ML20136B275
| ML20136B275 | |
| Person / Time | |
|---|---|
| Issue date: | 11/09/1984 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-017, AB78-1-17, NUDOCS 8511200171 | |
| Download: ML20136B275 (2) | |
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. rfi * ! * & UNITED STATES g i E. NUCLEAR REGULATORY COMMISSION D N ATOMIC SAFETY AND LICENSING BOARD PANEL j8 WASHIN GTON, D.C. 20555 November 9, 1984 4
MEMORANDUM FOR: William J. Olmstead '
Director and Chief Counsel Regulations Division
,, Office of the Executive-Le 1 Director FROM: Robert.M. Lazo N ,5 g '
,o Depu_ty Chief:Admini trative Judge - Executive
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h-UBJECT:
RULEMAKING FOR PROCEDURES TO RESOLVE DISCLOSURE DISPUTES INVOLVING INVESTIGATIONS, INSPECTIONS I l
AND ADJUDICATORY PROCEEDINGS
. On behalf of the ASLBP, an from my perspective as Chairman of the Task Force on Investigations, Inspections and Adjudicatory Proceedings, i
, I have reviewed your draft notice of proposed rulemaking and have the '
following comments. .
-With a few exceptions set forth below, I feel that the draft
- proposed regulations establi.sh the basic procedural framework envisioned by the Policy Statement. I think I can say, however, from having sat
. - through the meetings and worked through the drafting and revision of our report, that the Task Force did not envision the implementing rules
.being much more detailed and 'iengthy than the description of the b9 .
procedures set forth in the statement itself. Accordingly, I am
, drafting a somewhat simpler version and will forward it early next week for your consideration.
My specific comments on your draft:
- 1. Over-formalization is not necessary. For example, it would be perfectly permissible for Staff counsel at a hearing or prehearing conference to orally state and explain why he or she intends to submit infonnation for review in camera together with a request for non-disclosure. A written notice of intent should not then be necessary.
Similarly, we agree with Gary Edles' October 23 statement that it is not necessary to mandate oral in camera presentations. The Task 8511200171 851115 PDR PR 2 48FR36358 PDR
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. Williamd.401mstead- 2 . November 9, 1984.
Force members agreed that most disclosure issues would not be complex or disruptive and could be resolved by Boards .on the basis of initial' staff.
or.0I filings. ,
f '2.1 The high priority. accorded disciosure issues'and short time. .
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limits prescribed are inconsistent with the Task Force Report as adopted.
by the Commission and are potentially mischievous. The Task Force
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included representatives from all. offices affected by the proposed
- policy. all potential " antagonists," and all agreed unanimously that
. Boards and NRC offices could be trusted to act responsibly in disclosure matters,'i.'e.' not press trivial. issues or delay and ignore important ones. To require Boards to drop.everything and handle ~ disclosure issues with in camera sessions even when they are in the midst of protracted "7
.. hearings makes no sense. The Policy Statement permits Boards to set
- - reasonable time limits for handling these matters and, for our part, we
- feel confident in assuming.that Staff representatives.will advise us when'the' implications 'of a disclosure issue for hearing scheduling or other resource allocation will require expedited treatment.
- 3. Proposed.5 2.795f(b) limits attendance at in camera proceedings -
to NRC personnel. What about'non-NRC, non-party allegers the Staff may (
wish to produce? The Policy Statement refers to in camera proceedings with no party other than the Staff or 0I present. The difference is b(
significant..
- 4. The Commission recognized that no other party may be in a position to respond to'ex parte in camera briefs .but provides an opportunity for such filings anyway. Therefore, I'have not departed
~ from that aspect of the Policy Statement in the alternative' proposal.
However, your. draft adds two additional impracticalities to the process.
There is no' reason why other parties must file in camera briefs with the
. Commission, because, according to the' scheme of the Policy Statement, other parties would possess no secret information in. any eve ~nt. Also, there is no reason other parties would file seven days after a Staff.
M(. Lbrief they would.never see anyway. 'Any new regulation should follow the
$ Ud . basic concept that the Comission become involved only when even a "pq l d, - protective order is deemed insufficient by the requesting office and where the' identity of a confidential source is involved. Therefore, the Comission becomes involved only in an area where other parties are totally. uninformed.
' 5. : Section 2.795o -is unnecessary since it simply says that JCommission and~ Board orders may not be violated. Part(3)isalso
, fundamentally wrong. Ex parte information may not be used in s
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William J.L0lmstead 3 November 9, 1984 ,
-, decision-making. 'In camera-information can be'used and often is~. The terms are not synonymous. Only_ matters not revealed to the parties are
- barred.from consideration.
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e icci Be; Paul Cotter ! r, J .,'ASLBP 1 David L. Prestemon, ASLBP Ivan J.: Smith, ASLBP
. Gary _ J. Edles ASLAP Roger Fortuna, 0I William J. Ward, OI
' Edward C. Christenbury, OELD James A..Fitzgerald, OGC Kenneth E. Perkins, Jr._, IE
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