ML20138Q522

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Forwards Draft Response to Congressman Ottinger Request for Facility Documents for Comment & Concurrence
ML20138Q522
Person / Time
Site: 05000000, Shoreham
Issue date: 05/09/1984
From: Palladino N
NRC COMMISSION (OCM)
To: Gilinsky
NRC COMMISSION (OCM)
Shared Package
ML20136E247 List:
References
FOIA-85-437 NUDOCS 8511180148
Download: ML20138Q522 (4)
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Text

f' O UGcaqjo, UNITED STATES

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May 9,1984 CHAIRMAN Y

ME!!ORANDUM FOR:

Commissioner Gilinsky Commissioner Roberts Commissioner Asselstine Commissioner Bernthal FROM:

Nunzio J. Palladino

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SUBJECT:

CONGRESSMAN OTTINGER'S REQUEST FOR SHOREHAtt DOCUMENTS Attached is a copy of a letter which I propose to deliver to Congressman Ottinger today.

The letter was draf_ted by OGC and coordinated with OCA.

I proposed changes which are included in the letter.

I would like your comments 2nd concurrences as soon as possible.

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WASHINGTON, D. C. 20555 jg CRf CHAIRMAN The Honorable Richard L. Ottinger, Chairman Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States House of Representatives Washington, D.C.

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Dear Chairman Ottinger:

In your letter of May 5, you advised that the Subcommittee staff, acting at your request, had asked the Commission to provide it with five documents:

four transcripts of Commission meetings relating to Shoreham, and Jul April 2 memorandum from the General Counsel to the Commission, also dealing with the Shoreham adjudication.

The transcripts which the staff requested, as well as the memo-randum from the General Counsel, have recently been the subject of correspondence between the Commission and the House Committee on Interior and Insular Affairs which also has oversight responsibilities over this agency.

We are enclosing a copy of our letter of May 1, 1984, to the Hous'e Committee on Interior and Insular Affairs.

1 As we emphasized in that letter, the Commission takes extremely seriously its obligation to keep the Congress fully and currently informed with respect to its activities, as well as to provide information requested by the Congress regarding Commission activities.

At the same time, we believe that we have an obligation to maintain the integrity of the adjudicatory process in which the Commission functions in a quasi-judicial role.

That is nowhere more important than when, as in the present case, an adjudication is pending before the agency.

We'believe strongly, as our letter of May 1 makes clear, that it is important to maintain the confidentiality of documents which include discussions of substantive issues in controversy, as well as the conduct of the case by the Licensing Board which has been hearing the low power proceeding.

We believe, however, that the Congress' right to be informed and the Commission's obligation to preserve the integrity of its' adjudicatory proceedings can be accommodated.

On May 2, the Commission provided to the Committee on Interior and Insular Affairs the four transcripts identified in your letter, together with the April 2 memorandum from our

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General Counsel, in accordance with our letter of May 1, 1984.

That letter provided in part as follows:

We are prepared to furnish the requested documents to the Committee upon its formal action to receive the requested documents in Executive Session, pursuant to the standing rules of the House of Representatives.

We read the rules to provide that documents so received may not be released or used in public session without consent of the Committee.

The Commission believes, and would urge the Committee in Executive Session, that such documents should not be disclosed to the public, to any party, or to the Board; and that they should not be quoted froa in public hearings or any other public forum.

In view of this previous action, it would appear desirable to follow the same course in response to your request in order to maintain consistency.

We would very much appreciate your reaction to such a proposal whereby we would furnish tha requested documents to the Subcommittee or the full Committee, whichever is appropriate, pursuant to an approach that would be consistent with the approach taken with the Committee on Interior and Insular Affairs.

We would be pleased to explain in Executive Session.our reasons for believing that the confidentiality of the documents should be preserved; that they should not be released to the public or the parties; and that they should not be quoted from or relied on in any public forum.

With the protections described above, we believe that the Commis-sion can provide the requested documents without thereby creating a serious risk that the validity of the ultimate outcome of the proceeding could be challenged successfully on Pillsbury doctrine grounds.

We have attached a copy of a memorandum summarizing some leading cases involving the interplay between agency decisionmaking and Congressional oversight.

Those cases illustrate well that probing Congressional scrutiny of ongoing proceedings, no matter how well intentioned, presents serious risks to the due process rights'of parties and the integrity of agency administrative processes.

We believe the transcripts should be kept confidential in their entirety pending completion of our General Counsel's review pursuant to the Sunshine Act to determine which if any portions of these documents are releasable to the public.

This should take another week to 10 days, after which we would consult with you and the House Committee on Interior and Insular Affairs.

We trust that the procedures outlined in this letter will permit a mutually satisfactory accommodation of the interests of the Subcommittee and the Commission in this matter.

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i Coranissioners Gilinsky and Asselstine have no objection to releasing the documents.

Sincerely, Nunzio J. Palladino

Enclosures:

1. NRC ltr to Chm Udall, 5/1/84
2. Analysis of Cases cc:

Rep. Carlos Moorhead O

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