ML20136B676
| ML20136B676 | |
| Person / Time | |
|---|---|
| Issue date: | 06/13/1985 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | Mapes J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-043, AB78-1-43, NUDOCS 8511200261 | |
| Download: ML20136B676 (1) | |
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UNITED STATES
[ 'E NUCLEAR REGULATORY COMMISSION U i$ ATOMIC SAFETY AND LICENSING BOARD PANEL k, WASHIN GTON, D.C. 20555 June 13, 1985 Jane'R. Mapes, Esq.
Senior Regulations Attorney Regulations Division Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: Proposed Amendments on Ex Parte In Camera Presentations
Dear Ms. Mapes:
This confirms our telephone conversation of June 12 in which I made three recommendations respecting the proposed amendments covering ex parte, in camera presentations before presiding officers.
The final clause of Section 2.795b now states ". . . because disclosure without a protective order would prejudice an inspection or investigation or reveal the identity of a confidential informant." This phrase is arguably inconsistent with the balance of the section which covers situations where Jan disclosure, even under a protective order, is thought to be undesirable.
Similarly, proposed Section 2.795c(b)(5) should be modified to clarify that the anticipated explanation would also include an explanation as to why an disclosure, even under a restrictive protective order, is inappropriate. The problam seems to be that the term " protective order" can be assigned two meanings: (1) an order setting out the terms under which disclosure is made, or (2) an order protecting an NRC office from making any disclosure.
Proposed Section 2.795d(b) was expanded from earlier drafts to provide also for the appearance of witnesses at the request of the NRC office or presiding officer. I believe that this provision was a result of an earlier recommendation by this Panel. Experience indicates that such a witness might be a confidential informant. Therefore, we should have recommended also that, where publication of the time and place of the ex parte, in camera proceeding might reveal the identity of a confidentiaT-informant, the presiding officer be given latitude to delay revealing the time and place of the witnesses' appearance.
Very truly yours, MIvan W. Smith ADMINISTRATIVE LAW JUDGE cc: David Prestemon 8511200261 851115 PDR PR 2 4SFR36358 PDR
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United States Nuclear Regulatory Corimission Washington, DC 20555 pg A'ITENTION: Docketing and Service Branch SURTECT: Ccrrnents pertainirq 'Ib the Proposed Rule on " Adjudications; Special procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of InfonTation", (50 FR 21072)
Dear Sir:
Yankee Atomic Electric Cmpany appreciates the opportunity to ccrment on the subject proposed Rule. Yankee Atcrnic owns and operates a nuclear power plant in Rowe, Massachusetts. Our Nuclear Services Division also provides engineering and licensing services for other nuclear power plants in the Northeast including Ven:ent Yankee, Maine Yankee and Seabrook.
While Yankee Atomic endorses the adoption of procedural rules which would properly protect ecnfidential infomation, we believe the proposed Rule contains two infirmities which could lead to denial of a licensee's due process rights, and which may violate the Administrative Procedure Act.
We wish to suggest an altemate procedure which avoids these problerrs, yet achieves the Ccomission's stated goals.
The first problem we see with the Proposed Rule is that it would pennit IRC Staff, as a party to the pending adjudication, to participate in the in camera review, while excluding all other parties. 'Ib allow any party, even the agency itself, to bring ex-parte pressures to bear in a pending case violates notions of fundamental fairness an$ denies other parties the opportunity for ccnfrontation and rebuttal.1 'Ib avoid this problen, we suggest that each party be limited to filing on-the-record briefs with the office ec:nducting the in camera review. 'Ibe infonTation
- sought to be protected need not be disclosed in these briefs. .
The second, and perhaps nere significant problen, is that the proposed Rule would permit the very officer who will render a decision on the merits of the adjudication, to consider the confidential inforTretion during an in camera review, and order that the information not be disclosed to the Isanaamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir.1959) and Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C.1964) .
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. Page 2 parties. Altimugh Proposed Section 2.795k adnonishes the presiding officer to not rely on withheld infonration in making decisions in the adjudication, we believe the officer could not help but be influenced by the nondisclosed infonration. Such influence could violate the exclusiveness of the record 6:)ctrine codified in the Achinistrative Procedure Act.2 If a procedure for an in camera review of confidential infonration is to be included in the Final Rule, we suggest that it require that such review is to be conducted by an independent officer - one who is not connected with the pending adjudication in any anner.
Very truly yours,
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R. E. Helfr h, Esquire Manager, Generic Licensing PJH/strw 2Section 7(d), 5 U.S.C. 556(e); see also Goldbero v. Kelly, 397 U.S. 254, 271*(1970).
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Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Wash ing ton , D.C. 20555 Attn: Docketing and Service Branch Re: Comments on Proposed Rule Regarding Ex Parte In Camera Presentations:
Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information (50 Fed. Reg. 21072, May 22, 1985).
Dear Mr. Chilk:
On Wednesday, May 22, 1985, the Nuclear Regulatory Commission ("NRC") published in the Federal Register a proposed rule that would amend 10 C.F.R. Part 2 by adding new sections 2.795a through 2.795k, as well as making conforming modifications to 10 C.F.R. 552.730, 2.740(b)(1), and 2.780(a).
See 50 Fed. Reg. 21072 (May 22, 1985). On behalf of Duke Power Co . , Mississippi Power & Light Co. , Northeast Utilities, Pacific Gas & Electric Co., Southern California Edison Company, and, Washington Public Power Supply System, we respectfully submit the following comments.
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l-2 I. Introduction A. Background On August 10, 1983, the NRC published a Statement of Policy on . Investigations and Adjudicatory Proceedings. See 48 Fed.' Reg. 36358 (1983). .This policy statement outlined a process which forms the backbone for the current proposed rules' the use of ex parte in camera presentations to the Board that is presiding over the licensing hearings for a particular f acility whenever the Staf f or OI has confidential information that they believe to be relevant to a material issue in the licensing proceeding, but that they assert cannot be presently revealed to the public or the other parties without. prejudice to an ongoing investigation or inspection.
See 48 Fed. Reg. 36359. At that time, the NRC .saght public comment on the advisability of using this procedure or some alternative to resolve the conflict between a presiding of ficer's need to be informed of material developments
' relevant to the pending adjudication and the need for OI and the Staf f to maintain what was described as the integrity of ongoing inspections or investigations. See id. .
The 1983 policy statement noted that an NRC task force
( " Ta s k Fo rc e'" ) was currently considering this matter. See 48 1/ The terms " Board" and " presiding officer" are used interchangeably in these comments.
Fed. Reg. 36358. On December 30, 1983, the Task Force issued its reporp, entitled " Report of the Task Force on Investigations, Inspections and Adjudicatory Proceedings"
(" Task Force Report") . The final recommendations of the Task Force were subsequently embraced by the Commission in its September 13, 1984 Statement of Policy on Investigations, I'nspections, and Adjudicatory Proceedings (49 Fed. Reg. 36032 (1984)), as well as the current proposed rule which is the subject of these comments. Compare Task Force Report at 3 with 49 Fed. Reg. 360b3-34, and 50 Fed. Reg. 21073-74, 21075-
- 77. The recommendations and observations of the Task Force, which were adopted in the 1984 policy statement and the current proposed rule were as follows:
- 1. Full disclosure of material information to adjudicatory boards is the general rule.
- 2. Some disclosure conflicts will be inevitable.
- 3. Disclosure issues should initially be determined by the adjudicatory boards.
- 4. Procedures for the resolution of disclosure conflicts should be established by rule.
- 5. Appellate review of Licensing Board decisions should be available on an expedited basis.
- 6. Current Board Notification procedures should not be changed in this rulemaking.
- 7. The disclosure / nondisclosure procedure should apply to information in the possession of all NRC offices.
See Task Force Report at 3, 4-14.
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_4 i The proposed rule was' published for comment on May 22, 1985. Set 50 Fed. Reg. 21072 (1985). The proposed procedures themselves, utilizing ex parte in camera presentations to the presiding of ficer (be it Licensing Board, Appeal Board, or Administrative Law Judge), are contained in the proposed 10 C.F.R. Il2.795a through 2.795k. See 50 Fed. Reg. 21075-77.
Additionally, conforming amendments are proposed to 10 C.F.R. 5 2.7 30 (mo tions), 52.740(b) (scope of discovery), and 5 2.780
'(ex parte communications). See 50 Fed. Reg. 21075. These comments do not address in detail each section contained in the proposed rule; rather, they focus on the underlying infirmities with the use of ex parte in camera presentations to a decision maker in an ongoing adjudicatory proceeding and propose a different approach.
B. An Alternative to the Proposed Rule We conclude that a more traditional solution to this problem, as proposed herein, should be adopted. A preferable scheme would consist of essentially two alternative courses of action that may be pursued when an NRC of fice has information, which it wishes to keep confidential, but that may be relevant to an ongoing adjudication:
- 1. Subject to an appropriate protective order prohibiting further dissemination of the information, allow the Board and selected representatives of all parties to the adjudication to have access to the information and allow them to be present at any in camera j hearing before the Board; or
- 2. Publicly inform the Board and all parties that an inspection or investigation is ongoing, but githout revealing any details that could compromise that undertaking or unnecessarily reveal confidential sources. In the absence of a showing warranting a stay, a suspension, or a deferral of further proceedings, the Board would proceed. The inspection or investigation would then be completed in parallel and appropriate public reports issued. Based on any outcome-determinative new information contained in the NRC reports, the parties could then follow the conventional provisions of the NRC's Rules of Practice and move for summary disposition on contentions, submit late-filed contentions, request additional hearings (if the record is not yet closed), move to reopen the record (if the record has already been closed), or, in the event that final agency action has been taken on the license application, file a petition pursuant to 10 C.F.R. 52.206 or intervene in an enforcement proceeding that has been instituted as a result f the inspection or investigation results.2 As described below, use of this manner of proceeding instead of the procedures outlined in the proposed rule is more consistent with established NRC precedent, the Atomic Energy Act, and basic considerations of due process.
-2/ Naturally, even though the NRC of fice in possession of the undisclosed material information may have initially decided to continue an investigation without informing the board and parties of its substance, it may later chose to reveal to the board and all parties any interim findings under a suitable protective order. In accordance with the suggested procedure outlined above, the part,ies would then file appropriate motions for reopening, stays, or other relief, or (in the case of information meeting the Catawba standard) late-filed contentions' as ' allowed under the Rules of Practice. See l
Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
ALAB-687, 16 NRC 460, 470, 470 n.17 (1982), as modified, CLI-83-19, 17 NRC 1041 (1983).
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II. Discussion
.A. The Duty to' Disclose The primary source of the conflict concerning disclosure or nondisclosure of information, which the proposed rule seeks
> to resolve, is the case law doctrine that each party has a duty to inform the Board and other' parties of material developments relevant to a pending adjudicatory proceeding.
See Duke Power Co. (William B. McGuire Nuclear Station, Units
.1 & 2), ALAB-143, 6 AEC 623, 625-26 (1973). As explained by the Appeal Board:
In all future proceedings, parties must inform the presiding board and other parties of new information which is relevant and material to the matters being adjudicated.
. . ..(T]his does not mean that the staff.
or applicant can be permitted to leave the presiding body and the other parties to the proceeding in the dark about any change which is relevant and material to the adjudication.
Changes mayftake place but they must be disclosed.
If the presiding board and other parties are not informed 'in a timely manner of such changes, the inescapable result.will be that reasoned decision-making would suffer.
Indeed, the adjudication could become meaningless,' for adjudicatory boards would be passing upon evidence which would not accurately reflect existing facts. The disclosure requirement we impose is not the product of any overly procedural formalism on our part -- it goes to the very heart of the adjudicatory process. Its sacrifice for the sake of expediency cannot be justified and will not be tolerated.
-Id. (emphasis added).
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The NRC's proposed rule ignores the fact that the disclosury requirement requires disclosure not only to the presiding board, but to the other parties to the proceeding as well. See id.3 Because the disclosure requirement emanates f rom "the very heart of the adjudicatory process," permitting l
disclosure to the board alone does not satisfy that disclosure requirement. See ALAB-143, 6 AEC at 626. That is because "the adjud'.catory process" is at its heart an adversary process, which cannot function properly when the decision-making board, but not all of the adversary parties, is made aware of information relevant to a material issue being adjudicated. This requirement to inform the Board and the parties can be satisfied by disclosure to selected party representatives under an appropriate protective order when the circumstances justify a departure from the Commission's general policy in f avor of public d. sclosure.
Other decisional precedent from the Commission justifies the approach suggested in these comments. Simply because new information relevant to an adjudicatory proceeding has arisen, 3/ Although the proposed rule and the most recent statement of policy quote the need for disclosure as applying to the other parties as well as the Board (see 50 Fed. Reg. 21072, col. 3 (1985); 49 Fed. Reg. 36032, col. 3 (1984)),* the need for disclosure to the other parties is not treated in the same way as disclosure to the Board.
Perhaps this is an artifact from the NRC's original 1983 Statement of Policy, which spoke only in terms of a duty to inform the Board. See, e.o., 48 Fed. Reg. 36358, col. 3 (1983).
that does not necessarily mean that the information must be litigated, before the Board. See Cincinnati Gas & Electric Co.
(Wm. H. Zimmer Nuclear Power Plant, Unit No. 1 ) , C LI-8 2-20, 16 NRC 109 (1982). Indeed, the Zimmer case provides ample precedent for following the NRC's accepted pror edural rules, e.g. involving reopening the record, when a... Information becomes available through ongoing NRC investigations. See id.
at 110-11; see also Catawba, ALAB-687,16 NRC 460, 470, as modified, CLI-83-19, 17 NRC 1041. These traditional procedural rules of the Commission have been enacted properly and applied fairly for a significant period of time; they are entitled to respect and deference on judicial review. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524-25 (1978); BPI v.
AEC, 502 F.2d 424, 428-29 ( D.C. Cir. 1974); see also Easton Utilities _ Commission v. AEC, 424 F.2d 847, 850-51 (D.C. Cir.
1970) (en banc) (late intervention rules in 10 C.F.R. 52.714 are a proper exercise of rulemaking power under the Atomic Energy Act). The Zimmer and Catawba cases recognize that simply because an issue is not litigated in hearings, the public health and safety is still amply protected through the inspection, investigation, and other regulatory functions of 1
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the NRC. Vermont Yankee and BPI establish that $189a of the Atomic Engrgy Act does not require otherwise.4 Thus, the first major source of difficulty with the NRC's proposed rule stems from the fact that the Commission has unnecessarily chosen to place a higher priority on following one half of the doctrine of ALAB-143 (by requiring only that l l
the Board, but not the other parties, be informed of relevant l
and material new information), while placing a lower priority l on (or disregarding) the other half of the doctrine of ALAB-143 (which requires that the other parties, as well as the Board, be informed of relevant and material new information).5 4/ The recent Court of Appeals decision Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984),
U.S. , 105 S. Ct. 815 (1985) does not limit the Commission's power to define what issues are material to the licensing decision, but it does require that once a particular issue is material to the licensing decision,
! then, under $189a of the Atomic Energy Act, that issue i must be available for litigation as part of the i licensing hearings. Once it is apparent that the i
results of an NRC inspection or investigation will be material to the licensing decision, then $189a, as interpreted in UCS, requires that the parties be made aware of the information, subject to a protective order if appropriate, and the matters are then available for litigation in accordance with the rules of practice concerning, e.a., reopening the record and late-filed contentions. See 735 F.2d at 1448-49.
5/ The proposed rule quotes the disclosure requirement as being applicable to the Board and all the parties, but does not* articulate a justification for excluding parties other than one the conclusory assertion that this is necessary "to avoid compromising an NRC inspection or investigation or to protect a confidential informant." See 50 Fed. Reg. 21072, col. 3.
This the Commission has chosen to do because of the countervailing interest in preserving, the integrity of ongoing inspections or investigations and protecting the identity of confidential sources. Depending on the facts of each case, these may or may not be legitimate interests, but because the Commission's licer sing process is governed by. the Atomic Energy Act, the Administrative Procedure Act, and considerations of' due process, the Commission is risking judicial reversal when it allows these policy interests in confidentiality o. investigatory activities to take precedence over the rights of parties to the adjudicatory process. This is particularly true when there is an alternative set of procedures, such as is proposed in these comments, which can protect any legitimate confidentiality interests as well as the rights of the parties to licensing proceedings.
B. Legal Prohibitions Against Ex Parte In Camera Proceedings The most fundamental problem with the NRC's proposed rule is that it allows ex parte presentations of information to the presiding of ficer, presumably only to allow the Board somehow to satisfy itself that the decision it will be reaching is not incorrect, or to allow the Board to reschedule hearings on particular issues or otherwise delay s
issuance of a decision until all of the information has been collected (so as to allow subsequent litigation of the s
withheld information once the investigation is complete). See 50 Fed. Reg. 21072, col. 3. As discussed below, this can have I
the same effect as granting an ex parte stay of substantial duration without observing the accepted safeguards codified in 10 C.F.R. 52.788.
The board is explicitly precluded from relying on the information received ex parte in camera "in making any decision in the pending adjudication unless all parties to the pending adjudication have been accorded access to the information." See Proposed 52.795k, 50 Fed. Reg. 21077.
However, in hearing an ex parte in camera presentation by the Staff, the Board will necessarily be impermissibly relying on a one-sided view of the situation to the extent that it withholds or otherwise delays issuance of a pending decision because the Staff has informed the Board in an ex parte in camera session of further information which will probably need to be litigated. This is the functional equivalent of allowing the Staff to request an ex parte stay of indeterminate length without consideration of the relevant legal standard incorporated in 10 C.F.R. 52.788. Furthermore, because the stay / delay application is heard ex parte in camera and the record is sealed, the license applicant and the l intervenorstare not informed of the basis for the stay. They have no opportunity to rebut or propose alternative courses of action, and no record basis on which to argue on appeal. Such
a procedure is foreign to Anglo-American jurisprudence. In federal }udicial proceedings, ex parte temporary restraining order ( "TRO") applications are only entertained in extraordinary circumstances; the TRO (if granted) is only of a brief duration; the factual basis for any such TRO is immediately revealed to the parties once the order is entered; and further proceedings involving all parties occur within a few days. See Fed. R. Civ. Pro. 65(b).
And what other purpose is there for presenting this information to the Board except to decide whether to delay a decision or hearing session? If the Staff's inquiries will reach a stage where they can be timely litigated without delaying the current hearing schedule, there is no need for any ex parte in camera presentation. It should suffice for the Staff to publicly inform the Board and the other parties that there is an undisclosed investigation or inspection effort currontly ongoing and that the Staff will accordingly:
supplement at the first possible opportunity the list of witnesses it will call, provide aeditional prefiled testimony, and update outstanding discovery requests, all in conformity with the NRC's conventional Rules of Practice. If the Staff's developing information cannot be litigated under the current hearing sch5dule (or if the evidentiary record is already closed), then the Staff should file a motion for a stay or move to reopen the record. If the Staff is not prepared to
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reveal publicly the basis for these motions, then the Board should rgceive briefs on these motions and hear arguments in 0
camera, but allow appropriate representatives of all the other parties to be present to present their positions and any
- relevant facts under a strict protective order preventing those representatives from in any way revealing the information that the Staff presents in the in camera stay or reopening proceeding. This manner of proceeding has several advantages: 1) it satisfies due process requirements for administrative proceedings while doing a minimum of violence to the current, tested, traditional Rules of Practice; 2) it fully complies with the obligation to inform not only the Board but also the other parties of new, material, relevant information; 3) it actually provides the Board with a better f actual se' legal basis by allowing all the parties to raise additional facts.and arguments, possibly precluding an unnecessary delay in the proceedings because of an easily clarified Staff misperception or error; and 4) it promotes greater public confidence in the NRC, its adjudicatory proceedings, and the ultimate safety of licensed facilities.
These advantages are discussed in detail below. First, 6/ The Boa'rd should allow the presence (under protective order) of at least one or two legal and unimplicated technical representatives of each party, perhaps with the Staff's concurrence (in case a party representative is implicated in the investigation).
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however, we must address what appears to the only possible objectiog to the alternate procedure outlined in these comments.
- 1. The Underlying Assumption of Party Representative Misconduct The NRC has as yet failed to make explicit in either of its two prior policy statements or in the proposed rule why all parties cannot have access to the information under strict protective orders. Specifically, the NRC would allow ex parte in camera presentations in some (perhaps limited) circumstances, precluding even one representative from each party to be present, even under the most strict protective o rd e r . This presumes that the NRC does not trust even one representative of each party, sworn to confidentiality and subject to potentially severe sanctions for any breach of confidence, to be entrusted with material, relevant, new -
information which if revealed could compromise an inspection or investigation. Such a presumption of misconduct and violation of ethical and moral obligations by limited party representatives is an invalid and unacceptable basis for denying parties their due process rights in an adjudicatory process. See, e.a., Commonwealth Edison Co. (Byron Nuclear 7/ The proposed rule simply states, "[t]here are, however, certain situations in which any disclosure of information, however restricted, could affect the conduct of an inspection or investigation." 50 Fed. Reg. 21072, col. 3; see Proposed $2.795a, 50 Fed. Reg. 21075.
Power Station, Units 1 & 2), ALAB-735, 18 NRC 19, 23-25 (1983). t As explained by the Appeal Board s Up to this point at least, licensing and appeal boards have acted on the assumption that protective orders will be obeyed.
Houston Lighting & Powe r Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 400 (1979). On that assumption, boards have permitted the disclosure to parties of a wide variety of sensitive !
information -- including the details of plant security plans. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power .
Plant, Units 1 and 2), ALAB-592, 11 NRC 744, 746, and ALAB-600, 12 NRC 3 (1980);
Consolidated Edison Co. (Indian Point Stati'on, Unit No. 2), ALAB-177, 7 AEC 153 (1974). But see Houston Lighting & Power Co. (South Texas Project, Units 1 and 2 ), ALAB-639,13 NRC 469, 477 (majority), 484-85 (dissent) (1981). To our knowledge, there has never been a breach of an NRC protective order that seriously threatened the confidentiality of the information revealed under that order. If, nevertheless, the staff has some basis for believing that there is an actual, as opposed to purely theoretical, risk of such a breach here, it had the obligation to document that basis.
Id. at 25.
Indeed, the experience of some of those cubmitting these comments, who have participated in in camera NRC proceedings subject to protective order, does not justify any such
- presumption of illegal conduct by any party, whether the applicant, the Staff, or an intervenor. Should any such I
violation h'appen, there are full and severe sanctions 9 available, for examples disbarment or suspension of attorney representativest suspension of a party or its representative
under 10 C.F.R. $2.713; a judgment before the Department of Labor unjer 5210 of the Energy Reorganization Act of 1974, as anended (42 U.S.C. $5851) reinstating and compensating any informant who is discriminated against for providing information to the NRC; and a civil penalty against the licensee pursuant to 10 C.F.R. 150.7 for any such Department of Labor finding of a $210 violation.8 Accordingly, there is no legitimate reason for requiring the Staff's in camera presentations to be conducted ex parte. If there is a fear that one of the party representatives may be implicated in the investigation, the rules could provide that the NRC Staff would have a voto as to who may be the one or two representatives (legal and technical) of each party who shall be allowed to participate under a protective order in the in camera hearings.
8/ Indeed, the essential purpose evident in the statutory and regula tory language of $210 and 10 C.F.R. $50.7 is to protect from retaliation anyone who provides information to the NRC. See 5210(a) of the Energy Reorganization Act, 42 U.S.C. 15851(a); 10 C.F.R.
$50.7(a); see also Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984). These provisions offer not only a powerful deterrent against any feared retaliation against confidential informants, but also provide full remedies to anyone who has suffered retaliation for contacting the Commission or participating in a hearing, investigation, or other similar proceeding. Therefore, fear of retaliation provides no basis for excluding party representatives (under a protective order, if necessary) frem any in camera hearing.
I Perhaps there is an unstated fear that an applicant will correct khe defect or defects that are under investigation by the NRC before the investigation is completed. The Commission's inspection rights and strict requirements for maintaining documentation of all safety-related repairs should provide the Staff with ample means for documenting the as-found condition and each step of any repair or replacement.
In sum, there seems to be no reasonable basis for the Staff or other NRC offices to insist that no one who represents the applicant or intervenor (even under a protective order) may know what the Board needs to be told about ongoing inspections or investigations. If there is no such reasonable basis, then this penchant for secrecy and this investigatorial mind-set are a wholly inadequate justification for denying the basic rights of parties to adversarial litigation.9 As discussed supra, there ir no need for the creation of special procedures as novel and elaborate as those in the proposed rules it is adequate for the Staff to file a motion for a stay of issuance of a decision, a motion to reopen the record, or a motion to delay an evidentiary hearing (any of which may be conducted in camera, as necessary), or simply a 9/ The fo$mer Atomic Energy Commission Staff initially took a similar view of inspection reports, releasing only
" sanitized" versions (if any) to the parties. Now, of course, such reports (except for proprietary or security information) are routinely made public.
notification that the Staff will soon be providing further testimo(y and discovery updates. The advantages of proceeding as described in these comments, and for not adopting the proposed rule, are discussed below.
- 2. Due Process Limitations.
As demonstrated above, despite the proposed 52.795k (50 Fed. Reg. 21077),_unless the Staff ex parte in camera presentation is made so early in the hearing process as to be essentially unnecessary and premature (e.g. in the same time frame as rulings on the admissibility of contentions), the Board could make a decision with the same impact as granting a stay -- a decision to delay hearings, reschedule hearings, or defer issuance of a decision -- based on the Staff's information, and without any of the traditional safeguards involved in a stay application. Accordingly, as described below, fundamental tenets of due process are violated by the proposed use of ex parte in camera presentations by the Staff
-to the Board.
The courts have often articulat,ed the dangers associated with such ex parte communications. E.g., National Small Shipments Traffic Conference v. ICC, 590 F.2d 345, 350-51 (D.C. Cir. 1978).
Thus although (these particular ICC] hearings are not required to be conducted in accordance with Section 556 and 557 of the APA and the Commission " enjoys substantial flexibility to structure the hearings, it must provide depending on the nature of the case . . .,
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o 1 that freedom is not absolute." .The statutory requirement of a hearing, like the requirement o
I"fimposes comment in notice and comment rulemaking, certr.in minimum constraints on the procedure fo'. lowed by the agency." One of those constraints is the disallowance of recourse te er parte communications. Such contacts are offensive in two fundamental respects: (1) they violate the basic fairness of a hearing which ostensibly assures the public a right to participate in agency decisionmaking, and (2) they foreclose effective judicial review of the agency's final decision.
Id. at 351 (footnote omitted). Although the second concern identified by the court (the need for an adequate record for judicial review) is mitigated under the NRC's proposed rule
-due to the requirement to keep a verbatim, sealed transcript, the pt.rties cannot argue to the court based on that transcript unless the NRC or the court opens it to them. Even this would in no'way alter the fundamental offensiveness of the Commission's proposed rule for violating the basic right to participate in the making of the record. Id.; see also National Wildlife Federation v. Marsh, 568 F. Supp. 985, 993 n.14 (D.D.C. 1983) (availability of record of ex parte contacts for judicial review does not alter the impropriety of the ex parte contacts).
Denial of access to information presented ex parte in camera to the Licensing Board by the Staff or OI regarding
-issues pending before that tribunal can constitute a denial of administrative due process if and when the information is
relied on by the Board -- as it necessarily would be relied upon if khe Board delayed the proceeding or postponed decision and in ef fect granted an ex parte stay. An applicant would be unable to respond to that information in order to test its reliability or truthfulness or provide rebuttal, explanation, or extenuation, and the applicant is thus prejudiced thereby:
Certain principles have remained relatively immutable in our jurisprudence.
One of these is that where governmental action seriously injurec an individual, and the reasonableness of the action depends on fact-findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right "to be confronted.with the witnesses against him." This Court has been zealous to p.rotect these rights from erosion. It has spoken out not only in criminal cases, . . .
but also in all types of cases where administrative and regulatory actions were under scrutiny.
Greene v. McElroy, 360 U.S. 474, 496-97 (1959) (citations and footnote omftted).
At bottom, in camera ex parte exchanges of information between the NRC- Staf f and a Licens*;.g Board are inconsistent
with fundamental n'otions of fairness implicit in due process and with the ideal of reasoned, public decisionmaking on the merits which undergird all of our administrative law. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 56 (D.C. Cir.),
cert. denied, 434 U.S. 829 (1977). The Fifth Circuit has said:
(T]he parties must generally be allowed an opportunity to know the clai 3 of the opposing party, . . . to present evidence to support their contentions, . . . and to cross-examine witnesses for the other side . . .. Thus, it is not proper to admit ex parte evidence, given by witnesses not under oath and not subject to cross-examination by the opposing party.
Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir. 1964) (citations omitted). Ex parte information cannot be relied upon-in any manner by a Board. To do so would reduce the hearing to something less than the adversary proceeding that the Atomic Energy Act has been read to require for facility licensing.
Fundamental principles of fairness require that all parties be aware of the content of information presented to the Board and
-be given the opportunity to test its reliability or truthfulness, and be given the opportunity to present rebuttal testimony if deemed necessary. See Greene v. McElroy, 360 L
> U.S. at 496-97. Even delaying adjudicatory hearings or issuancetof a decision based on such ex parte information violates due' process of law, as even one day's unnecessary delay in a facility's operation can cost the ratepayers and investors as much as a million dollars or even more.
The examples of judicial and administrative precedent cited in the Commission's Task Force Report do not justify the ex parte in camera presentations outlined by the proposed rule. See Task Force Report at 7-8.
The Task Force cites in camera ex parte examination of documents as precedent. Such an examination of documents, usually to rule on claims of privilege warranting protection from discovery, is a far cry from hearing an oral presentation of new information which is as yet in a primordeal state, but which is material and relevant to the issues being adjudicated. In camera judicial examination of documents to rule on a claim of privilege involves no determination of the truth and accuracy of the documents' contents. The ex parte in camera testimony or other oral presentation from the Staff, with likely questioning by the Board (and perhaps later the Commission) is
, quite unlike this cloistered review of discovery documents.
The Board will be interested in the basis of the Staff's information, and must necessarily rely on hearsay, Staff impressions, and other human observations and interpretations, particularly in the case of information from confidential
informants. In short, all of the risks identified by the Supreme \ Court in Greene v. McElroy that necessitate cross-examination in administrative and judicial proceedings are present when the Staff makes an ex parte in camera presentation to the Board. These problems are not present when examining documents in camera to resolve privilege claims j or otherwise rule on their discoverability. Indeed, the ultimate issue for determination (discoverability) is altogether dif ferent than with the proposed rule (potential safety significance and accuracy of information).10 The Federal Communications Commission ("FCC") precedent cited.by the Task Force Report (at p.8) similarly provides no support for the Commission's proposed rule. See In Camera
~ Presentation of Classified Information, FCC 78-755, Docket No.
18875 (Oct. 26, 1978), reprinted in 44 Ad.L.2d (Pike &
Fischer) 502. That decision allowed ex parte in camera briefing of the FCC by the Department of Defense concerning national security information classified " Top Secret." See id. at 503. The FCC allowed this ex parte in camera briefing because the FCC is specifically authorized by statute to withhold material "containing secret information affecting the
-national defense." See id. at 505. It is significant that the 10/ Such in camera judicial review of documents frequently results in providing the other parties with " sanitized" versions with the privileged, propriety, or security information deleted.
i.
Atomic Energy Act similarly protects information which may compromise the national defense and security, but there is no I
comparable statutory authority protecting information relating to ongoing inspections and investigations or confidential informants. Cf. $5141-48 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. SS2161-68.II Absent any such comparable, explicit statutory basis in the Atomic Energy Act for concealing investigatory matter from participants in ongoing I
hearings, the cited FCC decision provides no additional authority for the NRC's proposed rule, which would disallcw even limited party representatives attending certain in camera sessions.12
- 3. Policy Arguments Against the Proposed Rule We note that the most recent NRC Statement of Policy, the Task Force Report, and the Proposed Rule speak of "the Commission policy favoring full disclosure." See Task Force 11/ The Freedom of Information Act ( "lOI A " ) limits the release of investigatory information to members of the public who request such documents under the procedures in FOIA (see 5 U.S.C. 5552(b)(7)), but FOIA provides that that statute does not authorize any other withholding of information except as specifically provided in FOIA. See 5 U.S.C. 5552(c).
12/ The judicial precedent cited by the Task Force is similarly inapplicable, being grounded on protection of the national defense and security and preservation of state secrets. See Task Force Report at 8, citing Bendix Aviation Corp. v. FCC, 272 F.2d 533, 544 (D.C.
Cir. 1959), cert. denied, 361 U.S. 965 (1960); Heine v.
Raus, 399 F.2d 785 (5th Cir. 1968).
s a
Report at 3,-4-5; 49 Fed. Reg. 36032, col. 2, 36033, col. 3
. (1984); 70 Fed. Reg. 21073, col. 3 (1985). Yet the impact and design of the proposed rule obfuscates that general policy, burying itEin a provision that provides no more than lip service to.the policy favoring full disclosure. See Proposed.
52.795e, 50 Fed. Reg. 21706. Proposed Section 2.795e is worded in such a way as to make disclosure of the information seem to be'the exception and not the rule:
(a) After consideration of a motion from an NRC office for a protective order to imp 6se conditions on or to withhold disclosure of information, including an ex parte in cam' era-oral presentation, and after finding that the information' subject.to the motion is both relevant and material to the pending '
adjudication,.the presiding officer shall determine, in light of the Commission policy favoring full disclosure, whether disclosure of the-information without a protective order could adversely affect the ability of the NRC to conduct an investigation or inspection fullytand adequately or to protect the identity of a confidential informant and whether and to what extent all or part of the information should be withheld from disclosure-or only disclosed subject to conditions.
Proposed $2.795e(a), 50 Fed. Reg. 21706 (emphasis added). The NRC's asserted general policy in favor of full disclosure would be much more-effectively implemented if the last portion
- of the above quoted proposed section were rewritten as follows: . .
. . . .the presiding officer shall determine, in light of the Commission policy favoring i full disclosure, whether restricting disclosure of the information through a protective order is necessary to preserve the L
L- .
c integrity of an NRC investigation or inspection or to protect the confidentiality (of an informant (when it has found ample justification for such has been shown), and to what extent the information should be provided to representatives of the parties to the litigation under an appropriate protective agreement or with identifying details eliminated, if warranted.
Similarly, the Commission's asserted policy in favor of full disclosure is belied by the fact that the proposed rule
' lays out elaborate appellate procedures involving automatic stays of a licensing board decision disclosing information, with mandatory certification of such a disclosure decision to the Commission, and an accompanying discussion of the appellate procedure involved should the Licensing Board decide to disclose the information. See Proposed 552.795e-2.795h, 50 Fed. Reg. 21076-77. Yet the proposed rule provides no procedure for the applicant or intervenor to appecl a decision that prevents disclosure of the Staff's new information that is material and relevant to the adjudication. At least a cross-reference to one of the more conventional portions of the Rules of Practice (if not a sentence or two in one of the new proposed sections), explaining how an applicant or intervenor may appeal a Board's nondisclosure decision, would be in_better keeping with the Commission's general policy in favor of fdll disclosure.13 13/ We note that proposed sections 2.795e(d) and 2.795f(b) provide that the applicant and intervenors may file (Footnote 13 continued on next page)
6 Finally,'we must emphasize the practical and procedural difficulties that would be presented by the proposed rule.
When a party is attempting to prepare for a hearing before a Edecision maker who is already aware of material, relevant information of which that party is unaware, it i's very difficult to know how to structure and focus one's case.
'ertain C evidence, presented in good faith, could be unconsciously dismissed by the Board as based on " stale" information. The situation would be not unlike attempting to represent a criminal; defendant when the prosecutor h'as secretly told the judge that the police have an e9ewitness who saw the defendant commit the crime, but that the eyewitness is reluctant to testify in public. The potential for an unfair influence on the decision maker (conscious or unconscious) is sendeniable.14 (Footnote 13 continued from previous page) briefs before the Commission when the Commission hears an' appeal of a decision granting disclosure. See 50 Fed. Reg. 21076-77. This is purely a hollow, formal gesture, because the relevant facts are unknown to the other parties, the prior and subsequent arguments are ex parte in camera, and the Staff need not even serve its'--
brief on the other parties. See Proposed $2.795f(b), 50 Fed. Reg. 21077; cf. Morgan v. United States, 304 U.S.
1, 16-20 (1938); United States Lines v. FMC, 584 F.2d 519, 537-41 (D.C. Cir. 1978).
14/ Indeed, Appeal Panel Chairman Rosenthal has noted on several occasions the unfairness inherent in Board notifications that present largely unscreened allegations.
i l
j' .
l III.- Con'clusion
- In 1 ght of the. Commission's ongoing concern with the public's perception'of NRC activities, the Commissi'oners
.*hould be loath to engage in ex parte in camera proceedings.
Such secret hearings certainly'do'not promote the public's .
confidence in the integrity and completeness of NRC licensing proceedings (in which public participation is encouraged under
-the Atomic-Energy Act and the NRC's regulations), nor does.it reinforce the' public's awareness of the NRC's-general policy in favor of full disclosure. Furthermore, public confidence in the, safety of licensed facilities or the integrity of'the utility applicant is not furthered by the inevitable media publ-icity surrounding " secret briefings" of NRC Licensing Boards. Accordingly, the NRC should minimize.the use of in canera proceedings. When such in camera' proceedings must be held, due to concerns, determined to be well founded, about compromising ongoing inspections or investigations or revealing confidential sources, then the NRC should at a minimum allow ~ selected representatives of all parties, subject to' an appropriate. protective' order, to participate in any in.
~
camera' proceeding. Such a practice would be consistent with that followed when dealing with highly sensitive plant security plans. -Even if the public does not presently know
- the substance of the proceeding, public knowledge that all parties, including interested governmental entities and
"public interest" intervenors, have representatives present, should enhance the public's appreciation of the integrity of the NRC'$ licensing process.
Most important, however, allowing representatives of all parties to be present for in camera proceedings satisfies the requirements of due process of law that are inherent in Anglo-American jurisprudence. Accordingly, we recommend that the NRC withdraw the proposed rule and enact in its place a much more traditional procedure: (1) recognizing the fact that
. Commission precedent,and due process requires informing not only the Board, but also the other parties of relevant' new information; (2) allowing the Staff or other NRC offices to either (a) present preliminary new information in camera with selected representatives of all parties present subject to a protective order; or (b) inform the Board and parties that an investigation is ongoing, but refrain from presenting preliminary new'information until the inspection or investigation can be made public, and then supplementing discovery responses, supplying additional prefiled testimony, moving to reopen the record, and moving for a stay, as necessary under the current Rules of Practice; (3) if the new information does not merit reopening the record or introducing new, late-filed contentions, the issues can be resolved through enforcement action or negotiation outside the hearing process in accordance with the Zimmer case and consistent with
s a
a With the increased risk of judicial AEQ.
cases such as BPI v.
reversal of lengthy licensing proceedings if the Commission ,
does adopt and employ the proposed rule, the Commissioners a
would be well advised to follow the more traditional, effective, and credible process outlined in these comments.
We urge that the alternative described herein be given serious consideration as a preferable alternative to the We are grateful for the opportunity to comment proposed rule.
on the Commission's proposal.
Sincetely, s
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KosCRT B.wM87E mOSCRT LOWENSTEIN NORM AN A. FLANtNGAM or Counsel July 22, 1985 Secretary of the Comm'ission U.S. Nuclear Regulatory Commission 3 Washington, D.C. 20555 Attention: Docketing and Service Branch
Dear Mr. Secretary:
By notice published cn May 22, 1985, the Nuclear Regulatory Commission requested comments on proposed amendments to Part 2 of its regulations (50 Fed. Reg. 21,072). The proposed amendments would establish "special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection not yet concluded or which would reveal the identity of a confidential informant and deemed relevant and material to an adjudication." (50 Fed. Reg. 21,972.) These comments are filed on behalf of Florida Power & Light Company and Houston Lighting and Power Company.
The amendments would implement the Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings adopted by the NRC last year (49 Fed. Reg. 36,032 (September 13, 1984)). The purpose of that Statement of Policy is to establish a procedure by which to resolve conflicts between the NRC's duty to disclose information to licensing boards and parties.and the need to protect that information or its source. (49 Fed. Reg. 36,033.) The Statement of Policy records the Commission's decision to permit "in camera presenta-tions by the Staff or OI" to licensing boards while excluding all representatives of the applicant or licensee and intervenors.
- % * .. ' y y C) 'Js (j' Y
- a .
NzwMAN & Horerztwoma,P. C.
Secretary of the Commission
. July-22, 1985 Page 2 .
-a The amendments now proposed would incorporate that decision into NRC regulations. We respectfully submit that the proposed regulations and the Policy Statement from which they stem are an unsatisfactory--and, indeed, unfair--resolution of the perceived conflict.
The-parties to an NRC proceeding have a duty to advise boards and other parties of new information which is relevant and material to issues in the proceeding. The NRC Staff shares this duty but an investigating or inspecting office may conclude that it must avoid public disclosure of certain "new information" either "to avoid compromising an ongoing investigation or inspection" or "to protect confidential sources" (or both). (49 Fed. Reg. 36,033.) The Commission has emphasized that ".it favors full disclosure to the boards and parties, that information should be protected only when necessary, and that any limits on disclosure to the parties should be limited in both scope and duration to the minimum necessary to achieve the purposes of the non-disclosure policy." (Id.) Nevertheless, the Commission proposes to permit any NRC office on an ex parte basis to advise a licensing board of information relating to an investigation or inspection and request a protective order "to impose conditions on or to withhold disclosure of information." (Proposed 10 C.F.R. 5 2.795c.)
The notices published by the Commission in connection with the Policy Statement and the proposed amendments both fail utterly to justify the Commission's ex parte, in camera approach. We will, of course, agree that there may be information which should not be made public but that fact cannot in and of itself justify the confiding of such information to a licensing board on an ex parte basis.
The procedures which the Commission seeks to establish would come into play only if the NRC office possessing certain information concludes that it is relevant and material to the pending proceeding and that it must be protected from public disclosure in some specific way. At least these questions are thus involved:
Is the information relevant and material to the l proceeding?
Would disclosure of the information without a protective order compromise or impede an investi-gation or compromise a confidential informant?
t I
l
- = - - .
NCWMAN & HoLTz Noen, P. C.
i Secretary of the Commission July-22, 1985 Page 3 .
o Is protection of the information required?
What is the minimum protection needed?
We believe it is essential for boards charged with resolving those questions to have the views of the parties. For example, how can a board make a reasoned determination that certain information is or is not relevant and material to issues in a proceeding unless it hears the views of those familiar with the issues in the proceeding? Can a board make a reasoned decision as to the minimum protection required if it hears only from those who developed the information?
In our view, considerations of fairness as well as elemental due process require at least that counsel 'for all parties be permitted +o receive the information under protective orders which I ahibit any transmittal of the information to others than counsel. Counsel would then assist the board in deciding the questions identified above and any others which might be involved. Please note that we refer to counsel for the parties and mean thereby to include counsel fo; the NRC Staff who is presently being excluded from discussions before boards in at least some cases. (See attached Notice dated June 4, 1985, in Waterford.)
The procedure suggested above is not unprecedented in NRC practice, boards regularly grant requests for orders protecting information for reasons of security, personal privacy, proprietary interest, etc. We know of nothing inherent in the nature of infor'matien relating to an NRC investigation or inspection which cculd be said to render our proposal unacceptable. Certainly the Commission has stated no justification for the treatment it proposes for such information. There is an implied assumption that represen-tatives of parties would not comply with a protective order but, again, there is no apparent basis for that assumption.
To the best of our knowledge, in the past NRC protective orders have been honored and the Comm1ssion's 1984 and 1985 notices contain nothing to suggest that such orders would not be honored in the future.
In our' view, it is inherently contradictory for the Commission to state that it favors full disclosure while adopting a procedure which must necessarily encourage its own employees to seek to avoid full disclce :Te. We anticipate the response that the regulation prohibite use by boards
I NewMAN & Horrztwoza, R C.
Secretary of the Commission '
July-22, 1985 Page 4 .
of information subject to a protective order in making decisions unless all parties- have been accorded access to the information either with or without conditions. The response to that is simple: No justification has been offered for routinely forcing board members to " segregate" unusable from usable information in the " records" of their minds.
The proposed regulation permits an NRC office to approach a licensing board with an oral motion for a protective order and to make oral presentations to the board ex parte in camera. In light of these provisions, we suggest that, if adopted, the regulation must make clear that any NRC office must reduce to writing the information for which it seeks protection. If that information is not in writing, the possibility of confusion and misunderstanding would be too great and subsequent review could be impossible.
We urge the Commission to revise its policy dnd proposed implementing procedures to require that an NRC office seeking to prevent public disclosure of information of these types first request the board to issue a protective order requiring any counsel for.other parties who receives the information to refrain from disclosing it to anyone. Thereafter, counsel for all parties would participate in the Board's efforts to determine whether the information should be disclosed and on what condition.
Very truly yours, t R.8AA .
11 r Kathleen H. Shea KHS:pg Attachment O
UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION
~
ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: .
n Christine _N. Kohl, Chairman June 4, 1985 Dr. W. Reed Johnson Howard A. Wilber COLSE*E~
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In the Matter of l M JN -4 P3:59 LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 OL
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(Waterford Steam Electric Station, ) 00CkEiiNG & SEe'. -
BRANCH Unit 3) )
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On May 30, l985, we held an in camera hearing with only representatives of the Commission's Office of Investigations (OI) present. The purpose of the hearing was to determine if matters currently under investigation by OI are relevant to matters pending before us in this adjudicatory proceeding. See 49 Fed. Reg. 36,032 (1984).1 During the course of the hearing, we posed a number of questions that OI's representatives were not able to answer at the time.
In an in camera order issued today, we request that -
additional information, c. reasonable access to it, from OI.
FOR THE APPEAL BOARD O [w OW _:
C. Qan Shoemaker Secretary to the Appeal Board 1 '
A verbatim transcript of the hearing was made; OI has been provided one copy, and the original and three additional copies are being kept under seal.
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n July 23, 1985 85 J125 A10'28 0 " lcE 0 3Ec a m DJCXEriN3 4 SEPar-BRANCH Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
Dear Sir:
On May 22, 1985, the Commission published for comment a proposed rule entitled " Adjudications; Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information." (50 F.R. 21072-77, May 22, 1985; corrected 50 F.R. 23138-39, May 31, 1985). The Atomic Industrial Forum's Lawyers Committee submits the following comments for the Commission's consideration.
In August of 1983, the Comm.ission took the first regulatory step in this subject matter area when it issued an interim Statement of Policy (48 F.R. 36358-59, August 10, 1983) which permitted in camera presentations to licensing boards by NRC staff of matters relating to pending invest;gations. Such presentations were to occur with notice to other parties but without disclosure of the substance of the ongoing investiga-tion. Subsequently, the Commission received the report of its internal Task Force on the use of in camera proceedings and promulgated a revised Statement of Policy. (49 F.R. 36032-34, September 13, 1984). The May J2, 1985 proposal is intended to implement the latter policy.
The Commission's Statement of Policy and proposed rule attempt to strike a balance between two, sometimes conflicting, goals.
One goal is to assure that every party to an adjudicatory pro-ceeding is provided an opportunity to participate fully in the litigation of matters which may affect that party's interests.
The second is based on the recognized need to p'otect certain investigatory information from disclosure, where disclosure could hamper the regulatory responsibilities of the Commission and its staff. The Lawyers Committee believes that the balance struck by the Commission in the proposed rule gives far too much weight to protecting investigatory information. The proposal does not appear to be consistent with basic principles of fairness and due process.
O!
, , a' -^ , , n
,M 2 JUL 2 C IE65 futcr % :*.ye*~f. .. .'
- - Secretary _ July 23, 1985 It is our position that, as a matter of general policy, ex parte in-camera procedures should be utilized only when a board concluHes that_it.must do so. The Commission should expressly instruct its boards that, to the maximum extent practicable, boards are to authorize representatives of other parties to participate meaningfully in the decision regarding whether investigatory information should be disclosed and under what conditions.
When investigatory information is in documentary form, essen-
- tially the same procedures as found in 10 CFR 2.744 should apply. The NRC Staff may seek a licensing board or, der that documents need not be disclosed, or that disclosure should be restricted. In making its uccision, the board must consider whether the document is relevant and material, properly exempt from disclosure, necessary to a proper decision in the proceeding, and reasonably obtainable from another source. If the document is not relevant and material, it obviously need not be disclosed. On.the other hand, if the document is relevant and material, and not exempt from disclosure, it
-should be disclosed. Fir. ally, if the document is relevant and material and exempt from disclosure, but its disclosure is necessary to a proper decision in the proceeding, the document should ordinarily be disclosed. Of-course, disclosure may be subject to an appropriate protective order which restricts its disclosure to avoid, or at least lessen, any adverse conse-
- quences which might flow from such disclosure.
Section 2.744 does not require that the licensing board review the documents in question without the benefit of the views and arguments of all of the parties to the proceeding. Rather, the regulation grants the board discretion to-review the document in camera without disclosing its contents to the other parties.
UIven the importance of protecting the right of a party to participate in all aspects of the adjudicatory process, it seems clear that if there is a close question regarding whether the document should properly be disclosed, a board should re-quest the views of all parties to the proceeding who may be affected by the board's decision. Obviously, any procedure selected by.the board which permits such participation should ensure, to.the maximum extent possible, that the information will not be disclosed to the general public.
4
e t Secretary July 23, 1985 b
It is also possible that NRC employees way wish to furnish to a board investigatory information which has not yet been reduced to writing. Such information.would almost certainly be prelim-inary and incomplete and consequently, in our view, is unlikely to be relevant and material to the issues before the licensing board. Boards should be instructed that, except under the most extraordinary circumstances, representatives of the other parties should be permitted access to the information. This type of guidance from the Commission would be consistent with the general policies underlying the Commission's Rules of Practice and would eliminate serious questions of fairness inherent in permitting NRC employees to communicate privately with a licensing board.
The Committee agrees that there may be extraordinary circum-stances which would justify preventing a party from attending in camera sessions. For example, if there is a reasonable Fasis for believing a party may not abide by a protective order and the disclosure of investigatory information would seriously '
hamper the Commission's regulatory responsibilities, it would be appropriate to refuse attendance by the party in question.
If there are sufficient grounds for refusing to permit attend-ance by one or more parties, the boards should be instructed to have the session transcribed. In addition, the board should be careful to limit its inquiry to those facts which are necessary for the board to decide whether the information is relevant and material and whether it should be disclosed under appropriate conditions.
Sincerely, f
b GeneralCou(fel LH:mm
W &
Esp 00ED ltut.E 718-A Iredell St.
ydM9s,8/d 7,2;/ Durham, NC P7705 8-21 85 Secretary, USNRC, Attn Docketing and Service, Proposed Rule 50 PR 21072 Washington DC 20555 coa.nc'-
U3Mc Comments of Wells Eddleman First, the proposed rule app %5rggojpe qqecessary. The Staff can always move for a protective order fo en the identity of a confidential informatt or to pro t~ 'other information which could reveal an informant's identity opp ise.an investigation. A rule requiring Commission review a val of any release of a confidential informant's name or other ntifying information could be of use, but the best policy would simply be not to reveal the identity of confidential informants.
Of course, if the NRC really wants to protect those who give it information, it could be much more supportive of whistleblowers.
The Staff's typical attitude now does not tend to give confidential informants much confidence in the investigation or their concerns.
The Staff seems to do as much as it possibly can to classify concerns "non-safety" related, to find exculpatory evidence for a utility or plant builder, and, e.g. in the case of Chan Van Vo, auparently does not follow up with interveaws of persons identified by an informant as being able to confirm allegations.
Another Droblem is that this rule allows the staff and cresiding officer to take action off the record without a record being ureserved.
Conversations, oral motions, and arguments other than a formal presentation are not requf red to be transcribed. Thus, even board members (other than the presiding officer) won't know what is going on.
And there will not be any record to review later, or there will be an inadequate record.
The rule also comoromises the right ot the nublic to a full hearing on safety-related issues and other issues raterial to a licensing decision. That right is guaranteed by the Atomic Energy Act, Section 189a, and the NRC does not have the authority to change that. Nothing in the proposal exempts intervenors from the extra burdens associated with late-filed contentions, even if the information resulting from an informant or confidential investigation is later made available in the record. Thus, intervenors get a " Catch-22" situation in which a decision made e x arte can prevent their access 4 to facts, but they still bear the burden o ateness duez to that "g decision. !
M E n. Obviously, the purpose of Board Notifications is to let licensing d boards know about material issues. It is therefore unreasonable to E O prevent boards from acting on those issues. A better solution here M m is to preclude a licensing action until such issues have been made d
$ public and there has been a full opportunity to litigate them. This &
g can be done while protecting confidentiality of informants. 4:
a.a: The attempt in this rule to shield information without an ongoir; .;
b investigation seems to indicate administrative laxity by NRC in j go its investigations. Obviously, any allegation by a confidential y
- n. N informant or anyone else, that would reasonably require a Board Notification, should be worthy of investigation (and a request for a protective order).
Certainly there should not be disclosure to licensees or and not to other parties. By not requirin all NFC
}=
aholicants,holdinformationconfidentialwhenaeroteckiveorderis o fices to j s\f f wapplied H !j.J 'for,(. this rule invitesbeabuse, errors, [and a lack of con by informants.
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Proposed Rule: 10 CFR Part 2 ) L
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Adjudications; Special Prodecures )
for Resolving Conflicts )
Concerning the Disclosure or )
Nondisclosure of Informatiota )
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50 Fed. Reg. 21072 (May 22, 1985) )
)
COMMENTS BY THE UNION OF CONCERNED SCIENTISTS AND NUCLEAR INFORMATION AND RESOURCE SERVICE The NRC has published a proposed rule designed to protect the identity of confidential informants and the contents of certain inspections and investigations during licensing hearings.
The proposed rule would allow the NRC staff to make special, confidential requests to Licensing Boards for protective orders where disclosure of the information would " prejudice an inspection or investigation" or " reveal the identity or otherwise compromise a confidential informant." Proposed S 2.795b. The other parties to the hearing would receive notice that such a request had been made, but would not be allowed to review the motion or to attend any sessions with the Licensing Board.
The proposed rule addresses a legitimate need to protect certain NRC investigations and the identity of whistleblowers.
As it is currently written, however, it seriously infringes on the public's right to be informed of and to litigate safety issues that bear on whether a license or amendment should be
\ D granted. The rule should strikes a better balance between
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2-maintaining the confidentiality of investigations and protecting the public's right to participate in licensing proceedings. . At a minimum, the rule should provide for disclosure of all
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e information material to the issuance of a license before the 4
license is granted.
The' proposed rule contains the following serious defects:
I. The proposed rule would allow . the NLC to license nuclear plants without offering an opportunity for a hearing on all material safety issues.
The right to an adjudicatory hearing on all issues material 4 to a licensing decision is guaranteed by Section 189a of the Atomic Energy Act. Union of Concerned Scientists v. NRC, 735 i
F.2d 1437,1444-5 (D.C. Cir.1984), cert. denied,105 S.Ct. 815 i
i (1985). In effect, this proposal would allow the NRC to foreclose intervenors from litigating some relevant and k potentially serious safety issues by denying access .to the information during the pendency of licensing hearings. The information potentially subject to nondisclosure encompasses virtually all issues' relevant to licensing, ranging from manangement competence to the quality of individual safety
. systems.
Moreover, the proposed rule's loose standard for determining what constitutes inspections and investigations makes it easy for the NRC staf f to avoid disclosure of troublesome or embarrassing information. The staff may obtain a protective order simply by ,
) initiating an inspection, or even by stating to the. Licensing
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Vr Board its intention to investigate a problem.1 Intervenors would ;
have no opportunity to challenge such assertions.
While the Commission may have a legitimate need for
- confidentiality during an inspection or an investigation, that need does not override the Commission's obligation to offer an opportunity for a hearing on " protected" issues if they are
! material to the issuance of a license. Whether the Commission releases information publicly or discloses it under a protective agreement to the parties, it must provide some opportunity to litigate the issues before a license is granted. "The Commission is entitled to great freedom in its efforts to s*ructure its proceedings so as to maintain meaningful participation, but one of its goals must be to assure that there is meaningful public participation." Union-of Concerned Scientists v. NRC, supra, 735 F.2d at 1446, quoting Bellotti v. NRC, 725 F.2d 1380, 1389 (Wright, J. , dissenting) (emphasis in original). !
L In apparent recognition of this principle, proposed S 1
2.7951 requires the Licensing Board to place protected.
'information (excluding names of confidential informants) in the public record of a "pending adjudication" once an investigation f or inspection has concluded or the NRC staf f withdraws its l
objection to disclosure. However, this provision does not 1 As the -Commission states in- the preamble, the rule would apply not only to pending investigations and inspections, "but may also include information' on the basis of which the NRC m whether to initiate an inspection or investigation.gy determine 50 Fed.
Reg. at 21075, Col.1 (emphasis added) .
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adequately guarantee that an investigation will actually be concluded before a hearing record closes or even before a license is' issued. Moreover, it doesn't assure that intervenors will not be precluded or discouraged from litigating the issues by having to meet heavy burdens for reopening the record or filing late
. contentions. The rule should state specifically that no licensing decision will be made, nor will the hearing record be closed, before all material information has been made available to the parties.2 Because intervenors are not responsible for the late availability of the information, the rule should also state that contentions on these issues will be judged according to the commission's standards for initial filing of contentions.
II. The proposed rule prevents Licensing Boards from considering issues that are subject to protective orders.
We understand that one of the purposes of this proposal is to allow the staff to brief Licensing Boards on serious safety problems affecting licensing decisions without jeopardizing the confidentiality of the staff's investigations of the problems.
However, the proposed rule defeats this purpose by preventing the Licensing Board from doing anything with the information. The proposal provides that once a protective order has been issued, In most cases, the identity of a confidential informant would not need to be disclosed in order to litigate technical issues bearing on the safety finding required for issuance of a license or amendment. In the event that the identity of an informant was determined to be material to a licensing decision, however, the Board would be. required to disclose the identity of the informant under a protective agreement.
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no information subject to the order can be used by the Licensing Board in making any decisions in the pending adjudication unless all parties have been given access to the information. Proposed S 2.795k. Under this provision, a Licensing Board would have no authority over the safety issues covered by a protective order until the inspection or investigation had concluded or the NRC staff had consented to disclosure. Thus, the Licensing Board could not evaluate the adequacy of an NRC staff investigation during its progress, or even decide to postpone a decision on an issue related to the investigation.
While this provision would protect an intervenor from illegal ex parte decisions by a Licensing Board, it would also hamper the Board's ability to make fully informed decisions. If, for example, the license was scheduled for issuance prior to completion of an investigation, the Board might never have the opportunity to weigh serious safety allegations in its decision.
And, no matter how relevant a pending, protected investigation might be to issues under litigation in a licensing hearing, the Board would have no authority to consider the investigatory evidence as part of the whole case. The rule should preclude the Licensing Board from making any final decisions until all information material to the issuance of the license has been disclosed for consideration by the Board and the parties.
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III. The proposed rule conflicts with the Freedom of Information Act.
The Commission states that it does not intend to use these proposed procedures to shield information properly subject to disclosure under the Freedom of Information Act (FOIA). 50 Fed.
Reg. at 21074, Col.1. However, the proposed rule provides much broader protection for information relating to inspections and investigations than is conferrred by the FOIA.
The Freedom of Information Act, 5 U. S.C. 552(b) (7 ) ( A),
exempts f rom disclosure " investigatory records compiled for law enforcement purposes, but only to the extent that production of such records would interfere with enforcement proceedings." In interpreting this section, the courts have held that the government must demonstrate that the information relates to a
" concrete prospective law enforcement proceeding." Carson v.
U.S. Department of Justice, 631 F.2d 1008,1018 (D.C. Cir. 1980).
(emphasis added).
In stark opposition to these holdings the Commission states that, in order to qualify for a protective order under the proposed rule, the information "need not relate solely to an ongoing inspection or investigation but may also include information on the basis of which the NRC mag determine whether to initiate an inspection or investigation." 50 Fed. Reg. at 21073, Col.1 (emphasis added) . This language would allow the Commission to shield virtually any allegations based only on the speculation that they might lead to an inspection or an investigation. The proposed rule should require the NRC office
I
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requesting a protective order to demonstrate that allegations are being reviewed actively under the Commission's procedures for management of allegations.
The proposed rule also contains a confusing provision which implies that the Licensing Board need not make the maximum disclosure required by the FOIA unless a FOIA request is made.
Proposed sec. 2.795j(b) provides that when a FOIA request is received for information that has been withheld under a protective order, the presiding officer must review the record "and determine, in the light of any exemptions that may validly be claim,ed under the provisions-of the F'OIA and the Commission's regulations, whether the information in whole or in part i
continues to be protected or whether and under what conditions it may be released." The rule should state clearly that from the outset, the Licensing Board's standard for disclosure of information is at least as broad as the FOIA.
IV. The proposed rule does not provide adequate assurange that inconsistent disclosures will not take place.
l In the past,f the NRC of ten has made inconsistent decisions regarding disclosure of information. Requestors have been denied documents under the Freedom of Information Act, only to find that the withheld documents were released previously to the licensee or some other party. The problem seems to lie in a lack of procedures for communication of disclosure decisions between various NRC offices.
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This proposed rule has the potential to compound the problem
-of inconsistent disclosures. Allegations may be in.the custody of several different NRC offices at once, including the offices of Nuclear Reactor Regulation, Inspection and Enforcement, and Investigations. These offices operate under a policy that all allegations should be disclosed to licensees and applicants unless the disclosure would jeopardize an inspection or investigation or compromise a confidential witness. " Proposed NRC Manual, Chapter 0517, Management of Allegations," S 058.
Hence, these offices may disclose allegations to a licensee or applicant long before they become relevant to a licensing adjudication. Similarly,.information may be released under the FOIA before it is raised in an adjudication. In order to ensure that Licensing Boards are not asked to shield information that is 3
already in the possession of the licensee or applicant, the rule
'should require that any NRC office seeking a protective order must certify to the Licensing Board that it has consulted all other offices that have custody of the information, and determined that none of it has been disclosed to the licensee or any other party.
Respectfully submitted, 4.
Nina Bell iane Curran Nuclenr Information and Harmon & Weiss.
Resource Service 2001 S Street, N.W.
1616 P Street, N.W. Suite 430 Suite 160 Washington, D.C. 20009
' Washington, D.C. 20036 (202) 328-3500 (202)-328-0002 August 23, 1985
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] comerC submittOls OTd Cresentat1~ns just tC re: Vest that informot1CD MCt te releOsec, Lhile the nee: r3 OPCtect2Cr Of sVCh matters is importont, it MS, "~t ~0*s "*;*tS~t t*a* C ra1* Cnd 00mplete odjud100t10n f assbes PGte*131 t; 1 :=nsin; 3 t:Ons, Gs required by Section 1E: Of the Otsm:: En=r;y :t. Os interpreted by 1'nier or Cencernec : ienessts .. Npc. 73= F.:e 1437 (D.C. Cir. 196*).
Tnere needs e: te o teeter : lsn:e eeeween enese twC factors.
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- Se COrties Unte~ O CrOte~t: Ve Order, and hOldin; on> heCrir5s 0 " n ~ e r r.g n g t%e pa rtecter :nfcristice :r c-- a r.. e r $ . w tm C r. l j the 5: 70GtCrs to the grCteCt:ve Orcer Cresert. I 21s0CurG?e V1 Clot 1CDs Cr PT: t e C !i' e Crders. st"::t PenGiries shCulc ce 3VC11Cble C00 e*f **er. ? :: 15 rCVen ce;Cn: ? *eOsOnO le dCubt th0! O D e r s t r. Or Gr t. w' a s
- esc *sible fOr d150losure Gnc the diSOlosure resulte: in h G r r. t: On investiSCt:On Cr ConfidentiG1 inrormont, The censities shCuld i nClude deniG1 Cf a license, disesssol of o carty, one cistorment of otterreys.
The NRC's cwn Fclicies and cctual cersonnel behovsor Cf indicote that the FrCFOsed measures will selectively block the flow Of informati0n, Intervenors will te ceriec 000ess to information, while 12censees cre rcutznely 2nfermed cf cllegations one anvest:gctions. T"1s :s c:tuolly NFC =cl: 3 cs hhcs
>w written in aprecesed NRC Monual, Cnopter O'17 Manosement of b Allegottens.. It as ruether FnCw" t: 0CFE tmoe on sne2vzeucl g fctmerly working out er NFC's Fesien III mode i t his personal I Q P0li:y to disc 1Cse the identity Of snfctmonts tC the licensees f 1 fcr whom they workec. Unless and until the NFC hos proven its
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Pose 2 Teol opportunity tC responc to the '3 tof f 's claims fCr the need fer confidentiality as 32 coree in comero croceedings are cntemcloted. Mc one will be odle ec refute the storf's motions and orsuments os thezr content will de unknown. Thss gives the tC' Chart the CCurse of o-PPDCeedin9, and Stoff unworronted Cowe" F0ssibly to deterr.ine its cut:Ome, b ;- de loring informotion exeter fact ass:1:sure os it may te the subject of on inspectior cr. invests;oti:r. The POtentici for otuse here is extreme.
Inferrotien Mc Pr ul te o licensee may never ce reveolee if the 5 toff chcCses t0 claim exemptiCn on this costs. The rule shoul:
prohibit 1scensing boords form reochtn; o rinol dec2sien untti oil
'inf0TnotiCD material tC the issuonOe of the license hos'been esselosee tc the Fortses. A new contentson bosee cn recently-releosse- noterio; 'c evicus1; held to te cCnfacertial sh ule te Jud9ed oCCorcin9 to the stoncords for FiliP9 i91tiol ContentiCns, even if reCFenie; Of the record is inVC1Ved.
InterVenCrs should not hove t0 meet heoVy curdens fer COnsideratiCn of CCnter?1ons tosed uPCn material FreviOusly unovatiotle t0 ther.
Finally, the proposed rule is inconsistent with the Free:Cm of Information Act, The NGC noy r, c t have regulotiens granting the public less access to informotion than does FOIA. Ge eral Electric Cc. v. NDC, (7th Cir. 1054. Case No. E4-2666), slic cc.
ot 4. The PropCsed rule would shiGid information "on the basis of which the NRC moy cetermine whether to initzote o r, inspectier or investigotion." 50 FR 21073. This is inconsistent With Judteiol interpretation of FCIA Exemptien 7 (2nvestzgotory records). Which opplies only to informorion concerning a concrete crospective low enforcement creceeeing. Corson ' > . OCJ, 631 F.2d 10Cf. 1016 (D.C. Cir. 1980). The cresent proposo; would shield vartually any sorormation whsch the stoff reels m:she be the-sueJeet cf an znspectiCn or investigotict. Alr0st cry Potter CCuld foil into that Cate9 Cry, thus Ireoting the COtsntic; rey stygg, The F#0F0!ci, *ovin; ser:Ous dersciercles, shcule GCT be CDPrOVet.
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'85 M 30 Alo:46 20i 263-6500 i TELEX 136-482 i 7,... Wnter's Direct Dial Number: l 60C O N. G 5 9 .;
3R A L'H August 21, 1985 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555
Dear Mr. Chilk:
Subject:
Request for Coments on Adjudications Proposed Rule (10 CFR Part 2)
The staff of GPU Nuclear Corporation herewith submits comments on the subject proposed rule. Comments were requested in a May 22, 1985 Federal Register notice (50 FR 21072).
As a general comment, we believe this proposed rule appears to achieve its ourpose in providing shielding / confidentiality for informants, however we see specific problems with the proposal and these are listed below.
The proposed rule could provide some difficulties for licensees and other parties to investigations, inspections or adjudicatory procedures. The rule is not clear on how the basic constitutional right to be able to confront accusers will be maintained in these semi-judicial proceedings.
An additional requirement to maintain fairness in these proceedings is also of concern. For example, if adverse material is revealed by a confidential informant, therefore unchallengable, how is a party to a proceeding protected and assured that this information is not used in the judgment of the presiding officer.
Although "under the proposed procedures, a presiding officer may not use information subject to a protected order in making any decision in the pending adjudication unless all parties to the pending adjudication have been accorded access to the information and given appropriate opportunity to aodress the information", the ability to exclude information can be questioned. In addition, when "information is made available only under specified conditions" this may not allow an appropriate challenge or discrediting of adverse information in these proceedings.
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In addition, the delays resulting from processing and granting protection to' an informant may arbitrarily. affect the licensee or a party to an adjudication.
We would request that the Commission attempt to clarify these points
'before finalizing this rule.
Sincerely, hW b ,
J. R. Thorpe Director Licensing & Regulatory Affairs RPJ:nk:2238f l
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Septerber16,19g8 19 P2:02 Jane R. Mapes N M EECM9 Senior Regulations Attorney fhC Regulations Division Office of the Executive Ingal Director U.S. Nuclear Regulatory Ccmrission Washington, D.C. 20555
Dear Ms. Mapes:
We are writing to offer sane carments on the Nuclear Regulatory Ccmnission's proposed rule "Special Procedures for Resolving Conflicts Concerning the Disclo-sure or Nondisclosure of Information" (Federal Register, Vol. 50, Na 99, p.21072)
The proceduren would restrict the disclosure of information in certain situations where the NRC staff felt that disclosure could " prejudice an inspection or inves-tigation" or " reveal the identity or otherwise corprunise a confidential informant."
While we understand the NBC's interests in protecting whistleblowers and possibly the confidentiality of scme investigations, we believe the proposed rules pose a nunber of procedural and substantive problems. The wording of the proposal is so broad in parts that it invites excessive and possibly improper withholding of information. Additionally, it creates the possibility of infor-mation being denied to sane parties in a proceeding while being made available to others. And, perhaps most importantly, it risks decisions made by Licensing Boards to be based on incanplete and consequently inaccurate data.
The proposed rule would likely permit the shielding of more infonnation fran the public than is intended to be protected by the Freedan of Information Act.
The NIA's seventh exenption permits an agency to withhold investigatory records related to and ocnpiled for law enforcenent purposes - subject to a number of restrictions. Generally, withheld records must relate to actual enforcenent O proceedings or at least "a concrete prospect of enforcenent proceedings" must 0 exist (MIA's legislative history -- camnents of Senator Hart,120 Cong. Fec.
g S9330 (daily ed. !by 30, 1974)).
h However, the proposed rule provides that "the information [to be withheld]
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need not relate solely to an ongoing inspection or investigation but may also
' " include information on the basis of which the NBC may determine whether to ini-g tiate an inspection or investigation." That is, to shield any docum nts that it may be uncunfortable revealing, the NBC need only claim that the requested 0- information may possibly lead to an investigation at sane uncertain time in the i future. This prcvides a carpet under which the NFC could sweep a great deal of g material it preferred not be exposed to public scrutiny - whether justified or not.
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I^I Even if NRC maintains that it w uld release records in response to MIA D requests that might otherwise be withheld under the proposed rule, there is a significant risk of inconsistent disclosures. Interpretations will vary fran
, official to official of what materials are properly withheld under the m IA Cntcal Mass Energy Project . 215 Pennsytvane Avenue S E. . Wasnogton. D.C. 20003. (202) 546-4790 YNY
. (2) or any applicable withholding statutes. Further, since officials considering a FOIA request have sme discretion to release exempt material, it is possible that one official could release records to one requester while another official denied similar or the same docments to another. NBC does not now have in place proce-dures that insure consistent disclosure practices or which allow the tracking of prior disclosures.
- Consequently if the NBC places further restrictions on the flow of information through the enactment of the proposed rule, problems of inconsistent releases can be expected to worsen. And that raises the possibility that sme parties, such as licensees or applicants, may be able to gain possession of materials that are simultaneously denied to other parties, such as intervenors. There is obviously no assurance that one party will ammunicate to another that it has acquired cer-tain records particularly if it is adverse to its own position.
Of greater concern than the proposed rule's impact on information disclosure procedures, is its likely impact on the substantive decision-making process. As proposed, the rule provides that any information for whief. a protective order is granted could not be considered by the Licensing Board or any of the affected parties in a given prMing. Moreover, there is nothing to stop a Licensing Board frm issuing a final decision without having first seen and considered the protected information.
Thus, it is possible that information concerning, for exanple, serious safety shortomings at a plant could be withheld frm the Licensing Board's considera-tion. 'Ihe Board could nonetheless proceed to issue a final decision on a license application for the plant. 'Ihe consequences of a Licensing Board being unable to make a fully informed decision in such ciremstances could be dangerous at the least.
Withholding information and related issues frm an adjudicatory hearing would further som to be in clear violation of the Atcmic Energy Act (S 189a) which guarantees intervenors the right to a full review of all material issues in a licensing decision. By denying access to selected information, intervenors would have no opportunity to frame issues or challenge the assertions of licensees. .
All parties have a right to a hearing on the protected issues and to have an opportunity to litigate those issues before a license is approved.
At the minimtn, the proposed rule should be amended to provide for the follow-ing safeguards: ,
(1) Where a legitimate need exists to withhold any information via a protective order, then all affected licensing and other prrvmHngs should be suspended until such time as it is possible to release the material. At the very least, no Licensing Board decisions should be regarded as " final" until all withheld information is disclosed to the interested parties.
(2) 'Ihe standard erployed by a Licensing Board for disclosing information should be at least as broad as that provided for by the M IA. Further, there should be no new restrictions placed on access to information until NBC develops internal procedures to insure consistency in its disclosure decisions.
These steps would help insure inplementation of the Chtmission's policy of disclosing all material information to all parties in NBC adjudicatory prwmHngs.
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We appreciate this opportunity to provide caments on the NBC's proposed rule. Please feel free to contact us if there are any questions regardirs the points raised in this letter.
Sincerely, l .0 ,
,E D &LL h I Ken Bossorg, DirectoQ Critical Mass Energy P,ioject
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of Public Citizen KEB t
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