ML20062D146
| ML20062D146 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/04/1982 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| NUDOCS 8208050463 | |
| Download: ML20062D146 (10) | |
Text
l 00CKETED USHRC UNITED STATES OF AMERICA
- 82 AGO -4 P2:17 NUCLEAR REGULATORY COMMISSION gg: Tma a sEP L ) rg SE ATOMIC SAFETY AND LICENSING BOARD
~
~C Before Administrative Judges Marshall E. Miller, Chairman Kenneth A. McCollom Richard F. Cole skRVEDAU41982 ~
)
In the Matter of
)
Docket Nos. 50-445
)
50-446 TEXAS UTILITIES GENERATING COMPANY, et al.
)
)
(Application for (Comanche Peak Steam Electric Station,
)
Operating License)
Units 1 and 2)
)
)
August 4, 1982 ORDER TO SHOW CAUSE During a recent evidentiary hearing on a OA/QC contention, the NRC Staff introduced into evidence NRC Inspection Report 82-10/82-05 asStaffExhibit199.1I That inspection report in pertinent part recited an allegation by a former QC inspector at Comanche Peak that he had been wrongfully fired or discharged because of his quality control inspections and reporting of defects in construction. The inspection report identified a number of opposing supervisory employees or officials of the Applicants or their constructor as Individuals B through K, but not by name.
The NRC investigator, Donald D. Driskill, testified that he interviewed all of these witnesses and took witness statements from manyofthem.S! His stated conclusions were that the wrongful 1_/
Tr. 2461, 2472, 2474-75 (July 27, 1982).
2/
Tr. 2609, 2612-15.
gg8S2B88 JE8Bda eS) @
. discharge allegation was "neither substantiated nor refuted." However, Mr. Driskill also concluded that the contrary assertions of the Applicants' officials and employees, that the firing was justified and not for improper QC reasons, were likewise "neither substantiated nor refuted." The Board directed Mr. Driskill and the Staff counsel to give the names of all letter-designated witnesses, and to produce the signed witness statements taken during this investigation.
The Staff refused consistently to obey the Board's order to identify the witnesses.3/
These witnesses were in fact identified by name by the Applicants' witness,SI and also by the informant Charles A. Atchison, whose own identity had been revealed by the Staff in the written direct testimony of Donald D. Driskill.EI The Staff also produced the witness statements, but all names and other information were heavily expurgated by black markings.5I For the reasons discussed infra, the NRC Staff is hereby Ordered To Show Cause why sanctions should not be imposed for its refusal to obey the Board's orders in this regard.
The Staff shall have twenty (20) days from the date this Order is entered to show cause as directed.
The other parties shall have ten (10) days after the Staff's filing in which to respond thereto if they so desire. The Staff shall then have an additional five (5) days in which to reply to any filed respones.
3/
Tr. 2484, 2497, 2559-61, 3050-51, 3056.
4/
Tr. 2508-2573.
5/
Tr. 2519, 2564, 3059-60, 3063; Staff Exh.197, pp. 2-8, 9.
6/
Tr. 3041-42, 3159; Board Exh. 5A and B.
. The Staff prefiled the written testimony of Robert G. Taylor and
" Donald D. Driskill Regarding NRC Staff Investigation and Inspection Findings On Allegations By Charles Atchison."U This testimony showed that Mr. Driskill as an NRC Region IV investigator conducted two investigations of allegations made by a former Brown and Root employee, Charles Atchison. The Staff filed its " investigative and inspection findings relating to allegations by Mr. Atchison, including the most recent allegations which are the subject of an NRC investigation report issued on July 7, 1982."8_/ The stated purpose of these investigations was to " assess the validity of these allegations and their impact on safety-related components and systems."1/
Mr. Driskill interviewed persons who purportedly had some knowledge of the matters raised in the allegations. These persons were identified in Inspection Report 82-10/82-05, July 7,1982 (Staff Exhibit 199) only as " Individual A through K."
These witnesses were interviewed regarding so-called Allegation No. 2, described as "Mr. Atchison stated that in late March,1982 and early April,1982 he submitted several NCR's which brought him into disfavor with site QA management and resulted in his termination."$I 7_/
Staff Exh. 197.
8/
Id., at 3.
9/
Id., at 8.
10/ Id., at 9.
$ Mr. Driskill further testified that his investigation of the charge that Mr. Atchison as a QC inspector was fired for writing NCR's, "did not substantiate or refute the allegation."11/ This conclusion was based on the interviews with B through K, who were only identified as TUGC0 or B&R QA or QC managers or supervisors.
No facts were set forth concerning the credibility (or lack thereof) of these unidentified witnesses.
Mr. Driskill testified that a complaint had been filed with the U. S. Department of Labor for Mr. Atchison's discharge alleging discrimination, and errcneously stated that "and a hearing is currently pending."
In fact, the evidence shows that prior to that time on May 14, the Department of Labor Area Director found that the evidence showed that:
"As an employee working on the Comanche Peak Nuclear Project and especially as a quality control inspector, Mr. Atchison was performing his duties and his responsibilities by report-ing possible non-confo' ming conditions on the job site.
It clearly was his responsibility to report all non-conforming items even if they were not within his pipe whip restraint area. This letter will notify you that the following actions are required to abate the violation and provide appropriate relief:
1.
Reinstatement to his position and pay at the Comanche Peak Project exactly as it existed before April 12, 1982.
411 wages and benefits that he has 2.
Paymento{2j lost...."_
11/ Id., at 10-11.
12/ CASE Exh. 650, pp. 59-61; see also Attachment #2 thereto.
. This ruling has been appealed by the employer, Brown & Root, to the Chief Administrative Law Judge of the Department of Labor. Mr. Driskill in his oral testimony stated that a Department of Labor official accompanied him when many of the " Individuals B-K" were interviewed and some witness statements were taken in what amounted to a joint investigation.EI The names of these witnesses were again refused to the Board, in spite of its order to both the investigator and Staff counsel to produce them.1__/
Mr. Driskill's Investigation Report (50-445/82-10; 50-446/82-05) signed June 30,1982,EI was essentially the same as his testimony.
His investigation "could not substantiate or refute the allegation" of wrongful firing of a QC inspector.E Unnamed Individuals B-K were interviewed and partially quoted, but no information was given as to their credibility or identity. The report stated that Robert J.
Fortman, assistant area director of the U. S. Department of Labor,
" participated in interviews of pertinent CPSES employees on April 26, 1982, as reported herein, and has been provided with copies of all statements and documentary evidence pertinent to Individual A's complaint obtained during this NRC investigative effort."E 13/ Tr. 2559, 2570-72.
3 14,/ Tr. 2559-66.
_15/ Staff Exh.199.
16/ Id., at 2.
17/
Id., at 9.
. These witness statements were refused to the Board, except for censored copies which heavily expurgated all names and other material matters.E A copy of such a " sanitized" witness statement will be appended hereto as Attachment 1.E An unexpurgated copy of the same witness statement will also be appended as Attachment 2.EI Most of the uncertainty as to the identities of the individuals interviewed was eliminated when Ronald G. Tolson, a high-ranking employee of the Applicants, testified to the identity of these alphabetical individuals.EI Mr. Tolson's identification of A through K was corroborated by the testimony of Mr. Atchison.SI These identifications are undenied on the present record. Mr. Driskill f ailed to reach conclusions as to the credibility of these individuals, even though their statements were often in substantial conflict.2 ! Consequently, he neither " substantiated or refuted" Mr. Atchison's allegations.
The Board, however, must reach conclusions on the serious charges that the Applicants discharged a quality control inspector because he was properly reporting nonconformances at the site.
To do so, the Board must evaluate the credibility both of Mr. Atchison and the other individuals, including Mr.
Driskill.
18/ Tr. 3041, 3050-51.
M/ Board Exh. SA.
M / CASE Exh. 663.
21/ Tr. 2509-13.
22/ Tr. 3443-56.
p / Tr. 2687-89.
i
. It is insufficient for the Board merely to be told that certain unknown informants provided information which does or does not support the allegation.
The Board must be able to determine which information is reliable, and to do that it must evaluate the credibility of those who supplied the information.
The identities of the unnamed individuals are necessary so that their credibility and that of Mr. Driskill may be weighed.24/
There may be a limited privilege for the identity of individuals who have expressly asked or been promised anonymity in coming forward with information concerning safety-related problems at a nuclear plant.
Indeed, the Board repeatedly asked Mr. Driskill and the Staff whether any of the idividuals had sought or been promised anonymity, and expressed its willingness to respect such requests if any had been made.E! Apparently none of these alphabetical witnesses either sought or even wanted such secrecy.
Mr. Atchison, whose identity was gratuitously disclosed by the Staff in Mr. Driskill's prefiled written testimony, was the only individual who had requested anonymity.20 The Staff would nevertheless impose anonymity on all the other individuals, even though they were noninformants who neither requested secrecy and for the most part expressly waived any anonymity.
2_4/ Tr. 2481, 2484, 2492, 2734, 3046-47, 3064-65.
4 g/ Tr. 2480, 2494, 2501-02.
26/ Tr. 2518-19.
. i In a recent decision cited by the Staff, the Appeal Board repeatedly discussed the qualified informer's privilege only in the context of express promises and pledges of anonymity which had been made by the NRC (13 NRC at 471, 475, fn. 20 at 475, 476, 477, 478 fn 26).
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2),
ALAB-639, 13 NRC 469 (1981)) The importance of explicit pledges and promises of anonymity in that decision can be seen in the Appeal Board's statement that the " privilege to withhold the names of confidential informants is not absolute; it must yield where the informer's identity
'is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.'"
(Id., at 473)
Yet in the present case, we are faced with the anomalous situation where the only identity disclosed or confirmed by the Staff is that of an informant who had originally requested anonymity.27/
It is not clear that an informer's privilege could even be claimed by those officials and employees of the Applicants whom the investigator sought out to test a challenge of the execution of the QC program. They probably had a duty to respond fully to such an official investigation without any claim to immunity. By contrast, the only individual who voluntarily went to the Staff with information (the classic definifion of an informer) was Mr. Atchison.
27/ Tr. 2480, 2519.
l
-g-The Board informed the Staff during the hearing, that even if the unnamed individuals had sought or been promised an informer's privilege, the privilege is not an absolute one.20! The information must be disclosed when it is " essential to a f air determination of a cause."
South Texas, 13 NRC at 473-74, quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957).
Unlike the South Texas situation or the instant Inspection Reports, this Board needs the ordered information in an ongoing hearing on safety issues, including the credibility of witnesses on relevant matters.
In this context, there is a strong public policy favoring the disclosure of significant information in the absence of affirmative justification for nondisclosure. See Atomic Energy Act of 1954, as amended, 181, 5 U.S.C. 2231; 10 CFR 52.751; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1) ( ASLB November 6,1981) (Memorandum and Order affirming special master's order on confidentiality).
The Conunission has stated that although it is sometimes necessary not to disclose various records underlying certain ACRS decisions, nevertheless "[a]t the same time, desiring to maximize public access to safety-related information wherever feasible, we have attempted to keep withheld material to a minimum."EI The Commission accordingly held that the Licensing Board did not abuse its discretion in ordering the production of such documents where it found that the deleted information was necessary for a proper dccision and was not reasonably obtainable elsewhere.
2_8/ Tr. 2486, 2733.
-29/ Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), CLI-74-16, 7 AEC 313, 314 (1974).
, It is hornbook law that the underlying documentation may be required to be produced in order to test the validity of testimonial conclusionsoropinions.3p/
In the instant case, even if an informer's qualified privilege existed, it would fail in light of the Board's need for the particular information in informed decision-making.
For the foregoing reasons, the Staff is ordered to show cause why sanctions should not be imposed for its refusal to comply with the 1
Board's orders regarding the disclosure of witness names and statements.
The parties may also address if they desire what sanctions, if any, should be imposed under the principles announced by the Appeal Board in Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC __,(June 17,1982). The Staff shall have twenty (20) days in which to show cause as discussed above. The other parties shall have ten (10) days in which to respond if they so desire. The Staff shall have five (5) additional days to answer such responses.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 6th n)$ f.
l Marshall E. Miller, Chairman l
ADMINISTRATIVE JUDGE l
August 4, 1982
---30/ Tennessee Valley Authority (Hartsville Nec. lear Plant, Units lA, 2A, 18 and 28), ALAB-463, 7 NRC 341, 355-56 (1978).
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