ML20206C138
| ML20206C138 | |
| Person / Time | |
|---|---|
| Issue date: | 02/25/1985 |
| From: | Schofield P NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | Stark R Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20204G557 | List: |
| References | |
| FOIA-86-183, FOIA-87-A-3 NUDOCS 8704130007 | |
| Download: ML20206C138 (9) | |
Text
.-,
e is l V l} l 34
- p February 25, 1985 MEMORANDUM FOR:
Richard M. Stark, Director Division of Licensing Office of Nuclear Reactor Regulation FROM:
Polly Schofield, Program Assistant Office of Investigations
SUBJECT:
UPDATE OF ALLEGATION TRACKING SYSTEM In response to your request for an update to the Allegation Tracking System, I am enclosing the latest computer run with the information annotated.
We are unable to provide you with the regional allegation number for open cases.
If you have any further questions, please call me.
Enclosure:
As stated Distribution:
N01s/f If( l-33 01 c/f DW/ POLLY 2/ Update /A11egTckSys PS r/f 8704130007 870408 PDR FOIA I
I GARDE 87-A-3 PDR OFFICE :
01 01 SURNAME:
PSchofield:sk B
s DATE 2/3/85 2
85 s
/
= i r rj
~
,.. ~>
February 25, 1985 MEMORANDUM FOR:
Richard M. Stark, Director Division of Licensing Office of Nuclear Reactor Regulation FROM:
Polly Schofield, Program Assistant Office of Investigations
SUBJECT:
UPDATE OF ALLEGATION TRACKING SYSTEM In response to your request for an update to the Allegation Tracking System, I am enclosing the latest computer run with the information annotated.
We are unable to provide you with the regional allegation number for open cases.
If you have any further questions, please call me.
Enclosure:
As stated Distribution:
\\01s/f If( I-33 01 c/f DW/ POLLY 2/ Update /AllegTckSys PS r/f l
rDIA-Bo-B3
/
/
OFFICE : 01 0! -
SURNAME:
PSchofield:sk B
s DATE
- 2/AA/85 2
5
Y l Y Nl Eb' f 01 POLICY STATEMEiTS ff;
[
{
POLICY l CI will cerform thercugn, timely and objective investigations.
incluce investigations of allegations of wrenccoing by individuals or This will within :ne sccoe of f;RC autnority. organizations, otner than !?RC em POLICY 2 01 investigations will be conducted in accordance with general procedures and practices of other investigatory agencies.,
POLICY 3 OI investigators m_ay be delegated authority to administer oaths or affir-cations during the course of OI investigative efforts.
POLICY 4
,. l '.,. <...
p
.~.4
. <. ~
01 investigations may be initiated at the request of the Com. mission, the The Director, 01, will promptly inform the Chairman cca enced by 01.
POLICY 5 The criteria established for initiating an inspection or an investigation do not precluce concurrent conduct of both types of activity
_ POLICY 7 OI insestigat rs may grant requests for confidentialit.
cf an invest gation.
curing the course i
f;RC will rescect an OI investigator's or: mise of conficentiality unless and until the interviewee's testim the testimony.
quirements of 10 CFR Part 21 who report to the Com. missio ouired by 10 CFR 21.2. addressed by that regulation will also be accorded conf i
I ceA (4
d}
POLICY 8 collect, anc : reserve evicence relevant to investigati rs have : tentia'. vai;,e in an enforcement or ctner ;rc ee:in;.
' e r.
necessary, C such evidence.may request orders or subpoenas to preserve or octain
POLICY 9 Investigators and others assigned to O! investigatiens shali 5::e ::,
wnen warranted by the im:ortance to the investigaticns. tc s.i:r.ess anc/or photographically record tne violation or conditicn tnat is
.e focus of the investigation.
POLICY 10 Investigators and o:ners assigned to 01 investiga:icns will :e alert for indications of deliberate violations of hRC re.guia:icns or Feceral statutes and will pursue relevant leads.
Tney will also make reasona:le efforts tc determine the extent of involvement or awareness by management of licensees, applicants, vendors or other entities in any ins,tances of deliberate viola-tion of HRC regulations or Federal statutes.
POLICY 11 0:ner NRC coroonents will provide O! with timely legal and technical assistance consistent with its inpact on the overall NRC mission.
POLICY 12 01 may use the investigative support of Federal, State or local agencies or o:ner organizations during tne course of OI investigations.
POLICY 13 ine Office of Inspector and Auditor (0IA) shall be the primary office responsible for referral, and related discussions of investigative ratters with the Department of Justice (including the U.S. Attorneys and the Fed-eral Eureau of Investigation).
Emergency situations requiring prcmpt fielc referral to :ne DCJ and/or FBI should be rade without celay cr cen-sui a:icn witn GIA.
Referrals for crosecution er itsestiga.icn, in:uiries or :ne transmittal of investigative information to tnese agen:ies snail te prceptly documented in writing with copies previced to offices concerned.
POLICY 14 Investigative activity of O! may occasionally develop infccmation within the jurisdiction of another agency.
This information will be routinely provided tc that agency under appropriate controls.
POLICY 15 OI shali Leep NF.C co ocnents which recuest OI investiga:icns i.ferred of si:nifican deve'.:;r.en:s in engcing investiga: ions.
POLICY 16 The requestor of an 01 investigation and any NRC component aware of such ongoing investigation shall advise OI of any additicnal infor..ation it receives / develops during the pendency of the investigation.
POLICY 17 l
01 sr.all advise c:gni: ant NRC components cf safety issues disccvered as tne resuit cf an ong:ing 01 investigation.
i POLICY 15 i
With ne exception of significant safety issues, information regarcing an t
i
/
ongeir.; OI investigation will not be disclosed by any NRC em:loyee cuisice NRC with0ut the specific approval of the Director, 01, or his designes t
4 l
POLICY 19
./
/}
Investigators and others assigned to an 01. investigation or inquiry will i
normally not discuss tne substance of ongoing 01 inqu views, except safety items requiring immediate ' corrective action.
_ POLICY 20 Investigators will thcroughly and accurately document their investigative j
efforts and substantive information developed during investigation.
a POLICY 21 i
OI investigative reports shall be in sufficient detail to permit an informed l
canagerial review of the issues under investigation, and to permit an NRC j
determination as to tne need for enforcement or other corrective act I
POLICY 22 Reports of Investigation (ROI) prepared by OI investigators should contain an objective recitation of all relevant facts developed in the course of j
tne investigation.
sions cf the investigators.Tney should not contain either the ooinions or conclu-Opinions or con:lusions of persons interviewed j
are :er-issible, however.
tigati:. to the NP.C action office, 01 car. age:ent will normally in or its coinion as to the weight of the evider.ce.all cen:lusiens re ation as to whether the occurrence constitutes a violation or mendatiens for enforcement / corrective action.
POLICY 23 i
i i
/' 01 reports of investigation, while in precaratien er review, will not be -
I circulated outside NRC without specific appecval of the Chairman.
-POLICY 24 1
OI reports of investigatien, while in pre:aration er review, will nor ally.
not be circulated to other NRC offices.
In tnese cases where OI perceives the existence of safety questions requiring prcc?t attention er determines that it would be of substantial benefit to the accuracy of the final report OI may have other NRC officials review, and ccament on pertinent portions of 1,
the report.
priate NRC officials. Final 01 investigative reports will be provided to the appro-i
-,N, -- -.
I I
.e POLICY 25 The Office of Inspector and Auditor retains resconsibili:y f:- ir.vestigatiens rega-ding NRC employee and centractor misconduct anc ir.:e'al..aste. frauc ar.:
a use.
POLICY 26 OI shall be informed promptly by fiRC employees of all allega:icns whicn invcive wrongd:ing, c:her than allegations of wrongdoing'on tre Da.r: :f.';;I ecpioyees or I;R", centractors, which are the respcnsibility of 01..
~
9 s
=
l l
1, 1
1 W"
Federal R. *or WG No 17 P %
5* -'e - h e'_: - '044 ' N:":ts 36033 3
g:
. g re : r cf c -h -dxd;al:ase H:wese 9e These ; o:ed; es a e du ; ed i: a:!cw cr
-s. u a-d ;
C:-
ss :n den r:te ' *f as a 1**dt tre b:3 ds o de+ w me re:na ce of
< a-
- e. s:. :es Pe ;.- e e f
- r. * ? fas ers f; : 3 s: r.. e *: " e e
a ara: ::'e ad.:.:at :n and
- - e.
- . ;. ' r r.c f., e. er ;f nne bc.-ds a.-d ;a r* es tr a' -'?- Y 0-a'e' e ~at :-f ! *' ; : m s' he
,l a s:.s :an.: a;;r:;r.a:e she.4 be ; c e:'ed :6 w'en d se'esed to the ;a" es and ;f
{
e r :; ca :es te as : eat es de ne: essa > and tha: an),.m.'s en d s: :s.re is re;..re d to ;;cude a
- e.n
- e cf 4.s:. shg the.nfw-anen d.sc' sure to :he pa es sh
- rc d:ar:s a.-d par:.es h-ed m be h s::;e a-d :,te.d be me:han.s-for : ate m..;^ e. b;:h
. a* c n 'e ', e n
V. 9.p d 'a 9e f.rs: rq s on.
m;r
.m recessa > *: a:h ese 'he to ;r:'c:t.n.es'.4'.: s a.3.
5;e: :ns
..:. J. : :: pr:m.se f aa :ra es*.
n a-d to a:::w fer.he t e'.s ;r:t s :n of cr m g l:. n it is :m;r a-t :.-!.- ed ;. ;)<es of ee non d sc!cs.re pl:)
r ata e. and retesan!
f;r..u-' ode The ;. ;ese cf th P::.:3 5 s'a e t
- p..es As such ?ese preced.res.re
- ens ; de::s::ns :ra: NFC +;e: :rs is to es'et:.sh a ;teced e t> wh :h de an.f;;.s to de p :ced :es f r
.nd.raecrat.cas are cc-.: ed so that cen:'i:ts c n te resched The P:'.cy res:h.rg i=;;tes reped.rg d s::.er)
.M r :es.-t'.n':
a t e n.5
.4e:ed fer Sea **-e.t taes oser c.:e a
- r
- ;r ce esa
- ua*. n Rebre of de emraNn has been made. ander see. eg.13 CFR : n:.. and d: n:t i ses:.:rae r s e-4 o tre s.heet of estaE shed beard netf. at:en s;:: ate de ;r:h.b.*i:n.n 10 CFR : P30 nser se en tefere :Fe cr ;'e.on 86a nst ec ;;rre d scussica of o-of ere eds? v:en ce;!d a d.er#y pr:cedures that inf a :en shou!d te
.;tstantae tratters at :ss.e.
d:s:lesed to t'e boards a-d ;.b! :. but c!!ect the NRC's at. n. to ec ;'ete eat Of or staf' be; eses $a de :nf:- at:c t in acc:rd wah the abcse d scuss en.
p the C:m :ssx n h.s dec.ded that :re l
m.esS;a?.cn f. :) an: ad ; s'. :) The she.:d be ; Me:!ed In *bese cases &e s.'.ie:t. ip:n d sce. rg wW e& e tre '.RC Fa *. a'. ready a:qcred i-d the Co.- se :n 'as de:+d 9ai tre en!y proced.res to be f:::cwed, where trere wesab:e *::.n:n t:; :*e:t ts:$
is a cenC :: between '.te t.eed for
- d. rect on be: g t. ken by the NRC mieres's s to ; cede fe an m ecmere d.s:!asee to the bca c and pr.,s and -
ins ect pnon. m gh:.: tempt to a!ter or l.m.: ce d. rec.cn er 2e raure er presentano to the bend by de N'RC the need to protect an :nes* gation or f
staff cr O! w:th no party prese-t Any inspeenen. wd! inch.de e ecmer:
asa.:ab.!::) of h.rder sta e es er eter ; ocet.re ceu!d de'aat de presentar.ons by tr.e staff ct 01 es:dence, and presen: NRC frem lea n:rg +e fa:ts The fat.re to p.r;ose of cen d ac!:s ce and m ght Heac.er because th.s procedarr act 3:'y -hib.t Se ac;.:s.*:en of represents a de;arture frem actmal ascerta n at: re:es an: f::'s cc c /se:f inf:- at.cc cro: cal to de: s::ns Com..:ss!:n piccei.re. it is the res2:t :n the NRC r ak:rg :n 5...fe-ed I ce sm:decis.cn H:weser. the need to A!'ew"'s te o6er ;;rres or cei Corne:ss.cn s s;ew that the decisi:n she;!d be :mp!cmen'ed b Ace,rd.n:'s. the Ccem u) r.'e ai.ng p c:ect m!:rm.:.on deve*cred.n re;resentata es to be prese.t :n at!
c sts esen under a pr:tectae : der.
-- d es es:.gstens or msre::. ns us;al!>
cocid breach pr:. ses of c:nnde.na';:y NRC staff U commen:e a ra:r. e: s the si. g on cads c :e de ines.;in:n,cr or a".cw Se shiect of an,mses"gaten the r. atter.
irs;ecnce s c:r;.e ed an. es d.ated gyng; ec_,
for pess t.e enf:::ement acnon.
to pre.a!are:y a:;ut e n.a :at.cn g, g. 7j!ct en of de ru:emai r:.
about the ms es: at.en %,e ne'e m d:s w.!! c:.tro: ee pre:estes The se:end rease. for not d.sc!:smg regard de d.fn:u;:nes cf auer;rrg !
to be fc:!cwed :n rese?ung cenn.:*s msest cause mater.al-to prntect p*esen: a party's reprecentatae fre n bc: ween the daty te d:t:Iose to beards conf: dent.a: sour:es-has a d.fferent taimmg to h;s ci:ent ab:st de re:eiance and t'e netd t:;te:ect infcm.a!:en bas.:s Indrdaa:s s--.enmes prcsent s.fety c:nce rs to the NRC on!) after of the infermat:en and how te reapand de.e!: ped :n ms est gator.br msreenon.
be.ng assated that ie. ed.ut a1 to it. es en under a prctecta e order.
1 Estabbheo,j, est.anycat.on i
identits wdl be ie;t c:nf.denul T%s The C mm:ss.cn be!. eses da: the procet.rcs shca.d S und.3 sisffor O!
desire'for conf.denna:!y rnas at:se for a boards. usmg the procedures estab!:*hed to de:ermme wbeder efer-aucMn number of resse s tr:!ad rg :ne m th s Peh:y Statement. can res;he
- 'E""E#'
poss;b.hty of harassment and mest potential d;sc!cs.te cenCt::s ence and majer:al to a pen.f.'g a":? "j:u"r'a"y' they hate been ads: sed of t.he cau.re cf preaug 8 h gm. r.a is w a3 pcards ano paan. =7.}y&s.a 'c ee retahat:n Cen!.dennat sc r;es are a the mformation insched. the sta:.s of infc ag warrnr sa!aab:e asset !c NRC ins;e:nc.s t..d the especnon orinsesng.t:o and the aag mses ga' ons Fe casmg na es to de ia'a at'en tha: is the s.bie"- of parties in an adi d.c.non af:er preiec:ed time ferits comp et.cn In
" * * ~
prem:s.ng ccnf:denna'ly to scarces many of the cases wben the prer. d.res 0"I#'
' d'UC ' 0'
- 5 E * " C "' '
weu!d be de:rimental to the NRC s in this Pohey Statement are tr ggered by f'"~".38[e d.'s:!csed."ex:ept as prced'ed cs erall mspection and msestigation
' a concern for premature pubhc cetait;es be:ause other mdividuals may disclosure. it may be possible for boards
- 2. When staff or 01 behes es that it be reluctant to bring information to the to proude fo. the timely consideranon has a daty m a partca:ar case to NRC. Howes er. the need to protect of relevant matters densed from proude an adjud:cator) board wnh c:nfidential sources does not end when investgations and inspections thrcugh informat:ca ecccern.ng an mspeenon or th2 ing estigation or inspection is the deferral or rescheduhng ofissue b msnya'.on. or when a board requests c mpleted and esaluated fut possible heanns. In other instances. the W.!s such information. staff or 01 shculd enforcement action.
may be able to resolve the cr 4 ? p.
prende the infor:r.. tion to the board and placing limitations o9 de rco,, ( '
parities unless it belies es that By this Policy Statement, the C mrmssion is not attempting to resolve dac!csure to the parties. u P.sq.
unrestncted d:se!osure would prejudice protective orders.
the confhet that may anse in each case an ongomg mspe:nc. or musnganon.
between the duty to disclose The Commission wishes to emphastre or nual confidenna; sources. If staff or mformation to the boards and parties that these pro:edures do not abrogate 01 believes unrestncted disclosure and the need to protect that inform. tion the well estabbshed pn.ciple of erits source.The rese!ution of actual administrat:velaw that a board meynot
- "S"'"'*f
mN a e the e ser. set are pm'* '"'*ff"8 08 use er parte information presented m
.iru,e..n.,,po,ng,.p: s :m o;s ei the c:nCicts must be decided on the men.s ecmero in making licensing decisions.
ccmss.on =h.es> haie ite peoniem erms or the l
i e
38E 4 Federal Rezister / W 49 No 19 / Thursday Se;*eder
- =.
13 1964 / Notices
_.d. d he dese adserse resu:ts it s :. d ;!:;:se te me b ard ited ;ar:.es br ef. sha!! he kc;t m ecmere to de estent ne:essar) to pt::ect ce pc;oses Penns)han:a The bcense proudes.
gra* re c f:r.s.:. te d.s:'esed urder among c$er thegs. that it is s.,b ect to of non.d.s:losure
- s. :a: e ;r: e:t..e orders and other i
r+s r : -: s :. 'ess s.ch restricted The Commasion recognizes that no all ru:es. reg. anens and Orders of the
- s: :s. e would a so defeat the oder party may be m a posinon Nuclear Reg,:atory Comm:ssion (the
- .r
- se teh:nd non. disc!csure If staff effectaety to respond to staff or O! s Com=ss.on) now and hereafter m
{
effect.
- 0; n:.es es that any daciosure.
br:ef because the proceedirgs hase been r : 4 e. et resm:ted. wai!d defeat the cond.cted m ecmers Howeser. m those g
- . ;:se beh.nd non.d:ac!asure. it shall cases where another party fee:s that it is
- . :e tne board wan an es;!anation m a pos:non to file a br:ef. it mai do so On Nosember 191980 the cf +e tas.s ofits con:ern abcut widm sesen days after staff or O!". es Come ss en pab'.shed a reused scenen to the teard e cemera. wi:hout o&er
- 3. Staff or 01 shall not fy the board 10 CFR 50 regardeg Cre pr;;enia R to l
to CG 50 43 and a new A c s:::s.re and; esen: the ef:mati:n its bnef with the Comm:ssion.
pr es ;re:er.t A se ba:.m transen;t of and. as ap;ropnate. the Comm.ss:en. if features of nuc! ear pow er;otecnon!an's (45 m l
t e.. :: er proceed rg will be made.s the chie:: ton to d.sc osure to the par:.es 76602). The reused sect on 50 48 and A::;ar.es s..e:.!d be a.haed by the of preucus!y withhe:d mformation. or A; pend:s R became effecuse on l
b:ard cf:he cond;ct and ;ir;ose of the any pernon ofit. is withdrawn. Unless February 17.1981 Seenon !!! of
. ::. e : proceed.ng but should not be the Commission has directed otherwise, Appendix R con:ams fifteen ef:-- ed of the si.bs'ance of the such mformation-mth the exceptics of subsecuens. lettered A thro gh O each ir.':-. anon presen'ed. If. after such in the identit:es of cenf dennat sources-of which specifies req.nrements for a
- e : presentanon. a b:.rd fmds that may then be d.sclosed without fur:her paracular aspect of the fire protect 6an d sc::s ce to other parnes Commission order.
features at a nuclear power p! ant. One pt:tec..e order or omerw'under
- 4. When a board or the Commissionof those fif:een subsections. !!!.C. is the se is eequired (e. w: hholding mformation may determmes that mformation concernmg et.bject of this exempt on.
pie.J.
a pendag mvesugat:en or inspection Subsection !!! C specites detai!ed te: par:pe ore or rnore parties or
.ze ti.ely complet;on of.e should not be d:. closed to the parties.
regtrements for fire proteciton of the pt:ceed ngs. or the board disagrees that the record of anym ec. era proceedmgequipment used for safe shutdown by re: ease w.n pretudice the msesugation)- cond cted sha!! be deemed sea!ed means of separation and barners it sha:: not.fy staff or 01 ofits mt pend.ng further order. That record will (111 C 21. If the requirements for order d.sclosure. spec f>mg the
,e, nt to be ordered meluded m the pubhc record separation and barners canrot be met m mf:r at.on to be prouded. the tems of of the ad adicatory proceeding upon an area. st:ernatise safe shutdown i
an) pt::eense cider pr: posed. and the complenon of the mspe:non or capabahty, mdependent of that area and bas.s for its conclusion that prompt invest:ganon. or upon pubhc disclosure equ:pment m that area is reg: red sha:t;p*:ude 6e board wtd:s:! s.re is required The staff or O!
of the mformanon msched. whicheur (IUC.3).
is eerher, subject to any pnu!eges dat In response to presious requests from in a may sahd y be cla:med u.nder the the licensee. the Commission granted an t
at as e ren f ob ec ns or 5 n MS ancns. melu :ng esemption to requirements of subsection cenes.r e.:e if the board d:sagrees with pr tect. n f the ident.fy of a UI C and !!!!. on March 14.1983. By a vb:t:en and the d:sagreemcht c nfidennal source On!) the le"er dated December 16.1983 and cainr2 te resob ed. the board sha!!
C mm:ss.on can order release of the su;ptemented by lef t sted May 30.
c:. e$:) certtfy the record of thein identif) of a confidennal source.
19S4. Duquesne 1. Sht empany pt:m
. : pro:eedeg to the Comm:ssion Dated at Wa shegt.m. D C. th.: rth day cfrequested add.tional exemptions from for res:! ton of the d.st!csure d.spute.
September.19a4.
the requ:rements of Subsection !!! C of and so mform the other parties. Any Appendix R.
d.s:::s:.g board decision to order Nuclear llegulatory Coma bcens:.-
u ssion.
re of theidennf> of a Samuel l. Chilk.
1D contdennat se.r:e shall be cert s,creraryofc3,co, fr;,,, oft We hau nuewed the beensee's the Com nss:on for renew regar. Sed to dless of %
,,q.,,,,,;u,.%,,3 %
eu pun ut.ests a d oalaaun of w hether ol and staff concur m the e,w.o coo,,
g nuesa a as go owo disc lcsure
- The board's decision shall de::s.o)n The record before thebe sta ed pending a Commission
- 1. hwedSc;;tession andDe:ectica (Docket No. 50 3341 Sys: ems Cemm:ssion shallconsist of the Duquesne Ught Co et al. (Beswee
. For 6e foHewing anas, an eumphon transenpt. the board's Not ce of tntent to Vat'cy Power Station Ue.it No.1);
is requested from Sect on til C.3 to the requ:re d:sclosure and the chie:tions of Esemption extent it requires fixed suppression and Staff or 01. Staff or O!may file a hgief detection to be prouced throughout a with the Commission within ten dgys of fire area for which alternauve shutdcwn g
filing a statement of c4ecions we the The Duquesne 1.ight Company. Ohio has been provided:
board. The record before the Edison Company and Pennsylvania Power Company (the bcensees), are the Pnmary Auxiliary Building (PA-1A).
Commission. including staff or Ol's Elev. 76a
- Wggna.a this Stateme holder of Facility Operating 1.icense No.
Control Room HVAC Equipment Room from eien 4.nto,mene. ntpesuite merle on DPR-66 which author:zes operation of
-2 e
3
- The Cerm-reon hee decided te renew eny the Beaver Valley Power Station. Unit
, Y 8
p les es board ereision ordenne discleewe er the No.1 (the facality) at stesdy state power
- 21. Elev. 713 edem.fr era confidentiel eevece because of the levels not in excess of 2652 megawatts inY Y,
m$th*t[gY thermal. The facility is a pressunred Proces Instrument Room (CR-4). Elev.
713
.t water reactor (PWRi tocated at the emana eneteewm licensee's site in Beaver County.
Communications Equipment & Relay Panel Room (CR-3). E!av. 713 l
q AEi _
f 0T.$/l'o& T
$f 7EN&
W 3:032
%~_
Federal Register / Vol. 49. Na 1*9 / Thursday. September 13. 1984 Notices
.mg
- - - w-#2-~
=
Ided wsh the De; art-e-, A 7
5.ch
-]h Trust.
conf'icts bet
- en the NRC's guidehnes for disclosure ofinformation the a p!c as not requ.rdt["dgn "
o d.sc::se mforma 'on i conceming ms estigations and
.n..: report any mfor,
P d dc boards ard part.es. and the inspections should apply to all NRC concen:rg mdmdual transactions of NRC's need to protect insest gatne offices. Those recommendations base the Tr.st-
[,$a",'ure.om premature pubhc I fr been mcorporated m this Statement.
(cl Re; rtn g /r'formorion Ae/or og g,
" Stat, ment of P hey-In addition. two comments were the Taist te be Eded with the De;;rt err ofIcbor. The follo* int 1,n,,t:gations and Adiudicatory submitted by members of the pubhe.
mfarma'.cn regardirg the Tn.st must be Proceedmas;' 48 FR 36358 (August 10.
One commenter stated that the reported for the fiscal year of the Trust na3) withholdmg of mformation from pubhc endmg w:th or weh:n the p!an Sear for Those interim procedures called for disclosure shci,ld be confined to the which a Participatmg Plan s annual the NRC staff or Office ofInsest;gations marumum essential to avoid report is made-(01) when it telt disclosure of compromisms enforcement actions. and (1) Name. address and e p! oyer information to an adjudicatory board that appropnate representatnes of each was required but that unrestncted identif; cat.on number (EIN) of the Trsst; disclosure could cornpromise an.
party should be allowed to participate (2) A hst of all Partic: par:. g Plans irnes'i g m the T.ust identified by plan inspecuon or investigation. to present under suitable protectn e orders in any name p:an rwnber. and rsn e and EIN the information and its concerns about in comero proceed:ng except in the most exceptional ca ses.
of the plan sponsor as they appear on d.sclosure to the board in camerC- #
without disclosure of the substance of The other commenter maintair.ed that the annual retamtreport. and each the information to the other parties. A an in comera presentation to the board plan's percentage interest m the Trust as board decision to disclose the with only one party present is of the begmning and endmg of the fiscal inforroation to the parties was undesirable and viol.tes the ex porte year of the Trust:
(3) A statement of assets and appealable to the Commission and the rule. That commenter suggested an habihties of the Trust; board was not to order disclosure until attematise of having the attorneys or the Commission addressed the matter. authonzed representatives of parties (4) A statement of mcome and That Statement of Pohey was to who have signed a protective agreement expenses of the Trust:
(5) The assets held for investment remam m effect until the Commission present at any in comero presentation, (incladmg the acqu.sittens and recetsed and took action on the wdh apprepnate sanctions for violatmg dispositions dunng the fiscal > ear of the recommendations of an mtemal NRC the protective agreement.'
Trust). leases and obhgations m default.
task force established to develop The Commission, after considering and campensation paid by the Trust for guidelines for reconcilms these conflicts these comments and the report of the in individual ca ses. The Commission in Task Force. has decided that it would be services m the manner required by the that Statement also requested pubhc appropriate. n order to better explain mstructions to the annuai return / report comments on the propnety and the Commission's policy in this area. to Form 5501 devrability of ex perte in ecmero provide the followmg explanation of the (6) A report of an m. dependent presentation ofinformation to a board, confhet between the duty to disclose qualified pubbe accountant regarding and suggestions for any better nvestigation or inspection information 1
the stater ents and schedwies desenbed attematives.
to the boards and parties and the need in subparag aphs (2) through (5) above The Task Force submitted its report to togP ec tha nf a
n'-
which meets the requirements of 29 CTR the Commission on December 30.1983.
dim 232010}-1lb)(5).
The Trust shall file the information A copy of that report will be placed in
{ase a duty to disclose to the boardsroc the Cornmission's Pubhc Document described m this paragraph (c) with the Room. The Task Fcree approsed the and other parties all new mformation Department by mathng it to Office of principles discussed in the they acquire which is considered Reports and Disclosure. Office of Commission's earlier Statement of matenal and re,es ant to any issue in Pension and Welfare Benefit Programs, Policy and made several controsusy m the proceedmg. Such U S. Department of 1. abor. 200 recommendations intended to define disclosure is required to allow full Constitution As enue. NW. Wa shington.
specifically the responsibihties of the resolution of allissues m the proceedmg D C. 20210. Attention: Texas Commerce boards, the staff, and Olin presentmg The Commission expects all NRC offices Trust Co. Alternative Method of disclosure issues for resolution.
to utihze procedures which will assure Compliance.
The Task Force recommended that the prompt and appropnate action to fulfill Signed at Washmston. D C this eth day of finel Policy Statement explam that full this responsibihty.
disclosure of materialinformation to However. the Commission recognises
- Ahooks, adjudicatory boards and the parties is that there may be confhets between this A dmsmstrator. O*5ce of Pension and Weror, the general rule.but that some conflicts responsibihty to provide the boards and
- "I" ##I'*"#'
between the duty to disclose and the parties with information and an its ou mam m wiza s es **l need to protect information will be swee caos esiwa" inevitable.The Task Force further investigating or inspecting office's need to avoid public disclosure for either or recommended that issues regarding both of two reasons:(1)To avoid
- disclosure to the parties be initially NUCLEAR REGULATORY determined by the adjudicatory boards
'sein comen.e etee inctoded usseine COMMISSION with provision for expedited a ellate
'eser$as muers t>erend me ecome of *is Pohcy review. and that procedures f the Simment. which is conce,o,d o,nly with me Statement of Policy; investigations, resolution of such conflicts be
,,,g n,, y,4,,,
,,,,,gi, tiemeen se evey ie eiset.,n.nrer,nenen se se inspections
- and Adjud:catD established by rule. Finally. the Task tioerde end senin and the and to protect ihei Proceedings Force suggested that existing board.n
'afa"a*c eenpos"e *# pore stringent siesda F
"ea" = noenma =n met notification procedures should remai
,$e N e
On August 5.1963. the Commission set unaffected by the Policy Ststement, and
,,4,,,,g,3,,,nrarmenion.errerne e neerd forth intenm procedures for handling that those procedures and Commission ur4etient Ariother rece,runended exei se sac unprove the q.shry ereis in...iiset ne.
r
~
' GOVERNMENT ACCOUNTADlLITY PROJECT 1555 Connecticut Awnue, N.W., Suite 202 Washington, D.C. 20036 (202)232-8550 GOVERNMENT ACCOUNTABILITY PROJECT MIDWEST OFFICE 3424 MARCOS LANE APPLETON, WISCONSIN 54911 Januaiy i3, 19d7 APPEAL OF INti;AL F0iA DEc$0N l'.: n n i e ll. GrIms1j, f.
h h
Jinector, Division of iiules j
and Records
_.d.
Nuc.iear Rtgulatui
'.: mm i c s i o n Wa hiogtun, D.C.
20533 RE:
Appeal from an initial 201A Decision of FolA 86-183.
i.' r,u tir. Grimulay; m 3 6. t to - c,2-t in a d C or the Freedom hic ic co.pp
'l r.-.
o'
.I n e's.. t o.a t i e t. Mt.i-
.. i led
!J.4.C.
52E), of thc istual epte s t.c d by the Gov e r t.me nt
+ ::,1 to r i i e a ;,0 d e r o...
-l t
i fit tuuntab-li ty P r ej e t.
D, Ictter dated December 10, 1936, you i n f o r me'd us that r e t c.- d s s u bj e c t to oui.
p c., L d e c cr i n;:d i n A p. p e nd i:: E are being w i t hi. 21 d in part under F Olh E:: cmp t i o n _:, because the withheld i n : o r :n a t i o n tonnints : : intera32nrj or intraagency reccids t h a t, at a not available the ougir discovery during litigation.
Discicoure of predeci jrnal infornation would tend to inhibit the open and f r a'n F e:: c h a ng t if ideas esseneial to the delibetative process.
Where recordu
.a r n withheld in their entirety, the facts are i ne::t r i cably intertwine with predecisional information.
1her e also ar e no rea:anably negregable fact.2a1 portions because
'hc r:1cate of the fact
'*ould permit an indirect iquiry into the predecisional process of the agency.
IJe believe we are entitled to tha release of the document; being withhold.
Wr: e;pcct your r a r pe ar e to this appeal within EO working days of your receipt c4 that we t an de ter mine whether to pursue this matter further in the courts.
Thank you f u t-your consideretion of this appeal.
Jintercly, O f Olus tob.i93,
&wm
,,,s at i ? Piron-Garde rii F.n / t r e. rmre nt a l g
f([/ y g g g
]g U h (l c e ' e i,
t!cbiurur Clint'.
u s. NUCLEAR REGULATORY COMMISSION Nec so.a ttoutst %.weims,
[., n. %,,
FoI. A-86-183 ansio~si n et A
RESPONSE TO FREEDOM OF N'*4 I l '*l-(e...e/
INFORMATION ACT (FOIA) REQUEST DEC 101986 DoCast huwatais W appaceans
$. tout $ttR Villie 9;rner 6 c.. Esqu,k PART 1.-REIORDS RELfASED OR NOT LOCATED ISee caecaed bonesi No agency records subsect to the request have been located.
No additona' agency records subrect to the request have been located.
Agency records subject to the request that are ideettf ed e Appendia 1717 H Street. N.W.. Washington. DC a<e already ave 4ble for public mspecten and copymg a the NRC Public Docur eet Roore Agency records subpect to the request that are identified in Appendia b
are bemg made avadab6e for put4c inspecten and copying a the NRC Public Docu' er Room.1717 H Street. N W.. Washington. OC. m a folder under the FOlA number and feQuestee name The f.w.v.oonetary versen of the proposal (s) that you agreed to accept e a tesophone conversaten uth a member of my staff a now being ma and coymg at the NRC Pubhc Document Room.1717 H Street. N W. Washegton. DC. m a folder under the FC;A number and requester name.
Enclosed e eformaten on how you may obtam access to and the charges for copyeg *ecords placed a the NRC Public Docuteent Room,1 DC Agency records subsect to the request are enclosed Any accl. cable charge.or cop +4 a8 the records prov*d and payment procedures are noted in the Records subr ct to the request base been refer'ed to another Federal agencyfes) for 'esiew and direct resporse to you-e In view of NRC s response to the request. no further action a beeg taken on appear etter dated PART ll. A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE Certain informaton in the requested records e being ethheld from pubhc doctosure puwant to the FOIA esemptons desented e and for the reaso X
tons 8. C. and 0 Any released portens of the docu the NRC PutSc Docurnent Room.1717 H Street. N W.. Wasnegton. OC. m a foldee,,nder the FOIA number and requ Co.. ;. ts Avve,<hx E coceeses wrxel win a.shsgs are_.
3 j
beJno rejemed, ~~Itc reeM$
(;w E=-
3 d
C oc, Mexk' 0.Y 6
'n row lic Eiso & 0s **W eb "
'Yd'
l l
1 i
P Sic Afunt. DIRECTOR.
ION R t$ A%Q RfC0 ADS s
(f /&
J:L.:
i s
s.
< d'n s
h'k$$,~
s
? bh
~
'~
NT,C FORM 464 iPan n rl I D \\ }~[ l Y j
Geen
' 6 %C"YM w--Y - -
FIEE6044 CF INFORMATION ACT RESPO.
FOia NuMBEDSi 1*
.h DATE: DEC 1019E PA%T it 3-A: PLICASLE FOlA EXEMPT 17NS Recortas subject to the request that are described et the enclosed Appendeces Emer smons and for the reasons set forth below pursuant to 5 U S C. 552(b) and to CFR 9 5(a) of NRC Regulations.are bemg withh 1 The wthheld informaten a prope6 class. fed pwesuant to Esecutue Orde 12356 (DEMPTION 11 2 N wthhWd informacon relates solely to the etemal personnel rules and procedures of NRC. IEXEMPTION 28 3 N wthheid informanon e specsficaay esempted from pubi.c disclosure by stature edicated IEXEMPTION 3 Se: ten 141145 of the Atom.c Energy Act *Nch prohets the disciosw e of Restr.cted Data or Forme % Rest cred Data '42 U S C 21612165 Section 147 of the Atorruc Energy Act wNch prohitzts the disclosure of Uncfassered Safeguards informaton 142 U S.C. 21671 N wthhe4 informaten a a trade secret or commercial or financ.at eformat.on that is becg wthheid for the reasontsi indicated (EXEMPTION 41 4
. N information a Cons *dered to be Confidential busaness foropr.etaryl anformatson TN e' tormation e' considered to be propretary informaten purs ant to 10 CFR 2 790ddH11.
N cformaten was submitted and received e confidence from a fore ga source pursuant to 10 CFR 2 7904d:i2-
$ N.withhWd enformaten consests of eteragency or etraagency records that are not avaelable through dscovery dunng litigsten Declosure et predeceenalirformation X
ermed tend to anNtut the open and frank encharge of ideas essert.al to the debberatrve process Where records are ethheid e their enterety. the facts are restncab8v cter weed eth the predecisenal eformaten There also are no reasonabPy segregable factual portens because the release of the facts would permit an edrect inquiry into the predecrssonal process of the agency. IEXEMPTION $4 I
6 N wthheld eformabon a enempted from public declosure because rts declosu e would result en a clearty unwa ranted invasen of personal prevacy. (DEMPTION 6 r
7 N arithhetd seformaten coesists of investigatory records comoded for las enforcement purposes and is being a t*eid for the reasonts! edicated. IDEMPTION 71 Oggioswee would eterfere wth an erforcemoet proceeding becawse at could reveat the scope, d.recten, and focus of enforcement efforts and thus could pcyss,bry a8 low them to take acten to sheid potent 41 wrongdo.eg or a velation of NRC rarperements from inves'.gators (DEMPTION 7f An l Declosure would coest4ute an uneartaated evasen of persocal pervaev 'DEMPtioN ;qca l
7te mformaten consets of narres of edrviduais and other enformation the d$ closure of *Nch would reveal ide-tises of conf r
l PART tl C-DENYING OFFICIALS
)
Pw os-ic 10 CFR 9 9 and or 915 of the U S Nweteer Regulatory Commissen regulatoes. at has been determined that the e o maten neheld s eint fromproducten r
r and tar as producten or declosure e contrary to the public eterest. The persons responsible for the denial are those cAcais adentsled betow as denyeg officiais and Deveer of Rwle6 and POC0rds. Orfice of Admestration, for any denials tPat may be appeated to the Esecutive Director for Operateesif ooi onylNG OFFICIAL TITLE OFFICE RECORDS DENiEO APPELLATE OFF8CIAL bes M.% WM, I+E An.t.E m= %
,9
""~
SMe coJk hm, OIA Awe E be6 X
n 7L iw.15k H5.
VI$.15b.16].1sb.
a41s4
& ce Nk W&c%iR1 Aq, E4Nss ms3
)(
HmM.hb hk WR$L ETr#8h
,n X
/
PART 110- APPEAL RIGHTS i
The dernal by each W.ii official idantified in Part II.C may be appealed to the Appenste Official ider.tdied in that section. Any such appeal must be in writing and must be made within 2 days of receipt of this response. Appeels must be addressed as oppropriate to the Executive Director for Operation the Sacrosary of the Commission, U.S. Nuclear Reg that a is an "Appeet from en Initial FOIA Decean,ulatory Commission, Washington, DC 20566, and should clearty state on the envelope and in the l ameEs e essw a coal FOIA RESPONSE CONTINUATION U.S. NUCLEAR REGULATORY COMMISSIOP
I I
Re:
F01A-86-183 APPENDIX E 1.
10/21/82 Memorandum G. Kerr to R. DeYoung regarding the NRC AllegationTrackingSystem(1page) 2.
10/28/82 Memorandum from J. Keppler to R. DeYoung regarding the NRC Allegation Tracking System (3 pages) 3.
10/28/82 Memorandum from C. Michelson To R. DeYoung regarding the NRC Allegation Tracking System (1 page) 4.
10/28/82 Memorandum from J. Shea to R. DeYoung regarding the NRC AllegationSystem(1page) 5.
10/28/82 Memorandum from R. Haynes to R. DeYoung)regarding the NRC Allegation Tracking System (2 pages I
6.
10/29/82 Memorandum from R. Engelken to R. DeYoung regarding the NRC Allegation Tracking System (2 pages) 7.
11/01/82 Memorandum from J. Fitzgerald to R. DeYoung regarding the NRCAllegationTrackingSystem(2pages) 8.
11/01/82 Memorandum from J. O'Reilly to R. DeYoung regarding the NRC Allegation Tracking System (2 pages) t 9.
11/01/82 Memorandum from J. Collins to R. DeYoung regarding Coments on the Centralized Allegation Tracking System (1 page)
I 10.
11/01/82 Memorandum from G. Cunningham to R. DeYoung regarding the NRCAllegationTrackingSystem(1page) 11.
11/02/82 Note from P. Norry to R. DeYoung regarding coments on the NRCAllegationTrackingSystem(3pages) 12.
11/03/82 Memorandum from J. Davis to R. DeYoung regarding the NRC AllegationTrackingSystem(2pages) 13.
11/03/82 Memorandum J. Davis to R. DeYoung(regarding the NRC i
Allegation Tracking System (ATS) 2pages) l 14.
11/08/82 Memorandum from R. DeYoung to Office Directors and l
Regional Administrators regarding the NRC allegation Trackingsystem(13pages) l
.y
- 15.
12/02/82 Memorandum from J. Sniezek to all IAE Employees regarding the Allegation Tracking System (ATS) Procedures for I&E
- 16.
12/09/82 Office of State Programs' " Operations Manual Procedure" 17.
01/19/83 Memorandum from J. Blaha to C. Fitzgerald regarding Allegation Tracking System (ATS) Reports (4 pages) 18.
09/21/83 Memorandum from J. O'Reilly to D. Eisenhut regarding Region 11 coments on staff paper on allegation processing
- transmits Reg II Office Instruction No.1030, Rev.1-(36pages) 19.
09/22/83 Memorandum J. Davis to D. Eisenhut regarding the Staff Processing of Allegations Involving Licensees and Applicants for NRC Licenses (1 page) 20.
10/27/83 Chairman N. Palladino's Notation Vote Response Sheet for SECY-83-218-NRCFraud" Hotline"(1page) 21.
11/15/83 Memorandum from S. Chilk to W. Dircks regarding SECY-83-218 (1 page) 22.
11/28/83 Memorandum from C. Fitzgerald to J. Blaha regarding the Allegation Tracking System Automation Status Report (4 pages) 23.
12/01/83 Memorandum from R. DeYoung to W. Dircks regarding the Upgrade of Exiting Allegations Procedures (2 pages) 24.
12/06/83 Note to E. Fox regarding Allegation Tracking System w/
12/06/83 memorandum from D. HaverKamp to E. Fox regarding Upgrade of Existing Allegation Procedures (3 pages)
Memorandum from J. Stohr to F. Long(regarding the 25.
12/13/83 Allegation Tracking Summary Report 1page) 26.
12/16/83 Memorandum from E. Fox to ATS Coordinators regarding Allegations and Request for Part 21.2 Identity Protection w/ attachment (6pages) 27.
12/16/83 Memorandum from T. Rehm to Ben Hayes. 01, and Regional Administrators transmitting a Draft Memorandum entitled,
" Policy in regard to Dealing with those who Provide Information to the NRC" (6 pages) 28.
12/16/83 Memorandum from E. Fox to ATS Coordinators regarding clarification for protection of requested confidentiality 29.
12/16/83 Memorandum from E. Fox to ATS Coordinators regarding Allegations and Identity Protection (8 pages) i 30.
12/20/83 Memorandum from W. Dircks to Chairman Palladino regarding Timeliness of Allegation (1 page) i
31.
12/29/83 Note to W. Haass transmitting action item for completion by 12/30/83 (8 pages) 32.
12/29/83 Note from W. Haass to T. Rehm transmitting draft memorandum from W. Dircks to Office Directors and Regional Administrators regarding Policy in regard to Dealing with those who Provide Information to NRC (6 pages)
J 33.
1983 Office of Investigations Draft Investigative Procedure IP-016 concerning Board Notification of Allegations (3 pages) 34.
01/05/84 Note from C. Abbott to E. Fox regarding draft format for ATS allegation Management system (2 pages) 4 35.
01/06/84 Memorandum from 8. Hayes to T. Rehm regarding Draft Paper on Staff Processing of Allegations w/ NRC office connents on draft Manual Chapter on Management of Allegations, MC 0517 (43pages) 36.
01/06/84 Memorandum from R. DeYoung to T. Rehm regarding I&E Connents on Draft Paper on Staff Processing of Allegations (7pages) 37.
01/06/84 Memorandum from J. Davis to T. Rehm regarding the Draft Paper on Staff Processing of Allegations (1 page) l 38.
01/20/84 Preliminary draft version of SECY-84-26. " Staff Processing j
of Allegations Involving Applications for Operating i
Licenses"(6pages)
- 39.
02/07/84 NRC transcript of Connission Meeting with Regional Administrators 40.
02/08/84 Draft memorandum from E. Fox to ATS Coordinators transmitting draft NRC Manual Chapter 0517. " Management of Allegations w/ additional connents on pages (31 pages) 41.
02/08/84 Draft Memorandum from E. Fox to ATS Coordinators transmitting draft version of NRC Manual Chapter 0517,
" Management of Allegations" with IAE connents in margin (25pages) l 42.
02/10/84 Note from T. Rehm to NRC Office Directors transmitting questions to be answered at the Simpson Hearing (8 pages)
.i 43.
02/13/84 Draft pages from ED0's Simpson/EDO response letter (26 Pages) i j
44.
02/14/84 Memorandum from J. Sniezek to Office Directors and Re ional Administrators refarding connents on the agency's po icy on confidentiality 3pages) i
.---,y
..--.=-.+.-*----*e--3,,----_
--.---,r.--e.
,-w--.,--%..
r-,m-
-,-..-,,r.
45.
02/15/84 Draft note R. DeYoung to J. Sniezek regarding Confidentiality (2 pages) i 46.
02/21/84 Memorandum from R. DeYoung to J. Sniezek regarding Confidentiality (3 pages)
Memorandum G. Cunningham to T. Rehm regarding)OELD vie 47.
03/06/84 guidelines for processing allegations,(1 page i
48.
03/08/84 Note from C. Abbott to E. Fox regarding the upgrade of the Allegation Data form (1 page) 49.
03/12/84 Draft Allegation fonn w/coments (1 page) 50*
03/20/84 Note from E. Fox to W. Haass transmitting draft version of NRC Manual Chapter 0517. " Management of Allegations" w/ notes in page margin (21 pages) 1 51.
03/20/84 Memorandum from W. Haass to W. Ward transmitting I&E coments on draft memorandum, " Requests for an 01 Investigation" (3 pages) 52.
03/20/84 Note from E. Fox to J. Blaha transmitting draft version of NRC Manual Chapter 0517. " Management of Allegation"
{
w/coments in page margins (27 pages) 53.
03/30/84 Note from E. Fox to ATS Coordinators transmitting the draft Allegation Data Fonn w/coments from W. Haass (4 pages)
- 54.
04/04/84 Region III Manual, " Temporary Instruction 0520 Processing j
Allegations, Complaints, and Investigations" i
55.
04/05/84 Memorandum from J. Collins to T. Rehm regarding Draft of Policy Concerning Release of Information to Licensees
)
(2pages) 56.
04/05/84 Memorandum from C. Weil to E. Fox regarding Coments on Updating Allegation Data Fom (5 pages) 57.
04/09/84 Memorandum N. Palladino to other Cosmissioners regarding O! referrals to Justice of Material False Statement i
]
Allegations (7pages)
}
58.
04/16/84 Draft version of NRC Manual Chapter 0517. " Management of j
Allegations" w/coments in margins of page by E. Fox and W.
Haass(22pages) 59.
04/25/84 I&E Action Control Form for SECY-84-153, " Release of Information to Licensees" w/ note to E. Fox (1 page) 60.
04/27/84 Draft version of NRC Manual Chapter 0517 " Management of Allegations"w/notefromW.HaasstoJ.Blaha(26pages) i i
i t
-,,,,,,,,w,
- - - -,,,, - ~ - -
--w.-,
-r,--m,-.-,----,,, -, - - <,,,
-,,n--
,,,,.,,,,,,,-e-,,--,-,,n---,-a-,--w-
61.
05/07/84 Draft version of NRC Manual Chapter 0517. " Management of Allegations " w/coments in page margins (20 pages) 62.
05/11/84 Note W. Haass to E. Fox transmitting draft version of i
Manual Chapter sections 056, 057, 058, and 059 w/ comments in margins of pages (7 pages) 63.
05/18/84 Facsimile transmission note and pages from draft 1
Allegation Data Fom; from W. Haass to R. O'Connell '(4 pages) 64.
05/29/84 Memorandum from A. Davis to C. Weil regarding the Management of Allegations (1 page) 65.
06/06/84 Memorandum from J. Felton to W. Dorie transmitting comments on draft Manual Chapter 0517 (2 pages) 66.
06/07/84 Memorandum from G. Kerr to R. DeYoung regarding NRC Manual Chapter 0517 " Management of. Alle-gations" (1 page) l 67.
06/11/84 Memorandum from J. Lieberman to R. DeYoung regarding j
comments on draft Manual Chapter 0517 (7 pages)
)
68.
06/12/84 Memorandum from J. Keppler to R. DeYoung regarding the Manual Chapter 0517. " Management of Allegations" (4 pages)
Memorandum from J. Keppler to R. DeYoung regarding) Ma 69.
06/12/84 l
Chapter 0517. " Management of Allegations" (4 pages i
70.
06/13/84 MemorandumfromJ.DavistoR.DeYoungregardingNRC Manual Chapter 0517. " Management of Allegations (4pages) 71.
06/19/84 Record of OIA Entrance Conference Memorandum from H. Denton to R. DeYoung regarding(NR 72.
07/02/84 Manual Chapter 0517, " Management of Allegations" 1page) q 4
73.
07/10/84 Memorandum from R. DeYoung to W. Dircks regarding proposed Manual Chapter 0517. " Management of Allegations (27pages)
{
74.
07/10/84 Memorandum from R. DeYoung to W. Dircks transmitting p(41pages)roposed NRC Manual Chapter 0517. " Management 75.
07/27/E4 Memorandum from R. Brown to S. Bachrach regarding NRC Manual Chapter 0517. " Management of Allegations" (1 page) 76.
07/30/84 Memorandum from J. Davis to R. DeYoung rega ding Draft Manual Chapter 0517, " Management of Allegations " (2 pages) 77.
07/31/84 Memorandum from T. Rehm to Regional Administrators, H.
l Denton, J. Davis, and G. Cunningham regarding the Management i
of Allegations (1 page)
I
.----e%.-,.,---.---r-
--m--
w, e
nv-r--
.-e--------,--e
---e-------.-
c+----.
e--.
. - - - -----y---w--w-w
- e
78.
07/31/84 Memorandum from J. Axelrad to J. Lieberinan, R. Levi, B.
l Hayes, and G. Messenger regarding 0!A review of allegations of discrimination at TMI-2 (15 pages) 79.
08/02/84 Note J. Blaha to J. Grace transmits 8/2/84 :nemorandum R.
DeYoung to T. Rehm regarding management of Allegations (36 7
i pages) 80.
08/07/84 Memorandum from J. Keppler to T. Rehm regarding the Management of Allegations (1 page) 81.
08/07/84 Memorandum J. Keppler to T. Rehm regarding the Management of Allegations (1 page) 82.
08/07/84 Memorandum from G. Messenger to D. Grimsley regarding the Clarification of Procedures for addressing Allegations of Harassment, Intimidation, or Discrimination (2 pages) 83.
08/10/84 Memorandum from O. Shackleton to T. Gilbert regarding the Allegation Review Board Consideration of Criteria for Prioritization of 01 Resources (3 pages) i 84.
08/10/84 Draft version of USNRC Announcement No. 85 transmitted by
}
D. Hoefling to D. Grimsley w/ notes (5 pages) 85.
08/14/84 Memorandum from J. Davis to T. Rehm regarding NRC Manual Chapter 0517, " Management of allegations" (1 page) 86.
08/14/84 Memorandum from G. Cunningham to Office Directors and Region I Administrators regarding draft Staff Paper on Handling late Allegations (4 pages) 87.
08/14/84 Memorandum from 6. Cunningham to Office Directors and Regional Administrators re Late Allegation (4 pages) garding Staff Paper on Handling i
j i
88.
08/20/84 Memorandum from W. Haass to E. Fox reprding Coments on Proposed Comission Paper on " Late Al egations" (3 pages) 89.
08/23/84 Memorandum from R. DeYoung to 6. Cunningham regarding review of i
Staff Paper on Handling Late Allegations (g pages) j 90.
08/29/84 Memorandum from W. Ward to W. Haass regarding 01 Coments on Draft NRC Manual Cha Allegations" (3 pages) pter 0517. " Management of 91.
08/29/84 Memorandum from L. Chandler to Allegations Coordinators transmitting a draft Staff paper concerning Handling late Allegations (4pages)
J A
.-..-,_---r
~.. -
m.-.
-e.,
m--
}
92.
08/30/84 Memorandum fro R. DeYoung to G. Cunningham Re: Staff Paper on Handling Late Allegations (1 page)
Memorandum from J. Blaha to R. DeYoung)Re:
93.
08/30/84 Staff Paper on Handling Late Allegations (15 pages 94.
08/31/84 Memorandum from R. DeYoung to W. Dircks Re: Proposed NRC Manual Chapter 0517, Management of Allegations:
(13 pages)
- 96.
09/05/84 NRC transcript of Consnission Meeting: " Policy for Handling Last Minute Allegations" 97.
09/05/84 Memorandum from B. Cotter to Comission regarding SECY-84-249, " Late Allegations" (2 pages) 98.
09/12/84 Memorandum from R. DeYoung to W. Dircks regarding(31 p proposed Manual Chapter 0517. " Management of Allegations" 99.
09/12/84 Memorandum from R. DeYoung to W. Dircks regarding the Proposed Manual Chapter 0517. " Management of Allegations" (31pages) 100.
09/13/84 Memorandum from E. Fox to J. Blaha transmitting " Report on Comission Briefing:
Discussion of the Comission Policy for Handling Last Minute Allegations on September 5,1984" (39pages)
- 101.
10/01/84 Memorandum from P. Norry to ADM Division Directors regarding Management of Allegations 102.
10/01/84 Note from Ben to Bill transmitting 01 coments on Proposed Manual Chapter 0517 (29 pages) 103.
10/05/84 Memorandum from J. Keppler to Reg II Divison Directors regarding Allegation Tracking and Assessment (2 pages) 104.
10/12/84 Memorandum from R. DeYoung to G. Cunningham regarding the Proposed Commission Policy Statement: Handling of Late i
Allegations (13 pages)
- 105.
10/16/84 Region V Instruction No. 1303 106.
10/16/84 AllegationsManagementSystemRequirementsStatement(10 4
Pages) 107.
10/17/84 Memorandum from M. Malsch to L.Chand'.er regarding the Policy Statement:
Handling Late Al'egations (6 pages) i
T
-108.
10/18/84 Memorandum from H. Bassett to J. Funches regarding the Allegations Management System (1 page) i 109.
10/22/84 Memorandum from W. Olmstead to Office Directors and Regional Administrators regarding NRC Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings (23pages) 110.
10/25/84 Note from E. Fox to W. Haass transmitting 10/25/84 memorandum from (6. Cunningham to Office Directors and Regional Administrators regarding Policy Statement:
i HandlingLateAllegations(8pages)
- 111, 10/26/84 Memorandum from T. Murley to G. Cunningham regarding Policy Statement on Handling Late Allegations (8 pages) 112.
10/26/84 Memorandum from R. DeYoung to G. Cunningham regarding the Proposed Consnission Policy Statement: Handling of late Allegations (8 pages) 113.
11/01/84 Memorandum from H. Denton to R. DeYoung, J. Davis, and 4
Regional Administrators regarding the Allegation Management System (12 pages) j 114.
11/06/84 Memorandum from A. Shropshire to J. Allan re Allegation Management System input (2 pages)garding the
- 115.
11/06/84 Memorandum from T. Murley regarding NRC Region !
Instruction 1200.10 I
- 116.
11/07/84 Memorandum from D. Eisenhut to Division of Licensing Project. Managers regarding Handling of Allegations
.l i
- 117.
11/07/84 Memorandum from J. Keppler to H. Denton regarding the AllegationManagementSystem(1page)
- 118.
11/08/84 Memorandum from O'Reilly to H. Denton regarding the Allegation Management System I
- 119.
11/08/84 Memorandum fron 'J. Martin to H. Denton regarding the i
Allegations Management System, Requirements Statement for the ADP Program
- 120.
11/08/84 Memorandum from J. Davis to H. Denton regarding the Allegation Management System i
4
...m
..__,_,,y._,.m.w__
___..-..__._.__.,,,__...,..,_-._._..m_
121.
11/08/84 Memorandum from J. Taylor to H. Denton regarding the Allegation Management System (3 pages)
- 122.
11/08/84 Memorandum from R. Martin to H. Denton regarding the Allegation Management System
- 123.
11/08/84 Memorandum from J. Taylor to H. Denton regarding the AllegationManagementSystem(1page) 124.
11/13/84 Memorandum from T. Murley to H. Denton regarding the Allegation Management System (11 pages) 125.
11/15/84 Record of OIA Interview 126.
11/19/84 Vote Sheet of Comissioner L. Zech for SECY-84-249B-Statement of Policy: Handling of Late Allegations (3 pages) 127.
11/21/84 Vote Sheet of Comissioner T. Roberts for SECY-84-2498-Statement of Policy: Handling of Late Allegations" (1 page) 128.
12/10/84 Vote Sheet of Chairman N. Palladino concerning SECY-84-2498-Statement of Policy: " Handling of Late Allegations"(3pages) i 129.
12/11/84 Memorandum S. Chilk to Comissioners Asselstine and Bernthal regarding SECY-84-2498 (1 page)
- 130, 12/14/84 Vote Sheet of Comissioner F. Bernthal on SECY-84-2498-Statement of Policy: "LateAllegations(1page) 131.
12/17/84 Memorandum from T. Rehm to H. Denton regarding Manual Chapter 0517, " Management of Allegations "
1page) 132.
12/17/84 Memorandum from T. Rehm to H. Denton regarding Proposed NRC Manual Chapter 0517. " Management of Allegations " (1 page) 133*
12/20/84 Memorandum (Notation Note Response Sheet) from Comissioner Asselstine to S. Chilk regarding SECY-84-2498
" Handling of Late allegations"- Statement of Policy (7 pages)
- 134, 12/19/84 Memorandum from P. Davis. OCM, to A. Bates SECY regarding SECY-84-2498. " Statement of Policy: Handling of Late Allegations"(1page)
- 135.
01/06/85 Region V Instruction No. 1303 136.
01/10/85 OIA Draft Report, " Original Draft" (revised)
-~
" " ~ - - ' ' -
137.
02/05/85 Memorandum S. Chilk to Comissioners regarding r
SECY-84-2498 w/ attachments (9 pages) 138.
02/07/85 Memorandum from Comissioner Roberts to 5. Chilk regarding SECY-84-2498 " Statement of Policy: Handling of Late Allegations"(1page) 139.
02/08/85 Note from Polly to Ben regarding tracking numbers and priorities (1page) 140.
02/15/85 Memorandum from S. Chilk to W. Dircks regarding 1
SECY-84-249Bw/ attachment (8pages) 141.
02/25/85 Memorandum from P. Schofield to R. Stark concerning the i
update of the Allegation Tracking System (ATS) - (1 page) 142.
02/26/85 Memorandum from L. Chandler to J. Philips regarding Publication of Statement of Policy: Handling of Late Allegations (1page) 143.
03/26/85 Record of OIA Telephone Interviews 144.
04/9/85 Memorandum from A. Shropshire to T. Murley re j
the office Allegation Coordinator's Counterpart Meeting 4
pages) 145.
04/12/85 Memorandum from W. Dircks to Office Directors and Regional i
Administrators regarding Proposed manual Chapter 0517 (transmits Statement of Policy: Handling of Late Allegations) 146.
04/15/85 Draft 0!A Report. " Review of NRC's Allegation Management System" 147.
04/25/85 Memorandum from R. Martin to H. Denton regarding the CIA Draft Report on Allegation Management (1 page) 148.
04/25/85 Memorandum from T. Murley to N. Denton regarding Coments on Draft 01A report " Review of Nac's Allegations Management Systee" (,6 pages) 149.
04/26/85 Note from S. Connelly to B. Hayes Transmitting Draft 0IA Report. ' Review of NRC's Allegations Management System" (47pages) i 150.
05/01/85 Memorandum J. Martin to H. Denton containing coment on i
draft DIA report. " Review of NRC's Allegation Management 1
System" (2 pages)
I
t 152.
05/03/85 Memorandum from R. Martin to J. Sniezek regarding Confidentiality Procedures for A11egers (4 pages) l 153.
05/13/85 Memorandum from B. Hayes to S. Connelly regarding the Oraft DIA Report on the NRC Allegations Management System (1page) 154.
05/14/85 Memorandum from J. Davis to MMSS Division Directors, Deputy Directors, and Branch Chiefs regarding the Management of Allegations (2 pages) 156.
Undated 0!A Draft Report, " Version being Reviewed by Fred"
)
157.
Undated CIA Draft Report, " Clean copy minus last minute changes to
... confidentiality" 158.
Undated 15 Draft versions of 01A Reports-some Incomplete 159.
Undated Preliminary index copy of OIA Draft Report on NRC Allegations Management System
- 160.
Undated. " Flow chart of A11egation's Progress through Region !"
i j
161.
Undated Region II Allegation Management Procedures l
162.
Undated Note to " Bill" from Ed Oklesson regarding coments on t
the NRC Allegation Tracking System (1 page) 163.
Undated Handwritten notes of Comissioner Asselstine regarding the Handling of Late Allegations (1 page) l 164.
Undated Handwritten notes by Comissioner Asselstine concerning 9
A. Rosenthal's 7/6/84 memorandum to the Comission regarding $ECY-84-249 165.
Undated Unsigned draft version of Statement of Policy, including j
handwritten notes (7 pages) 4 166.
Undated l
Handwritten notes of J. Austin Concerning $ECY-84-249A Statement of Policy: " Late A11egations' 167.
Undated Handwritten notes of J. Austin concerning $ECY-84-2498 l
Statement of Policy: Late Allegations 168.
Undated Note from W. Ward concerning incorporation of coments 4
l (1page) 1 169.
Undeted Draft Memorandum from 8. Hayes to Regional Personnel Concerning the Allegation Management System (1 page)
.t
,n._w,--~~
n,
.a-,-,-.,-
n.-
- - n -..,_.-,-,,.,,.-
m.-
,.,,,-n-,-
v,-e,.,-, - -. _ -,,--
170.
Undated Note from J. Blaha to W. Naass regarding the ATS Report (1page)
I 17;.
Undated Notes regarding information provided to licensees i
concerning allegations (1 page) i 172.
Undated Draft memorandum from R. DeYoung to G. Cunningham 1
regarding Proposed Comission Policy Statement: Handling i
of Late Allegations (7 pages) 173.
Undated Note from E. Fox to Jim transmitting draft changes to ED0 l
l Policy on Licensee Involvement (8 pages) t 174.
Undated Note from E. Fox to Joyce transmitting draft changes to NRC Manual Chapter 0517. " Management of Allegations" (29 pages) j 175.
Undated Note from J. Blaha to E. Fox regarding minor change to 1
format of ATS report (1 page) i i
17E.
Undated Note E. Fox to W. Haass transmitting draft changes to
)
section058(3pages) i 177.
Undated Draft pages from proposed NRC Manual Chapter 0517,
" Management of Alle margins (15 pages) gations" w/ staff coments in page i
i
{
17E.
Undated Draft version of Proposed Comission Paper, " Staff Processing of Allegations, Involving App 1tcations for Operation Licenses w/ staff coments in page margins (16 pages)
I 179.
Undated Draft version of NRC Manual Chapter 0517. " Management of l
Allegations" w/coments in margins of pages (25 pages) l 180.
Undated 1
{
Routing slip to Ed Fox transmitting draft pages for I
check in consistency for new Manual Chapter covering the l
i ATS (Allegation Tracking System) w/ staff comments in page i
margins (27pages) 1 181.
Undated Oraft NRC Announcement Concerning the Clarification of i
Procedures for Addressing Allegations of Harassment.
Intimidation, or other Forms of Discrimination by Licensees and Applicants or their Contractors or Subcontractors 13pages)
I 182.
Undated Facstalle Transmittal Request from C. Abbott to W. Haass l
transmitting draft Allegation Management Format (3 pages) 1 183.
08/01/84 Memorandum from A. Rosenthal to Comission regarding j
SECY-84-249 (Late Allegations) - (3 pages)
\\
l
\\
t l
i j
i
- ~
1 1
- 184.
01/12/84 Memorandum from N. Palladins to B. Hayes regarding the Confidentiality of Informants and Witnesses (1 page) 185.
Undated Draft document containing proposed modifications of Commissioners to Statement of Policy (6 pages) 186.
Undated Draft Office of Inspection and Enforcement Allegation Tracking System Procedures (9 pages) 187.
Undated NRC Region I Comments on the Allegation Management Data Input Form (2 pages) i L
I l
l i
GOVERNMENT ACCOUNTADlLITY PROJECT 1555 Connecticut Avenue, N.W., Suite 202 Washington, D.C. 20036 (202)2324550 March 6, 1986 1
Victor Stello Executive Director for Operations FREEDOM OF INFORMATION U.S. Nuclear Regulatory Commission ACT REQUEST Washington, D.C.
20555 fd14-/4-/ D APPEAL OF FOIA # 85-365 4(#d MYN4
Dear Mr. Stello:
This is an appeal, pursuant to subsection (a) (6) of the Freedom of Information Act as amended (5 U.S.C.
552), of the Commission's actual denial of access to records requested by the Government Accountability Project (GAP) regarding the Comanche Peak nuclear power plant.
On May 13, 1985 GAP requested records relating to NRC Interim Policy on Management of Allegations - Proposed NRC Manual Chapter 0517, " Management of Allegations" dated September 9, 1984.
By letter dated June 26, 1985, J.M. Felton, Director of the Division of Rules and Records, advised of 6 documents which were being released to the PDR for our inspection.
An October 11, 1985 letter from Mr. Felton informed us of 9 documents, consisting of entrance conference notes, summaries of interviews with NRC employees, and draft versions of an OIA Report, which were being withheld in their entirety pursuant to FOIA Exemption 5 because they contained predecisional advice, opinions and recommendations and their release would tend to inhibit the open and frank exchange of ideas and opinions essential to the development of the NRC Manual Chapter.
This information was denied by Ms. Sharon Connelly.
Mr. Felton's October 11, 1985 letter also advised of appraximately 100 additional documents subject to our request consisting of preliminary draft versions of the proposed chapter and general correspondence concerning the drafts, which were being withheld in their entirety pursuant to FOIA Exemption 5 because they contained predecisional advice, opinions and recommendations.
This information was denied by Mr. Felton and Mr. Harold Denton.
g
We believe we are entitled to access to the denied documents.
At a minimum there should be reasonably segregable portions of the withheld documents which are releasable.
We expect your response within 20 days of your receipt of this appeal so that we can determine whether to pursue this matter in court.
Thank you for your attention to this appeal.
Sincerely
\\h Billie Pirner Garde Director, Environmental Whistleblower Clinic
A l
pe =tc,
u UNITED STATES
! k,
+,1 NUCLEAR REGULATORY COMMisf2ETARIATRECORD COP) y
- c
{,,%.t' l 54 wasmucros. o. c. 2osss 8
September 5, 1984 MEMORANDUM FOR:
Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech, J.
FROM:
- 8. Paul Cotter, Jr l
Chief Administrativ% Judge
SUBJECT:
SECY 84-249 (LATE ALLEGATIONS)
In a memorandum to you dated August 1, 1984, Alan Rosenthal discussed the position of the ASLAP with respect to the treatment of late allegations in the context of motions to reopen proceedings.
We concur in the views expressed.
In a footnote Judge Rosenthal commented that late allegations may also present problems in open proceedings when they are submitted in support of motions to admit late-filed contentions.
Consideration of this issue presents two basic questions.
1.
Should the standards for the admission of late-filed contentions be modified?
The Panel does not believe that special standards applicable to late-filed contentions supported by allegations need be incorporated in the Rules of Practice.
The present specificity and basis requirements, coupled with the showing required by 5 2.714a as re-emphasized by the Commission in its Catawba decision, (CLI-83-19) are sufficient to assure that contentions founded upon speculative, hearsay or otherwise unreliable allegations will not be admitted.
However, when a board is notified that an allegation has been received that is relevant to an issue in controversy, and that an investigation has been undertaken by 0I or the Staff, a cloud is cast over the proceeding.
The board knows that further information will be developed as a result of Staff or OI efforts.
Given its affirmative responsibility to assure that the record is as complete as possible, it will be loathe to render a decision on a
~l p p b
JP P
i 2
September 5,
- 98 related issue until that infermation is available.
Th's brings us to our second question.
2.
Should board notification standards with res ect to late allegations-be mooifieo?
The funoamental oDligation of licensing boaros is to hear issues in controversy and to-render a decision based upon the reliable and probative evidence of record.
Allegations in their raw form rarely meet that ev i centi a ry s ta nda rd.
More often they are speculative, based on hearsay, or received from persons not demonstrably in a position to have personal knowledge of the matters alleged.
They do not provide reliable evidence without corroboration, either by testimony or documentation.
The adjudicatory process is ill-suited to the conduct of wide-ranging investigations.
That must remain the function of OI and the Staff.
Notifying boards and parties of the receipt of as yet uninvestigated allegations rarely advances the task of resolving issues in' controversy.
Nevertheless, the existing criteria for board notifications virtually compels the Staff to provide information concerning allegations as soon as it has determined that the matters alleged, if true, may be material to a pending licensing proceeding.
The ASLBP would support a modification of the board notification standard to provide a hig'her threshold for notification decisions in the case of late allegations in order to permit some preliminary evaluation of the reliability and significance of the information alleged.
We recognize that the establishment of appropriate standards will be difficult and must take into account not only the needs of the adjudicatory process but also the investigation and inspection techniques and workloads of OI and the Staff, as well as the public perception of candor vs. " cover-up."
Should the Commission decide to pursue this course, input from OI, ELD, OGC and appropriate Staff offices as well as the adjudicatory boards will be essential.
We would be pleased to participate in the effort.
A. S. Rosenthal, ASLAB" M cc:
H. H.
E. Plaine, OGC, GC J. E. Zerbe, PE G. H. Cunningham, ELD
- w
s y~s
/
August 31, 1984 POLICY ISSUE ssCr-84-249A (Information)
For:
The Comissioners Frem:
William J. Dircks, Executive Of rector for Operations
Subject:
LATE ALLEGATIONS
Purpose:
To provide the staff's views on handling late allegations Discussion:
The Comission has recently received the views and recom-mendations of the Office of the General Counsel, SECY-84-249, g
and the Atomic Safety and Licensing Appeal Panel, memoranda dated July 6,1984 and August 1,1984, regarding criteria for handling late allegations.
While the General Counsel's paper broadly addressed the issue, the focus of the Apceal Panel's Memoranda was on the treatment of allegations in the context of an ongoing adjudication.
Both papers, we believe, provided useful guidance in considering the question of late-filed allegation, and the recomendation of the Appeal Board appears to be particularly helpful in addressing late-filed allegations raised through a motion to reopen the record in an ongoing adjudication.
However, neither paper expressly i
addressed the procedure which the staff should follow in preparing its response to motions to reopen or in considering the merits of such allegations filed in uncontested proceed-ings. The purpose of this paper is to present the criteria used by the Staff in handling the large number of late alle-gations received in connection with the Diablo Canyon proceeding; these criteria are generally alluded to in Part 'l of SECY-84-249 (at 16 et seq.) While these criteria are no doubt amenable to improvement, they did, nonetheless, provide a workable framework for addressing the late allegations in a reasonably timely manner in the Diablo Canyon proceeding.
The Diablo Canyon criteria fall generally into two categories -
criteria for evaluating the allegations substantively and CONTACT:
L. Chandler, OELD 49-28658 SECY NOTE:
This subject is scheduled for discussion by the Commission at a meeting on Wednesday, September 5, 1984.
OuM n n & ir-+3 J MMra W.) py gn
criteria for detennining when (in tems of the stage of plant operation) specific allegations must be resolved.
The criteria for substantively reviewing an allegation are:
is the allegation a specific safety or quality issue or a generalized concern?
has the staff previously addressed this issue?
I has the issue been previously' dealt with or is it now being dealt with by the licensee?
is the allegation reasonable and does it sound competent?
does the allegation represent a significant safety or management concern?
See Diablo Canyon Safety Evaluation Report, NUREG-0675, Tupplement No. 22 (March 1984) (SSER 22) at E-5.
I In connection with Diablo Canyon, as with other facilities, t
the staff recognizes the desirability of resolving all allegations prior to licensing.
However, when confronted with extremely large numbers of late allegations, it was determined that, from the standpoint of managing their resolution, certain of the allegations warranted priority over others in tems of their significance to safe 1
operation of the facility. Accordingly, the following criteria for determining, hen the allegations must be resolved were developed:
pricr to criticality those allegations or con-cerns must be resolved which offer specific new infonnation, not previously available to the staff and which appear to involve a discrepancy between design criteria, design, construction or operation of a safety-related component, system, i
or structure of such magnitude so as to cause U ecause of the fact that fuel loading had already been accomplished at B
Diablo Canyon prior to the issuance of SSER 22, the criteria presented in that Supplement focus on concerns pertinent to resolution of alle-gations prior to criticality and prior to exceeding 5% of power (i.e.,
full power). For other facilities, similar criteria will be applied to determine which allegations require resolution prior to fuel loading.
l
j
- i.
i the operability to be drawn into question.
In addition, sufficient technical information regarding these allegations or concerns is not presently available to the staff, or programs i
have not been developed or implemented to assure i
that regulatory concerns related to reactor i
safety will be resolved prior to criticality.
i j
Prior to criticality those allegations or con-1 cerns must be resolved which offer definitive j
new information, not previously available to the staff, and which indicate a potential, signifi-i cant deficiency in the licensee's mahagement or quality assurance of safety-related activities.
j In addition, sufficient technical information regarding these allegations or concerns is not 4
3 presently available to the staff, or programs have not been developed or implemented to assure j
that regulatory concerns related to reactor safety will be resolved prior to criticality.
Prior to exceeding 5 percent power those alle-gations or concerns must be resolved which offer specific new information, not previously avail-i i
able to the staff, and which may reasonably be expected to involve sizabit failures of systems that contain radioactivity or of the ECCS systems.
In addition, sufficient technical information regarding these allegations or concerns is not presently available to the staff, or programs have not been developed or implemented to assure that regulatory concerns related to reactor i
safety will be resolved prior to exceeding 5 percent power.
1 See Diablo Canyon SSER 22 at E E-7.
l The urgency attached to resolution of a given allegation as well as the level of detail in review will also be influenced i
by the experience gained in reviewing allegations at a parti-cular facility and the specific knowledge of a matter possessed
)
by the staff. For example, after in depth review of the first i
i 180 or so of the allegations received in connection with Diablo i
I Canyon, the staff determined that greater discretion could be i
used in resolving subsequent allegations that were very similar to those previously reviewed in detail or which, based on an i
initial review, did not relate to significant safety issues in
{
terms of plant operation, quality or management.
See, Diablo j
Canyon SSER 22 at E-4, E-5, E-7.
1
_______.__1__._,
e 4-In future cases, the foregoing criteria could to be applied by the staff in its independent review efforts in regard to uncontested matters.
In addition, in a contested proceeding, the staff could also apply these criteria, with the attendant review effort, in responding to a motion to reopen the record based on allegations.
If the Commission believes that such an approach would prove helpful, the criteria will further be refined and detailed procedures for implementing these criteria will be developed by the staff to facilitate con-sistent application by all involved staff units in both Headquarters and the Regions.
i l
M c
L.
Wi iameJ. Dircks Executive Director for Operations i
I 4
DISTRIBUTION:
Cc=ztis sioners OGC OPE OI OCA OIA OPA 10EGIONAL OFFICES EDO ELD AC5di ASLBP ASIJG SECY
]
N UC.>L SE^.lET.U.,,^5 e g-. - -
,, nb-UNITED STATES
- e y
t NUCLEAR REGULATORY COMM:SSION ATOrdic SAFETY ANO LICENSING APPE AL PANEL I
, tI wAsniN cN. :.c.2:sss s j et July 6, 1984
,v.EnoRANDUM FOR:
Chairman Palladine Co=missicner Roberts Co=missione: Asselstine Commissioner Bern hal Commissicner Zech r.
i FRCM:
Alan S.
Rosenthal, Chair =an
)
Atomic Safety and Licensing i
Appeal Panel l
!l SU3 JECT:
SECY-84-249 (LACE ALLEGATIONS) i A.
Because of the increasing nc=ber of eleventh-hour allegations (especially respecting plant construction and quality assurance) that are surfacing in cperating license adjudicatory proceedings, the General Counsel's paper ch that subject (Secy-84-24 9 dated June 20, 1984) was' discussed some length at a recent Appeal Panel meeting.
Although a
no effor was =ade to obtain a consensus on any part'icular j
aspect of the matter, there appears to be general Appeal l
Panel agreement that the handling of late allegations in adjudica: cry proceedings presents significant problems.
The most recent motions to reopen the record c design and construction quality assurance issues in the Diable Canyon operating license proceeding exe=plify some of those proolems.
See ALAB-775, 19 NRC (June 2E, 1984), and most especially the discussion in footnote 22 of that ceinion.
ALA3-775 also contains some refinements of the current reopening standards (see slip opinion at 7-8 and n.18 ) which the Commission might wish to endorse explicitly in a policy statement.*
Additionally, me=bers of the Panel
- At page 15 of SECY-84-249, the General Counsel takes note of the fact that, in connection with an earlier motion to reopen the.Diable. Canyon record on construction quality assurance issues, the Appeal Board conducted an abbreviited evidentiary hearing for the purpose of determining whether the motion was sufficiently meritorious to warrant a full-dress hearing.
See ALAB-756, 18 NRC 1340, 1343 (1983).
's{
Although the General Counsel suggests that "[tihe law on s
I reopening records" was " refined" by this unprecedented step, the high probability is that similar action will be taken (I'
in connection with very few, if any, future motions to Ch{
reopen.
Wuf f 3 I, M,, _k y 'f)( O Upp
o s.
Oc=missicners 2
anditsstaffhaveadvancedpropesalswithrespecktelate allegations and thei creatment which have hee: c rculated among the entire Panel membership fer study and discussien.
Some or all of these propesals may at a later date be passed en to the Cc-dssion for its consideration.
B.
The following comments with regard to SICY-24-249 are mine alone and do net necessarily represent the views cf the other Appeal Panel members.
1.
On page 13 of SICY-84-249, the General Counsel reco= mends that "the general (Beard] netification pclicy, which provides for timely notification withcut evaluation, be applied" to late allegations.
On the assumption that the General Counsel has in mind no prenctifica:icn evaluation cf any kind, I strongly disagree with that recc=mendation.
It seems to me entirely appropriate for the staff to advise Boards prc=ptly (as it now does) of undisputed events having a possible bearing on issues in adjudication.
- Thus, for example, should there be a licensee report cf a steam generator tube rupture at a nuclear facility, any Board considering a tube integrity issue (albeit in the context of se=e other nuclear facility) justifiably expects to be informed of that occurrence even before its precise cause and significance have been ascertained by the staff.
- For, armed with that infor=ation, the Board =ight well (and properly) decide to hold the ultimate resolution of the tube '
integrity issue in abeyance to await the outeeme of the staff investigation of the incident.
But a raw allegation scarcely can be equated with an established fact such as the occurrence of a steam cenerater tube rupture.
For all anyone knows at the time it is received (perhaps from an anonymous source), a given allegation is totally devoid of any possible subchance; indeed, it might turn out that the alleger is a dismissed employee of the utility or contractor with a thitst for retribution exceeding his or her interest in the truth.
Until the allegation has been given at least a coarse screening to determine whether it is worthy of a full investigation,and/or inspection effort, there is nothing that a Board legitimately could do with it.
Beyond that, to my mind it is fundamentally unfair to the utility to put before Boards totally unscreened allegations that charge it or its contractors with malfeasance er misfeasance.
i Accordingly, I believe that an allegation received' by the Office of Investigation, Inspection and Enforcement or Nuclear Reactor Regulation (or by a Regional office) should not be the subject of a Board notification unless and until is
Ic== srieners 2
-he allegatien has received a prel;r.inary screening and ic has been deter =ined that further ex:le:ation cf it by either investiga: cry or inspec:icn personnel (c beth) is varranted.
In this connection, assume tha the
- eli=inary screening process is (c can be) cenducted "ex=editiously so that there would be little risk of a pc'ssibly =eritoricus allegatien cf safety significance being vishheld f:c= the Scard fer a p c:: acted period.
2.
In =y Septa =ber 7 and October 6, 19 8 3 memcranda, *
- recc== ended the discentinuance and repla'cemen: cf the existing i==ediate effectiveness review procedure prescribed in 10 CFR 2.764 (f) (2) for cperating license proceedings.
In the course cf discussing the recc==endation, I took note in i
bc h =e=oranda of the fact that Secticn 2. 764 (f) (2) does not accurately reflecc the Co==issien's actual practice.
More I
specifically, the ter=s of the Sectics convey the clear impression that inmediate effectiveness reviews fccus upon the issues before the Licensing Board and the evidentiary recc d underlying the Board's disposition of these issubs.
3ut the reality is that the Cc==issic: vill censider en its review any =atter that it dee=s relevant to reactor cperatien -- whether er not litigated before the Licensing 3 card.
Further, even with respect to litigated issues, the Oc==ission does not necessarily base its review strictly
- pen the adjudica: cry record.
A part of this reality appears to be acknowledged at page 16,of SECY-84-249.
The General Counsel there includes in the category of "less for=al review processes" (as distinguished f c= " formal adjudicatory hearings"),
"Co==ission effectiveness reviews of contested issues in contested cases."
According to the General Counsel, notwithstanding that a particular issue was placed in co=troversy before the Licensing Board, in examining that issue for immediate effectiveness purposes "the procedural rules governing receipt of evidence and reopening of records in formal hearings do not apply."
.. The September 7 memorandum was addressed to the Chair =an and subsequently distributed by him to the other Cc==issioners.
The Octcher 6 memorandum was addressed to the full Commission.
Copies of those memoranda (as well as a third one (dated September 16, 1983) in response to Cc==issioner Gilinsky's September 14 commentary on the September 7 memorandum) are being furnished to Commissioner Zech.
l r
't
+
Cc=missioners 4
I knew =ct whether the spe:ific p cpesals centained in my October 6, 1983 memorandu: hr e been implicitly rejected.***
3e that as i: =ay, I believe tha:
se Ccm=ission has a plain duty at laEst c amend Secticn 2.764 (f) (2) to conform its ta==s c actual Commission practice.
In my view, it is sfair (if ne: illegal) fe: the Com=issien to establish by regulation a procedure that in significant measure is not felle ed in. practice.
If the Commission is not prepared to ec:fer= its practice to its regulations, the latter obvicesi
=ust be changed.
3.
In footnote 4 on page 25 of SECY-84-249, the General Counsel states unecuivocally that the NRC has the burden of proof in an enforcerer: action against an outstanding cperating license.
I have furnished to Mr.
l Malsch the basis for my belief -ia the cuestion mav be l
closer than footncte 4 would sug est.
More specificallv, I think a respectable argument can be made that (1) the staff has the initial burden of going ferward with evidence indicating that, e.e.,
in the i=:arest of safety a particular reactor should be sh:: down; but. (2) ence the staf f has made out a prima f acie case on that or'coosition,
-=urden of cr'oving the licensee must then assume - s otherwise (i.e., of persuading :le decisionm'aker that continued plan operation will ::: pese an unreasonable threa to the public health a d safe:y).
It is my impression that OGC will now caha another lock at the
=atter.
For this reason, I do ::t address it further in this memorandum.
cc:
Martin G. Malsch, OGC Guy E. Cunningham, ELD 3.
Paul Cotter, ASLBP S E C 1,'
~
i I
l Insofar as I am aware, they have not been explicitly turned down.
n-
+ - - - -
,,n.-
.,/. alt KICgo
~.
g
\\; ~.v.1/
POLICY ISSU*
b SECY-84-249 June 20, 1984 (Notation Vote) i To:
The Commissioners i
From:
Herzel H. E. Plaine General Counsel
Subject:
LATE ALLEGATIONS
Purpose:
Commission consideration of criteria for I
handling late allegations Discussion:
I.
PURPOSE In recent cases the NRC was confronted with large numbers' of safety allegations filed late in the operating licensing review.
Most of these allegations dealt with QA/QC or construction defects.
The processing of these late allegations affected decision schedules at the adjudicatory boards, the staff and the Commission.
Contact:
Martin G. Malsch, CGC x41465 E ' *s.
a
\\
g) w we
2 The staff developed ways of managing its review of these allegations so that resources were appropriately allocated and reviews were coordinated.
See, for example, SECY-8 4-26,
" Staff Processing of Allegations Involving Applications for Operating Licenses."
There may continue to be improvements along such managerial and precedural lines.
The i
adjudicatory boards have processed late allegations by using established criteria for i
late contentions and reopening records.
Neverthaless, it seems likely that reviews of late allegations will delay licensing decisions in.some cases no matter how efficiently the NRC's reviews are conducted and coordinated.
The issue for discussion in this paper is whether some new or (in the case of the boards) different criteria could or should be adopted for distinguishing those allegations j
that warrant prelicensing resolutien from
4 i
Director of NRR, depending on the circumstances) has reason to question whether one or more prelicensing statutory findings I
can be made.
The most important finding in nuclear pcwerplant licensing is the. finding that the license presents no undue risk to public health and safety.
The root basis, for NRC's j
I reason to question whether the finding can be made, could be the NRC's own reviews, or outside information such as material provided in the form of allegations.
However, it is the ccgnizant NRC official who must have the reason to question whether the finding can be made.
The fact that scme outsider may believe that a particular plant may pose an undue risk is not datarminative, unless that belief is shared, at least to some substantial degree, by NRC.
Licensing is an official, governmental action, and it ordinarily would be arbitrary
i 6
been recognized by the courts, at least in the formal hearing context.
B.
All Information Should Be Considered The following analysis also, utilizes a second premise that in considering the safety significance or substantiality of an -
l allegation, information already known to NRC l
should be considered along with the information in the allegation.
This premise flows frcm that element of the first premise which emphasi,zes that it is the NRC's judgment, and not the allegation source's jud'gment, that is important.
This second premise means that an otherwise insufficient allegation must be deemed sufficient if NRC itself has the information that " cures" the insufficiency, and that an otherwise sufficient allegation may be discounted in light of contrary NRC information.
For example, failure by an
8 This presents the issue whether, for consistency, all late information frem internal as well as external sources, should be treated the same for prelicensing review purposes.
Several factors argua strongly in favor of consistent trea~tment.
First, NRC may not be in a reasonable position to discount arbitrarily and uniformly the accuracy of certain information just because it comes from a non-NRC source.
Second, as i
explained in part II of the paper, all allegations must be considered along with internal NRC information bearing on the same subject matter, and it is not the beliefs of the allegation source but the beliefs of NRC that are pertinent to the handling of the allegation.
Therefore, categorizing an issue as " internal" or " external" will be a difficult and artificial exercise.
Of course, NRC must and does have confidence in the good faith and ccmpetence of its own staff.
And it is the staff, perhaps including our hypothetical inspector in the
10 f
IV. FORMAL ADJUDICATORY HEARING - ANALYSIS i
La' i allegations can ba filed or ccme to the attention of all levels of NRC decisionmakers in several contexts.
These contexts include the Commission deciding the merits of a case after formal adjudicatory hearings, the Commission conducting an effectiveness review of contested issues, the Commission conducting a prelicensing review of i
uncontested issues, adjudicatory boards acting in formal hearings, and staff conducting an informal safaty review.
This part of the paper discusses tha treatment of allegations in the formal licensing adjudicatory hearing process.
This affects licensing and appeal boards and, when it acts in its adjudicatory capacity ec decide the merits of a case, the Commission itself.
The i
treatment of allagations in other prelicensing reviews, including all effectiveness reviews, will be addressed later in Part V of this paper.
i
12 notifications of allegations should be 1
delayed until they can be evaluated.
I A delay pending evaluation would produce more useful information to the decisionmaker, and would avoid the possible prejudicial effect of facially serious allegations which prove to have no substance after review.
On the other hand, the evaluation of allegations is often especially time l
consuming since it often requires OI investigations and extensive coordination between OI, IE, NRR, and others.
A delay-could result in uninformed decisions in circumstances where a decision is made after the allegation is filed but before the allegation is evaluated.
- Moreover, evaluation before notification would be inconsistent with other notification policy which places a premium on timeliness over putting the information in useful form and possible prejudice.
14 A motion to reopen a closed record in a formal adjudication must be " timely", must address a "significant" issue, and must contain evidence which shows that a different result would have been reached had the material been submitted earlier.
This test has been described as a " heavy burden" on the movant.
E.g. Kansas Gas and Electric Company (Wolf Creek Generating Station, No.1),
ALAB-462, 7 NRC 320 (1978).
See also SECY-84-183, on review of ALAB-756, Pacific Gas & Electric Co. (Diablo Canyon Unit 1).
There is also authority for the principle that a "serio.us" safety matter requires reopening even if the motion to reopen is not j
timely filed.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520 (1973).
i Accordingly, in formal adjudications there is authority for the proposition that soma balancing or tradeoff is warranted between degree of significance to safety and the benefits of a prompt licensing decision.
A
16 V.
INFORMAL REVIEWS - OPTIONS AND ANALYSES At this point we move from formal adjudicatory hearings to the less formal review processes.
These include, for purposes of this paper, Commission effectiveness reviews of contested issues in contested cases, Commission prelicensing reviews of uncontested issues, and informal staff reviews.
All these reviews are i
relatively informal in that the procedural rules governing receipt of evidence and reopening of records in formal hearings do not apply.
A.
Initial Screening Criteria At the outset, it seems clear that several criteria can be used as an initial screen to distinguish those allegations requiring some substantive NRC review from those that do not.
18 needs to be exercised in applying this screen.
Differences in wording that appear small could, upon further analysis or investigation, appear to be significant.
In some areas, large numbers of duplicate allegations could suggest some underlying significant issue when just one or two allegations may not be significant.
These screening criteria are clearly in accord with the premise discussed in Part II.
Unless an allegation passes chese tests, it should give rise to no NRC uncertainty whether one or more prelicensing statutory findings can be made.
These tests are also implicitly included in the record reopening criteria discussed in Part IV.
These screening criteria resemble the screening criteria used by staff in Diablo Canyon (SSER No. 22 at E-2, and are implicit in the Commission's low power license reinstatement decision.
20 differently in various places, some estimate 4
of " safety significance" was always included.
Safety significance related to the particular licensing action at issue (i.e., low power or full power).
Safety significance is not a term that is capable of a precise definition.
It must be something more than materiality, since anything that is relevant to radiological safety is material, yet surely some material safety matters are not significant.
SEC'l-84-26, " Staff Processing of Allegations Involving Application for Operating Licenses," suggests (at p. 3) that safety
" significance" shculd be judged in the same way that 10 CFR 2.206 petitions are reviewed.
However,10 CFR 2.206 petitions are evaluated under a " substantial health or safety issue" test.
Consolidatad Edison Co., 2 NRC 173 (1975).
This formulation does not really advance the discussion, since "significant" may not be much different than " substantial."
Moreover, use of this test may confuse
22 i
1.
Reopening Criteria for Informal Reviews one possibility would be to require the allegation to pass the.same test that applies to a motion to reopen a closed record in a formal adjudication.
As discussed above, a motion to reopen a closed record in a formal I
adjudication must be " timely," must address a i
"significant" issue, and must contain evidence which shows that a different result l
would have been reached had the material been submitted earlier.
This test has been described as a " heavy burden" cn the movant.
There is also authority for the principle i
that a " serious" safety matter requires reopening even if the motion to reopen is net timely filed.
Accordingly, in formal adjudications there is authority for the propositien that some balancing or tradeoff is warranted between degree of significance to safety and the
}
4 i
.,,,-c-,
n
,-,-.n,.-
24 j
4 While a less flexible and more formal approach may be consistent with NRC's statutory duties, a more formal approach j
would be a substantial change in NRC review policy.
a A formal reopening test would rule cut I
allegations that contain no " evidence."
This term should be construed loosely in the informal review context, since formal rules of evidence are not applicable.
It could rule out conclusionary allegations (e.g.,
' "the welds are no good") that lack supporting J
reascns or facts, and second-or third-hand factual information (e.g.,
"A told me that the weld was improper").
This seems consistent (at least in part) with some of the criteria in the Diablo Canyon SSER which ask whether "the allegation (is] a specific safety or quality issue or a generalized concern" and whether the allegation is J
" reasonable and sound (s] competent" (SSER-22 j
at p. E-5).
1, 4.-.
.---------ww-
--m-,,
-r-w-
..---,---.---,---.-y
-.-----y
,, - =, -
--y---
26 Advantages a.
It would encourage the timely filing of well documented allegations, since at least some late filings would no longer warrant the prelicensing review desired by the source of the allegation or the person filing, and only timely and well 4
i documented filings could be assured of prelicensing review, b.
The late stages of NRC reviews would be more orderly because they could focus more eas.ily on those more serious unresolved safety issues that warrant late and intensive application of NRC review resourcas.
This has the potential to improve safety.
1 1
c.
Some licensing delays will be avoided.
d.
The same safety issue will receive consistent treatment in both formal and 1
informal review processes.
This is i
. _ - _ _, - -,,.. - - _. _., _ _ ~ _ _ -
28 be a lower assurance of safety, at least during the early stages of operation while the allegation is being processed as a post licensing matter.
b.
The review of late allegations could become begged down in a difficult and 1
time consuming review of a host of side issues bearing on the timeliness of the submittal and the existence of good cause for failing to bring the matter to NRC's attention earlier.
For one thing, it is unclear when a filing should be deemed late.
When does the record "close" on an issue in the informal NRC staff and Commission reviews?
Would a filing be late if it was filed in one year after the source became aware of the information but one month before NRC l
staff completed its own review of the related items?
Is fear of reprisal good cause for late filing?
Would lack of knowledge regarding the exact status of completion of staff reviews, or of NRC
\\
30
~
2.
Merits Criteria in Informal Reviews The criteria in this category are different i
from the reopening c~riteria, which assume that the facts in the allegation (other than the significance of the facts alleged) are accurate.
These criteria include measures to judge the accuracy of the information in the allegation.
The Diablo Canyon SSER suggests use of criteria of this type when it asked whether the allegation " sound (s) competent" and whether ",the issue (has] been previously dealt with" (SSER 22 at p. E-5).
They could be applied in addition to or in lieu of the reopening criteria.
1 The following are possibilities.
a.
Any available extrinsic evidence of reliability-or accuracy could be considered, such as whether the source has sufficient expertise to recognize i
o
-, ~,
r
32 The advantages and disadvantages of these merits criteria are similar to those for reopening criteria, except that they will likely be less pronounced in any given case because merits criteria resemble and may approach full prelicensing merits review of the allegation.
More timely filing of allegations would to some extent be encouraged since only timely filings could be assured of full review, late stages of NRC reviews would be somewhat more focused, and some lic ensing delays could be avoided.
On the othar hand, there is some chance that a significant item will be passed over, some examination of lateness will be required that would divert resources, and there could be a public perception that some " shortcuts" are being taken that reflect a choice of avoiding delay over safety.
t
34 other side, there is a likelihood that some fairly serious safety issues will be passed over with a consequent reduction in assurance of safety, the criteria will be controver-sial, and the danger exists that reviews could get bogged down in side issues related to lateness and excuses for delay.
One additional advantage and one additional disadvantage also seem applicable to the use of immediate enforcement action criteria.
The additional advantage is that this would eliminate what many would see as an inconsistency in delaying licensing to resolve a technical issue that would not warrant shutdown if the allegation had been received after license issuance.
The disadvantage is tied to the advantage.
Not to distinguish initial licensing from enforcement in the review of allegations can be viewed as failure to recognize the special character of initial licensing, where 1
I 36 are considered to apply only to " late" allegations.
This gives rise to the problem, alluded to above, of determining whether an allegation is late and, if so, whether legitimate reasons exist to excuse the late filing.
a.
Lateness related to status of NRC reviews Under adjudicatory reopening criteria, a motion to reopen is filed only if the board record is closed.
The counterpart in the informal review process would be the closing of an item in the staff SER or related inspection report.
Use of this counterpart criteria would have the advantage of being analogous to the use of reopening criteria which are widely accepted and recognized.
It has the disadvantage of being somewhat difficult to apply since in many cases the point in time when an item is closed could be difficult to determine because of follow-on
38 d.
Excuses for late filing Under any lateness criteria there is the likelihood that lateness will be arguably justified for a variety of reasons, including lack of knowledge of -the status of NRC reviews or of NRC interest in the matter, illness, failure to appreciate the significance of the information, and, most importantly, fear of reprisals.5 gic,3,,,
or contractor employees may be unwilling to give information to NRC until after their employment is terminated, or at any time, out of a concern,, real or imagined, that they will be penalized for doing so.
This poses a very difficult question.
If NRC is to accept at face value stated fear of reprisals as an excuse for late filing, then l
this excuse could become commonplace and late i
5Reprisals are ground for enforcement action under 10 C.F.R. 519.20 and awards of reinstatement, backpay and damages under Section l
210 of the Energy Reorganization Act.
i i
I i
40 Recommendations:
A.
No changes should be made in the manner in which late information, including allegations, are treated in formal hearings.
Rather the current criteria should be strictly enforced.
- However, the Commission may wish to consider whether, as a general matter, board notification could be delayed pending some level of evaluation of safety significance.
Also, the confidential (in camera) treatment of allegations is being separately addressed.
B.
If the C,ommission believes that late allegation criteria are necessary in informal reviews, then we suggest that the following be considered for inclusion in a policy statement.
1.
All late-developed information, including late allegations, should be similarly treated.
O 42 4.
Information bearing on a safety issue, which comes to NRC's attention after the issue has been closed in the staff evaluation or (in cases where the issue has not been addressed) after the entire staff evaluation has been completed, would be subject to late information criteria, unless the information could not, with the exercise of reasonable diligence, have been provided earlier, or the i
delay in'providing the information is. excusable.
Lack of awareness of the status of NRC reviews would be no excuse.
A well founded fear of reprisal would be an excuse.
Information which meets these criteria would be fully considered Prior to licensing; information which fails these criteria would be the subject of post licensing follow up.
1 l
44 (c)
A judgment must be made that the information is likely to be correct.
This judgment should be based on all available information, including:
(1)
Does the source have first-hand knowledge of the facts and have any necessary expertise to accurately report them?
(2)
Does the source have a past record of unreliability?
(3)
Is there cther mora credible information to a
the contrary?
(d)
Then, depending on whether the Commission wished to apply criteria which called for some t
l
46 information would be handled in post-licensing follow up (that would involve a license-condition to the effect that the license is subject to l
satisfactory resolution of this item)..If the informa-tion appears to be of great significance, then the j
licensing decision must be 1
delayed for however long it takes to resolve the matter.
Herzel H. E. Plaine General Counsel Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, July 11, 1984.
4; Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, July 2, 1984, with an infor-mation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE OI OCA l
OIA OPA REGIONAL OFFICES EDO ELD ACRS AS LBP ASLAP SECY
't
..----,_--.,_m, r
'e,g.
- o UNITED STATES E
NUCLEAR REGULATORY COMMISSION p/
e I
ATOMIC SAFETY AND UCENSING APPEAL PANEL wAswmoTov. o.c. 2osss August 1, 1984 a
v ;-
7 MEMORANDUM FOR:
Chairman Palladino 7'
g '/
1' 2
)
Commissioner Roberts 4-Commissioner Asselstine C'ommissioner Bernthal 4 '.-
,(
Commissione'r Zech j/
kAlanS. Rosenthal, Chairman FROM:
f Atomic Safety and Licensing g/,
Appeal Panel
SUBJECT:
SECY-84-249 (LATE ALLEGATIONS)
This supplements my July 6, 1984' memorandum on the above-styled subject.
In that memorandum, I indicated that the members and staff of the Appeal Panel had under study possible approaches to rule changes that would enable adjudicatory boards to deal more effectively with the
' problem of late allegations.
After further consideration of j
the matter, the Panel members and staff reached agreement in principle on a rule that should incorporate the provisions discussed below.
1 NRC case law already requires a proponent of a reopening motion to satisfy three criteria:
- 1. The motion must be timely.
- 2. It must be addressed to a significant safety or environmental issue.
- 3. It must be established that a dif ferent result might have been reached initially had the material in support of the motion been considered.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980).
Although the Appeal Panel found these criteria to be adequate with regard to the substance to be covered in a motion to reopen, it believes there is a need for further I
specification of the mannor and degree of detail in which l
the factual underpinnings and the reasons for the motio'n are i
to be presented.
In its view, such further refinement in 1
the reopening criteria is needed to avoid the situation,.
such as that which recently occurred in the Diablo Canyon proceeding, in which a motion to reopen was accompanied by a mass of materials, put together in no particular or in
-WA mww g
,e 2~
l organized form and containing a substantial amount /of irrelevant and immaterial information.
The consequence was that the Appeal Board was saddled with the time-consuming task of sorting out the factual support for the numerous allegations advanced by the movant as reasons for reopening (with the risk of its overlooking some important fact-or argument) in its deliberations on the motion.
To facilitate proper and timely consideration of motions to reopen by~the adjudicatory boards, while maintaining fairness to all of the other parties to the proceeding, the Panel believes that the existing' reopening l
standard should be incorporaued into a rule with the following refinements:
1.
A motion to reopen must separately address each of the three established reopening criteria, explaining in specific detail why each of those criteria has been met.
With respect to the second and third criteria, the motion must be accompanied by one or more affidavits that set forth the factual and technical bases f the criteria have been satisfied.gr the movant's claim that signed either by counsel or by the person making the factualThe affidavit [
or other assertions in the affidavit.
2.
the allegations of a confidential informant mustA motion that is pre nevertheless identify the source of the allegations to enable proper evaluation by the Board.
If t'he movant desires to protect the anonymity of the informant, it should submit a motion for a protective order along with the motion to reopen.
In that case, the movant may omit the name of the informant from the copies of the papers served on the Commission's Secretary and other parties to the proceeding pending the Board's decision on the protective order,
,3.
A motion failing these requirements will be dismissed.
1 number of allegations.0bviously, many motions to reopen will be based upon a Where this is the case, it is essential that the allegations be properly organized.
with particularity each issue it seeks to litigate and to-this In specify the allegations assertedly supporting the claim that that issue is worthy of adjudicatory consideration under the reopening test.
As noted in the text, this was not done in the recent Diablo Canyon motions.
.s These refinements in the reopening standard shou'id result in a rule that strikes a proper balance between the competing policy considerations of favoring a public hearing on safety and environmental issues, and of ending litigation after the public has had a reasonable opportunity to participate in the procedural stringenprocess.
Although the increased cy reflected by these provisions may appear to favor form over substance, the benefits they provide in aiding proper review of late allegations make their adoption worthwhile.
In this connection, it should be emphasized in the Statement of Consideration that the fact that a motion to reopen may not succeed d6es not mean that a possible safety or environmental problem will be ignored.
All it means is that the factual allegations, as presented, were insufficient to warrant their consid,eration in an adjudicatory setting at that particular stage in the proceeding.
The staff is always available to inquire into allegations by intervenors and others on matters affecting public safety, and it can be called upon to undertake such an inquiry either under 10 CFR 2.206 or, if wrongdoing is suspected, by notification to the Office of Investigations.2 cc:
B.P. Cotter, ASLBP G.H. Cunningham, ELD M.G. Malsch, OGC S.J. Chilk, SECY v#
The Appeal Panel consideration of the late allegation matter was entirely in the context of motions to reopen closed records.
It should be recognized, however, that late allegations also surface in motions to add new contentions in a proceeding in which the record has not as yet been closed.
boards, rather than appeal boards.Such motions generally are filed with lice NN
~
,)'
},e rec jj o-
UNITED STATES
.' J;.
7\\
NUCLEAR REGULATORY COMMISSION nc os m 5 I
eJ i
v.t.sec on :. c ::ss!
i, - L.Qr* $
Se: sr:s-5, lii-MEMORANDUM FOR:
Chairman Palladino Commissioner Roberts Commissioner As seis tine Commissierer 5e--ita' Commi s s i one r Ze cr., J.
FROM:
- 8. Paul Cotter, l'r.
Chief Administrative Judge
SUBJECT:
SECY 84-249 (L ATE ALLEG ATIONS)
In a memorandum to you datec August 1, 1984, Alan Rosenthal discussed the position of the ASLAP with respect to the treatment of late allegations in the context of motions to reopen proceedings.
We concur in tne views expressed.
In a footnote Judoe Rosenthai commer.ted tnat late allegations may also p~esent~prooiems in open ;roceedings r
when they are submitted in support of cctions to acmit late-filec contentions.
Consideration of this issue presents two basic questions.
1.
Should the standards for the acmission of late-fileo contentions ce mocifiec?
ine Panel oces not believe Inat special stanca ros applicable to late-filed contentions supported by allegations need be incorporated in the Rules of Practice.
The present specificity and basis requirements, coupled with the showing required by 9 2.71?a as re emphasized by the Commission in its Catawba decision, (CLI-83-19) are s'uffic.ient to assure tha contentions founded upon speculative, hearsay or otherwise unreliable allegations will not be admitted.
'However, when a board is notified that an allegation has been received that is relevant to an issue in controversy, and that an investigation has been undertaken by OI or the Staff, a cloud is cast over the proceeding.
The board knows that further information will be developed as a result of Staff or 01 efforts.
Given its affirmative responsibility to assure that the record is as complete as possible, it will be loathe to render a decision on a i
A.
s A^
.,x
,o
) 4 6 o
.:e::e :e-5.
35:
i 1
relatec issue until -ha: i n f C r m a : '. : P 's a/i- ' i: 't.
I 's i
- rings us to our sec:nc cues-ice.
2.
Snould board notifica-icn stanca-:s -' r res:ec-c late allegations ce moc1fied?
Tne funcamen ai c:ilga :cr. Of licensing ocarcs is c near issues in contreversy anc c
render a decision based ucon :ne reliable and :r::a-ive evidence of record.
Allegations in ne1r raw form rarely mee: Ina evi centi a ry stancarc.
M.cre of er.
ney are specula-ive, basec on hea rsay, er receivec from persons no demonstrably in a position to have personal knowleoge of :ne matters alleged.
They do not provide reliable evidence without co rrobo ra ti on, either.by testimony or documentation.
The adjudicatory process is ili-suited to the conduct of wide-ranging inves tigations.
Tha t mus t remain the function of OI and -he Staff.
Notifying boards and parties i
of the receipt of as yet uninvestigated allega-icns rarely advances the task cf resolving issues in con roversy.
Nevertheless, the existing criteria for boarc notifications virtually compels tne Staff to provide information concerning allegations as soon as it has determin'ed that the matters alleged, if true, may be material to a pending licensing proceeding.
1 The ASLBP would support a modific.ation cf tne board notification standard to orovide a hig~her threshold for notification decisions in the case of late allegations in order to permit some preliminary evaluation cf the reliability and significance of the information alleged.
We recognize that the establishment of appropriate stanoards will be difficult and must take into account not only the needs of the adjudicatory process but also the investigation and inspection techniques and workloads of OI and the Staff, as well as the public perception of candor vs. " cover-up."
Should the Commission decide to pur:ue this course, input from OI, ELD, 0GC and appropriate Staff o## ices as well as the adjudicatory boards will be essential.
We would be pleased to participate in the effort.
cc:
A. S. Rosenthal, ASLAB V M
'H.
H. E. Plaine, OGC, GC J. E. Zerbe, PE G. H. Cunningham, ELD
~
i4rrks/EJ) v y ~~m,,
g g gg s.. /,
June 20, 1984 SECY-84-249 (Notation Vote)
To:
The Commissioners From:
Herzel H. E.
Plaine General Counsel
Subject:
LATE ALLEGATIONS
Purpose:
Commission consideration of criteria for handling late allegations Discussion:
I.
PURPOSE In recent cases the NRC was confrontad with large numbers' of safety allegations filed late in the operating licensing review.
Mest of these allegations dealt with QA/QC or construction defects.
The prccessing of these late allegations af fected decision schedules at the adjudicatory boards, the staff and the Commission.
Contact:
Martin G. Malsch, OGC x41465 9,
i A
h O
\\ f f:
J 4) nr?
2 v
The staff developed ways of managing its review of these allegations so that resources were appropriately allocated and, reviews were coordinated.
See, for example, SECY-84-26,
" Staff Processing of Allegations Involving Applications for Operating Licenses."
There may continue to be improvements along such managerial and precedural lines.
The adjudicatory boards have processed late allegations by using established criteria for late contentions and reopening records.
Nevertheless, it seems likely that reviews of late allegations will delay licensing decisions in.some cases no matter how efficiently the NRC's reviews are conducted and coordinated.
The issue for discussicn in this paper is whether some new or (in the case of the boards) different criteria could or should be adopted for distinguishing these allegations that warrant prelicensing resolution from
3 9
those that do not.
The objective of such criteria would be greater assurance, than currently exists, that operating licenses are delayed only when required for the faithful-discharge of NRC's statutory safety obligations.
Those allegations that do not meet the criteria for prelicensing resolution could be the subject of pcst-licensing action.
It is not the purpose of this paper to discuss possible procedural or managerial improvements in the handling of late allegations.
II.
ASSUMPTIONS A.
Safety Is Paramount The analysis which follows is based on an important safety premise flowing from NRC's statutory mandate in -the Atomic Energy Act.
The premise is that no operating license can be issued if the NRC decisionmaker (the Commissien, an adjudicatory board, oc the T
s
4 Director of NRR, depending on the circumstances) has reason to question whether one or more prelicensing statutory findings can be made.
The most important finding in nuclear powerplant licensing is the finding that the license presents no undue risk to public health and safety.
The root basis, for NRC's reason to question whether the finding can be made, could be the NRC's cwn reviews, or outside information such as material provided in the form of allegations.
However, it is the cognizant NRC official who must have the reason to question whether the finding can be made.
The fact that some outsider may believe that a particular plant may pose an undue risk is not determinative, unless that belief is shared, at least to some substantial degree, by NRC.
i Licensing is an official, governmental action, and it ordinarily would be arbitrary j
v
5 T
to delay licensing solely in deference to the views of those without legal responsibility for regulatory decisions.
However, it would also be arbitrary to dismiss untimely filed allegations without any review or consideration of their substantiality or possible relation to serious safety issues.
Such a pure " cutoff,"
solely for lateness, seems inconsistent with NRC's statutory mission which makes assuring public safety rather than prompt licensing the paramount consideration.
I In theory, it should be possible to develop late allegations criteria which weigh and balance safety as a paramount. consideration against the less weighty but competing consideration of the need to administer an orderly and timely licensing process.
Such a weighing and balancing is implicit in formal adjudicatory decision criteria on late contentions and reopening hearings, and has l
I 4
,.-,c~..---
6 9
i been recognized by the. courts, at least in the formal hearing context.
B.
All Information Should Be Considered The following analysis also utilizes a second premise 'thac in considering the safety significance or substantiality of an -
allegation, information already known to NRC should be considered along with the information in the allegation.
This pramise flows from that element of the first premise which emphasizes that it is the NRC's-judgment, and not the allegation source's judgment, that is important.
This second premise means that an otherwise insufficient allegatio. must be deemed sufficient if NRC itself has the information that " cures" the insufficiency, and that an otherwise sufficient allegation may be discounted in light of contrary NRC information.
For example, failure by an
7 k
allegation source to set out the safety significance of the allegation should not lead to dismissal of the allegation if NRC itself has reason to believe that the matter is significant.
On the other hand, NRC is not. compelled to agree with an allegation source that something is significant.
III. DISTINCTION BETWEEN INFORMATION SOURCES The use of criteria which focus exclusively on allegations from outside the NRC could arguably result in the same information being treated differently in the late stages of review, depending on whether the information derives from outside sources or internal NRC sources.
As a hypothetical, information regarding a defective weld, developed by the resident inspector, arguably could require resolution prior to licensing while the same information, in an allegation, may not.
l
8 9
This presents the issue whether, for consistency, all late information frcm internal as well as external sources, should be treated the same for prelicensing review purposes.
Several factors argua strongly in favor of consistent treatment.
First, NRC may not be in a reasonable position to discount arbitrarily and uniformly the accuracy of certain information just because it comes from a non-NRC source.
Second, as explained in part II of the paper, all allegations must be considered along with internal NRC information bearing on the same subject matter, and it is not the beliefs of the allegation source but the beliefs of NRC l
that are pertinent to the handling of the allegation.
Therefore, categorizing an issue as " internal" or " external" will be a difficult and artificial exercise.
Of course, NRC must and does have confidence in the gccd faith and competence of its own staff.
And it is the staff, perhaps including our hypothetical inspector in the 4
9 field, that makes the principal contribution 4
to safety decisions.
We therefore suggest that all late information, from both external and internal sources, be treated the same, but in any appropriate case where a staff member is the source of the information, this fact should be considered as bearing on the reliability and accuracy of the information.
In accord with the above, the proper subject for analysis should be " late information criteria" rather than " late allegation criteria."
Nevertheless, the remainder of i
the paper will relate to " allegations" so as not to prejudge the Commission's cwn decision on this issue of distinction between information sources.
However, the discussion of allegations which follows seems generally applicable also to internal information.
1 l
l l
e 0
ym,
,7-r
+, --
n
-m
-s 10 0
IV. FORMAL ADJUDICATORY HEARING - ANALYSIS f
Late allegations can ba filed or ccme to the attention of all levels of NRC decisionmakers in several contexts.
These contexts include the Commission deciding the merits of a case after formal adjudicatory hearings, the Commission conducting an effectiveness review of contested issues, the Commission conducting a prelicensing review of uncontested issues, adjudicatory boards acting in formal hearings, and staff conducting an informal safety review.
This part of the paper discusses the treatment of allegations in the formal licensing adjudicatory hearing process.
This affects licensing and appeal boards and, when it acts in its adjudicatory capacity to decide the merits of a case, the Commission itself.
The treatment of allegttions in other prelicensing reviews, including all effectiveness reviews, will be addressed later in Part V of this paper.
i l
i
11 e
A.
Board Notification Parties to formal hearings, including staff, provide information on allegations material to issues in controversy, directly to decisionmakers as part of their obligation to keep the decisionmakers informed of all material facts.
Currently this information is provided by staff in essentially " raw,"
unevaluated form, without any analysis of reliability or significance.
(of course an evaluation is required of nexus to issues in the proceeding and information unrelated to the issues need not be provided.)
In cases warranting confidential treatment, the information is provided in camera, with scme parties (including applicanc) kept uninformed, at least pending further i
investigation or analysis.
The irt camera treatment of allegations will be the subject of a separate paper.
- However, it is relevant to this paper to raise the issue whether, as a general rule, 1
4
83 4
4 notifications of allegations should be delayed until they can be evaluated.
1 A delay pending evaluation would produce more useful information to the decisionmaker, and would avoid the possible prejudicial effect of facially serious allegations which prove i
to have no substance after review.
s 1
On the other hand, the evaluation of i
allegations is often especially time consuming since it often requires 01 4!
investigations and extensive coordination between 01, IE, NRR, and others.
A delay could result in uninformed decisions in circumstances where a decision is made after 1
i the allegation is filed but before the i
allegation is evaluated.
- Moreover, evaluation before notification would be inconsistent with other notification policy 4
which places a premium en timeliness ever putting the information in useful form and possible prejudice.
J i
j 4
-,,,,n
.n.n r, y
-a n~.-.-,n.,.
e.-.
..m-..
13 We recommend that the general notification policy, which provides for timely notification without evaluation, be applied here.
This is in accord with Part II of this t
paper which suggests that allegations should be treated the same as other information.
If any change is to be mada, it should be made in general notification policy for both allegations and other information.
B.
Reapeninq An allegation which is filed late in a formal hearing would come after the record had been closed on the issue.
To warrant formal, merits consideration the allegation would need to satisfy well established criteria for reopening records.1 1
\\
The allegation would also need to satisfy criteria in 10 CFR 2.714 for late filed contentions if it did not pertain to an already admitted contention.
14 A motion to reopen a closed record in a l
formal adjudication must be " timely", must address a "significant" issue, and must contain evidence which shows that a different result would have been reached had the material been submitted earlier.
This test has been described as a " heavy burden" on the movant.
E.g. Kansas Gas and Electric Company (Wolf Creek Generating Station, No.1),
ALAB-462, 7 NRC 320 (1978).
See also SECY-84-183, on review of ALAB-756, Pacific Gas & Electric Co. (Diablo Canyon Unit 1).
There is also authority for the principle that a " serious" safety matter requires reopening even if the motion to reopen is not i
timely filed.
Vercont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Pcwer Station),
ALAB-138, 6 AEC 520 (1973).
Accordingly, in formal adjudications there is authority for the proposition that some balancing or tradeoff is warranted between degree of significance to safety and the benefits of a prompt licansing decision.
A 1
e e.
15 timely motion which presents significant new information may be granted, but an untimely motion will be denied unless the new information bears on a serious safety matter.
The law on reopening records was recently refined in the cited Diablo Canycn case.
Here it was held that the " significance" of late filed information can be explored in a limited hearing in which experts will be heard and their views weighed and considered.
We see no need for different, more stringent reopening criteria for the treatment of late allegations.
The current criteria can and should be strictly applied.
They are based on criteria used by the courts in reopening records and are reasonably well understood.
Different criteria would involve litigative risks, and would introduce more uncertainty and less predictability into the process.
16 9
V.
INFORMAL REVIEWS - OPTIONS AND ANALYSES At this point we move from formal adjudicatory hearings to the less formal review processes.
These include, for purposes of this paper, Commission effectiveness reviews of contested issues in contested cases, Commission prelicensing reviews of uncontested issues, and informal staff reviews.
All these reviews are relatively informal in that the procedural i
rules governing receipt of evidence and reopening of records in formal hearings do not apply.
1 i
l l
A.
Initial Screenine Criteria At the outset, it seems clear that several criteria can be used as an initial screen to distinguish those allegations requiring some substantive NRC review from thosa that do not.
l 1
17 1.
Materiality.
Would the allegation, if true, require license denial, additional license conditions, or further analysis or investigation?
If not, then nothing further should be required because the allegation is not material.
This would be the case, for example, with allegations that pertain solely to matters outside NRC's regulatory jurisdiction.
(Criteria icing to the degree of safety significance of the allegation will be discussed separately below.)
2.
New Information.
Would the allegation, if true, add to the information already known and considered or under consideration by NRC7 If not, then the allegation adds nothing new and need not be considered further.
This would be the case, for example, with an allegation that duplicated a previous one that had already been considered and resolved by 11RC.
However, some care
l 18 i
needs to be exercised in applying this screen.
Differences in wording that appear small could, upon further analysis or investigation, appear to be significant.
In some areas, large numbers of duplicatg allegations cculd suggest some underlying significant issue when just one or two allegations may not be significant.
These screening criteria are clearly in accord with the premise discussed in Part II.
Unless an allegation passes these tests, it should give rise to no NRC uncertainty whether one or more prelicensing statutory findings can be made.
These tests are also 1
implicitly included in the record reopening criteria discussed in Part IV.
These screening criteria resemble the screening criteria used by staff in Diablo Canyon (SSER No. 22 at E-2, and are implicit in the Commission's low power license reinstatement decision.
19 NRC (April 13, 1984) at p. 10.
- However, both the SSER and Commission's decision in Diablo Canyon employed additional, more substantive criteria.
B.
Substantive Criteria-The analysis at this point becomes more difficult because it will be assumed for discussion purposes that a late allegation has been filed which passes the screening
^
criteria discussed above in V.A.
Thus it will be assumed that the late allegation contains new.information which, if crue, would require denial or conditioning of the license or further analysis cr. investigation.
1 The issue under discussion is whether scme
~
criteria could or should be developed to provide the necessary further staps in dealing with the allegation.
1 1
The Diablo Canyon SSER used a variety of criteria (see pp. E-2, E-5, and E-7).
While i
these criteria were stated somewhat I
I 1
-.1
20 differently in various places, some estimate of " safety significance" was always included.
Safety significance related to the particular licensing action at issue (i.e., low power or full power).
Safety significance is not a term that is capable of a precise definition.
It must be something more than materiality, since anything that is relevant to radiological safety is material, yet surely some material safety matters are not significant.
SECY-84-26, " Staff Processing of Allegations Involving Application for Operating Licenses," suggests (at p. 3) that safety
" significance" should be judged in the same way that 10 CFR 2.206 petitions are reviewed.
However, 10 CFR 2.206 petitions are evaluated under a " substantial health or safety issue" test.
Censolidated Edison Co., 2 NRC 173 (1975).
This formulation dces not really advance the discussion, since "significant" may not be much different than " substantial."
Moreover, use of this test may confuse
21 initial licensing and enforcement (see the discussion under V.B.3).
We think that the root issue is not whether i
the terms "significant safety issue" or
" substantial safety issue" can for general application be defined more precisely, but whether and to what extent the safety
" significance" or " substantiality" can be weighed against delay in decisionmaking or other countervailing considerations in any assessment of the need for prelicensing resolution.
This issue is discussed in'the j
analysis of options which follows.
Possible substantive criteria hava, for purposes of analysis, been placed into several categories as set forth below, i
22 1.
Reopening Criteria for Informal Reviews One possibility would be to require the allegation to pass the same test that applies to a motion to reopen a closed record in a formal adjudication.
As discussed above, a motion to reopen a closed record in a formal adjudication must be " timely," must address a "significant" issue, and must contain 4
/
evidence which shows that a different result would have been reached had the material been submitted ear. lier.
This test has been described as a " heavy burden" on the movant.
There is also authority for the principle that a " serious" safety matter requires reopening even if the motion to reopen is not timely filed.
4 Accordingly, in formal adjudications there is authority for the propositicn that some 3
balancing or tradeoff is warranted between
{
degree of significance to safety and the
23 benefits cf a prompt licensing decision.
A timely motion which presents significant new information may be granted, but an untimely motion will be denied unless the new information bears on a serious safety matter.'
This reopening test bears on a procedural matter, rather than a substantive safety concern, since in all cases where formal reopening is denied the same information could in theory still be considered on its merits by the Commi'ssion or NRC staff in their informal prelicensing reviews.
The critical question for purposes of this paper is should the formal adjudicatory reopening test also apply to informal reviews.
Until now a premium has been placed on keeping these reviews flexible and, hence, informal.
2In formal hearings the criteria for late filed contentions in 10 CFR 2.714 also may apply.
However, these criteria presume the presence of parties with defined " interests" in the outcome of the proceeding.
These criteria do not appear to apply when there are no formal parties with defined interests other than the applicant.
l
24 While a less flexible and more formal approach may be consistent with NRC's statutory duties, a more formal approach would be a substantial change in NRC review policy.
A formal reopening test would rule out 1
allegations that contain no " evidence."
This term should be construed loosely in the informal review context, since formal rules of evidence are not applicable.
It could rule out conclusionary allegations (e.g.,
"the welds are no good") that lack supporting reasons or facts, and second-or third-hand factual information (e.g., "A told me that the weld was improper").
This seems consistent (at least in part) with some of the criteria in the Diablo Canyon SSER which ask whether "ths allegation [is] a specific safety or quality issue or a generalized concern" and whether the allegation is t
" reasonable and sound (s) competent" (SSER-22 at p. E-5).
25 However, even allegations which are quite specific and have supporting facts or reasons can fail the test.
Under the criteria new safety evidence or information that bears on matters of apparently small or perhaps moderate safety significance would be considered after, rather than prior to, license issuance because it was filed late when it should have been filed earlier.
Thus use of the formal reopening test implies a policy judgment that, at least in some cases, the need for an orderly and timely licensing process outweighs the need to resolve small or only moder.ately significant safety issues prior to licensing.
Presumably, very serious matters would always be considered prior to licensing.
The advantages and disadvantages of the use of the formal reopening test appear to be as follows:
-~
26 I
~
t Advantages It would encourage the timely filing of a.
well documented allegations, since at least some late filings would no long:r warrant the prelicensing review desired by the source of the allegation or the person filing, and only timely and well documented filings could be assured of prelicensing review.
b.
The late stages of NRC reviews would be more orderly because they could focus more easily on those more serious Y
~
unresolved safety issues that warrant late and intensive application of NRC review resources.
This has the potential to improve safety, Some licensing delays will be avoided.
c.
d.
The same safety issue will receive consistent treatment in both formal and informal review processes.
This is
27 consistent with the recent emergency planning exercise rule decision, UCS v.
NRC, No. 82-2053 (D.C. Cir., May 25, 1984), which held that the results of emergency planning exercises can be contested in a hearing so long as the Commission believes that exercises are necessary prior to license issuance.
Indeed, UCS v. NRC raises the issue whether the criteria must be the same (of course the criteria could be made the same by either relaxing the formal reopening criteria or, as suggested here, by. tightening the informal review criteria).
Disadvantaces Some small or perhaps moderately a.
significant safety issues will be passed over in the prelicensing review for some cases.
This use of reopening criteria is highly judgmental and there is the potential for abuse.
The result could i
28 be a lower assurance of safety, at least during the early stages of operation while the allegation is being processed as a post licensing matter.
b.
The review of late allegations could become bogged down in a difficult and time consuming review of a host of side issues bearing on the timeliness of the submittal and the existence of good cause for failing to bring the matter to NRC's attention earlier, For one thing, it is unclear when a filing should be deemed late.
When does the record "close" on an issue in the informal NRC staff and Commission reviews?
Would a filing be late if it was filed in one year after the source became aware of the information but one month before NRC staff completed its own review of the related items?
Is fear of reprisal good cause for late filing?
Would lack of knowledge regarding the exact status of completion of staff reviews, or of NRC i
29 review practices in general, be good cause for late filing?
(They would not be in a formal hearing context.
See Detroit Edison Co. (ALAB-707, 10 NRC 1760 (1982).)
All these troublesome issues would arise in the use of this test.
These issues are discussed further below.
c.
An NRC decision that the need for an orderly and timely licensing process outweighs, in some cases, the need to resolve some small or perhaps mcderately significanc safety issue will be controversial.
It would run contrary to a view held.by scme that nuclear power is so risky that delay costs should be given little or no consideration, and i
that nothing should stand in the way of J
assuring an extremely complete and 4
thorough licensing review.
l
30 2.
Merits criteria in Informal Reviews The criteria in this category are different from the reopening criteria, which assume that the facts in the allegation (cther than the significance of the facts alleged) are accurate.
These criteria include measures to judge the accuracy of the information in the allegation.
The Diablo Canyon SSER suggests use of criteria of this type when it asked whether the allegation " sound [s] competent" and whether ".the issue (has] been previously dealt with" (SSER 22 at p. E-5).
They could be applied in addition to or in lieu of the reopening criteria.
The following are possibilities, a.
Any available extrinsic evidence of reliability or accuracy could be considered, such as whether the source has sufficient expertise to recognize
l 31 the facts or problem, or whether the source has a record of being unreliable.
b.
Contradictory information already known to NRC could be considered and a 4
judgment made without any additional field investigation or inspection of the likelihood, given the relative weight of I
the different sets of information, that the allegation could be true.
Criteria in this category would bear on whether the allegation is likely to be 1
correct.
Application of the criteria would lead to dismissal of new information from the prelicensing review if, in NEC's opinion, that information is not likely to be proven correct if fully analyzed or investigated.
3The possibility that an allegation can be rejected solely because similar but not identical allegatiions have proven to be incorrect is by itself illogical.
However, tne previous reviews could give rise to a confidence that the subject area has been satisfactorily addressed by applicant, and this could in turn suggest that the allegation is not likely to be correct.
)
l l
Iu
32 e
The advantages and disadvantages of these merits criteria are similar to those for reopening criteria, except that they will likely be less pronounced in any given case because merits criteria resemble and may approach full prelicensing merits review of the allegation.
More timely filing of allegations would to some extent be encouraged since only timely filings could be assured of full review, late stages of NRC reviews would be somewhat more focused, and some licensing delays could be avoided.
On i
the other hand, there is some chance that a l
significant item will be passed over, some examination of lateness will be required that would divert resources, and there could be a public perception that some "shortcats" are being taken that reflect a choice of avoiding delay over safety.
l
33 3.
Immediate Enforcement Action Criteria Another possibility would be to require a late allegation to present evidence that is serious enough to warrant immediate shutdown for a technically similar operating plant.
This represents an extremely high safety threshold which few allegations would likely pass, and would place a relatively high premium on an orderly and timely licensing process.
The advantages and disadvantages of the use of reopening criteria (as described in "1.
Reopening Criteria for Informal Reviews")
are applicable here, as well, although they are mora pronounced. The incentive for timely filing of well documented allegations wculd be present to an even greater degree, the late stages of NRC review would be focused I
even more narrowly, and most delays due to late allegations will be avoided.
On the
34 other side, there is a likelihood that some fairly serious safety issues will be passed over with a consequent reduction in assurance of safety, the criteria will be controver-sial, and the danger exists that reviews could get bogged down in side issues related to lateness and excuses for delay.
One additional advantage and one additional disadvantage also seem applicable to the use of immediate enforcement action criteria.
The additional advantage is that this would eliminate what many would see as an inconsistency. in delaying licensing to resolve a technical issue that would not warrant shutdown if the allegation had been received after license issuance.
The disadvantage is tied to the advantage.
Not to distinguish initial licensing from enforcement in the review cf allegations can be viewed as failure to recognize the special character of initial licensing, where J
i 35 1
applicant has the burden of convincing the NRC that the plant is safe.4 Staff opposes use of immediat6 enforcement action criteria as presenting too high a threshold.
4.
Lateness Criteria Except for the initial screening criteria, j
all the criteria which have been discussed 4The license applicant has the legal burden of proof in initial licensing reviews and has no vested rights to an operating license.
This means that, in casos where in the view of NRC there is a significant unresolved safety question, the applicant has not met it.s i
burden of proof and the application cannot be granted.
.The situation i
for operating reactors is different.
Here the licensee has acquired valuable legal rights to operate its plant.
Those rights cannot be affected, as a general matter, without some affirmative NRC dction.
The NRC has the burden of prcof, and in a legal context, the mere existence of an outstanding safety issue may not be enough to carry the day.
(See, for example, NRC's recent Statement of Policy cn Environmental Qualification of Equipment.)
Use of immediate enforcement action criteria could be viewed as an impermissible use of an enforcement burden of proof in initial licensing.
Ecwever, in most cases the issue will not be clear cut.
If, prior to NRC receipt of the allegation, applicant addressed a matter in sufficient detail in its license application documents to convince NRC that the application should be granted, then applicant has met its burden of proof, and the burden can be viewed as shifting to those who oppose the application.
36 l
are considered to apply only to " late" allegations.
This gives rise to the problem, alluded to above, of determining whether an allegation is late and, if so, whether i
legitimate reasons exist to excuse the late filing.
a.
Lateness related to status of NRC reviews Under adjudicatory reopening criteria, a motion to reopen is filed only if the board j
record is closed.
The counterpart in the informal review process would be the closing of an item in the staff SER or related inspection report.
Use of this counterpart criteria would have the advantage of being analogous to the use of reopening criteria which are widely accepted and recognized.
It has the disadvantage of being somewhat difficult to apply since in many cases the point in time when an item is closed could be difficult to determine because of follow-on
.i-m _ -.._, _,
,,.m.,
' 37 work and "open" items.
Also, this test would have no clear application if the allegation pertained to an item not reviewed by staff.
Here the relevant date would be completion of the entire staff review.
b.
Diligence criteria The Commission could ask all persons to bring matters to NRC's attention as soon as they become aware of them, regardless of the status of NRC reviews.
This has the advantage of encouraging early filing.
c.
Balancing test Either option a. or option b. or both could be combined with an assessment and weighing of the likelihood that full consideration would unduly delay the NRC licensing decision.
This has the added advantage of assuring that a safety item is passed over only when the competing consideration of the need to avoid delay is actually present.
I 1
1
38 d.
Excuses for late filing Under any lateness criteria there is the likelihood that lateness will be arguably justified for a variety of reasons, including lack of knowledge of the status of NRC reviews or of NRC interest in the matter, illness, failure to appreciate the significanca of the information, and, most
~
importantly, fear of reprisals.
Licensee or contractor employees may be unwilling to give information to NRC until after their employment is terminated, or at any time, out of a concern,. real or imagined, that they will be penalized for doing so.
i This poses a very difficult question.
If NRC is to accept at face value stated fear of i
reprisals as an excuse for late filing, then this excuse could become commonplace and late i
1 5
l Reprisals are ground for enforcement action under 10 C.F.R. 1 S19.20 and awards of reinstatement, backpay and damages under Section 210 of the Energy Reorganization Act.
39 filing criteria will apply to few cases.
On the other hand, NRC inquiries into reprisal allegations will be tima consuming and require use of judgment in an area of littic NRC expertise.
Similar considerations apply to other likely excuses for lateness, e.
No excuses There is the possibility that some or all of the criteria could be applied without accepting any excuses for untitely filings.
This would make NRC's job easier.
On the other hand, it may seem arbitrary to impose a high threshold (or, to borrow from adjudicatory decisions on motion to reopen, to impose a " heavy burden") on someone who acted reasonably or who was the victim of reprisals.
Moreover, such a policy could have the effect of encouraging use of reprisals or the threat of reprisals to delay the filing of information with NRC.
40 1
Recommendations:
A.
No changes should be made in the manner in which late information, including allegations, are treated in formal hearings.
Rather the current criteria should be strictly enforced.
- However, the Commission may wish to consider whether, as a general matter, bcard notification could be delayed pending some level of evaluation of safety significance.
Also, the confidential (in camera) treatment of allegations is being separately addressed.
B.
If the C,ommission believes that late i
allegation criteria are necessary in informal reviews, then we suggest that, the following be considered for inclusion in a policy statement.
1.
All late-developed information, including late allegations, should be similarly treated.
1 7
y
.,+
y p_
,m-
___.-_-.-,,_g7
+,
rp.
_4__.,_
41 e
i
\\
2.
All persons should bring safety information to the attention of NRC as promptly as possible.
The Commission would recognize that this obligation derives from good
- itizenship and individual self interest, but cannot be enforced directly by NRC against ganeral members of the public.
3.
All information must pass a screening test to warrant further NRC review.
That test asks two que.stions:
(1) if, for purposes of argument, the information is assumed to be true, would it lead to denial or conditioning of a license or further investigation or analysis by NRC; and (2) does the information, if assumed true, provide any new information not already considered or under consideration by NRC.
42
=
4.
Information bearing on a safety issue, which comes to NRC's attention after the issue has been closed in the staff evaluation or (in cases where the issue has not been addressed) after the entire staff evaluation has been completed, would be subject to late information criteria, unless the information could not, with the exercise of reasonable diligence, have been provided earlier, or the delay in provi' ding the information is, excusable.
Lack of awareness of the status of NRC reviews would be no excuse.
A well founded fear of reprisal would be-an excuse.
Information which meets these i
i criteria would be fully considered prior to licensing; information which fails these criteria would be i
i the subject of post licensing follow up.
- l J
l
(
.1
43 Such criteria would include, in addition to the screening criteria in B.3, the following:
(a)
A judgment shculd be made as to the likelihood that full consideration of the information, including if appropriate OI investigation and IE or regional inspection, would unduly delay the decision on license issuance.
If so, then the following wculd be considered.
If not, then full prelicensing consid-eration would be warranted.
(b)
The information must be reasonably specific, and supporting reasons or facts must be included or be readily available.
' - ~ ~ ~ ~
44
... e i
(c)
A judgment must be made that the information is likely to be correct.
This judgment should be based on all available information, including:
(1)
Does the source have first-hand knowledge of 1
i the facts and have any necessary expertise to 1
accurately report them?
(2)
Does the source have a past record of unreliability?
(3)
Is there cther more credible information to the contrary?
(d)
Then, depending on whether the a
Commission wished to apply 1
criteria which called for some i
i I
45 a'
balance between delay and safety significance, the following should also be considered:
A judgment shculd be made as to the degree of significance of the safety
- issue, as related to the.
licensing action at issue (e.a.,
fuel loading, low power, full power).
This degree of significance would then be weighed against the public interest in avoiding undue delay.
Safety would be paramount, so in cases of reasonable doubt the decision would be delayed to allow more full consideration of the late information.
This means that if the information sppears to be of small significance and the delay would be large, then the
46
... p information would be handled in post-licensing follow up (that would involve a license condition to the effect that-the license is subject to satisfactory resolution of this item).
If the informa-tion appears to be of great significance, then the licensing decision must be delayed for however long it takes to resolve the matter.
Herzel H. E.
Plaine General Counsel Commissioners' comments or consent should be provided directly to the Of fice of the Secretary by c.o.b. Wednesday, July 11, 1984.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, July 2, 1984, with an infor-mation copy to the Office of the Secretary.
If the paper is of such a nature that it requires ~ additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD 1-ACRS AS LBP ASLAP SECY l
/
?-
m,,
g Egg f(.\\ mj' i i
W.s, s jj June 20, 1984 SECY-84-249 (Notation Vote)
To:
The Conunissioners From:
Herzel H.
E. Plaine General Counsel
Subject:
LATE ALLEGATIONS
Purpose:
Commission consideration of criteria for handling late allegations Discussion:
I.
PURPOSE In recent cases the NRC was confrontad with large number:i of safety allegations filed late in the operating licensing review.
Mcst of these allegations daalt with QA/QC or construction defects.
The processing of these late allegations affected decisica schedules at the adjudicatory boards, the staff and the Commission.
Contact:
Martin G. Malsch, OGC x41465 E...
e h
%emy l
9 O - -
f m
4 2
l The staff developed ways of managing its review of these allegations so that resources were appropriately allocated and reviews were coordinated.
See, for. example, SECY-84-26,
" Staff Processing of Allegations Involving Applications for Operating Licenses."
There may continue to be improvements along such managerial and precedural lines.
The adjudicatory boards have processed late allegations by using established criteria for late contentions and reopening records.
Nevertheless, it seems likely that reviews of late allegations will delay licensing decisions in.some cases no matter how efficiently the NRC's reviews are conducted and coordinated, i
The issue for discussicn in this paper is whether some new or (in the case of the boards) different criteria could or should be adopted for distinguishing those allegations that warrant prelicensing resolution from
3 1
those that do not.
The objective of such criteria would be greater assurance, than currently exists, that operating licenses are delayed only when required for the faithful discharge of NRC's statutory safety obligations.
Those allegations that do not meet the criteria for prelicensing resolution could be the subject of ' post-licensing action.
It is not the purpose of this paper to discuss possible procedural.or managerial improvements in the handling of late allegations.
i II.
ASSUMPTIONS A.
Safety Is Paramount The analysis which follows is based on an important safety premise flowing frcm NRC's statutory mandate in the Acomic Energy Act.
t The premise is that no operating license can be issued if the NRC decisionmaker (the Commissien, an adjudicatory board, or the
--nn W
.----y 7-
4 i
Director of NRR, depending on the 1
circumstances) has reason to question whether one or more prelicensing statutory findings can be made.
The most important finding in nuclear powerplant licensing is the finding that the license presents no undue risk to public health and safety.
The root basis, for NRC's reason to question whether the finding can be made, could be the NRC's own reviews, or outside information such as material provided in the form of allegations.
However, it is the cognizant NRC official who must have the reason to question whether the finding can.be made.
The fact that some outsider may believe that a particular plant may pose an undue risk is not decarminative, unless that belief is shared, at-least to some substantial degree, by NRC.
Licensing is an official, governmental action, and it ordinarily would be arbitrary l
1
=
5 4
to delay licensing solely in deference to the views of those without legal responsibility for regulatory decisions.
However, it would also be arbitrary to dismiss untimely filed allegations without any review or consideration of their substantiality or possible relation to serious safety issues.
Such a pure " cutoff,"
solely for lateness, seems inconsistent with NRC's statutory mission which makes assuring public safety-rather than prompt licensing the paramount consideration.
In theory, it should be possible to develop late allegations criteria which weigh and balance safety as a paramount consideration against the less weighty but competing consideration of the need to administer an orderly and timely licensing process.
Such a weighing and balancing is implicit in formal adjudicatory decision criteria on late contentions and reopening hearings, and has
!,ff 6
l l
been recognized by the courts, at least in the formal hearing context.
B.
All Information Should Be Considered The following analysis also utilizes a second premise 'that in considering the safety significance or~ substantiality of an -
allegation, information already known to NRC.
should be considered along with the information in the allegation.
This premise flows from that element of the first premise which emphasi,zes that it is the NRC's judgment, and not the allegation source's judgment, that is important.
This second premise means that an otherwise insufficient allegation must be' deemed sufficient if NRC itself has'the information that " cures" the insufficiency, and that an otherwise sufficient allegation may be discounted in light of contrary NRC information.
For example, failure by an i
5
-w.
7 allegation source to set out the safety significance of the allegation should not lead to dismissal of the allegation if NRC itself has reason to believe that the matter is significant.
On the other hand, NRC is 3
not compelled to agree with an allegation source that something is significant.
III. DISTINCTION BETWEEN INFORMATION SOURCES The use of criteria which focus exclusively on allegations from outside the NRC could arguably result in the same information being treated differently in the late stages of review, depending on whether the information derives from outside sources or internal NRC sources.
As a hypothetical, information regarding a defective weld, developed by the resident inspector, arguably could require resolution prior to licensing while the same information, in an allegation, may not, i
8 O
e This presents the issue whether, for J
consistency, all late information frem internal as well as external sources, should be treated the same for prelicensing review purposes.
Several factors argue strongly in favor of consistent treatment.
First, NRC c
.2 7
may not be in a reasonable position to 1
discount arbitrarily and uniformly the accuracy of certain information just because it comes from a non-NRC source.
Second, as
/
explained in part II of the paper, all allegations must be considered along with internal NRC information bearing on the same subject matter, and it is not the beliefs of the allegatiox.
aurce but the beliefs of NRC that are pertinent to the handling of the allegation.
Therefore, categorizing an issue as " internal" or " external" will be a difficult and artificial exercise.
J Of course, NRC must and does have confidence
/j^ >
1 in the sced faith and competence of its own J
staff.
And it is the staff, perhaps including our hypothetical inspector in the
9 field, that makes the principal contribution to safety decisions.
We therefore suggest that all late information, from both external and internal sources, be treated the same, but in any appropriate case where a staff member is the source of the information, this fact should be considered as bearing on the reliability and accuracy of the information.
In accord with the above, the proper subject for analysis should be " late information criteria" rather than " late allegation criteria."
Nevertheless, the remainder of the paper will relate to " allegations" so as not to prejudge the Commission's cwn decision on this issue of distinction between information sources.
However, the discussion of allegations which follows seems generally applicable also to internal informacien.
10 IV. FORMAL ADJUDICATORY HEARING - ANALYSIS 1
Late allegations can be filed or ccme to the attention of all levels of NRC decisionmakers in several contexts.
These contexts include the Commission deciding the merits of a case after formal adjudicatory hearings, the Commission conducting an effectiveness review 1
of contested issues, the Commission conducting a prelicensing review of uncontested issues, adjudicatory boards acting in formal hearings, and staff conducting an informal safety review.
This part of the paper discusses the treatment of allegations in the formal licensing adjudicatory hearing process.
This affects licensing and appeal boards and, when it acts in its adjudicatory capacity to decide the merits of a case, the Commission itself.
The treatment of allegations in other prelicensing reviews, including all effectiveness reviews, will be addressed later in Part V of this paper.
j l
~~
~
~
11 A.
Board Notification i
Parties to formal hearings, including staff, j
provide information on allegations material t
to issues in controversy, directly to decisionmakers as part of their obligation to keep the decisionmakers informed of all material facts.
Currently this information is provided by staff in essentially " raw,"
unevaluated form, without any analysis of
-reliability or significance.
(of course an evaluation is required of nexus to issues in the proceeding and information unrelated to the issues need not be provided.)
In cases warranting confidential treatment, the information is provided in camera, with some parties (including applicant) kept uninformed, at least pending further investigation or analysis.
The in camera treatment of allegations will be the subject of a separate paper.
- However, it is relevant to this paper to raise the i
issue whether, as a general rule,
12 notifications of allegations should be delayed until they can be evaluated.
A delay pending evaluation would produce'more useful information to the decisionmaker, and would avoid the possible prejudicial effect of facially serious allegations which prove to have no substance after review.
On the other hand, the evaluation of allegations is often especially time 1
consuming since it often requires OI investigations and extensive coordination between OI, IE, NRR, and others.
A delay could result in uninformed decisions in circumstances where a decision is made after the allegation is filed but before the allegation is evaluated.
- Moreover, evaluation before notification would be inconsistent with other notification policy which places a premium on timeliness ever putting the information in useful form and possible prejudice.
i l
--.}
13 C
We recommend that the general notification policy, which~provides for timely notification without evaluation, be applied here.
This is in accord with Part II of this paper which suggests that allegations should be treated the same as other information.
If any change is to be mada, it should be made in general notification policy for both allegations and other information.
B.
Reopening An allegation which is filed late in a formal hearing would come after the record had been closed on the issue.
To warrant formal, merits consideration the allegation would need to satisfy well established criteria for reopening records.1 1The allegation would also need to satisfy criteria in 10 CFR 2.714 for late filed contentions if it did not pertain to an already admitted contention.
~,
14 A motion to reopen a closed record in a formal adjudication must be " timely", must address a "significant" issue, and must contain evidence which shows that a different result would have been reached had the
+
material been submitted earlier.
This test has been described as a " heavy burden" on-the movant.
E.g. Kansas Gas and Electric Company (Wolf Creek Generating Station, No. 1),
ALAB-462, 7 NRC 320 (1978).
See also SECY-84-183, on review of ALAB-756, Pacific Gas & Electric Co. (Diablo Canyon Unit 1).
There is also authority for the principle that a "serio.us" safety matter requires reopening even if the motion to reopen is not i
j timely filed.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520 (1973).
Accordingly, in formal adjudications there is authority for the proposition chat some balancing or tradeoff is warranted between degree of significance to safety and the benefits of a prompt licensing decision.
A
15 a
timely motion which presents significant new information may be granted, but an untimely motion will be denied unless the new information bears on a serious safety matter.
The law on reopening records was recently refined in the cited Diablo Canycn case.
Here it was held that the " significance" of-late filed information can be explored in a limited hearing in which experts will be heard and their views weighed and considered.
We see no need for different, more stringent reopening criteria for the treatment of late allegations.
The current criteria can and should be strictly applied.
They are based on criteria used by the courts in reopening records and are reasonably well understood.
Different criteria would involve litigative risks, and would introduce more uncertainty and less predictability into the process.
i
16 4
V.
INFORMAL REVIEWS - OPTIONS AND ANALYSES At this point we move from formal adjudicatory hearings to the less formal review processes.
These include, for purposes of this paper, Commission effectiveness reviews of contested issues in contested cases, Commission prelicensing reviews of uncontested issues, and informal staff reviews.
All these reviews are i
relatively informal in that the procedural rules governing receipt of evidence and reopening of records in formal hearings ~do not apply, i
A.
Initial Screeninc Criteria At the outset, it seems clear that several criteria can be used as an initial screen to distinguish those allegations requiring some substantive NRC review from those that do not.
i l
17 1.
Materiality.
Would the allegation, if true, require license denial, additional license conditions, or further analysis or investigation?
If not, then nothing further should be required because the allegation is not material.
This would be the case, for example, with allegations that pertain solely to matters outside NRC's regulatory jurisdiction.
(Criteria going to the degree of safety significance of the allegation will be discussed separately below.)
2.
New Information.
Would the allegation, t
if true, add to the information already known and considered or under consideration by NRC?
If not, then the allegation adds nothing new and need not be considered further.
This would be the case, for example, with an allegation that duplicated a previous one that had already been considered and resolved by 11RC.
However, some care
18 needs to be exercised in applying this screen.
Differences in wording that appear small could, upon further analysis or investigation, appear to be significant.
In some areas, large numbers of duplicatg allegations cculd suggest some underlying significant issue when just one or two allegations may not be significant.
These screening criteria are clearly in accord with the premise discussed in Part II.
Unless an allegation passes these tests, it should give rise to no NRC uncertainty whether one or more prelicensing statutory findings can be made.
These tests are also implicitly included in the record reopening criteria discussed in Part IV.
These screening criteria resemble the screening criteria used by staff in Diablo Canyon (SSER No. 22 at E-2, and are implicit in the Commission's low power license reinstatement decision.
CLI-34-5, j
19 NRC (April 13, 1984) at p. 10.
- However, both the SSER and Commission's decision in Diablo Canyon employed additional, more substantive criteria.
B.
Substantive Criteria The analysis at this point becomes more difficult because it will be assumed for discussion purposes that a late allegation has been filed which passes the screening i
criteria discussed above in V.A.
Thus it will be assumed that the late allegation contains new.information which, if true, would require denial or conditioning of the license or further analysis or investigation.
The issue under discussion is whether scme criteria could or should be developed to provide the necessary further staps in dealing with the allegation.
The Diablo Canyon SSER used a variety of criteria (see pp. E-2, E-5, and E-7).
While these criteria were stated somewhat
20 differently in various places, some estimate of " safety significance" was always included.
Safety significance related to the particular licensing action at issue (i.e., low power or full power).
Safety significance is not a term that is capable of a precise definition.
It must be something more than materiality, since t
anything that is relevant to radiological i
safety is material, yet surely some material safety matters are not significant.
SECY-84-26, " Staff Processing of Allegations
)
Involving Application for Operating Licenses," suggests (at p. 3) that safety
" significance" should be judged in the same 1
way that 10 CFR 2.206 petitions are reviewed.
However, 10 CFR 2.206 petitions are evaluated under a " substantial health or safety issue" i
test.
Ccnsolidated Edison Co., 2 NRC 173 (1975).
This formulation dces not really I
advance the discussion, since "significant" may not be much different than " substantial."
Moreover, use of this test may confuse l
21 initial licensing and enforcement (see the discussion under V.B.3).
We think that the root issue is not whether the terms "significant safety issue" or
" substantial safety issus" can for general i
application be defined more precisely, but whether and to what extent the safety
" significance" or " substantiality" can be weighed against delay in decisionmaking or other countervailing considerations in any assessment of the need for prelicensing resolution.
This issue is discussed in the analysis of options which follows.
Possible substantive criteria hava, for purposes of analysis, been placed into several categories as set forth below.
i l
j i
l l
i l
l
~~. -... -.
22 l
I I
1.
Reopening Criteria for Informal Reviews l
One possibility would be to require the allegation to pass the same test that applies to a motion to reopen a closed record in a formal adjudication.
As discussed above, a motion to reopen a closed record in a formal 4
adjudication must be " timely," must address a "significant" issue, and must contain evidence which shows that a different result would have been reached had the material been submitted ear, lier.
This test has been described as a " heavy burden" on the movant.
There is also authority for the principle that a " serious" safety matter requires reopening even if the motion to reopen is nct timely filed.
1 Accordingly, in formal adjudications there is authority for the proposition that some balancing or tradeoff is warranted between degree of significance to safety and the a
i 7
<.. ~ -, - -,
.-,_m,-,r,..
23 a'
benefits of a prompt licensing decision.
A timely motion which presents significant new information may be granted, but an untimely motion will be denied unless the new information bears on a serious safety matter.'
This reopening test bears on a procedural matter, rather than a substantive safety concern, since in all cases where formal reopening is denied the same.information could in theory still be considered on its merits by the Commission or NRC staff in their informa.1 prelicensing reviews.
The critical question for purposes of this paper is should the formal adjudicatory reopening test also apply to informal reviews.
Until now a premium has been placed on keeping these reviews flexible and, hence, informal.
2In formal hearings the criteria for late filed contentions in 10
)
CFR 2.714 also may apply.
However, these criteria presume the
)
presence of parties with defined " interests" in the outcome of the proceeding.
These criteria do not appear to apply when there are no formal parties with defined interests other than the applicant.
i l
24 a
s While a less flexible and more formal i
approach may be consistent with NRC's statutory duties, a more formal approach would be a substantial-change in NRC review policy.
A formal reopening test would rule out allegations that contain no " evidence."
This 3
term should be construed loosely in the informal review context, since formal rules i
of evidence are not applicabic.
It could rule out conclusionary allegations (e.g.,
"the welds are no good") that lack supporting reasons or facts, and second-or third-hand factual information (e.g.,
"A told me that the weld was improper").
This seems consistent (at least in part) with scme of the criteria in the Diablo Canyon SSER which ask whether "the allegation [is] a specific safety or quality issue or a generalized concern" and whether the allegation is
" reasonable and sound (s] competent" (SSER-22 at p. E-5).
~ _ _ -
0 25 However, even allegations which are quite specific and have supporting facts or reasons can fail the test.
Under the criteria new safety evidence or information that bears on 4
matters of apparently small or perhaps moderate safety significance would be considered after, rather than prior to, license issuance because it was filed late q
when it should have been filed earlier.
Thus use of the formal reopening test implies a i
policy judgment that, at least in some cases, I
the need for an orderly and timely licensing process outweighs the need to resolve small or only moder,ately significant safety issues i
prior to licensing.
Presumably, very serious matters would always be considered prior to
-j licensing.
The advantages and disadvantages of the use of the formal reopening test appear to be as follows:
l I
.m.
-E -.
. - - - - - _ _ _ _ - ~ - - - _ -,
26 Advantages It would encourage the timely filing of a.
well documented allegations, since at least some late filings would no longer warrant the prelicensing review desired by the source of the allegation or the person filing, and only timely and well documented filings could be assured of prelicensing review.
4 b.
The late stages of NRC reviews would be more orderly because they could focus more eas.ily on those more serious unresolved safety issues that warrant late and intensive application of NRC l
review resources.
This has the potential to improve safety.
c.
Some licensing delays will be avoided.
d.
The same safety issue will receive consistent treatment in both formal and informal review processes.
This is 1
__ ~ ~ _,
^
\\
=
l 27 i
consistent with the recent emergency j
planning exercise rule decision, UCS v.
NRC, No. 82-2053 (D.C. Cir., May 25, 1984), which held that the results of emergency planning exercises can be l
contested in a hearing so long as the Commission believes that exercises are necessary prior to license issuance.
Indeed, UCS v. NRC raises the issue whether the criteria must be the same (of course the criteria could be made
)
the same by either relaxing the formal reopening criteria or, as suggested ^
here, by. tightening the informal review criteria).
Disadvantages a.
Some small or perhaps moderately significant safety issues will be passed over in the prelicensing review for some cases.
This use of reopening criteria is highly judgmental and there is the potential for abuse.
The result could i
28 be a lower assurance of safety, at least during the early stages of operation while the allegation is being processed as a post licensing matter.
b.
The review of late allegations could become bogged down in a difficult and time consuming review of a host of side issues bearing on the timeliness of the submittal and the existence of good cause for failing to bring the~ matter to 4
NRC's attention earlier.
For one thing, it is unclear when a filing should be deemed late.
When does the record "close" on an issue in the informal NRC staff and Commission reviews?
Would a filing be late if it was filed in one year after the source became aware of the information but one month before NRC staff completed its own review of the related items?
Is fear of' reprisal good cause for late filing?
Would lack of knowledge regarding the exact status of completion of staff reviews, or of NRC
. -v
I 29 review practices in general, be good cause for late filing?
(They would not be in a formal hearing context.
See Detroit Edison Co. (ALAB-707, 10 NRC-1760 (1982).) -All these troublesome issues would arise in the use of this test.
These issues are discussed further below.
c.
An NRC decision that the need for an orderly and timely licensing process outweighs, in some cases, the need to resolve some small or perhaps mcderately significanc safety issue will be controversial.
It would run contrary to a view held by some that nuclear power is so risky that delay costs should be given little or no consideration, and that nothing shculd stand in the way of assuring an extremely complete and l
thorough licensing review.
i l
l l
l
30 a
2.
Merits criteria in Informal Reviews The criteria in this category are different from the reopening criteria, which assume that the facts in the allegation (other than the significance of the facts alleged) are I
accurate.
These criteria include measures to judge the accuracy of the information in the 1
allegation.
The Diablo Canyon SSER suggests use of criteria of this type when it asked whether the allegation " sound [s] competent" and whether ",the issue [has] been previously dealt with" (SSER 22 at p. E-5).
They could be applied in addition to or in lieu of the reopening criteria.
The following are possibilities.
a.
Any available extrinsic evidence of reliability or accuracy could be considered, such es whether the source has sufficient expertise to recognize
31 i
l the facts or problem, or whether the i
source has a record of being unreliable.
b.
Contradictory information already known to NRC could be considered and a judgment made without any additional field investigation or inspection of the likelihood, given the relative weight of i
the different sets of information, that i
l l
the allegation could be true.3 Criteria in this category would bear on whether the allegation is likely to be correct.
App.lication of the criteria would lead to dismissal of new information from the prelicensing review if, in NRC's opinion, that information is not likely to be proven t
correct if fully analyzed or investigated.
3The possibility that an allegation can be rejected solely because similar but not identical allegatilons have proven to be incorrect is by itself illogical.
However, tne previous reviews could give rise to a confidence that the subject area has been satisfactorily addressed by applicant, and this could in turn suggest that the allegation is not likely to be correct.
l
32 5
The advantages and disadvantages of these merits criteria are similar to those for reopening criteria, except that they will likely be less pronounced in any given case because merits criteria resemble and may approach full prelicensing merits review of the allegation.
More timely filing of allegations would to some extent be encouraged since only timely filings could be i
assured of full review, late stages of NRC reviews would be somewhat more focused, and some licensing delays could be avoided.
On i
the other hand,'there is some chance that a significant item will be passed ever, some examination of lateness will be required that would divert resources, and there could be a public perception that some " shortcuts" are i
being taken that reflect a choice of avoiding delay over safety.
i
)
33 b
3.
Immediate Enforcement Action Criteria Another possibility would be to require a late allegation to present evidence that is serious enough to warrant immediate shutdown for a technically similar operating plant.
This represents an extremely high safety threshold which few allegations would likely pass, and would place a relatively high premium on an orderly and timely licansing process.
The advantages and disadvantages of the use of reopening criteria (as described in "1.
Reopening Criteria for Informal Reviews") are applicable here, as well, although they are more pronounced. The incentive for timely filing of well documented allegations wculd be present to an even greater degree, the late stages of NRC review would be focused I
even more narrowly, and most delays due to late allegations will be avoided.
On the i
--7--
4 ym-
l 34 3
other side, there is a likelihood that some s
fairly serious safety issues will be passed over with a consequent reduction in assurance of safety, the' criteria will be controver-sial, and the danger exists that reviews could get bogged down in side issues related tolatenessandexcusksfordelay.
One additional advantage and one additional disadvantage also seem applicable to the use of immediate enforcement action criteria.
The additional advantage is that this would eliminate what many would see as an s
inconsistency. in delaying licensing to resolve a technical 3.ssue that would not warrant shutdown if the allegation had been received after license issuance.
The disadvantage is tied to the advantage.
Notito distinguish initial licensing from enforcement in the review of allegations can be ' viewed as failure to recognize the special character of initial licensing, where t
I
(
i a
l 0
4 e
35 applicant has the burden of convincing the NRC that the plant is safe.4 Staff opposes use of immediate enforcement action criteria as presenting too high a threshold.
4.
Lateness criteria Except for the initial screening criteria, all the criteria which have been discussed 4The license applicant has the legal burden of prccf in initial licensing reviews and has no vested rights to an operating license.
This means that, in casos where in the view of NRC there is a significant unresolved safety question, the applicant has not met.its burden of proof and the application cannot be granted.
The situation for operating reactors is different.
Here the licensee has acquired valuable legal rights to operate its plant.
Those rights cannot be affected, as a general matter, without some affirmative NRC action.
The NRC has the burden of prcof, and in a_ legal context, the mere existence of an outstanding safety issue may not be enough to carry the day.
(See, for example, NRC's recent Statement of Policy on Environmental Qualification of Equipment.)
Use of immediate enforcement action criteria could be viewed as an impermissible use of an enforcement burden of proof in initial licensing.
However, in most cases the issue will not be clear cut.
If, prior to NRC receipt of the allegation, applicant addressed a matter in sufficient detail in its license application documents to convince NRC that the application should be granted, then applicant has met its burden of proof, and the burden can be viewed as shifting to those who oppose the application.
l
~
36 are considered to apply only to " late" allegations.
This gives rise to the problem, alluded to above, of determining whether an allegation is late and, if so, whether legitimate reasons exist to excuse the late filing.
a.
Lateness related to status of NRC reviews Under adjudicatory reopening criteria, a motion to reopen is filed only if the board record is closed.
The counterpart in the informal review process would be the closing of an item in the staff SER or related inspection report.
Use of this counterpart criteria would have the advantage of being analogous to the use of reopening criteria which are widely accepted and recognized.
It has the disadvantage of being somewhat difficult to apply since in many cases the point in time when an item is closed could be difficult to determine because of follow-on R-
37 work and "open" items.
Also, this test would have no clear application if the allegation pertained to an item not reviewed by staff.
Here the relevant date would be completion of the entire staff review, b.
Diligence criteria The Commission could ask all persons to bring matters to NRC's attention as soon as they become aware of them, regardless of the status of NRC reviews.
This has the advantage of encouraging early filing.
c.
Balancing test Either option a or option b. or both could be combined with an assessment and weighing of the likelihood that full consideration would unduly delay the NRC licensing decision.
This has the added advantage of assuring that.a safety item is passed over only when the competing consideration of the need to avoid delay is actually present.
38 d.
Excuses for late filing Under any lateness criteria there is the likelihood that lateness will be arguably justified for a variety of reasons, including lack of knowledge of the status of NRC reviews or of NRC interest in the matter, illness, failure to appreciate the significanca of the information, and, most importantly, fear of reprisals.5 Licensee l
or contractor employees may be unwilling to give information to NRC until after their employment is terminated, or at any time, out of a concern, real or imagined, that they will be penali:ad for doing so.
This poses a very difficult question.
If NRC is to accept at face value stated fear of reprisals as an excuse for late filing, then this excuse could become commonplace and late 5Reprisals are ground for enforcement action under 10 C.F.R.
S19.20 and awards of reinstatement, backpay and damages under Section 210 of the Energy Reorganization Act.
0
39 filing criteria will apply to few cases.
On the other hand, NRC inquiries into reprisal allegations will be tima consuming and require use of judgment in an area of littic NRC expertise.
Similar considerations apply to other likely excuses for lateness.
e.
No excuses r
There is the possibility that some or all of the criteria could be applied without accepting any excuses for unticely filings.
This would make NRC's job easier.
On the other hand, it may seem arbitrary to impose a high threshold (or, to borrow from 4
4 i
adjudicatory decisions on motion to reopen, to impose a " heavy burden") on someone who j
acted reasonably or who was the victim of reprisals.
Moreover, such a policy could i
have the effect of encouraging use of reprisals or the threat of reprisals to delay the filing of information with NRC.
l
s 40 Recommendations:
A.
No changes should be.made in the manner in which late information, including allegations, are treated in formal hearings.
Rather the current criteria
'l should be strictly enforced.
- However, the Commission may wish to consider whether, as a general matter, board
-notification could be delayed pending some level-of evaluation of safety significance.
Also,'the confidential (21 camera) treatment of allegations is being separately addressed.
i B.
If the Commission believes that late l
allegation criteria are necessary in informal reviews, then we suggest that the following be considered for inclusion in a policy statement.
1.
All late-developed information, including late allegations, should be similarly treated.
4 4
v.,.
. -... = -,.
. ~. -
n
41 2.
All persons should bring safety information to the attention of NRC as promptly as possible.
The Commission would recognize that this obligation derives from' good citizenship and individual self interest, but cannot be enforced directly by NRC against general members of the public.
3.
All information must pass a screening test to warrant further NRC review.
That test asks two questions:
(1) if, for purposes of argument, the information is assumed to be true, would-it. lead a
to denial or conditioning of a license or further investigation or analysis by NRC; and (2) does the information, if assumed true, provide any new information not already considered or under consideration by NRC.
6 42 4.
Information bearing on a safety issue, which comes to NRC's attention after the issue has been l
closed in the staff evaluation or I
(in cases where the issue has not i
been addressed) after the entire i
staff evaluation has been completed, would be subject to late l
information criteria, unless the information could not, with the exercise of reasonable diligence, have been provided earlier, or the delay in providing the information l
is, excusable.
Lack of awareness of the status of NRC reviews would be no excuse.
A well founded fear of reprisal would be an excuse.
Information which meets these criteria would be fully considered prior to licensing; information 1
which fails these criteria would be the subject of post licensing follow up. _
a 43 Such criteria would include, in addition to the screening criteria in B.3, the following:
(a)
A judgment should be made as to the likelihood that full consideration of the information, including if appropriate OI investigation i
and IE or regional inspection, would unduly delay the 3
decision on license issuance.
If so, then the following wculd be considered.
If not, then full prelicensing consid-eration would be warranted.
(b)
The information must be reasonably specific, and supporting reasons or facts must be included or be readily available.
-~
,~
w e
a 44
..e (c)
A judgment must be made that the information is likely to be correct.
This judgment should be based on all available information, including:
(1)
Does the source have first-hand knowledge of l
the facts and have any i
necessary expertise to accurately report them?
(2)
Does the source have a past record of unreliability?
(3)
Is there cther more credible information to the contrary?
1 (d)
Then, depending on whether the Commission wiched to apply criteria whict called for some "p
y
45
- ..e balance between delay and safety significance, the l
following should also be considered:
A judgment should be made as to the degree of significance of the safety
- issue, as related to the licensing action at issue (e.g.,
fuel loading, low power, full power).
This degree of significance would then be weighed against the public interest in avoiding undue delay.
Safety would be paramount, so in cases of reasonable doubt the decision would be delayed to allow more 1
1 full consideration of the late information.
l l
This means that if the information appears to be of small significance and the delay would be large, then the 1
46 information would be handled in post-licensing follow up (that would involve a license condition to the effect-that the license is subject to satisfactory resolution of this item).
If the informa-tion appears to be of great significance, then the licensing decision must be delayed for however long it takes to resolve the matter.
(
^
Herzel H. E. Plaine General Counsel Commissioners' comments or consent should be provided directly to the Of fice of the Secretary by c.o.b. Wednesday,- July 11, 1984.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, July 2, 1984, with an infor-mation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS AS LBP ASLAP SECY
, - - -,.