ML20151Y799
| ML20151Y799 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/10/1986 |
| From: | Kelley J, Joseph Kelly Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#186-057, CON-#186-57 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8602130162 | |
| Download: ML20151Y799 (18) | |
Text
061 !
SERVED FEB 121986 P.
UNITED STATES OF AMERICA 00LMETED NUCLEAR REGULATORY COP 911SSION Usec ATOMIC SAFETY AND LICENSING BOARD 116 FEB 12 40 54 Before James L. Kelley, Chairman
- bf1$[I'Nv$N BRANCH
( )
In-the Matter of Docket No. 50-400-OL i )
CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL (ASLBPNo. 82-472-03OL)
, POWER AGENCY (Shearon Harris Nuclear Plant) February 10, 1988 I MEMORANDUM l (Addressinc Objections to the Chairman's Order of January 10, 1586 Concerning an Ex Parte Communication)
> Introduction. On January 10, 1986, I issued an Order concerning a 1
lengthy letter dated January 1,1986 which I had received from Ms. Patty Miriello. In October 1985, Ms. Miriello had appeared as a witness on a-l contention now awaiting decision by this Board concerning alleged drug Use at the Harris facility. Because it was apparent from the first page 4
that the letter was a prohibited g parte comunication under 10 C.F.R.
l l 2.780, I read no further. Under the normal course prescribed by that rule, a copy of the letter would be "placed in the NRC public document
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room and served by the Secretary on the communicator and the parties to the proceeding involved."
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- The other Members of this Board did not receive Ms. Miriello's
- letter or participate in any way in its disposition. The Board is not presently in session and I am acting alone pursuant to 10 j C.F.R. 5 2.721(d).
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Subsection (b). However, I noted Ms. Miriello's request at the beginning of her letter that the letter be kept confidential and specifically kept from "the power companies", here Carolina Power &
Light Co. ("CP&L"). Under the circumstances I thought it appropriate to take two precautionary steps. First, I asked the Board's law clerk, Ms. Donna Duer, to review the letter (11 pages, plus attachments) for its general tenor and to determine whether its limited release would tend to reveal the identity of any confidential infomant -- other than Ms. Miriello, who, as I have noted, had already "gone public" by voluntarily appearing as a witness against CP&L in an open evidentiary hearing. I was particularly concert.ed about possible references to named or identifiable present employees of CP&L who might be providing infonnation adverse to the company. Ms. Duer conducted such a review and informed me that the letter did not contain such references. She further informed me that various parts of the letter beyond page I concerned matters in issue in the drug use contention.
Second, I decided to send my Order and a copy of the Miriello letter only to counsel for the parties who had participated in the drug use contention hearing -- i.e., John Runkle, Counsel for Conservation Council of North Carolina ("CCNC"), the sponsor of the contention; Charles Barth, Counsel for the NRC Staff; John O'Neill, Counsel for CP&L; and H. A. Cole, representing the Attorney General of North Carolina -- and to Wells Eddleman, a pro se Intervenor who had participated through cross-examination. I did not send my Order or Ms.
Miriello's letter to the Secretary for service on the rest of the
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service list or placement in the NRC Public Document Room. I stated in my Order:
In response to Ms. Miriello's request that the letter be kept confidential, I will defer placing the letter in the NRC public document room until counsel have had an opportunity to examine the letter. Any objection to making the letter available for public inspection must be received by the Board on or before January 24, 1986. Should no objection be raised, ,
the letter will then be placed in the public document room. i Two of the four counsel responded. Mr. Barth for the NRC Staff requested that the letter be withheld from the public document room because some of the matters addressed in it "are the subject of open investigations and in the view of the Director, OI Field Office, Region l !! public disclosure of the contents could compromise the investigations." The Staff made no objection to my limited release of the letter to counsel. Mr. Runkle of CCNC, in a pleading of January 21, !
1986 entitled " Exceptions and Objections to Order Dated January 10, 1986," raised various objections to my disposition of the letter. This j l Memorandum will address those objections. The remaining counsel, Mr.
O'Neill for CP&L and Mr. Cole for the Attorney General, did not respond to my Order and apparently have no objections to public release of the letter. Nor did Mr. Eddleman respond to my Order.
Ex Parte Comunication -- Persons Covered. Mr. Runkle's basic l
legal position is that the Miriello letter is not an "g parte communication" under 10 C.F.R. I 2.780. Mr. Runkle points to the phrase
" party . . . or any officer, employee, representative or any other person directly or indirectly acting on behalf thereof", arguing that I
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i I Ms. Miriello fits none of these categories. Mr. Runkle confinns my i
! understanding that Ms. Miriello is not a " party, officer or employee" of 4
CCNC, the sponsor of the pending drug use contention. Whether she
- should be deemed a " representative" or "other person directly or l indirectly acting on behalf of a party" in the particular circumstances I; presented here is debatable, even if I accept (as I am willing to do) that Ms. Miriello was not specifically authorized to speak for CCNC in her post-hearing letter, and that she did not consult with Mr. Runkle before sending the letter.
! Those considerations to one side, what Ms. Miriello did do was
' testify as a voluntary witness for CCNC on that organization's drug 4
l abuse contention before the Shearon Harris Licensing Board in an on-the-record hearing, subject to cross-examination by the parties. Mr.
j Runkle, representing CCNC, acted as her counsel and held her out as a credible source of evidence. Tr. 9082-9160. Thereaf ter, Mr. Runkle l j proposed findings of fact based on her testimony. CCNC Proposed Findings of Fact, p. 4. After that, and while the case was (and remains) pending decision by this Board, Ms. Miriello wrote me the letter in question, off-the-record, beginning with a discussion of alleged drug use at Shearon Harris. Yet under the logic of Mr. Runkle's l argument, the letter is not an "ex parte connunication" because the rule does not specifically refer to " witnesses" in addition to " parties",
[ " employees " etc.
- Such word-by-separate-word parsing of the rule defeats its purpose, i
j- That purpose is to preserve the integrity of on-the-record proceedings ;
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i i by preventing secret communications to decisionmakers on the merits of the case. Certain obvious categories of persons -- e.g., officers and
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i employees of a party -- are explicitly listed in the rule. But that i
a listing should not be treated as exclusive. For in the real world, it i
- is difficult to imagine consnunications having a greater tendency to i subvert the rule, and public confidence in our proceedings, than an I off-the-record letter to the decisionmaker after the record is closed {
and before decision, by a person (like Ms. Miriello) who has testified j in the case. The rule should be read to promote its purpose and to 1
i avoid such anomalous, emasculating results. .
Quite apart from the NRC's ex parte rule, an applicable provision j
of the Administrative Procedure Act independently requires that the I
Miriello letter be treated as an y parte communication. The Act f provides in pertinent part that: !
i' In any a record] .gency proceeding
. . no interested person which is (required outside to beshall the agency heard nn the make or knowingly cause to be made to any menber of the body j comprising 'the agency, administrative law judge, or other
! employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte l cnmunication relevant to the merits of the proceeding. 5
- U.S.C. 557(d)(1)(A). (Emphasisadded)
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l The legislative history makes it clear that the concept " interested person" is quite broad, certainly broader than the list of categories in 1
the present NRC rule. Thus, the Report of the House Comittee on
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- Government Operations concerning the quoted provision states
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i i The term " interested person" is intended to be a wide, l l inclusive term covering any individual or other persnn with an !
) interest in the agency proceeding that is greater than the ;
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general interest the public as a whole may have. The interest need not be monetary, nor need a person be a party to, or intervenor in, the agency proceeding to come under this section. The term includes, but is not limited to, parties, competitors, public officials, and nonprofit or public interest organizations and associations with a special interest in the matter regulated. The term does not include a menber of the public at large who makes a casual or general expression of opinion about a pending proceeding. H. Rep.94-800 or the Government in the Sunshine Act, H.R. 11656 at 19-20.
Similar language is contained in other parts of the legislative history.
See House Judiciary Comittee Report No.94-880, pp.18-19. Senate Government Operations Comittee Report. No.94-354, p. 231.
Ms. Miriello, a voluntary witness in the proceeding, is clearly an
" interested person" within the meaning of the statute, particularly in light of its legislative history. Her interest is obviously " greater than the general interest the public as a whole may have." Her 11 page letter to me goes far beyond "a casual or general expression of opinion about a pending proceeding." Even if I were to accept Mr. Runkle's Pickwickian reading of 10 C.F.R. % 2.780, the Comission's Administrative Judges are, of course, also bound by the Administrative procedure Act's broader provision. The Act goes on to provide that a person receiving an ex, parte communication (such as an Administrative Judge) "shall place [it] on the public record of the proceeding." 5 U.S.C.557(d)(1)(C).
Ex Parte Communication -- Substantive Matters at issue. Mr.
Runkle's second basis for arguing that the Miriello letter is not an n
r parte communication is that 10 C.F.R. I 2.780 only covers communications "regarding any substantive matter at issue in the proceeding . . . ."
Again, the " substantive matter at issue" here is CCNC's contention regarding alleged drug use at the Harris site. In this regard, Mr.
Runkle's Objections state that --
I The only matter which Ms. Miriello testified concerned drug abuse by workers at the Harris facility. Even if portions of I
the letter in fact related to matters raised (or which could l have been raised) on the record on Contention WB-3, other l allegations raised in the letter concern the following . . .
(listing various non-drug related concerns). Objections pp.
2-3.
l The first paragraph of Ms. Miriello's letter to me is as follows:
Dear Mr. Kelley:
l 1 I have turned over more names of the drug abusers at the l Shearon Harris Nuclear Power Plant who have been involved in nuclear safety related work to the Attorney General's Office
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of the State of North Carolina. Drug abusers are breaking the law and the law is the law even for people working in nuclear power. The U.S.N.R.C. was not formed with the intent to act !
l as a shield for an industry with criminal activities overtly present.
That certainly sounded like a " substantive matter at issue" to me, and, having determined the general nature of the letter, I decided not to read beyond page 1. I stopped reading because I believe that subsection (c) of section 2.780, explicitly concerning oral communications, should apply by analogy to Ms. Miriello's letter. That subsection provides in pertinent part that when a person attempts to make an ex parte comunication to an NRC adjudicator, the adjudicator "will decline to listen to such communication." The apparent purpose of this language is to mitigate as much as possible the damage being done by the g parte ;
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comunicator. This language would have prohibited me, for example, from '
listening to Ms. Miriello's information over the telephone. The same I
rule should apply to a long (11 pages, plus attachments) letter.
What Mr. Runkie Believes I Should Have Done. First, according to Mr. Runkle --
In light of the request to keep the letter confidential . . .
Judge Kelley's duty was to read the letter closely, serve any portions concerning matters at issue in the proceeding (i.e.
drug abuse by workers at the Harris facility), and treat any other matters in confidence. Objections, p. 3.
Under the provision of the Comission's ex parte rule quoted above, I am not to read such letters " closely;" once their ex parte nature is apparent, I am not to read them at all.
Second, following the suggested "close reading" of the letter, Mr.
Runkle purposes the following options (Objections, p. 3):
(a) " returning the letter to [Ms. Miriello]" (apparently without mentioning it to anyone else).
1 Thes exhe.arte rules are not cast in terms of "use" or"consT ration" of proh The danger of such uses, or at least the public perception of such danger, is assumed. The ex parte rules are prophylactic and prohibit at the threshold 7he very making of the comunication.
Thus, NRC employees performing adjudicatory functions are not to even " entertain" ex arte corinunications. 10 C.F.R. 6 2.780(a).
And see 5 U.S.C. E7 ). The breadth of the prohibition is reflected in the observation that " finding anyone prepared to defend ex parte comunications in on-the-record proceedings is like finding ~in advocate for sin." Report of the Association of the Bar of the City of New York on the Government in the Sunshine Act.
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Coment: Among the available options, this is the worst. For a decisionmaker to read an off-the-record letter on the merits of a case and then return the letter to the sender without notice to the parties
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would be grossly unfair and in flagrant violation of 10 C.F.R 6 2.780 and 5 U.S.C. 557(d).
(b) " forwarding it directly to the appropriate NRC office (such as the Office of Investigation)":
Comment: I did send the letter to the NRC Staff Counsel, noting in my Order my expectation "that the Staff will review this letter and investigate any safety concerns." Order, p. 2. Apparently, Mr. '
Runkle's complaint is that I also sent the letter to Counsel for CP&L. i Again, the rule, the statute and basic fairness required that I do that. .
(c) " consulting with counsel for the parties before acting."
Comment: Apart from the fact that the rule directs me to serve the !
consnunication itself on counsel for the parties, not merely consult with them, it is unclear what this suggested approach might have l accomplished. Particularly if I had read the letter " closely," I assume that at least some of the parties would have wanted it served on them and perhaps placed in the record. In any event, ! question whether the counsel involved could have made an informed judgment about the matter unless they had a copy of the letter in hand.
What ! Believe Mr. Runkle end Ms. Miriello Shnuld Have Done. Mr.
Runkle observes that --
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It is obvious that Ms. Miriello erred by misdirecting her letter to an inappropriate person within the Nuclear Regulatory Commission bureaucracy, but as a layperson not i
either an attorney or knowledgeable [in] NRC practice'she j certainly cannot be held to understand the multifaceted nature I of the NRC--that is, licensing proceedings, investigations, l
Staff review of operations, etc. Objections, p. 3.
I agree, and would add 10 C.F.R. % 2.780 to Mr. Runkle's list of things an uninstructed lay witness cannot be expected to know about. In recognition of these realities I believe that attorneys like Mr.
Runkle, representing lay witnesses like Ms. Miriello in NRC licensing proceedings, should take care to explain in non-technical tems the basic features of an on-the-record proceeding, as relevant to the witness. Specifically, the witness should be told before the hearing that she is to do her testifying on the witness stand, that the case t
will be decided exclusively on the basis of the public hearing record, l and that the witness is not to communicate about the case with other parties, and particularly with the Licensing Board, except through
! counsel. I do not know whether fir Runkle instructed Ms. Miriello along those lines. If not, he should have. If so, she apparently chose to l
ignore his advice.
Assuming that Ms. Miriello was never told not to comunicate about the case with the Board, I believe that her ignorance of the rules is not fully excusable. Ms. Miriello is intelligent and highly educated.
- Miriello prepared testimony, ff. Tr. 9084, at 1. In her appearance as a witness in the drug hearing, she testified at length. Tr. 9088-9160.
Among other things, she listened to lengthy legal argurents on c
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! objections to various parts of her testimony and worked with Mr. Runkle
! on a complex stipulation. Tr. 9132-9148. This is not to suggest, of i course, that Ms. Miriello thereby " learned the rules" about NRC proceedings; but at the least she should have gained an appreciation that there are such rules, that they are quite technical, and that legal
' advice should be sought before acting.2 Presumably, Mr. Runkle would i
have been available to consult with Ms. Miriello about where to send her letter. Thus if Ms. Miriello is now dissatisfied with my disposition of her letter, her dissatisfaction is partly of her own making.3 i
Confidentiality Generally. Mr. Runkle's Objections include some general discussion of the importance of encouraging people having safety J
2 In this regard, the following colloquy occurred between Mr. Runkle and myself, with Ms. Miriello in the witness chair, concerning new allegations not contained in her prefiled testimony: ,
l MR. RUNKLE: . . . I'm sure Ms. Miriello would be -- I rican, i
there are other avenues besides this hearing to investigate i these allegations. And I'm not sure what they are and, you j
know, what kind of comitment Ms. Miriello can make to those.
l JUDGE KELLEY: I would like to underline that point. And we would like to ask Ms. Miriello specifically to transmit your concerns to the Staff so that they can look into them. Tr.
9147.
Ms. Miriello's situation is quite unlike that of a person who, for i example, might contact the Board raising safety concerns, having i
read about the case in the newspapers. Such a person cannot be i expected to know anything about NRC ex parte and other procedural
- rules. Contacting the Board directly might well seem the appropriate way to proceed.
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concerns to come forward to the NRC -- on a confidential basis, if necessa ry. Objections, pp. 4-5. As an abstract matter I agree with much of his general discussion. However, Mr. Runkle's discussion is l
short on specifics and proceeds on the erroneous assumption that the Comission's ex parte rule does not apply. More pertinent here is the l
extensive guidance the Comission has provided to its Staff and Licensing Boards on NRC pledges of confidentiality, guidance not cited by Mr. Runkle. See Statement of Policy; Investigations, inspections, l and Adjudicatory Proceedings, 49 Fed. Reg. 36032; Policy Statement:
Protecting the Identity of an Individual Who Has Been Promised l
I Confidentiality, Nov. 25, 1985. These Policy Statements do not directly address the particular situation presented by the Miriello letter. As to adjudications, the focus is on M camera disclosures to licensing Boards where the Staff or 0I has already extended a pledge of l
l confidentiality and believes that confidentiality should be preserved.
Some helpful general guidance is provided, however.
! By this Policy Statement, the Comission is not attempting to resolve the conflict that may arise in each case between the duty to disclose infonnation to the boards and parties and the need to protect that information or its source. The resolution of actual conflicts must be decided on the merits l of each individual case. However, the Comission does note that as a 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. 49 Fed. Reg. 36033.
In the conflict presented here between disclosure of an ex parte comunication and a claim of confidentiality -- and assuming that the ex, i
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parte rule is not the short answer -- Boards are to consider the particular circumstances of the case, subject to a general rule favoring full disclosure.
Mr. Runkle suggests ,that requests for confidentiality ~ are "roi nely" granted by some NRC personnel. Any such practice is j disapproved by the Policy Statement:
The Commission, while it recognizes the importance of !
l confidentiality, does not believe that confidentiality should be granted to all individuals who provide information to the NRC, that it should be granted as a routine matter, or even that individuals should routinely be advised of its availability prior to being interviewed. Policy Statement of November 1985, p. 7.
Thus, it would have been improper for me to " routinely" treat Ms.
Miriello's letter as confidential, merely because she had so labelled it.
l Confidentiality in th' Situation. Apart from generalizations, Mr.
Runkle's clain for confidential treatment of the Miriello letter rests on his assertions that:
Her own safety from harassment and retaliation, let alone embarrassment, has been greatly compromised by the premature revealing of these allegations. Objections p. 5.
l These assertions are not supported by any specifics. The record in this case strongly suggests that there is little or nothing to these
! assertions, for the following reasons.
Ms. Miriello is a former employee by CP&L. Her employment was terminated by CP&L on August 30, 1985, about a month before the hearing.
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Tr. 9110. As an ex-employee, Ms. Miriello is not vulnerable to the most comon and realistic reason for granting confidentiality to "whistleblowers" -- that they will be fired, demoted or otherwise harassed by their employers. See, e.g. , Duke Power Co. (Catawba Nuclear Station), 19 N.R.C. 1418, 1513-20 (1984).
It might be suggested that an ex-employee also needs the protection of confidentiality because an economically powerful utility could put pressure on other employers to refuse to hire, discharge, etc. Ms.
Miriello belatedly reflected that concern at the hearing in declining to give the name of her present employer, as reflected in the following colloquy (Tr. 9088-9089):
Q MR. HOLLAR (Counsel for CP&L): Ms. Miriello, just as a matter of background, who is your present employer?
l A WITNESS MIRIELLO: I am afraid to disclose that because of I
retaliation.
MR. HOLLAR: Your Honor, I would move to direct the witness to answer the question, please?
JUDGE KELLEY: Can you indicate, Ms. Miriello, some basis for your fear of retaliation?
WITNESS MIRIELLO: Yes, I can. CP&L has a lot of connections in Raleigh, and a lot of affiliations with different businesses, and I do they have business with the company I presently work with.
I could lose my job over this.
JUDGE KELLEY: Is the retaliation concerned here of your loss of your job?
WITNESS MIRIELLO: Correct. My current job.
MR. HOLLAR: Ms. Miriello is participating in an open hearing,
4 and there -- it has been extensively reported in the press in this area for the last few weeks. If her employer doesn't know about it by now, perhaps he doesn't read the papers.
I agree with Mr. Hollar's concluding observation. Once a witness comes forward voluntarily and, without asking for confidentiality, testifies against an ex-employer in public session, whatever potential there may be for harassment or retaliation has been created. I reject the notion that disclosure of the post-hearing letter to counsel for CP&L added incrementally to those concerns.
So far as Ms. Miriello is concerned, that leaves the claim of
" embarrassment." My limited release of the letter to counsel (see pp.
1-2 above) was not calculated to make the letter a matter of public notoriety. Apart from that, I can agree that the posture of a whistleblower against a large company may not be entirely comfortable, and perhaps even embarrassing. But once again, Ms. Miriello voluntarily sought that public posture last Fall, complete with press coverage. I cannot credit the claim that my disposition of Ms. Miriello's letter will significantly increase the public attention she has already invited.4 4 The Board was not insensitive to possible embarrassment and privacy concerns involved in Ms. Miriello's testimony. Following substantial prodding from the Board, the parties entered into a stipulation making it unnecessary to inquire into certain potertially embarrassing -matters. See Tr. 8863-8888.
In sum, Mr. Runkle's unsupported claim of " harassment, retaliation and embarrassment" is speculation on his part and largely contradicted by the circumstances of the case.
The only real concern I had about releasing Ms. Miriello's letter to counsel, including the Applicants, was that it might eventually compromise investigation of the allegations. As the Commission has stated:
Release of investigative material to the subject of an investigation before the completion of the investigation could adversely affect the NRC's ability to complete that investigation fully and adequately. The subject, upon discovering what evidence the NRC had already acquired and the direction being taken by the NRC investigation, might attempt to alter or limit the direction or the nature or availability of further statements or evidence, and prevent NRC from learning the facts. 49 Fed. Reg. 36033.
Having sat in this case for some 31 years, I believe that counsel for CP&L and the senior company officials who have appeared before ne are people of integrity who would not authorize or countenance any attempt to frustrate an NRC investigation. 'However, I cannot rule out the possibility here (or in any large company) that some among their thousands of employees might seek to deflect the course of an investigation or cover up a violation of the rules if they had advance notice. I nevertheless released Ms. Miriello's letter to Counsel for CP&L with knowledge of this risk, believing that in this instance the risk was not great.
Conclusion. In sumary, I believe I was bound by 10 C.F.R. 5 2.780 and 5 U.S.C 557(d) to serve Ms. Miriello's letter on counsel for the parties. There is no exception in the rule or the statute for letters labelled " confidential."5 -Having assured myself that release of the letter would not reveal the identity of an informant (other than Ms.
Miriello), and in the absence of any other substantial reason for confidential treatment, there was no occasion for " balancing" confidentiality versus disclosure, beyond the precautionary steps I had taken.
My disposition of this matter was not the only possible approach, but I think it was reasonable under the circumstances. In retrospect, I could have made the disclosure to counsel subject to a protective order against further disclosures, pending discussion with them. Or I might 0
have asked our law clerk to segregate those portions of the letter 5
A paragraph of the Comission's Policy Statement on Investigations (49 Fed. Reg. 36032-36033) indicates that the procedures there established for in camera presentations by the Staff to Licensing Boards would not7 1olate 10 C.F.R. 5 2.780. If.this is read to mean, for example, information about the need to keep a source confidential and case management considerations, such matters need not concern the merits of pending issues and ex porte comunications would not be involved. But if7his paragraph is meant to include information going to the merits, I respectfully question the legal conclusion. The Comission states that "a board may not use ex parte infomation presented in camera in making licensing deU sions." Id. As discussed abWe at pp. 7-8, however, it is not merely a mattR of "using" ex parte information, a board may not even listen to such information.
6 The Board's law clerk has been an active participant in the case (Footnote Continued)
relating to drug use from other portions', serving only the former.
While these options might be preferable in some circumstances, I do not believe that their use would have ma'de a significant difference in this Case.
I find little merit in Mr. Runkle's Objections. However, I will defer to the Staff's judgment that Ms. Miriello's letter should not be placed in the public document room until the ongoing investigations are completed. I ask Staff counsel to advise me when those investigations are completed.
Mr. Runkle has sought Commission review of my Order of January 10, 1986, serving each Comissioner with my Order, his objections and Ms.
Miriello's letter. Therefore, this Memorandum is to be served on the Commissioners in addition to the Shearon Harris service list.
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J p.es L. Kelley, Chairmag ADMINISTRATIVE JUDGE Bethesda, Maryland (Footnote Continued) and is involved in the decision-making process. Thus, I realized that my request to her to review the letter for its general tenor and possible exposure of confidential informants was inconsistent with 10 C.F.R. $ 2.780. However, since she has no vote in the decision on the drug contention, I believe that my request represented a reasonable compromise between competing considerations.