ML20136F403

Statement of Policy Re Investigations,Insps & Adjudicatory Proceedings

ML20136F403
Person / Time
Issue date:	09/07/1984
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML19310G510	List: ML20136B018 ML20136B085 ML20136B100 ML20136B185 ML20136B221 ML20136B242 ML20136B249 ML20136B260 ML20136B270 ML20136B275 ML20136B283 ML20136B292 ML20136B307 ML20136B319 ML20136B326 ML20136B330 ML20136B347 ML20136B360 ML20136B377 ML20136B389 ML20136B438 ML20136B462 ML20136B643 ML20136B650 ML20136B665 ML20136B676 ML20136F399 ML20136F403 ML20136F444 ML20136F531 ML20136F589 ML20136F602 ML20136F673 ML20136F786 ML20136F794 ML20136F803 ML20136G003 ML20136G231
References
FRN-48FR36358, RULE-PR-2 AB78-1-002, AB78-1-2, NUDOCS 8410300385
Download: ML20136F403 (12)

Text

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STATEMENT OF POLICY <

, INVESTIGATIONS, INSPECTIONS, AND ADJUDICATORY PROCEEDINGS 3

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On August 5, 1983, the Commission set forth interim proce-dures for handling conflicts between the NRC's responsibility to disclose information to adjudicatory boards and parties, and the NRC's need to protect investigative material from premature public disclosure. " Statement of Policy -- Investigations and Adjudicatory Proceedings," 48 Fed. Reg. 36358 (August 10, 1983).

Those interim procedures called for the NRC staff or Office of Investigations (OI), when it felt disclosure of information to an adjudicatory board was required but that unrestricted disclo-sure could compromise an inspection or investigation, to present the information and its concerns about disclosure to the board h cay ,ra, without disclosure of the substance of the information to the oth;r parties. A board decision to d'isclose the information to the parties was appealable to the Commission, and the board was not to order disclosure until the Commission addressed the matter.

That Statement of Policy was to remain in effect until the commission received and took action on the recommendations of an internal NRC task force established to develop guidelines for reconciling these conflicts in individual cases. The Commission in that Statement also requested public comments on the propriety and desirability of ex parte in camera presentation of informa-tion to a board, and suggestions for any better alternatives.

,, e 4' 3 ']/0 3 o O SBS NA- p . .

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,- . 2 The Task Force submitted its report to the Commission on December 30, 1983. A copy of that report will be placed in the Commission's Public Document Room. The Task Force approved the principles discussed in the Commission's earlier Statement of Policy, and made several recommendations intended to define specifically the responsibilities of the boards, the staff, and OI in presenting disclosure issues for resolution.

The Task Force recommended that the f.inal Policy Statement explain that full disclosure of material information to adjudica-tory boards and the parties is the general rule, but that some conflicts between the duty to disclose and the need to protect information will be inevitable. The Task Force further recom-mended that issues regarding disclosure to the parties be initi-ally determined by the adjudicatory boards with provision for expedited appellate review, and that procedures for the resolu-tion of such conflicts be established by rule. Finally, the Task Force suggested that existing board notification procedures should remain unaffected by the Policy Statement, and that those procedures and Commission guidelines for disclosure of informa-tion concerning investigations and inspections should apply to all NRC offices. Those recommendations have been incorporated in this Statement.

In addition, two comments were submitted by members of the public.

One commenter stated that the withholding of information .

from public disclosure should be confined to the minimum

3 essential to avoid compromising enforcement actions, and that appropriate representatives of'each party should be allowed to participate under suitable protective orders in any in camera proceeding except in the most exceptional cases.

The other commenter maintained that an in camera presenta-L tion to the board with only one party present is undesirable and violates the ex parte rule. That commenter suggested an alterna-

. tive of having the attorneys or authorized representatives of parties who have signed a protective agreement present at any in

! camera presentation, with appropriate sanctions for violating the protective agreement.1 The Commission, after considering these comments and the report of the Task Force, has decided that it wod1d be appropri- f ate, in~ order to better explain the Commission's policy in this area, to provide the following explanation of the conflict becween the duty to disclose investigation or inspection informa-tion to the boards and parties and the need to protect that

'informationt ,

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I l Both comments also included suggestions regarding matters l beyond the scope of this Policy Statement, which in concerned l only with establishing a procedure to handle conflicts between

the duty to disclose information to the boards and parties and

! the need to protect that information. For instance, one

suggestion was that the NRC impose a more stringent standard in t

! deciding whether information warrants a board notification. .

l Another recommended that the NRC improve the quality of its investigations. ,

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All parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in controversy in the proceed-ing. Such disclosure is required to allow full resolution of all issues in the proceeding. The Commission expects all NRC offices to utilize procedures which will assure prompt and appropriate action to fulfill this responsibility.

However, the Commission recognizes that there may be con-flicts between this responsibility to provide the boards and parties with information and an investigating or inspecting office's need to avoid public disclosure for either or both of two reasons: (1) to avoid compromising an ongoing investigation or inspection; and (2) to protect confidential sources. The importance of protecting information for either of these reasons can in appropriate circumstances be as great as the importance of disclosing the information to the boards and parties.

With regard to the first reason, avoiding compromise of an investigation or inspection, it is important to informed licens-ing decisions that NRC inspections and investigations are conducted so that all relevant information is gathered for appropriate evaluation. Release of investigative material to the subject of an investigation before completion of the investi-gation could adversely affect the NRC's ability to complete that investigation fully and. adequately.

The subject, upon discover-ing what evidence the NRC had already acquired and the direction l

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being taken by the NRC investigation, might attempt to alter or limit the direction or the nature or availability of further statements or evide'nce, and prevent NRC from learning the facts. '

The failure to ascertain all relevant facts could itself result in the NRC making an uninformed licensing decision. However, the need to protect information developed in investigations or inspections usually ends once the investigation or inspection is l

completed and evaluated for possible enforcement action.

The second reason for not disclosing investigative material

-- to protect confidential sources -- has a different basis.

Individuals sometimes present safety concerns to the NRC only after being assured that their individual identity will be kept confidential. This desire for confidentiality may arise for a number of reasons, including the possibility of harassment and retaliation. Confidential sources are a valuable asset to NRC inspections and investigations. Releasing names to the parties in an adjudication after promising confidentiality to sources would be detrimental to the NRC's overall inspection and investi-gation activities because other individuals may be reluctant to bring information to the NRC. However, the need to protect confidential sources does not end when the investigation or inspection is completed and evaluated for possible enforcement action.

By this Policy Statement, the Commission is not attempting to resolve the conflict,that may arise in each case between the duty to disclose information to the boards and parties and the l

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g need to protect that information or its source. The resolution of actual conflicts must be decided on the merits of each indi-vidual case. However, the Commission does note that as 1 general .

! rule 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.

The purpose of this Policy Statement is to establish a procedure by which the conflicts can be resolved. The Policy Statement takes over once a determination has been made, under established board notification procedures, that information should be disclosed to the boards and public, but OI or staff believes that the information should be protected. In those cases the Commission has decided that the only workable solution to_ protect bot,h interests is to provide for an in camera presen-tation to the board by the NRC staff or OI, with no other party present. Any other procedure could defeat the purposes of non-disclosure and might actually inhibit the acquisition of information critical to decisions. Allowing the other parties or their representatives to be present in all cases, even under a protective order, could breach promises of confidentiality or allow the subject of an investigation to prematurely acquire

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information about that investigation. We note in this regard'the difficulties of attempt'ng i to prevent a party's representative.

.. . 7 from talking to his client about the relevance of the information and how to respond to it, even under a protective order.

The Commission believes that the boards, using the proce-dures established in this Policy Statement, can resolve most potential disclosure conflicts once they have been advised of the nature of the information involved, the status of the inspection or investigation, and the projected time for its completion. In many of the cases when the procedures in this Policy Statement are triggered by a concern for premature public disclosure, it may be possible for boards to provide for the timely considera-tion of relevant matters derived from investigations and inspec-

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tions through the deferral or rescheduling of issues for hearing.

In other instances, the boards may be able to resolve the conflict by placing limitations on the scope of disclosure to the parties, or by using protective orders.

The Commission wishes to emphasize that these procedures do not abrogate the well-established principal of administrative law that a board may not use ex parte information presented in camera in making licensing decisions. These procedures are designed to allow the boards to determine the relevance of material to the adjudication, and whether that information must be disclosed to the parties, and, if disclosure is required, to provide a mecha-nism for case management both to protect investigations and inspections and to allow for the tinely provision of material and relevant information to c the parties. As such these procedures.

are analogous to the procedures for resolving disputes regarding

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discovery, see, e.c., 10 CFR 2.740 (c) , and do not violate the prohibition in 10 CFR 2.780 against ex parte discussion of substantive matters,at issue. ,

In accord with the above discussion, the Commission has decided that the procedures to be followed, where there is a conflict between the need for disclosure to the board and parties and the need to protect an investigation or inspection, will include in camera presentations by the staff or OI. However, because this procedure represents a departure from normal Commis-sion procedure, it is the Commission's view that the decision should be implemented by rulemaking. Accordingly, the Commission directs the NRC staff to commence a rulemaking on the matter.

Until completion of the rulemaking, the following will control the procedures-to be followed in resolving conflicts between the duty to disclose to boards and the need to protect information developed in investigation or inspection:

1. Established board notification procedures should be used 1 by staff or OI to determine whether information in their posses-sion is potentially relevant and material to a pending adjudica-tory proceeding. The general rule is that all information warranting disclosure to the boards and parties, including

- information that is the subject of ongoing investigations or inspections, should be disclosed, except as provided herein.

While this Statement refr_s only to staff and OI who are *

[ Footnote Continued]

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2. When staff or OI believes that it has a duty in a particular case to provide an adjudicatory board with information concerning an inspection or investigation, or when a board .

requests such information, staff or OI should provide the infor-mation to the board and parties unless it believes that unre-stricted disclosure would prejudice an ongoing inspection or investigation, or reveal confidential sources. If staff or OI believes unrestricted disclosure would have these adverse results, it should propose to the board and parties that the information be disclosed under suitable protective orders and other restrictions, unless such restricted disclosure would also defeat the purpose behind non-disclosure. If staff or OI believes that any disclosure, however restricted,' would defeat the purpose behind non-disclosure, it shall provide the board with an explanation of the basis of its concern about disclosure and present the information to the board, in camera, without other parties present. A verbatim transcript of the in camera proceeding will be made.3 All parties should be advised by the board of the conduct and purpose of the in camera proceeding but should not be informed of the substance of the information presented. If,

[ Footnote Continued]

the organizations principally involved, the statement will apply to any other offices of,the Commission which may have the problem.

3 Nothing in this Statement prohibits staff and OI from sharing information.

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10 after such in camera presentation, a board finds that disclosure to other parties under protective order or otherwise is required (e.g., withholding information may prejudice one or more parties or jeopardize timely completion of.the proceedings, or the board disagrees that release will prejudice the investigation), it shall notify staff or OI of its intent to order disclosure, specifying the information to be provided, the terms of any protective order proposed, and the basis for its conclusion that prompt disclosure is required. The staff or OI shall provide the board within a reasonable period of time, to be set by the board, a statement of objections or concurrence. If the board disagrees with any objection and the disagreement cannot be resolved, the board shall promptly certify the record of the in camera proceed-ing_to the Commission for resolution cf the disclosure dispute, and so inform the other parties. Any licensing board decision to order disclosure of the identity of a confidential source shall be' certified to the Commission for review regardless of whether OI and staff concur in the disclosure.4 The board's decision shall be stayed pending a Commission decision. The record before the Commission shall consist of the transcript, the board's Notice of Intent to require disclosure and the objections of 4

The Commission has decidad to review any licensing board decision ordering disclosure of the identity of a confidential source.because of the importance to the Commission's inspection and investigation program of protecting the identity of confidential sources.

.. . .. 11 Staff or OI. Staff or OI may file a brief with the Commission within1 ten days of filing ~a statement of objections with the board. The record before the Commission, including staff or OI's brief, shall be kept in camera to the extent necessary to protect the purposes of non-disclosure.

The Commission recognizes that no other party nay be in a position effectively to respond to staff or OI's brief because l 1

the proceedings have been conducted in camera. However, in those cases where another party feels that it is in a position to file a brief, it may do so within seven days after staff or OI files its brief with the Commission.

3. Staff or OI shall notify the board and, as appropriate, the Commission, if the objection to disclosure to the parties of previously withheld information, or any portion of it, is withdrawn. Unless the Commission has directed otherwise, such

'information -- with the exception of the identities of confiden-tial sources -- may then be disclosed without further Commission order.

4. When a board or the Commission determines that informa-tion concerning a pending investigation or inspection should not L

be disclosed to the parties, the record of any in camera proceed-ing conducted shall be deemed sealed pending further order. That record will be ordered included in the public record of the adjudicatory proceeding upon completion of the inspection or

, investigation, or upon public disclosure of the information involved, whichever is earlier, subject to any privileges that

, * * ** 12 0- o may validly be claimed under the Commission's regulations, including protection of the identity of a confidential source.

Only the Commission can order release of the identity of a ,

confidential source.

Dated at Washington, D.C. this 7 > day of September, 1984.

U.S. NUCLEAR REGULATORY COMMISSION 2.AA) ~ 9

(,

SAMU g 7. CHILK Secretary o,. the Commission l -

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1. UNITED STATES IN RESPONSE, PLEASE

1. ~ ~g REFER TO: M840906B f *' o NUCLEAR REGULATORY COMMISSION W ASHINGTON, D.C. 20555 g- .

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• • • • • September 10, 1984 Cys: Dircks CFFICE OF THE Roe SECRETARY MEMORANDUM FOR: Herzel H.E. Plaine, Gene ounsel Stello Minogue Samuel J. Chilk, Secreta Denton FROM:

DeYoung 7

SUBJECT:

STAFF REQUIREMENTS - AFF IR " ION / DISCUSSION AND VOTE, 3 : 30 P.M. , THURS: , SEPTEMBER 6, '

1984, COMMISSIONERS' CONFERENCE ROOM, D.C.

OFFICE (OPEN TO PUBLIC ATTENDANCE)

I I. SECY-84-307 - Petition of Alabama Power Company for Declaratory Order Interpreting Antitrust License Condition The Commission, by a vote of 5-0, approved an order denying

' Alabama Power Company's request that the Commission clarify the utility's obligation under the antitrust license conditions in the Farley Nuclear Plant Operating License and indicated that the usual procedures in 10 CFR Part 2, Subpart B (10 CFR R 2.206) should be used. .

(Subsequently, on September 7,1984 the' Secretary signed the Order.)

II. SECY-84-276/276A - Report of the Task Force on Investigations, Inspections and Adjudicatory Proceedings The Commission, by a vote of 5-0, approved a Final Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings and directions to the EDO to initiate rulemaking (see attached memo).

(Subsequently, on September 7,1984 the Secretary signed the Policy Statement.)

Attachment:

As stated.

cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech Commission Staff Offices EDO PDR - Advance DCS - 016 Phillips Qh

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'6Woyv7 v , f / /('

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'o - UNITED STATES REF: ED014784

!' ,g e NUCLEAR REGULATORY COMMISSION

• E W ASH IN G T ON , D.C. 205SS I ', .8 ACTION - GCunningham

b. "~8 , September 12, 1984 Cys: rcks OF FICE OF THE Rehm SECRETARY btello Minogue Denton DeYoung MEMORANDUM FOR: William J.

Dircks,Execp)iveDirector for Operations FROM: Samuel J. Chilk, Secre(a

SUBJECT:

RELATIONSHIP BETWEEN INVEMTIGATIONS/

INSPECTIONS AND ADJUDICATIONS (SECY-84-276/276A)

The Commission has adopted.a Statement of Policy on the procedures to be followed in resolving the potential conflict between the duty to disclose information to adjudicatory boards and parties and the need to protect information obtained in investigations and inspections.

However, because the in camera procedures being adopted are a departure from normal Commission practice, the Commission believes it would be desirable for them to be implemented through a rulemaking.

Accordingly, the Commission requests that you implement the procedures in the Policy Statement through a rulemaking.

You should. proceed to issue a proposed rule (based upon the policy statement) for comment and prepare a final rule for Commission consideration following analysis of the comments received. Should you need additional guidance in pre-paration of the proposed rule (beyond the Policy Statement) you should consult with the Commission.

- (EDO/ ELD) (SECY Suspense: Issue proposed rule: 12/15/84)

Final rule to Commission: 3/30/85) cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech OGC Rec'd 0tf. EDO Da te . . . . . ~~ I .S. .^. ==

OPE Time . . . . . S.\ M. *n g3 849867 Q l w ll t> P-

M i 2032 FedIral R: gist;r / Vol. 49. No.179 / Thursday. September 13, 1984 / N:tices-M ..

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fJed with the Department by the Trust. conflicts between the NRC's guidelines for disclosure ofinformation '

I Such plan is not required to include in responsibility to disc!ose information to concerning investigations and - ' l the annual report any information adjudicatory boards and parties, and the ins?ections should appiy to all NRC I

concerning indnidual transactions of NRC's need to protect insestigative off'ces.Those recommendations have ' f the Trust. I material from premature public been incorporated in this Statement. ' i (c) Reportirig Information Relating to disclosure." Statement of Policy- In addition, two comments were I

the Trust to be Aled with the Investigations and Adjudicatory submitted by members of the public. -

Department offobor. The following Proceedings." 48 FR 36358 (August 10 One commenter stated that the l information regarding the Trust must be 1983). withholding ofinformation from public '

ripc,rted for the fiscal year of the Trust Those interim procedures called for disclosure should be confined to the '

ending with or within the plan year for the NRC staff or Office ofInvestigations minimum essential to avoid l I I which a Participating Plan's annual (01), when it felt disclosure of compromising enforcement actions, and information to an adjudicatory board '

report is made: that appropriate representatives of each '

(1) Name, address and employer was required but that unrestricted party should be allowed to participate

• identification number (EIN) of the Trust; disclosure could compromise an under suitable protective orders in any #

(2) A list of all Participating Plans inspection or investigation, to present in comero proceeding except in the most insesti g in the Trust identified by plan the information and its concerns about exceptional cases.

nrme. plan number, and r.ame and EIN d;sclosure to the board in comero, The other commenter maintair.ed that cf the plan sponsor as they appear on without disclosure of the substance of an in comero presentation to the board the ar.nual return / report, and each the information to the other parties. A with only one party present la '

plan's percentage interest in the Trust as board decision to disclose the undesirable and viol.tes the ex parte '

cf the beginning and ending of the fiscal information to the parties was rule.That commenter suggested an

• year of the Trust; appealable to the Commission, and the alternative of having the attorneys or (3) A statement of assets and board was not to order disclosure until authorized representatives of parties  !

the Commission addressed the matter. '

liabilities of the Trust: who have signed a protective agreement That Statement of Policy was present at any in comero presentation, (4) A statement ofincome and remain in effect until the Comm,t '

expenses of the Trust; ission with appropriate sanctions for violating (5) The assets held for investment received and took action on the the protective agreement.*

(includ,ing the acquisitiens and recomrnendations of aninternalNRC The Commission, after considering dispositions dunng the fiscal year of the task force established to develop g' ' g Trust), leases and obhgations in default, guidelines for reconciling these, conflicts Task For has ec de t ould be and compensation paid by the Trust for in individual cases. The Commission in appropriate, in order to better explain services in the manner required by the that Statement also requested ubhc comments on the prcpriety an the Commission's poficy in this, area. to instructions to the annual return / report provide the following explanation of the Form 5500- desirability of ex pcrie in comero s os presentation ofinformation to a board, C ""

(61 A report of an independent 6 n ,

quahfied pubhc accountant regarding and suggestions for any better alternatives. to the boards and Parties and the need the statements and schedufes destnbed in subparagraphs (:) through (5) above The Task Force submitted its report to to protect that information:

AU parties in NRC adjudicatory which meets the requirements of 29 CFR the Commission on December 30,1983. ,

2520103-1(b)(5). A copy of that report will be placed in {roceedings, including the NRC staff.

the Commission's Public Document ave a duty to disclose to the boards The Trust shall file the information and other parties all new information described in this paragraph (c) with the Room.The Task Force approsed the principles discussed in the they acquire which as considered Department by mailing it to: Office c,f material and relevant to any issue in Rtports and Disclosure. Office of Commission's earlier Statement of Policy, and made several controversy in the proceeding Such Pension and Welfare Bcnefit Programs.

recommendations intended to define disclosure is required to allow full U.S. Department of Labor,200 resolution of allissues in the proceeding.

Constitu' on As enue. NW. Washington, specifically the responsibilities of the boards, the staff, and 01 in present>ng The Commission expects all NRC offices D C. 2u:10. Attention: Texas Commerce to utilize procedures which will assure Trust Co. Alternatise Method of disclosure issues for resolution.

The Task Force recommended that the prompt and appropriate action to fulfill Compliance.

nal cy &aument Main eat fuH hWM4 Sig,ed at Wa shington. D C., this s:5 day of disclosure of materialinformation to However, the Comm,ssion i recognizes September that there may be confhets between this adjudicatory boards and the parties is Robert A G' Monk the general rule. but that some confhets responsibility to provide the boards and

1. '"i"i8'" ON' 8/P'"8i8" ##d II/"' between the duty to disclose and the parties with information and an

'I" D" need to protect information will be investigating or inspecting office's need tra on -remo ra.a u s es.,4 inevitable.The Task Force further to avoid public disclosure for either or am coos eno a" recommended that issues regarding both of two reasons:(1) To avoid

-- disclosure to the parties be initially determined by the adjudicatory boards 'soih commeries at o inctoded ivseeinori.

NUCLE AR REGULATORY With provision for expedited appellate ngardes manm beyond emope or em Pacy CMMISSION review, and that procedures for the 8 " " ' '' *"'" d "'Yd estat'shms a prxedare to hand:e conbete St tement of Policy; Investigations, resolution of such confhets be bemeen the do,> o disct4.e .nrorm.non ie the established by rule. Finally. the Task bords ad pa-ties and the need to proiect ihai inipections, and Adjud:catory infornen Fonnstme umgg.mn mn est Force sug;;ested that existing board Proceedings *' * *" * " " unnsm'sta idard in notification procedures should remain On August 5.1983, the Commission set unaffected by the Policy Statement. and .'[l rid.'nD"[rC$m",,Ei aidt '

f;rth intenm procedures for handling that those procedures and Commission traprow ee weht> ofiis irnestsenen i

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Federal Register / _Vol. 49. No.179 / Thursday. September 13.1984 / Notic;s __.

36033 M l y

of each individual case. However, the . These procedures are designed to allow e compr:misir.g an ongoing investigation Commission does note that as a gancrat the boards to determine the relevance of J.

or mspection; and (:) to protect rule it favors full disclosure to the material to the adjudication. and p confidential sources. The importance of whether that information must be .

Q protecting information for either of these boards and parties. that information reasons can in appropriate should be protected only when disclosed to the parties, and. if h '

necessary and that any limits on disclosure is required, to provide a clicumstances be as great as the mechanism for case management both J frnportance of disclosing the information disticsure to the parties should be b.

limited in both scope and duration to the to protect investigations and inspections to the boards and par ties.

With regard to the first reason, minimum necessary to achieve the and to a!!ow for .he timely provision of material and relevant Information to the

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evriding cornpromise of an imestigatien purposes of the non-disclosure policy.

The purpese of this policy Statement parties. As such these procedures are cr inspection,it is irnportant to informed k, licensing decisions that NRC inspections is to establish a procedure by which the analogous to the procedures for resching disputes regarding discovery, p' e nd investigations are conducted so that conflicts can be resolved. The Policy -

Statement takes over once a see, e g.10 CFR 2.N0(c), and do not all relevant information is gathered for~ a determination has been made, under violate the prohibition in 10 CFR 2500 appropriate evaluation. Release of against ex porte discussion of F-ins estigative rnaterial to the subject of established board notification -

an investigation before the completion procedures, that information should be substantive matters at issue. '

cf the investigation could ads ersely disclosed to the boards and public, but In accord with the above discussion.

01 or staff believes that the information the Commission has decided that the [,

affect the NRC's ability to complete that ^

investigation fully and adequately.The subject. upon discoving what esidence should be protected. In those cases the Commission has decided that the only procedures to be followed. where there is a conflict between the need for

f the NRC had already acquired and the workable solution to protect both disclosure to the board and parties and l direction being taken by the NRC interests is to prodde for an in camera the need to protect an investigation or investigation, might attempt to alter or presentation to the board by the NRC inspection wi!!includeincomera ,

L limit the direction or the nature or staff or 01, with no party present. Any presentations by the staff or 01.

oailibility of further statements or other procedure could defeat the However, because this procedure Gvidence, and prevent NRC from purpose of non disclosure and might represents a departure from normal I;arning the facts.The failure to actually inhibit the acquisition of Commission procedure. it is the "

cscerta:n all relevant facts could itself information critical to decisions. Commission's view that the decision result m the NRC making on uninformed Allowing the other parties or their shculd be implemented by rulemaking.

licensinFdecision.Howeser the need to representatives to be present in all Accordmgly, the Commission directs the casts, even under a protective order. NRC staff to commerce a ru!cmaking on f protect information descloped in investigations or inspections usually could breach promises of confidentiality the matter. I or allow the subject of an investigation Until completion of the rulemaking. j snds once the im estigation or inspection is :ompleted and es aluated to pren.aturely acquire information .

the following will control the procedures f f;r possible enforcement action. about the investigation. We note in this to be followed in resching confhets Th2 second reason for not disclosing regard the difficulties of attempting t between the duty to disclose to boards I

im estigative matenal-to protect prevent a party a representative from and the need to protect it. formation confidential sources-has a different talking to his client about the relesance developed in invest:gation or inspection:

bisis. Individuals sornetimes present of the mformation and how to respond ,

. Establ shed board notification safety concerns to the NRC only after to it, even under a protective order. procedures should be used by staff or 01 i being assured that their mdwidual The Commiss;on belieses that the to determine whether information in identity will be kept confidential. This boards, using the procedures established their possession is patentially relevant desire for conf;dentially may arise for a in this Policy Statement, can resolve and material to a pending adjudicatory number of reasons. including the most potential disclosure conflicts once proceeding 8 The general rule is that all possibility of harassment and they have been adsised of the nature of information warranting disclosure to the retihation. Conf:dential sourges are a the mformation involved, the status of boards and parties, including I va!uable asset to NRC inspections and the mspection or investigation. and the information that is the subject of investigations. Releasing names to the projected time for its completion. In ongoing im estigations or inspections. i parties in an adjudication after many of the cases when the procedures should be disclosed. except as provided promising confidentially to sources m this Policy Statement are triggered by bi"' 'I would be detrimental to the NRC's a concern for premature public .

2. When staff or 01 beheves that it everall inspection and investigation disclosure. It may be possible for boards has a duty in a particu:ar case to ,

cctivities because other indisiduals may to provide for the timely consideration proside an adjudicatary board with a

be reluctant to bring information to the of relevant mattus denied from inf rmation concerning an inspection or  ;

NRC. Hown er, the need to protect investigations and inspections through investigation. or when a board requests ,

confidential sources does not end when the deferral or rescheduling ofissues for ,

such information. staff or 01 should th? investigation er inspection is hearing. In other instances the boards proyide the mformation to the board and completed and evaluated for possible may be able to resolve the conflict by placing limitations on the scope of Panties unless it belies es that snforcement action. unrestricted disclosure would prejudice ,

By this Policy Statement, the disc!csure to the parties, or by using an ongoing inspection or im estigation. 5.

Come'ission is not attempting to resolve protective orders. or reveal confidential sources. lf staff or the conflict that may arise in each case The Commission wishes to emphasize 01 believes unrestricted disclosure between the duty to disclose that these procedures do not abrogate information to the boards and parties the well. established principle of .

and the need to protect that information administrative law that a board mcy not d*M,wl[*$'""'Mh'($' ,'((,3 [ L use er porte information presented m .ta.,- ee 1: app!y to any cen err.cu of the crits source.The resclution of actual c=meon we. may hne tre prot >iem conflicts must be decided on the merits comero in making licensing decisions.

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, .36'134_

_F;diral R gist:r / Vcl. 49. N2.179 / Thursday. Septtmb;r 13. 1984 / N:tices l l l would hase these adverse results. It brief, shall be kept in camera to the Pennsylvania. The license provides, should propose to the board and parties extent necessary to protect the purposes among other things, that it is subject to that the information be disclosed under of non. disclosure. all rules, regulations and Orders of the suitab!e protective orders and other The Commission recognizes that no Nuclear Regulatory Commission (the restrictions unless such restricted other party may be in a position Commission) now and hereafter in disclosure would also defeat the effectively to respond to staff or Ol's effect.

purpose behind non-disclosure. lf staff brief because the proceedings have been cr 01 believes that any disclosure. conducted in comera. However. in those H -

however restricted, would defeat the cases where another party feels that it is On November 19.1980, the purpose behind non-disclosure, it shall in a position to file a brief. it may do so Commission published a revised section provlde the board with an explanation within seven days after staff or 01 files to CFR 50.48 and a new Appendix R to cf the basis ofits concern about its brief with the Commission. 10 CFR 50 regarding fire protection disclosure and present the information 3. Staff or 01 shall notify the board features of nuclear power plants (45 FR to the board, in camero, without other end as appropriate, the Commission,if 76602).The revised section 50.48 and parties precent. A verbatim transcript of the objection to disclosure to the parties Appendix R became effective on the in camera proceeding will be made.' of previously withheld information, or February 17.1981. Section 111 of All parties should be advised by the any portion of it. is withdrawn. Unless Appendix R contains fifteen board of the conduct and purpose of the the Commission has directed otherwise, subsections. lettered A through 0, each ,

in comera proceeding but should not be such information-with the exception of of which specifies requirements for a informed of the :ubstance of the the identities of confidential sources- particular aspect of the fire protection information prestnted. lf, after such in may then be disclosed without further features at a nuclear power plant. One comera presentetion, a board finds that Commission order, of those fifteen subsections. III.G is the disclosure to other parties under 4. When a board or the Commission subject of this exemption.

protecta e order or otherwise is required determines that information concerning Subsection ll!.C specifies detailed (e.q;. withholdng information may a pending investigation or inspection requirements for fire protection of the preludice one or more parties or should not be disclosed to the parties, equipment used for safe shutdown by jeopardize timely cornpletion of the the record of anyin camera proceeding means of separation and barriers proceedings. or the board disagrees that conducted shall be deemed sealed (III.G.2).lf the requirements for release will prejudice the ira estigation). pending further order.That record will it shall notify staff or O! ofits intent to separation and barriers cane.ot be met in be ordered included in the public record an area, alternative safe shutdown crder disclosure, specifying the of the adjudicatory proceeding upon information to be provided. the terms of capability, independent of that area and completion of the inspection or equipment in tha' area la required any protective order proposed. and the investigation, or upon public disclosure -

basis for its conclusion that prompt (III G.3).

of the information involved, whicheser In response to previous requests from disclosure is required.The staff or O! is earher, subject to any privileges that shall provide the board within a the licensee, the Commission grarted an may validly be claimed under the exemption to requirernents of ev'..ection reasonable period of time, to be set ty Commission's regulations, f neluding the board, a statement of objections or Ill.G and 111 L o. hfarch 14.1983. By protection of the identify of a letter dated Decembu 16.1983 and concurrence. If the board disagrees with confidential source. Only the supplemented by letter dated htay 30.

any objection and the disagreement c ot Commiss!on can order release of the 19s.t. Duquesne Light Company d e bo 8 p e]s identify of a confidential source.

,d f.I requested additional exemption from, the requirements of Subsection Ill.G c.

camera proceedmg to the Commission Dated at Washington. D.C. this 7th day of for resolution of the disclosure dispute. September.19st Appendix R.

cnd so inform the other parties. Any Nuclear Regulatory Commission. III licensing board decision to order Samuel l. Chilk.

disclosure of the identify of a We have reviewed the licensee's secretaryof the Commission.

confidential source shall be certified to exemption requests and evaluation of tra ou umm r*d * ""*3 these requests is as follows:

the Commission for review regardless of ,w ,,a coes ,,, e, ,

whether of and staff concurin the ~

L FixedSuppression andDetection disclosure.* The board's decision shall Systems be stayed pending a Commission (Docket No. 50-334) decision.The record before the ggg Duquesne Ught Co., et al. (Beaver is requested from Section III.G.3 to the tr s p .the b a s t c ofIntent to Va"cy Power Station Unit No.1); extent it requires fixed suppression and require disclosure and the objections of Esemption detection to be provided throughout a Staff or 01. Staff or 01 may file a brief g fire area for which alternative shutdown with the Commission within ten days of has been provided:

fihng a statement of objections with the The Duquesne Ught Company. Ohio Primary Auxiliary Building (PA-1A),

board.The record before the Edison Company and pennsylvania Elev. 768 Commission, including staff or Ors Power Company (the licensees), are the Control Room HVAC Equipment Room holder of Facility Operating License No.

DR au o z s ope a n (CR-2). Elev. 713 8No n in th Statement prohibits staff on 01 Emer ncy Switchgear Rooms (ES-1 &

p

• The Corrmssion has decided to review any No.1 (the facility) at steady-state power I -

twens na board decision ordenns disclosure at the levels not in excess of 2652 megawatts Process Instrument Room (CR-4). Elev.

6denury et e cent,denn.) source been e or th' 713 thermal. The facility is a pressurized Sei7s"ont pIsb.7o7pse"clIs$he tdentEr of water reactor (pWR) located at the Communications Equipment & Relay to*f.dentiat sources. . licensee's site in Beaver County. Panel Room (CR-3). Elev. 713