
l In sum, the Staff requests that the Board, in balancing the interests here involved, l
defer ruling on the motion for 75 days to enable the orderly completion of the OI J
investigation and of a determination whether to submit a proposed enforcement action to i the Commission. If the Board determines that disclosure is now warranted, the Staff I
requests permission to make an in camera presentation, as provided by the Policy l l
Statement, before an order requiring disclosure is issued. l i
CONCLUSION OI and OE expect to complete their activities within the next 60 days, subject to some uncertainty regarding the need for additional work by OI and the time needed to l
l l
complete preparation of any enforcement action determined to be warranted.
Accordingly, it is requested that the Board defer ruling on the GPC Motion for a period of 75 days so as not to compromise ongoing investigation and enforcement activities. If the Board decides that disclosure of the information is now proper, the Staff requests that it be permitted to present the information in camera to the Board in accordance with the Commission's Policy Statement before the Board issues an order compelling production of the documents.
Respectfully submitted, l
l Charles A. Barth M
l I Counsel for NRC Staff i Dated at Rockville, Maryland !
l l this 26th day of August 1993 l
l
..