ML20062A496

States That ASLBP Members Decline to Be Interviewed Re NRC 780905 Order Because Interview Would Violate NRC Regulations,Admin Procedure Act & American Bar Assoc Code of Conduct.Interview Topic Exceeds Scope of Inquiry

ML20062A496
Person / Time
Site:	Harris
Issue date:	10/05/1978
From:	Bright G, Leed J, Smith I Atomic Safety and Licensing Board Panel
To:	Abston O NRC OFFICE OF INSPECTOR & AUDITOR (OIA)
Shared Package
ML20062A503	List: ML20062A496 ML20062A506 ML20062A532
References
NUDOCS 7810140090
Download: ML20062A496 (3)

Text

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,g ' - Q r tUNITED STATES

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, : ; NUCLEAR REGULATORY COMMISSION

,/ &: j ATOMIC SAFETY AND LICENSING BOARD PANEL WASHINGTON, D. C. 20555 g /

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.. a a i * .<: .50. 3&r ) 5C;. A Mr. O. Gene Abston y 4 b j.f . 11 k*# ( '/

. Acting Director -  % j Office of Inspector and Auditor y U.S. Nuclear Regulatory Comission 4 [

Washington, D.C. 20555 g, ,/ i Iro,

Dear Mr. Abston:

On October 3, 1978, Mr. William Foster of the Office ,

of Inspector and Auditor called Ivan Smith for the purpose i of arranging interviews with the members of the Shearon O narris licensins board concernins the Comission e Oreer of September 5, 1978. Your office also provided us with copies of the memorandum dated September 28, from you to Acting General Counsel Kelley, and the responding memo- '

randum dated October 2 from Mr. Kelley to you. For com-pleteness we are attaching copies of these memoranda.

At Mr. Smith's request Mr. Foster briefly outlined three areas he proposed to cover in the interviews.

These are:

1) In addition to the reasons set forth in our letter to the Comission dated August 30, 1978, pro-vide information as to why we believe the omission of the line inspector's views from the testimony was rele-vant. Explain our basis for writing to the Comission h.. because our reasons are not clear in the letter.

2) Answer questions about our views of the Appeal Board decision in the Shearon Harris proceeding.

3) In separate interviews each board member would he asked his opinion of how he thought the supervisory inspectors should have testified in light of the line inspector's notes.

IN \NY % Cy s

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~11 Mr. O. Gene Abston October.5, 1978 l In considering OIA's request, the members of the board decided that the request for interviews should be made in writing because we did not wish to rely upon Mr. Smith's notes and memory of Mr. Foster's informal comments. We understand now that OIA has advised the Panel's Legal Counsel, John Frye, that OIA will not make its request in writing nor in advance so that the board members may not prepare " canned" a'nswers. Therefore, we must depend upon Mr. Smith's understanding of Mr. Foster's request.

The members of the board must decline to be interviewed on the subjects proposed by Mr. Foster. The nature and tenor of your proposed investigatory interviews would require us to defend and explain our judicial actions, mental processes, O- and attitudes outside of the adjudicative process. While it may not be your intent, the effect would be to threaten the independence of this Commission's adjudicative process. We are, of course, required to uphold that process.

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! For the members to submit to investigatory interviews would violate the Commission's Regulations, the Administrative i Procedure Act, and the American Bar Association'F - Code of '

Judicial Conduct with respect to separation of functions and ex_ parte communications.

While it may be true that OIA is not a formal " party" to the proceeding, this fact does not remove your proposed ,

communication from the ex parte rule. Indeed the problem is exacerbated by the fact that, under the Commission's T Order, OIA is required to file the results of its inquiry

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- with this board. We must then consider whether these re-sults have a bearing on the merits of the remanded issue.

Your proposed interviews would create inherent conflicts.

We would be simultaneously the investigated, the investi-gators , and the judge of the results of the investigation.

Our position on this consideration is mandated in particular by 10 CFR 52.719,5554 of the Administrative Procedure Act, and Canon 3 A (4) of the Code of Judicial Conduct.

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Mr. O. Gene Abston October 5, 1978 In addition we note that the subject of your proposed interviews significantly exceeds the scope of the inquiry I assumed in the memorandum from the Acting General Counsel.

- Very truly yours, i

. W WA A >

Glenn O. Bright /

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./J. Venn Leeds /

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Ivan W. Smith Attachments:

As stated cc: Docketing and Service Section for Service

.-- Mr. Eilperin, Solicitor

( s,' Mr. Kelley, Acting General Counsel Mr. Rosenthal, Chairman, ASLABP Mr. Yore, Chairman, ASLBP t

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