ML20136B650
| ML20136B650 | |
| Person / Time | |
|---|---|
| Issue date: | 05/30/1985 |
| From: | Johnson G NRC |
| To: | Mapes J NRC |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-038, AB78-1-38, NUDOCS 8511200256 | |
| Download: ML20136B650 (2) | |
Text
, _
kM u[ VDR.
May 30 - 1985 1
Note'to: Jane'Mapes
-From: George E. Johnson.
SUBJECT:
PROPOSED RULE ON DISCLOSURE OF INVESTIGATORY INFORMATION IN ADJUDICATORY PROCEEDINGS On review of the proposed rule which would provide procedures for the
. disclosure and/or protection of investigatory / inspection'information in the possession of an NRC office when such information is relevant and material to a pending adjudication, 50 Fed. Je R . 21072 (May 22, 1985), I have noted
-two areas which may need to.be consTdered further or addressed in the rulemaking, based on my experience as Staff counsel in the Catawba proceeding.
- 1. In the Catawba proceeding, Intervenors claimed they knew of individuals with ~information relevant to the quality of construction of the Catawba '
plant, but who-would not come forward with such information without some form of protection. The Licensin procedure.in which the Board (1) g Board posted established notice an ad hoc of an opportunity for in camera-individuals with safety-related information to come forward on a confidential basis; (2) personally and privately received the initial inforination; (3) notified the parties, and requested draft protective orders to protect the information likely to be subsequently received; (4) conducted o in camera proceedings, under protective order and using nondisclosure statements by the parties' counsel (and others), in which the individuals were heard, and questioned by party counsel.
This situation does not appear to be covered by the proposed rule, since the.
procedures are aimed at resolving conflicts between NRC offices, with infor-
- mation which may require protection, and licensing-boards' need for full disclosure of information relevant and material to a particular adjudica-
-tion. However,~ licensing boards are within the phrase "all NRC offices"6(part of the 2.795a), and,NRC as in and fall literally Catawba, may Loccasionally determine to protect information which only they possess, or
_w hich may be.first. received at hearings. I believe any ambiguity could be 9 resolved by a statement in the rule or the statement of consideration
' noting that NRC boards are excluded from the scope of =" ell'NRC offices" for purposes of this rule.
'While the Connission might at some point wish to address the Catawba
~ situation directly, it would seem that the licensing boards could continue, ;
b should the need arise, to deal with a Catawba-type situation with the authority they currently have, on an ad hoc basis. One of the effects of not covering confidentiality initiateTby a. licensing board is that 4
$ 3 p 851115 a m ua m
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withdrawal of such confidentiality by a board would not be covered by 66 2.795e and 2.795h, which otherwise require Commission approval of dis-closure of the identity of a confidential source.
- 2. In the Catawba proceeding, the Licensing Board requested the Staff to follow up on some in camera allegations on " foreman override" of Duke QA/QC procedures. During that follow-up, serious charges were made by one welder, and these led the Staff to ask Duke to conduct a thorough inquiry. Duke interviewed over 217 employees, and told them their identities would be
. protected to the extent possible. At hearing, Duke sought to protect the identity of the individuals whose affidavits were to be offered as exhibits. After the Appeal Board reversed a Licensing Board decision to hear all testimony on these affidavits in camera, the affidavits were ottered and admitted as exhibits with the names of the affiants deleted. The Staff supported Duke's request to keep these names from public disclosure. The affidavits were numbered and a confidential key to the names was provided to the parties under protective order. The Staff stated that only the Staff could grant confidential status to informers, but noted that it was in the Staff's interest to protect the names of affiants, inasmuch as confidential-ity assisted substantially in the gathering of the information by Duke.
Under the proposal rule, it is clear that non-NRC Staff parties cannot use the proposed procedures to protect information such as the Duke employees' names on the affidavits referred to above. However, the rule, or statement of considerations, should state clearly that there is nothing in the rule which precludes a licensing board, in the sound exercise of its discretion, from protecting the identities of individuals giving information where such individuals have provided, or may provide, nuclear safety-related informa-tion in confidence in a situation of potential personal risk, and protection may be attorded without denying parties access to any information to be used in the adjudication. Without such provision, doubt might be created whether a licensing board could, as in the Catawba case, exercise its discretion to protect informers' identities where the information is disclosed to a party other than the NRC--an applicant or an intervenor.
cc: L. Chandler W. Olmstead
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