ML20133J363

Recommends Against Enlargement of Disclosure Duty to Include Detailed Info Re Focus,Direction & Specific Targets of Pending Investigation or Preliminary Conclusions of Investigators

ML20133J363
Person / Time
Site:	Waterford
Issue date:	10/11/1985
From:	Hayes B NRC OFFICE OF INVESTIGATIONS (OI)
To:	Asselstine, Palladino, Roberts NRC COMMISSION (OCM)
Shared Package
ML20133J358	List: ML20133J355 ML20133J363
References
ALAB-812, OL, NUDOCS 8510180398
Download: ML20133J363 (4)

Text

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t j.#  % UNITED STATES -

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fx l NUCLE AR REGULATORY COMMISSION WASHINGTON, D. C. 20555

% ..... October 11, 1985

} MEMORANDUM FOR: Chairman Palladino '

l Comissioner Roberts j Commissioner Asselstine Commissioner Bernthal l

j Commissioner Zech l FROM: Ben B. Hayes, Director f p0fficeofInvestigations

SUBJECT:

\g ALAB-812; SCOPE OF 01 DUTY TO ADVISE BOARDS OF PENDING

! INVESTIGATIONS The Commission presently has before it, in the context of the Waterford proceeding, the question whether the asserted existence of a pending OI f investigation into allegations of record falsification and harassment of QA/QC j

' personnel at a facility undergoing OL review, standing alone, requires a board to unilaterally evaluate the preliminary merits of the allegations in deciding  ;

t j amotiontoreopentherecordforthepurposeofl{tigatingalate-filed Louisiana Power & Light contention on management character and competence.

Company (Waterford Steam Electric Station, Unit 3), ALA8-812, 21 NRC ,

(July 4, 1985).  !

I In certifying this question to the Commission, the Appeal Board appears to have answered the question in the affirmative but concluded that it could not determine the merits of the particular allegations at issue because O! was ,

unable or unwilling to provide the Board with specific details on its then l

on-going investigation. Slip op at 72. The Board went on to note that:

j Our experience ... convinces us that there is a fundamental and ,

j philosophical conflict between the mission and duties of 01 and those of '

the adjudicatory boards (footnote omitted). The Commission alone is in i the position to resolve the conflict.

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IAt the time of the in camera hearing, 01 advised the Board that it hoped l to complete its investigatTon by late sumer. 01 completed its field work in  !

July and a report of the investigation is currently being written and reviewed by 01. We expect to issue our report within four weeks. l We note that the mere pendency of an 01 investigation, standing alone, ,

i would not justify the Board exercising its sua sponte authority under 10 CFR J

2.760a over the allegations. Texas Utilities Generating, et al. (Comanche ,

Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981). I j

Rather, the exercise of a board's sua sponte authority must be based on a

prior affirmative finding by the board that "a serious safety, environmental, 3 l

or comon defense and security matter exists." Texas Utilities Generating '

) Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-81-36, 14 NRC lill (1981). [

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b October 11, 1985 Commission I

Slip op. at 73.

At the outset, we note that O! is not a party to the Waterford proceeding and has no interest in the outcome of that case.

However, we are troubled by the Board's apparent shifting of the burden from a movant to support a motion to re-open to 01 to show that a particular investi-gation or the allegations underlying that investigation are not materal to the

proceeding. As the Commission is well-aware, it is the moving party that bears the burden of establishing a significant safety issue by introducing "significant new evidence ... that materially affects the decision," and not bare allegations or simply submission of new contentions." Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,12 NRC 361, 362-63 (1981). In our view, we do not believe that the mere existence of an 0! investigation, particularly where no Board Notification was made by the staff, satisfies that burden. Moreover, we would add, that to the extent the Board has reviewed the relevant investigation files, it should have been in the position to make the necessary materiality decision called for in the Commission's Policy Statement on Investigations, inspections, and Adjudication Proceedings, 49 Fed. Reg. 36032 (1984). A copy of the Policy Statement is ,

attached. However, since the question certified by the Waterford Board necessarily affects Ol's generic obligation to disclose information on pending investigations to a board (and potentially the parties), we believe it appro-priate to provide our views on this generic issue should the Commission reach the certified question.

In discharging its affirmative responsibility under the Policy Statement, OI has construed its disclosure duty to require the provision of timely and specific information to a board on all potentially material information, the statugofanyrelated01 investigation,andtheprojectedtimeforitscomple-In the case of late allegations, 01 views its disclosure responsibili-i tion.

301, like any other office of the NRC, recognizes its affirmative duty to ensure that the boards are advised of any potentially material information which may affect the resolution of issues before a board. Attachment 2 at

p. 4. See, Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350 (1954); Consumers Power Company (Midland Plant, Units 1 and 2), LBP-81-63, 14 NRC 1768 (1981). However,

" materiality" turns on the nature and status of contested issues before a board at the time the materiality determination is made. Since 0! is ordinarily not in a position to make this judgment, it routinely furnishes the staff with full information on all allegations received or reports issued by it to permit the staff to evaluate the potential materiality of Ol's information and make any appropriate Board Notifications. See, Of Investigative Memorandum 83-016. "0! Board Notifications for Allegations" (Attached).

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i October 11, 1985 Commission j +

i ties to encortpasses new, non-frivolus and material allegations.4Statement of j Policy: Handling of Late Allegation, 50 Fed. Reg.11030 (March 19,1985).

j In these information exchanges, 0! has endeavored to provide as complete as possible information on the substance of late allegations but has refrained i

l from providing the identities of confidential sources, the focus of the Clearly, 01 ,

j investigations, or the preliminary judgments of the OI investigators.

i this is the minimum information necessary to permit a board to make the

requisite materiality finding and schedule its hearings to avoid any unneces- i i

sary disclosure of confidential information.

c In our view, the nature of a board's inquiry, and thus the scope of OI's l' disclosure duty, should not change where the late allegation is brought to the ,

board's attention in the context of pleadings filed by a party In bothrather than cases, the through the Commission's Board Notification Procedures.to determine whether the inforl i: Board's initial task is the same:

1 the allegation), if true, could affect its resolution of issues before it, and to attempt to manage the hearing to avoid, if possible, the unnecessary or It is only when j premature disclosure of otherwise confidential information.

this determination is made that the merits of the allegation are of any i

concern to a board.

• j Thus, in determing the materiality of an allegation, the investigation by 01 l is, or should be, totally irrelevant to the Board. To proceed otherwise would permit an ex 3arte, in camera adjudication of the merits of the allegations l In our view, the problems l

as part of7 aoard's Turisdictional determination. i inherent in permitting a board to determine its jurisdiction in camera would be made indefensible if the board also adjudicated the meritsT f a party's asserted claim at the same time. Indeed, under an approach which links the l

merits of an allegation to its materiality, a party's rights may be adversely If

- affected solely on the manner in which the OI investigation develops.

l adverse information develops early in the investigation with exculpatory i

information later, it is likely that the allegation would be found " material."

i In the reverse situation, it is likely that the allegation will be deemed j

"imaterial ." Moreover, absent a finding of materiality, the administrative burden in delaying an investigation to permit 01's full investigations to meet I with a board to share their preliminary results is of questionable worth.

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4When 01 receives allegations concerning licensee or applicant misconduct, it imediately places these allegations on the NRC's allegation tracking system. It then determines, in consultation with appropriate staff offices, whether the allegation properly falls within 01's authority or another office's authority. If within 01's authority, the allegation is reviewed to determine, l

based on its safety significance and scope, whether it should be handled '

1 initially as a preliminary inquiry or as a full investigation. While most l allegations are initially handled as inquiries, some eventually become full  ;

investigations based on information developed during the inquiry.  :

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October 11, 1985 Commission Accordingly, OI recommends against any enlargement of its disclosure duty to include detailed information on the focus, direction, specific targets of a pending 01 investigation or the preliminary conclusions of its investigators.

More specifically, 0I urges the Commission to make clear that, absent special circumstances, a board is to refrain from probing into the specific conduct of an 01 investigation or otherwise attempt to adjudicate the preliminary merits of an allegation beyond that necessary to determine whether the allegation, if true, is material to any issue in the proceeding.

cc: S. Chilk, SECY W. Dircks, EDO A. Rosenthal, ASLAP H. Plaine, GC E. Pawlik, 01:RIII R. Herr, 01:RIV e

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