Text

Seeks Commission Decision on Approval of Notice of Final Rulemaking or Approval of Notice Withdrawing Proposed Rule Re Relationship Between Investigation/Insps & Adjudications
	ML20215G251
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Issue date:	02/25/1987
From:	Parler W; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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References
	FRN-50FR21072, RULE-PR-2, TASK-RIA, TASK-SE AB78-1-066, AB78-1-66, SECY-87-051, SECY-87-51, NUDOCS 8703160408
	Download: ML20215G251 (130)
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y's i

si RULEMAKING ISSUE February 25, 1987 (Affirmation)

SECY-87-51 l

For:

The Commissioners From:

William C. Parler General Counsel

Subject:

RELATIONSIIIP BETWEEN INVESTIGATIONS /

INSPECTIONS AND ADJUDICATIONS - CODIFICATION OF PROCEDURES FOR RESOLVIFG CONFLICTS CONCERl!!NG TIIE DISCLOSURE OR NONDISCLOSURE OF INFORMATION Rolsted Documents:

SECY-85-20 January 17, 1985, referencing SECY-84-276 / 276 A

Purpose:

Obtain a

Commission decision on the following alternatives:

(1)

Approval of a notice of final rulemaking, or (2) Approval of a notice withdrawing the proposed rule.

Summary:

After reviewing the directives contained in the Commission's Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings, both in light of the public comments received in response to the notice of proposed rulemaking relating to this matter, and in light of recent changes in the imple-montation of the Commission's board notification policy and the marked reduction in the number of pending and anticipated adjudicatory proceedings, we have pro-nared a Commission paper which offers the Commission the choice of (1) promulgating a

final rule,

or (2) withdrawing the proposed rule.

The final rule, prepared to implement the first alternative (Enclo-sure 1.) would provide special procedures which NRC offices and staff may use to request that certain investigatory information be protected from dicciosure in pending adjudicatory proceedings.

Except for some minor editorial revisions, the final rule is substantially the same as the proposed rule (Enclosure 3. contains a p 7]hY posed rule, prepared to implement the second alterna-comparativo text.)

Tho notice withdrawing the pro-Y Conisti~isseNpes, OaC 402-P695

O O tive (Enclosure 4.)

concludes that codification of the proposed procedures in the Commission's rules of practice is not warranted because the procedures will seldom he needed and because the Commission believes that it will be able, using its exiating procedures in accordance with the guidance in the policy statement, to adequately protect information from disclosure in those very rare instances in which such protection might be needed.

Background:

On September 12, 1984, the Commission directed the Executive Director for Operations to prepare a

proposed rule which would impicment those provisions of the Commission's Statement of Policy on Investiga-tions, Inspections, and Adjudicatory Proceedings (49 FR 36032, September 13, 1984) which call for the establishment of special procedures for resolving conflicts respecting the obligatten of NRC offices and staff under the Commission's board notification policy and procedures to disclose information deemed relevant and material to a pending adjudication and the need to withhold that information from disclosure because it i

would reveal the identity of a confidential informant or prejudice an ongoing liRC investigation or inspection.

The proposed rule was published for comment on May 22, 1985 (50 FR 21072.)

The comment period expired on August 23, 1985 (50 FR 30446, July 26, 1

1985).

The Commission received nine letters of comment expressing the views of interested utilities, professional organizations, private counsel, intervenors and individual members of the public.

A list of the commenters and the text of the comments are provided in Enclosure 2.

Discussion:

The commenters objected to the proposed procedures as published for comment on the grounds that they were illegal, unnecessary, contrary to due process and unfair.

Although most of the commenters recognized the Commission's need to withhold or otherwise protect information in order to protect a confidential source or to avoid prejudicing an ongoing investfration or inspection and the consecuent necessity for in camera presentations, all of the commenters were opposed to using so-called ex parte techniques to achieve this objective.

A summary of the public comments and the staff's response are set out in the preamble of the final rule (Alternative 1.,

see.,

pp. 4-21. )

s n Since the receipt of the public comments NRC practice regarding board notification policy and procedures has changed considerably.

(See Commission Memorandum and Order of January 30, 1986 in Louisiana Power &

Light Company (Waterford Steam Electric Station, Unit

3) Docket No. 50-382-OL, CLI-86-1, 23 NRC 1; NRR Office Letter No.10, Rev. 3, May 29,1986; June 3, 1986 directive of the Executive Director for l

Cperations.

Enclosures:

1.

Federal Register Notice of Final Rule 3.

Public Comments 3.

Comparative text identifying differences between proposed and final rulo 4.

Federal P.cgister Notico of Withdrawal of Proposed Rule 8

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Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, March 12, I

1987 Commission Staff Offico comments, if any, should be submitted to the Commissioners NLT Thursday, March 5, 1987, 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.

i This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of March 16, 1987 Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

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Commissioners OGC (!! Street)

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OCA OIA OPA REGIOMAL OFFICES EDO OGC (MMBE) 1 ACRS ASLDP i

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1 Federal Register Notice of Final Rule i

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!JUCLFAR RE01'LATORY COMMISSION 10 CFR Part 2 Adjudications; Special Procedures for Resolving Conflicts i

Concerning the Disclosure or Nondisclosure of Information AGENCY:

Nuclear Regulatory Commission.

ACTIO!!:

Final rule.

SUMMARY

This final rule amends the Commission's rules of practice by providing special procedures which FEC offices and staff may use to request that certain information be protected from disclosure in pending adjudicatory proceedings.

The new procedures wuro developed to resolve possible conflicts.batween the obligation of NRC offices and staff to notify licensing boards of information which is relevant and material to the issues in j

controversy in a pending adjudicatory proceeding and the obligations to protect the identity of a conf!dential informant or avoid compromising an ongoing investigation or inspection.

ErrECTIVE DATE: Innert dato 30 dayn after date of publication in the FEDERAL HEGISTER.

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FOR FURTIIER INFOPMATION CONTACT:

Jane R. Mapes Senior Attorney, Eufemaking and Fuel Cycle, Office of the General Counsel, U.S.

Nuclear Regulatory Commission, Washington, D.C.

20555:

Telephone: (301) 492-8695.

SUPPLEf!ENTARY INFORMATION:

i l

Back rround.

t On May 22, 1985, the Nuclear Regulatory Commission published in the Fer*cral Register (50 FR 21072-01077) proposed amendments to its Rulen of j

Practice (10 CFR Part 2) that would provido special ex parte in camera procedurca for resolvinir conf!! cts concerning the disclosure or, nondisclosure of information c'eemed relevant and material to an adjudication and relating to an NRC investigation or inspection not yet concluded or likely to reveal the identity of a confidential informant.

On May 31,1985 (50 FR 23138-23139) a correction notice was published.

On July 26, 1985, the date for submitting comments on the proposed amendments was extended to August 23,10f5 (50 FR 30446-30447.)

Tbc proposed cmendments were prepared at the express direction of the Commission to implement certain provisions of the Commission's Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings published l

September 13, IP64 (40 FR 36032-36034).

The proposed procedures would l

apply to all NRC offices and staff that have information relevant and material i

)

. to an issuo in controversy in a pending adjudication.

As drafted for comment, the propcsed procedures provide a mechanism which presiding off!ccrs and boards troy use to resolve conflicts between the need to make available to the bcarda and other parties all relevant and materin! information r

l which may be neecasary to allow full resolution of the issues in controversy In a proccodirag and the need to protect cor.fldential sources of information er to r ar,ure that an ongeing inspection or investigation would not be prejudiced by unrestricted disclosure of the information.

As envianged by the Commission, those specin! procedures would clfow the For.rds to determine l

the rolovt. nee and enteriality cf the information to the issues in controversy in an adjudicctory precceding and v bethor or under what circumstances the

(

information must be disclosed to the parties.

Pow theso qucations would hn

(

rcr.olved in any given cas.e would depend, in part, on the nature and the status of the procoading.

Consistent with the general rule in favor of full disclosure and subject to any applicable exemptions permitted by the Freedom cf Information Act (FOIA), disclosure would be expected to be required in those circumntences in which withholdinc information might prejudico one or mero partien to the proconding, or in which a board would conclude that the relonsc of information would nct projudico an ongoing inspection or investi-ration or revon! the Identity of a confidential informant.

Techniques which boards might uso to resolve tble ccnflict could include deferral or resch6duling of lasues for hearing, end limitations on the scope, rannner, or persons to whom disclosure may be modo by the issuance of protective orders, including orders withholding information from disclosure.

l l

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4-Comments.

Tho Commission received nine letters of comment expressing the views of interested utilities, profesaforn! organizations, private counsel, intervenors and individual members of the public.

No commenter was satisfled with the text of the rule as proposed.

Most of the commentors recogni::ed the Commission's need to withhold or otherwise protect information in order to protect a

conf!dential source or to avoid compromising an ongoing investigaticn or inspection and the consequent necessity for in camera presentations, llowever, the commenters uniformly opposed using ex parte techniques to achlove that objective.

The principal objections voiced by the commenters voro that the proposed procedurce are illegal, unnecessary, f

contrary to duo process and un fair.

One commenter stated that if the Ccmmission't Itulos of Practice were amended as proposed, decisions reached in proceedings in which the proposed procedures were used would be subject to a greatly increased risk of judicial reversal.

The proposed amendments were also criticized on grounds of bad policy.

Several commentors suggested alternative methods of achieving the objectives sought by the Commission.

A j

brief review of the commentors' reasons for each of those objections follows.

1 i

A.

The proponed emendments are illegal.

Several commenters exprenmed the view that the proposed amendments are

!!!ccal because they violato the provisions of the Administrativo Proceduro Act, which require decisions to be made on, not outside, the record.

(.9ee

j

. 1 1

i I 7(d), 5 U.S.C. I 556(e):

Goldber;

v. Kelly, 397 U.S. 254, 271 (1970).)

By permitting t'oth oral and written ex parte presentations, the proposed l

amendments would not only contravene the " exclusiveness of the record" doctrine but would also increase the likellbr.ed that in proceedings in which the proposed procedures were used, the record for judicial review would be inadequate and incomplete.

This, in turn, would foreclose effective judicial review of final agoney decisions.

1 In contravention of proposed i 2.705k which explicitly precludes a Doord from relying on information reco!ved ex parte in camera "in making any decision on the merits on any issue in controversy in the pending adjudication untoss all parties to the pending adjudication have been accorded necess to the information," the proposed procedures would permit a presiding ofilcer to imposo an ox parto stay of substantial duration without l

informing the other parties, e.g., the license applicant and intervenors, of the reasonn for tho stay and without complying with the requirements in i 2.7E8 of the Commission's Rules of Practice.

One commenter pointed out that the abi!!ty of a Poard to make a reasoned datormination that certain I

inforrration is or is not relev ant to the issues in a proceeding, that disclosure of tho information withoat a protective order would or wculd not impedo an invoetigation or cortpromiso a confidential informant, and that protection of the information is or is not needed, and to prescribe the requisito degree of protection for that information, whether through imposition of a stay or by other meat.s would be significantly impaired if the Board woro precluded from obtaining the viewn of all the partien on those issues.

Another commenter ronarked on the sharp contrast between the

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standards prescribed in the proposed amendments for issuance of an order to

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protect information from disclosure in NRC proceedings and the standards i

applicable to issuanco of an ex parte temporary restraining order in Federal j

judicial proceedings.

The former are far more lenient.

There are also i

significant differences in the scope and duration of the respective orders.

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Under e::isting practice, the Federal courts will only entertain ex parte l

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motions for temporary restraining orders in extraordinary circumstances, Any temporary rentraining order which is granted is of brief duration, and further proceedings involving all the parties usually resume within a few l

days.

Upon entry of the temporary restraining order, the factual basis for l

issuance of the order is immediately revealed to all the parties to the i

proceeding.

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l The commenters considered the proposed emendments illegal because the i

j amendments would contravene the provisions of the Freedom of Information t

Act (FOIA) by exempting a class of information from public disclosure which j

l le considerably broader than the classes of information protected from public discionure by the exemption provtalons of that Act.

Under the proposed

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1 amendments, information used by the !!RC to determine whether to initiate an inspection or investigation would be protected from public disclosure.

Sec-i tion !52(b)(7) of FOIA only secords this protection under certain conditions l

to investigatory records compiled for law enforcement purposes.

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The commenters considered the proposed amendments illegal because the

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amendmonts would, when implemented, effectively deny applicants, licensees i

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and intervenors their statutory right to an adjudicatory hearing provided by 518Da of the Atomic Energy Act of 1954, as amended.

In the opinion of the commenters, the proposed amendments run counter to one of the basic tenets of the Act that a license shall not be granted until all relevant and materia!

health und safety issues have been thoroughly reviewed and an adequate opportunity to litigate those issues has been provided.

Finally, the commenters considered the proposed amendments fliegal because they purport to protect information which has not been accorded protection by statute.

I;.

The preposed amendments are contrary to basic principles of fairness and due process.

l The commenters reiterated the fundamental obligation of every party to an adjudicatory proceeding, including an NRC adjudicatory proceeding, to dis-close to the presiding officer or Board and to all parties to the proceeding all information which may be relevant and material to the issues in controversy.

This obligation, they maintain, cannot be satisfied by disclosing information to the presiding off!cor or the Donrd alone.

Nottnir that the proposed amendments are both contrary to the Comminston's expressed position favoring full disclosure and to its existing policy and practice with respect to Board notification, the commenters pointed out that if this obligation is not l

scrupulously adhered to, parties will be deprived of their right to participate fully in the proceeding and will to that extent suffer an unfair disadvantage 1

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i and be denied due process.

The impropriety of receiving ex parte evidence from witnesses not under oath and not subject to cross-examination was also noted.

2 Parties heve a right to participate in all aspects of an adjudicatory proceeding.

To the extent that relevant and material information is not disclosed, parties are denied an opportunity to know and therefore to respond to cpposing claims and contentions, to present evidence in rebuttal and to cross examine.

To the extent that relevant and material information may i

reoufre protection for an extended period of time, the ability of Boards to make fully informed decisions will be significantly hampered and the possibility that proceedings will be concluded and decisions made on the basis I

of inadequete or incomplete information will be greatly increased. This practice would constitute a significant departure from the ideal of informed, i

reasoned public decison-making.

Some commenters point out that the proposed amendments do nothing to alleviate the heavy burdens which must i

now he met to persuade a presiding officer or a Doard to reopen the record or accept late-filed contentions.

A related but somewhat different concern is that the presiding officer who is both privy to the protected information and responsible for rendering a decision in the proceeding will be influenced, at lenst to some degree, by the protected, but totally unchallenged, information.

I In the opinion of the commenters, explicit directives to the presiding officer not to rely on the protected information provide insufficient protection against

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this hazard.

One consecuence of the proposed procedures may well be to i

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_g-increase the number of decisions which can be successfully challenged in the courts on grounds of prejudice and bias.

Two commenters claimed that the proposed amendments would cause excessive delay in the conduct of adjudicatory proceedings and would for that reason result in a denial of due process.

C.

The proposed amendments are unnecessary.

l Several commenters objected to the proposed amendmentr: on the grounds that the objectives which the amendments were designed to achieve could be accommodated equally well under the Commission's existing procedures and 4

that therefore the proposed amendments were unnecessary.

D.

Other objections.

The proposed amendments were also faulted because they are based on i

unfounded assumptions, are self-defeating, have significant potential for abuse and constitute bed public policy.

Several.commenters expressed the view that the proposed amendments are ill-grounded insofar as they rest on the unfounded assumption that the representatives of other parties to the proceeding are likoly to be guilty of misconduct and to violate their ethical and moral obligations by failing to comply with the provisions of a protective order, or on the assumption that an app 1tcant or licensee will correct defects i

under investigation before the investfration can be completed.

In the opinion

of the commenters, these situations are not only unlikely to occur but can also be adequately handled under the Commission's existing regulations, which prescribe sanctions for misconduct in Commission proceedings and require applicants and licensees to maintain detailed records and submit reports.

The proposed amendments were critici::ed as being self-defeating because they prevent the presiding officer or the licensing board from taldng any positive steps to resolve the problems which the proposed amendments purport to address. 1_/

Several commenters pointed out that the proposed amendments have significant potential for abuse.

Noting that the standards for determining what constitutes an inspection or an investigation are more than a little vague, several commenters claimed that the proposed amendments could be used to shield information from the adjudicatory process.

Other i

commentors were concerned that the proposed amendments would create inequities in that information would be disclosed to some parties to a i

proceeding but not to others.

Finally, the proposed amendments were faulted on the grounds of bad public policy.

Contrary to the Commission's general l

policy in favor of full disclosure and to the express purpose of the Commission's Board notification procedures, the proposed amendments would diminfeh rather than promote public confidence in the integrity and completeness of NRC licensing proceedings.

'-1/

Licensing and appeal boards lack contempt powers and cannot themselves compel disclosure of the identity of a confidential source.

However, the Commission itself may reveal the identity of a confidential source.

See NRC Statement of Policy on Confidentiality, 50 FR 48506, November 'fJ" 1985.

_.. ~,. __

E.

Alternative Approeches Suggested by Commenters The commenters suggested several alternative approaches to the problem addressed by the proposed amendments.

A majority of the commenters expressed the view that the respective concerns of the NRC and of the parties to an NRC proceeding could best be accommodated by making sensitive information available to all parties to -the proceeding under an appropriate protective order strictly prohibiting further dissemination of the information.

Some commenters suggested that the protected information should only be made available to selected representatives 1

of the parties, e.g., counsel, and that these representatives should be the only persons allowed to attend an in camera hearing.

In cases in which the NRC is a party, this would mean that the information would only be made available to NRC staff counsel, not to NRC staff, and that the latter would not be allowed to be present at the in cemera hearinpr.

One commenter suggested that NRC be given an opportunity in any proceeding in which there is a need to protect relevant and material information to indicate its l

willingness or unwillingness to release the information to the particular representatives selected by the parties. Another commenter recommended that the presiding officer or the Board be empowered to prohibit a party from attending an in camera hearing in extraordinary circumstances, such as when there is a reasonable basis for believing that e party may not abide by a protective order and that disclosure of investigatory information would

,m

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scriously hamper the Commission's regulatory responsibilities.

One commenter suggested that the proposed rule should require the NRC office seeking a protective order to demcnstrate that allegations triggering an inspection or investigation are under active review in accordance with the Commission's procedures foi the management of allegations.

The NRC office seeldng the protective order should also be required to demonstrate that all NRC offices having custody cf the protected information have hesi consulted and that the information sought to be protected has not been disclosed to the applicant,

!!cencoc cr any other part:7 One commenter suggested that all proceedings in which prctective or6ers to withhold information have been granted should be suspended until such time as the protected information can be released.

The comr: enter also suggested that the standard whfeb the presiding officer or the Board should apply in deciding whether to protect or disclose information should be the same as the Freedom of Information Act standard.

The advantages of the above approaches, as summarized by one of the commenters, are that they--

1) satisfy due process requirements for administrative proceedings while doing a minimum of vicience to the current, tested, traditional j

Rules of Practice; 2) fully comply with the obligation to inform not only the Board but also the other parties' of new, material, relevant information;

l S

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' t 3) actually provide the Board with a better factual and legal basis by allowing all the parties to raise additional facts and arguments, possibly precluding an unnecessary delay in the proceedings because of an easily clarified Staff misperception or error; and 4) promote greater public confidence in the NRC, its adjudicatory proceedings, and the ultimate safety of licensed facilities.

One commenter suggested that the task of reviewing sensitive information in camera to determine whether or not it should be disclosed should be carried out by an independent presiding officer not connected with the pending adjudication in any way.

The commenter proposed that all perties to the proceeding be permitted to participate in this separate in camera review, but that the participation should be limited to filing on-the-record briefs in which the information sought to be protected would not be disclosed.

1 Under another suggested alternative approach, the NRC would be required to inform the presiding officer and all the parties to the proceeding that an inspection or investigation is being conducted.

In mcking this notification, the NEC staff could indicate that further testimony r.nd discovery updates would be provided.

Powever, information respecting the nature of the inspection or investigation or likely to disclose the identity of a confidential source would not be revealed.

In the absence of a showing warranting a sthy, suspension or deferral of the adjudicatory proceeding pending the outcome of the inspection or investigation, the adjudicatory proceeding would -

ccntinue on schedule and the inspection or investigation would also go forward as planned.

According to the commenter, this approach would be consistent with basic considerations of due process, the Atomic Fnergy Act and established NRC precedent and would not be prejudicial because the Ocamission's Eules of Practice ' provide a variety of techniques for assuring that any new determinative information discovered during the course of the inspection or investigation will be properly considered.

The particular technique selected depends in each case on the status of the adjudicatory pieceeding end whether any licensing action has in fact been taken.

If the adjudicatory proceeding is still pending and depending on the point to which it hat, prefressed, the parties may pursue further discovery, supply additional prefiled testimony, move for the summary disposition of contentions, submit late-filed contentions, reouest an additional hearing if the record is not yet closed, move to postpone an evidentiary hearing, move to rcopen the record if the record is closed, or move to stay the issuance of a decision.

If the adjudicatory proceeding has been concluded and the licensing action has been taken, a 5 2.206 petition may be filed.

Although several commenters acknowledged the existence of these procedures, they seriously qucctioned their effectiveness.

The proposed amendments were particularly criticized because they did nothing to lessen the current stringent requirements sesociated with the submission of late-filed contentions e

+ l or recuents to reopen the record by intervenors, despite the fact that the i

intervenors could have no prior knowledge of the information or exercise any control over the timing of its release for use in a proceeding.

These commenters recommended that the rule explicitly provide that new contentions ba.*cd on recently released Information previously held confidential be eval-usted under the standards applicable to the initial filing of contentions.

Several commenters recommended that the rule should prohibit licensing boards from closing the record or reaching a final decision in a proceeding until all information relevant and material to any proposed action, including such actions as issuance of a license or license amendment, has been disclosed to the parties. The suggestion that matters addressed by the protected information should be judged according to the Commission's standards for the initial filing of contentions was reiterated.

One commenter stated that the procedures in 10 CFR I 2.744, which relates to the production of NFC records and documents, should apply to investigatory information in documentary form.

One commenter expressed the view that a rule which would require the Commiscion to review and approve the release of the name or other informa-tion identifying a confidential informant could be of use, but qualified the suggestion by stating that the best policy would be not to reveal the identity of confidential informants under any circumsta' ces.

n

. III.

Response to Comments The objection that the proposed amendments are illegal because they violate the provisions of the Administrative Procedure Act which require decisions to be made on, not outside, the record lacks substance.

The proposed proce-dures make clear that protected information cannot be used in reaching a decision until it has been formally introduced into evidence and all parties to the proceeding have had an opportunity to review and consider it (see proposed 5 2.705k.)

Thus, they are in accord with a basic requirement of the Act that issues in controversy in an adjudicatory proceeding must be resolved on the basis of information contained in the adjudicatory record of the proceeding (see 5 U.S.C. I 556(d)).

All the commenters objected to the ex parte -

aspects of the proposed procedures.

In addition to stating that such procedures are unfair and

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The proposed procedures present a separation of functions issue rather than a prohibited ex parte communications problem because they concern communications between NRC offices and staff and NRC decisionmakers, not communications between persons outside the agency and MRC decisionmakers.

In order to preserve the integrity of formal adjudicatory proceedings, the Administrative Procedure Act prohibits ex parte communications relevant to the merits of a proceeding between interested persons outside the agency and agency decisionmakers, see 5 U.S.C. I 557(d)(1).

Towards this same end, the Act also provides that an agency's decisionmaking functions shall be kept separate from its investigative or prosecuting functions.

Under 5 U.S.C.

I 554(d),

agency employees engaged in decisionmaking may not "be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for (FOOTNOTE CONTINUED ON NEXT PAGE)

. contrary to due process, the commenters also claimed that the procedures would compromise the impartiality of presiding officers.

The Commission is sensitive to the views of the commenters respecting the

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ex parte aspects of the proposed procedurcs.

At the same time, the Commission considers the concerns expressed by the commenters somewhat misplaced.

The proposed procedures are narrowly limited in applicatien and scope and, in consequence, will only be used infrequently.

For example, the procedures are expected to be used only by NRC officers and staff.

However, NRC officers and staff are not entitled to use the procedures to protect information until after a determination has been made, under established board notification procedures, that the information should be disclosed to the boards and the public.

The procedures may only be used for the limited purpose of protecting information from disclosure when such protection is essential to avoid compromising an ongoing investigation and any subsequent enforcement action.

Founded in part on the Commission's 1

broad legal authority to suspend proceedings withcut making formal legal findings (see Westinghouse Electric Corporation v.

United States Nuclear

, Regulatory Commission, 598 F.2d 759, 3rd Cir.,

1979),

the proposed procedures are not intended to be used to resolve issues in controversy on l

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) an agency."

Nor may an emi)loyee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case or in any factually related case " participate or advise in the decision, recommended decision, or agency review pursuant to IS U.S.C. I 557]

i

..., except as witness or counsel in public proceedings."

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the merits.

Instead, the procedures provide a mechanism for the prompt, fair and orderly resolution of important but transient conflicts between the need to disclose and the need to protect relevant and material information.

Although the procedures may cause adjudicatory proceedings to be suspended temporarily, they are not intended to be used to suspend those proceedings for unreasonably long periods of time or to place information which is relevant 1

i.

and material to an issue in controversy in a proceeding permanently beyond the reach of one or more of the parties.

Nor are the procedures intended to be applied in a manner which will permit an issue in controversy to be i

decided on the merits either without considering or v'ithout giving all the parties to the proceeding an opportunity to consider any relevant and material information.

If further adjustment shculd be necessary, beyond that contem-plated in these procedures, to accommodate the Commission's dual needs both to protect and to disclose specific information, the Commission is confident that other suitable and effective measures, such as expediting a pending investigation or making the information available to the parties in camera and under a strict protective order, will be taken.

The Commission is convinced that the impartiality of its presiding officers will not be ecmpromised by the proposed procedures.

In many respects, the f

proposed procedures are not signi0cantly different from other-types of decisionmaking procedures in which presiding officers, judges and other l

decisionmakers are called upon to disregard information which has been

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brought to their attention in reaching a decision.

For example, juries are often told that they must disregard certain evidence, which has in fact been

. heard, in reaching a decision.

In a non-jury trial, the judge is frequently l

exposed to inadmissible evidence which the judge is required by law to disregard.

In deciding questions of privilege, judges may become aware of l

information of extreme relevance and yet be precluded because the information 1

is privileged, from relying on the information in reaching a decision.

1 I

).ith respect to the treatment of information, the proposed amendments do not depart markedly from existing NRC practice.

Although they differ in certain b the new procedures are consisten't with I 2.744 of the minor respects, 4

Commission's Rules of Practice, which relates to the production of NRC i

records and documents and has been in effect since 1972.

Section 2.744 authorizes a presiding officer, in those cases in which the Executive Director for Operations objects to the production of a record or document, to request j

that the record or document "be produced for the in camera inspection of the presiding officer,- exclusively, and only to the extent necessary to determine--

(emphasis supplied)

(1) The relevancy of that record or document; (2) Whether the document is exempt from disclosure under 5 2.790; (3) Whether the disclosure is necessary to a proper decision in the proceeding; (4) Whether the document or the information therein is reasonably obtainable from another source."

3/

For example, the procedures in 5 2.744 are available to any party to an

~

NRC adjudicatory proceeding; the new procedures apply to NRC presid-ing officers and staff.

The procedures in 5 2.744 apply to information contained in records and documents while the new procedures place no l

constraints on the form or manner in which information is presented.

l

. t l

In making the determinations required by f 2.744, the presiding officer j

cannot help but be aware of the content of the document or record produced i

for inspection.

Despite this, the Commission's 5 2.744 procedures are well eccepted and have not been faulted on the ground that they must inevitably compromise the impartiality of the presiding officer.

The Commission does not intend the proposed procedures to be used to i

contravene the provisions of the Freedom of Information Act.

As requested l

by the commenters, the provision in the proposed rule permitting the staff to protect information used to initiate an investigation from disclosure has been deleted.

i Several commenters expressed the view that the conflict between disclosure and non-disclosure of information which the proposed procedures are designed to resolve could be achieved by making the information available to all the parties to a proceeding under an appropriate protective order strictly pro-i hibiting further dissemination of the information.

This suggestion overlooks the fact that the purpose of the proposed procedures is to provide an addf-tional mechanism which may be used to resolve those few hard cases which are not amenable to resolution by routine measures such as reschedulinpr of issues for hearing, limiting the scope of disclosure to parties or restricting disclosure by protective orders. M 4,/

49 FR 36032 at 36033, September 13, 1984.

i I

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. I I

Ihc Ccmmissien connidered but refected the suggestion of one ccmmenter that the it.sh cf reviewing sensitive information in camera to determine rhether or not the information should be disclosed should be carried out by an independent presiding officer not connected with the pending adjudication in any way.

In the opinion of the Commission, such an approach would be counterproductive because it would require the independent presiding officer to make decisions respecting the protection or disclosure of information relevant and material to a proceeding without being familiar with the details of the issues in controversy or the parties to the proceeding.

IV.

Description of Special Procedures in 10 CFR $$ 2.795a-2.795k.

4 i

As envisaged by the Commission, the special procedures in new II 2.795a-2.705k would only be available to and used by NRC offices and staff having i

f inicrmation deemed relevant and material to issues in controversy in an cr.gcing adfudication which those offices and staff are under a duty to disclose in accordance with established board notification procedures.

In most cases, it is expected that the conflict between the need to protect the information and the need to make the information available can be resolved by s protective order placing restrictions on the time and manner in which the informaticn is disclosed.

For example, such an order could change the sequence in which testimony on particular issues will be heard.

Such an order could also specify the manner, time, place, or persons to whom the

- i information may be disclosed.

However, in some cases, expected to be relatively few, use of these special procedures to protect relevant and material information from disclosure for a specified period of time may be needed.

i 4

)

Information which is protected from disclosure to avoid prejudicing an ongoing investigation or inspection becomes available when the investigation or inspection has been completed and a report prepared and issued.

However, information which would reveal the identity of a confidential informant may.

only be made available by Commission order.

(In accordance with the Commission's Statement of Policy on Confidentiality, the only persons entitled to protection would be those who have signed a standard NRC Confidentiality 1

l Agreement. )

In this connection it should be noted that before release to the public, whether in response to an FCIA request or similar inquiry or through admission as evidence in an adjudicatory proceeding, inspection and investigation reports are redacted to eliminate all information which might 4

reveal the identity of a confidential source.

(Information exempt from I

disclosure under the provisions of section 552(b) of the Freedom of Informatian Act may also be eliminated from these reports.)

The remaining I

information, which in the usual case is principally technical in nature, may l

then be used in whatever way is appropriata, including use as relevant and material eri Nnce in an NRC adjudicatcry proceeding.

The new procedures in Il 2.7 sea-2.795k provide a special mechanism for dealing with those hard cases where the technical information contained in the saniti::ed version of an inspection or investigation report, either by reason of its nature and special l

4

characteristics or by reason of the fact that sponsoring witnesses must be called to attest to the validity of the report and the information it contains, compromises or reveals the identities of the confidential sources responsible for providing the information.

Under the special procedures, the appropriate NRC office may move the presiding officer of the pending adjudication to grant relief from the disclosure requirement either by ordering information disclosed subject to conditions or by ordering information withheld from disclosure.

For the purposes of these procedures, the term " presiding officer" includes an administrative judge, an administrative law judge, an Atomic Safety and I.icensing Board, and an Atomic Safety e.nd Licensing Appeal Board.

The motion, which may be made orally or in writing, must contain a brief description of the nature of the information subject to the request and explain the relevance and materiality of the information to the issues in controversy in the pending adjudication.

The motion must also state why and to what extent disclosure of the information will reveal the identity or otherwise compromise a confidential source, or will prejudice an ongoing investigation or inspection.

At the time the motion is made, the NRC off!ce must notify all parties to the pending adjudication that the imposition of conditions on or the withholding of disclosure of information has been requested.

However, the information subject to the motion shall not be revealed.

The NRC office must also notify the Director, Division of Rules and Records, NRC Office of Administration, who is the agency official responsible for processing Freedom of Information Act (FOIA) requests.

t Upon receipt of a motion from an NRC office to impose conditions upon or to withhold disclosure of information, the presiding officer, without other parties present, may either rule on the motion on the basis of the information provided, conduct an in camers oral presentation, or request further infor-mation.

Under these amendments, the presiding officer is authorized to conduct un in camera oral presentation without other parties present at any time on his or her own initiative.

The presiding officer must notify all parties to the pending adjudication of the occurrence of any in camera oral presentation.

The notice shall state the purpose of the in camera oral presentation and the approximate date a ruling concerning the disclosure or nondisclosure of the information subject to the presentation may be expected.

The identity of any witness and the substantive content of the information shall not be disclosed.

To provide a record, a verbatim transcript will be l

made of each in camera oral presentation.

After consideration of the motion, including any in camera oral presentation, and after finding that the

}

information subject to the motion is both relevant and material to the pending adjudication, the presiding officer will rule on the motion.

This ruling,

]

which will be made with due regard for the Commission's policy favoring full I

disclosure, will determine whether disclosure of the information without a protective order could adversely affect the NR C's ability to protect the Identity of a confidential informent or to complete an investigation or inspec-tion and whether and to what extent the information should be withheld from disclosure or only disclosed subject to certain conditions.

i I

i

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. If the presiding officer grants the motion, the presiding officer shall issue an appropriate protective order.

If the presiding officer determines that the motion should be denied in whole or in part, the presiding officer shall notify the NRC offico submitting the request of the intent to order disclosure.

The notice of intent to order disclosure shall specify the nature of the information j

to be disclosed, the terms and conditions of any proposed order and the basis for the cenclusion that prompt disclosure is required.

The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection er concurrence.

If the NRC office concurs in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order proposed.

If the NRC office objects to the disclosure specified in the notice I

of intent and any such objection is disallowed, the presiding officer shall promptly certify the matter to the Commission for review and notify the NRC office requesting the protective order.

The presiding officer shall also notify all parties to the pending adjudication and the Director, Division of Rules and Records, NRC Office of Administration, whenever a ruling relating to the disclosure or nondisclosure of information has been issued or has been certified to the Commission for review.

A notice of certification shall state Il the reason for the certification, the certification date, and that, in accord-ance with I 2.705f, the NRC office or any other party to the adjudication may file a timely brief with the Commission.

The NRC office must notify all parties to the adjudication whenever an NRC brief is filed.

However, the NRC brief need not be served on the parties if to do so would reveal any of the withheld information.

Within seven days after service of the notice of

' Sling of the NRC brief, any other party to the adjudication may f!!e a brief with the Commission.

The order of the presiding efficer shall be stayed pending Commission review.

The Commission shall consider any matter certified to it for review under I

these procedures in camera without other parties present and may on its own I

initiative or at the request of the affected NRC office conduct an in camera i

oral presentation.

The record for Commission review shall cor.sist of the information provided to the presiding officer in camera, all documents filed with the presiding officer by the NRC office requesting a protective order, including any statements of concurrence or objection, the transcript of any in camera oral presentation, the presiding officer's notice of intent to require disclosure, statement of reascns why the information should be disclosed, and information disclosure ruling.

After completing its review, the Commission i

will decide whether to affirm, reverse or amend the ruling.

I 1

l Whenever the presiding officer or the Commission issues an order withholding i

j information or imposing conditions upon the manner in which information may f

be released, the in camera record on which the order is based shall be l

deemed sealed pending further order.

j The Commission does not intend these special procedures to be used to shield j

information properly subject to disclosure under the Freedom of Information 1

j Act (FOIA).

Upon receipt of an FOIA request for release of information l

l deemed sealed by reason of a protective order, the presiding officer or the i

1 l

i

" i -.,,. _ _,_.-- _ ~ ---....

~.-. -

e' f'-

. i I

Commission, as appropriate, will again review the nature and status of the information to determine whether all or pert of the information should continue l

to be protected or whether all or part of the information should be released.

The NRC office at whose request the presiding officer or the Commission has

)

lasued a protective order respecting the disclosure of information shall notify l

the presiding officer or the Commission, as appropriate, and the Director, i

Division of Rules and Records, NRC Office of Administration, when its objection to disclosure to the parties to the. pending adjudication of all or any pcrtion of the information subject to the order is withdrawn, when an ongoing investigation or inspection is completed, or when it learns of any other change in the status of the protected information.

Unless the information relates to the identity of a confidential informant or unless the Commission orders otherwise, information which an NRC office has consented to release shall be disclosed to the parties and made available for inclusion in the public record of the pending adjudication.

The identity of a confidential informant f

may only be released by order of the Commission.

s j

Under the special procedures, after notice that an objection to the disclosure 1

I of information has been withdrawn or that an investigation or inspection has -

been completed, and subject to the prohibition against inclusion in the public record of the adjudication of any part of the in camera record containing information pertaining to the identity of a confidential informant except pursuant to Commission order, the presiding officer or the Commission, as appropriate, shall order the in camera record, including the verbatim wye-

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. transcript of any in camera oral presentation, unsealed.

Subject to any other exemptions from mandatory public disclosure that may validly be claimed under the Commission's regulations, including any exemptions that may be available under 10 CFR !! 2.790, 9.5, 9.61 or 9.95, the unsealed record and the information are then available for use in the pending adjudicatory proceeding.

Under the special procedures, a presiding officer may not use information subject to a protective order in making any decision in the pending sdjudicatory proceeding unless all parties to the pending adjudication have been accorded access to the information and given an appropriate opportunity to address that information.

Once all parties to the pending adjudication have been given such an opportunity, either with or without conditions, the presiding officer may use the informetion in reaching a decision.

When

~

information is made available but only under certain reasonable conditions, a party may be unwilling to examine the information because the party does not wish to accept the conditions under which it is proffered.

The fact that a party does not choose to avail itself of information to which access is permitted subject to certain reasonable conditions cannot be used to har the presiding officer from relying on that information in reaching a decision.

A presiding officer is under no obligation by reason of these special procedures to accord parties to a pending adjudication unconditional access to all information.

Once the opportunity for conditional access has been provided and notwithstanding the fact that it may have been declined, the presiding

s'

., officer may use the information in making a decision in the pending adjudicatory proceeding.

3 Environmental Impact:

Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1).

Therefore, neither an environ-mental impact statement nor an environmental assessment has been prepared for this final rule.

Eackfit Statement The final rule is not a backfit under 10 CFR 50.109.

Preparation of a backfit analysis is not necessary because the final rule imposes no requirements on licensees.

Paperworle Reduction Act Statement This final rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)

9 1

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J

' Regulatory Flexibility Act Certification As recuired by the Regu!ctory Flexibility Act of 1980, 5 II.S.C. 605(b), the Commission certifies that this final rule will not have a significant economic impact upon a substantial number of small entities and that therefore a regulatory flexibility analysis need not be prepared.

These procedural amendments provide a mechanism for the orderly resolution of conflicts respecting the ob!!gation of NRC offices to disclose information deemed j

relevant and material to a pending adjudication and the need by those same

[

offices to protect information which would reveal the identity of a confidential i

informant.

The final rule does not impose any obligations on entities regulated by the NRC, including any regulated entities that may fall within the definition of "small entities," as set forth in section 60)(3) of the Regulatory Flexibility Act,

or the NRC size standards (50 FR 50241, i

December 9, 1985) or within the definition of "small business" as found in l

section 3 of the Small Business Act, 15 U.S.C.

632, or within the Small Business Size Standards in regulations issued by the Small Business Administration and codified in 13 CFR Part 121.

Since the impact of this rule i

is confined to the NRC, the rule does not fall within the purview of the Regulatory Flexibility Act.

List of Subjects in 10 CFR Part 2 4

i Administrative practice and procedure, Antitrust, Byproduct material, Classi-fled information, Environmental protection, Nuclear. materials, Nuclear. power 1

I

'_,m.-_-_.-y._.

s-4

> l i

i plants and reactors, Penalty, Fox discrimination, Source material, Special r

i nuclear material, Waste treatment and disposal.

i For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.

552 and 553, the Nuclear Regulatory

)

Ccmmission is adopting the following amendments to 10 CFR Part 2.

i i

PART 2 - RULES OF PRACTICE FOR DOMI:STIC LICENSING PROCEEDINGS 1

l 1.

The authority citation for Part 2 is revised to read as follows:

1 l

Authority:

Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, j

2231);

sec. 191, as amended, Pub.

L.87-615, 76 Stat. 400 (42 U.S.C.

2241);

sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841);

5 U.S.C.

552.

Section 2.101 also issued under secs. 53, 62, 63. 81, 103, 104 105, 68 Stat.

4 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135);

sec.102, Pub. L.91-190, 83 Stat. 853, as amended i

(42 U.S.C.

4332);

sec. 301, 88 Stat. 1248 (42 U.S.C.

5871).

Sections i

2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183,189, 68 Stat. 936, 937, 938, 954, 955 as amended (42 U.S.C. 2132, 2133, l

1134, 2135, 2233, 2239).

Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239),

t

1 i

4 j

Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat.

'l I.

444, as amended (42 U.S.C. 2236, 2282);

cce. 206, 88 Stat.1246 (42 U.S.C.

j 5846).

Sections 2.600-2.606 also issued under sec.102, Pub. L.91-190, 83 l

Stat. 853, er amended (42 U.S.C. 4332).

Sections 2.700s, 2.781, 2.795k also I

issued under 5 U.S.C. 554.

Sections 2.754, 2.760, 2.770, 2.780 also issued i

under 5 U.S.C. 557.

Sections 2.790, 2.795J also issued under sec.103, 68 Stat. 936, a.

amended (42 U.S.C. 2133) and 5 U.S.C. 552.

Sections 2.800 j

and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 U.S.C.

553 and sec. 29, Pub.

L.85-256, 71 Stat. 579, as amended, (42 l

U.S.C.

2039).

Subpart K also issued under sec. 189, C8 Stat. 955 (42 U.S.C. 2239);

sec.134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C.10154).

j Appendix A also issued under sec.

6, Pub.

L.91-580, 84 Stat. 1473 (42 4

i U.S.C. 2135).

Appendix.B also issued under sec. 10, Pub. L.99-240, 99 Stat.1859 (42 U.S.C. 2021J).

i 2.

In 5 2.730, a new paragraph (i) le added to read as follows:

4 I 2.730 Motions.

1 I

1 (i)

The provisions of 5 2.730(a) through (h) are not applicable to l

motions filed pursuant to 55 2.795a through 2.795k.

I i

)

3.

In f 2.740, paragraph (b)(1) is revised to read as follows:

~

f 5 2.740 General provisions governing discovery.

e e

(b)

Scope of discovery. *

(1)

In Ceneral.

Parties may obtain discovery regarding any matter, not privileged,

which is relevant to the subject matter involved in the proceedinpr, whether it relates to the claim or defensa of the party seeking discovery or to the claim or defense of any other party, inclading the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

For the purposes of this section, privileged matter includes information subject to a protective order issued under the special procedures in Il 2.795a through 2.795k.

In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in 5 2.751a and shall relate only to those matters in centroversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion of that prehearing conference.

In such a proceeding, no discovery shall be had after the beginning of the prehearing conference held pursuant to I 2.752 except upon leave of the presiding officer upon good cause shown.

It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

'a

. i 4.

In I 2.781, paragraph (a) is revised to read as follows:

$ 2.781 Separation of functions.

(a) In any proceeding under this subpart, any NRC officer or employee engaged in the performance of any investigative or litigating function in that proceeding or in a factually related proceeding may not participate in or advise a Commission adjudicatory employee about the initial or final decision on any disputed issue in that proceeding, except--

(1) In accordance with the special procedures in Il 2.79Fa through 4

2.795k of thic part; (2) As witness or counsel in the proceeding; (3) Through a written communication served on all parties and made on the record of the proceeding; or (4) Through an oral communication made both with reasonable prior notice to all parties and with reasonable opportunity for all parties to respond.

l l

l

h I-l 4 k

5.

In Subpart G, immediately following 5 2.790', a new center heading and

. new sections 2.705a through 2.795k are added to read as follows:

i Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Certain Sensitive 3

Information in Licensing Proceedings

]

I 2.705a Applicability of special procedures; official file, i

i (a) Sections 2.795a through 2.795k specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to i

l the identity of a confidential informant or obtained during -an investigation or inspection and deemed relevant and material to a pending adjudication.

These 1

i procedures apply to all NRC offices.

The procedures are to be used when, in accordance with the Commissiori's board notification policy or pursuant to a

)

J request from a presiding officer, an NRC office may be required to produce f

information in a pending adjudication, the disclosure of which, without a j

protective order, would reveal the identity of a confidential informant or i

prejudice an ongoing investigation or inspection.

I j

(b) _ As used in 55 2.795a through 2.795k, the term " presiding officer" includes an administrative judge, an administrative law jude, an Atomic j

Safety and Licensing Board, and an Atomic Safety and Licensing Appeal 1

l Board.

i 4

i

' (c) Unicss and until pubifely released, all documents required by or relating to the special procedures in 56 2.795a through 2.795k shall bear the docket nucher and title of the proceeding, be marked "Not For Public Disclosure--Protected Under 10 CFR I! 2.795a-2.795k," and be transmitted to the Secretary in sealed double envelopes for deposit in the protected section cf the official docket file.

I 2.795b Requirement to disclose relevant and material information.

In accordance with the Commission's board notification policy, information deemed relevant and material to a pending adjudication shall be disclosed to the parties to tbc adjudication by the NRC office having the information unless the information would reveal the identity of a confidential informant or prefudice an ongoing investigation or inspection.

When an NRC office has information which it deems relevant and meterial to a pending adindication but which could reveal the identity of a confidential informant or prejudice an ongoing investigation or inspection, the NRC office shall request the pre-siding officer by motion to issue a protective order imposing conditions upon the manner in which the information is disclosed or withholding the information from disclosure.

i I 2.795c Motion for protective order; notice of motion.

(a) A motion for a protective order to impose conditions on or to withhold disclosure of information shall be addressed to the presiding officer by the NRC office having the information.

At the time a motion is made and

- 3" -

without revealing the substance of the information subject to the motion, the NRC office shall notify the parties to the adjudication and the Director, Dhrision of Rules and Records, Office of Administration, U.S.

Nuclear Regulatory Commission, that a protective order to impose conditions on or to withhold disclosure of information has been requested.

(b) A motion for a protective order may be made orally or in writing, may include a request for an in camera oral presentation without other parties present, and shall include the following information, as appropriate:

(1) A brief description of the nature of the information subject to the motion; (2) A brief explanation why the information is relevant and material to the pending adjudication; (3) A brief statement whether the information was obtained from a confidential informant or during an ongoing investigation or inspection; (4) An explanation of the basis of the motion for a protective order to impose conditions on or to withhold disclosure of the information, including c brief explanation why and to what extent disclosure of the information without a protective order will reveal the identity or otherwise compromise a confi-dential informant or will prejudice an ongoing investigation or inspection; (5) The proposed relief requested.

1 5 2.795d Consideration of motion by presiding officer: procedure.

(a) A motion from an NRC office for a protective order to impose conditions on or to withhold disclosure of information shall be considered by the presiding officer in camera without other parties present.

(b) The presidirt officer may require or permit the NRC office making the motion to make an in camera oral presentation.

Attendance at an in camera oral presentation shall be limited _ exclusively to the presiding officer, to appropriate NRC personnel, to any witness appearing at the request of the NRC office or the presiding officer, and to a court reporter.

The presiding officer shall nctify all parties to a pending adjudication of the occurrence of r.ny in can.eva oral presentation.

The notice shall state the purpose of the in camera etal presentation and.the appro:dmate date a ruling concerning the disclosure or nondisclosure of the information subject to the presentation may be expected.

The identity of any witness and the substan-tive centent of the infc: ration shall not be disclosed.

If an in camera oral presentation is conducted, a verbatim transcript shall be made.

i G 2.795e Determination to grant or deny motion for protective order; requirement for Commission review.

(a) After consideration of a motion from an NRC office for a protective order to impose conditions on or to withhold disclosure of information, including any in camera oral presentation, and after finding that the

c 39 -

information subject to the motion is both relevant and material to the pending adjudication, the presiding officeo shall determine, in light of the Commission policy favoring full disclosure, whether disclosure of the information without a protective order could adversely affect the ability of the NRC to protect the identity of a confidential informant or to complete an investigation or inspection and whether and to what extent the information should be taithheld from disclosure or only disclosed subject to conditions.

(b)

Every ruling requiring disclosure of the identity of a confidential informant shall be certified to the Commission for review.

Pending Commis-sion review, the order of the presiding officer. shall be stayed.

(c)(1)

If the presiding officer grants the motion, the presiding officer shall issue a protective order withholding disclosure of the information or

~

conditiening its release, as appropriate.

(2) If the presiding officer determines that the motion should be denied in whole or in part, the presiding officer shall notify the NRC office submitting the motion of the intent to order disclosure.

The notice of intent to order disclosure shall specify the nature of the information ~ to be disclosed, i

the terms and conditions of any proposed order and the basis for the 1

conclusion that prompt disclosure is required.

The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection or concurrence.

S

,m i

s 3

'4.

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- (3)

If the NRC office concurs in the disclosure specified in the notice cf intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order proposed.

(4) If the NRC office objects to the disclosure specified in the notice of intent and any ruch objection is disallowed, the presiding officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record required by I 2.795f to the Commission for in camera review without other parties present.

The order of the presiding officer shall be stayed pending Commission review.

(d) The presiding officer shall promptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Commission that a ruling, relating to the disclosure or nondisclosure of information has been issued or has been certified to the Commission for in camera review without other parties present.

A notice of certification shall state the reason for the certification, the certification date, and that, in accordance with 8 2.795f, any party to the adjudication may file a timely brief with the Commission.

I 2.795f Pecord for Commission review; briefs.

(a) Every information disclosure ruling certified to the Commission for in camera revien pursuant to i 2.795e will be accompanied by a record which shall consist of the information provided to the presiding officer in camera,

,c,.--

m

. all documents filed with the presiding officer by the NFC office making the motion for a protective order, including any statements of concurrence or objection, the transcript of any in camera oral presentation, the presiding officer's notice of intent to require disclosure, statement of reasons why the information shculd be disclosed, and information disclosure ruling.

(b) Within ten days after the presiding officer issues an order certifying an informetion disclosure ruling to the Commission for in-camera review, the NRC office moy file a brief with the Commission in support of its objections to disclosure.

The NRC office shall notify all parties to the adjudication that an NEC brief has been filed, but need not serve a copy of the NRC brief on the part4s to the pending adjudication.

Within seven deys after service of the NRC notice, any party to the pending adjudication may file a brief vrith the Commission.

5 2.795g Commission review.

(a) Every information disclosure ruling certifled to the Commission for review under 5 2.795e, together with the accompanying record and any briefs, shall be considered by the Commission in camera without other parties present.

Upon its own initiative or upon request by the NRC office making the motion for a protective order, the Commission may conduct an in camera oral presentation without other parties present on any matter certified to it for review under 8 2.795e.

I

t (b) After review of the certified information disclosure

ruling, the eccompanying record and any briefs, the Commission shall decide whether to affirm, reverse, or amend the ruling.

The Commission order may include any terms or conditions deeriled necessary or appropriate.

I 2.795h Consent to disclose information; notice.

l (a) The NRC office seeking a protective order under # 2.795c.,aall notify i

the presiding officer or the Commission, as appropriate, and the Director, Division of Rules and Records, Office of Administration, U.S.

Nuclear.

j i

Regulatory Commission when (1) the office no longer objects to the disclosure l

of all or part of the information; (2) the inspection or investigation to which the information subject to the order relates is completed; or (3) there is any j

cther change in the status of the protected information.

I 1

(b) Information which an NRC cffice has consented to release shall be i

disclosed to the parties and made available for inclusion in the public record i

of the pending adjudication unless the information relates to the identity of a confidential informant or unless the Commission has ordered otherwise.

The identity of a confidential informant may only be released by order of the Commission.

1 8 2.795i In camera record deemed sealed pending further order.

4 (a) Whenever the presiding officer under 5 2.795e, or the Commission under l' 2.795g, Issues a protective order to impose conditions on or to withhold

-+.m g-p.v-

s' disclosure of information, the in camera record on which the order is based f

shall be deemed sealed pendinF further order.

(b) No part of any in camera record containing information pertaining to the l

i identity of a confidential informant may be included in the public record of a i

pending adjudication or be made publicly cvailable in any other way except purtuant to Corrmission order.

l (c) After notice by the appropriate NRC office that objection to the disclosure of information has been withdrawn, or that an investigation or inspection has been completed, and subject to the requirement in para-j graph (b) of this section and to any other exemption from mandatory public s

i disclosure that may validly be claimed under the Commission's regulations, I

i including any exemption that may be available under 5 2.790 or il 9.5, 9.61 1

i or 9.95 of this chapter, the presiding officer or the Commission, as appropriate, shall order the in camera record unsealed and the information made available for inclusion in the public record of the pending adjudication.

4 i

I 2.705j FOIA request for release of protected information; release deter-

\\

mination review.

(a) The Director, Division of Rules and Records, Office of Administration, U.S.

Nuclear Regulatory Commission, upon notice by an NRC office that information subject to an FOIA request is also subject to a protective order l

issued under I 2.795e or i 2.795g, shall promptly notify the presiding officer or the Commission, as appropriate, i

_, -.. _, ~ -. _ - -, _ _

-,...-m..-

, _. ~ -

(h) Upon notification of an FOIA request for release of protected information, the presiding officer or the Commission, as appropriate, shall revir.w the bases for issuance of the protective order and determine, in the light of any exemptions that may validly be claimed under the provisions of l'

the Freedom of Information Act and the Commission's regulations, whether the l

Information in whole or in part should continue to be protected or whether i

and under whh' conditions it may be released.

E 2.795k Prohibition against use of information subject to protective order.

Information subject to a protective order to withhold disclosure may not be used by the presiding officer in maldng any decision on the merits on any issue in controversy in the pending adfudication unless all parties to the pending nFJudication have been accorded access to the information either with 1

or without conditions.

Dated at Washington, D.C., this day of

, 1987.

l 4

i For the Nuclear Regulatory Commission i

1 Samuel J. Chilk Secretary of the Commission I

I,

Public Comments f

i 4

4 i

i

)

o

s.

LIST OF C0i4MENTERS l

No.

Name Date 1.

R.E. Helfrich, 7/10/85 Yankee Atomic Electric Co.

2.

Bishop, Liberman, Cook, Purcell & Reynolds 7/22/85 on behalf of Duke Power Co., Mississippi Power & Light Co., Northeast Utilities.

Pacific Gas & Electric Co., Southern California Edison Company, and Washington Public Power Supply System 3.

Newman & Holtzinger, P.C. on behalf of 7/22/85 Florida Power & Light Company and Houston Lighting and Power Company 4

General Counsel, Atomic Industrial Forum, 7/23/85 Inc. on behalf of AIF Lawyers Committee 5.

Wells Eddleman 8/21/85 6.

Diane Curran, Harmon & Weiss and Nina 8/23/85 Bell, Nuclear Information and Resource Service on behalf of Union of Concerned 4

Scientists and Nuclear Information and Resource Service 7.

Susan L. Hiatt, Pepresentative of Ohio 8/23/85 j

Citizens for Responsible Energy. Inc.,

j (OCRE)

I 8.

J.R. Thorpe, GPU Nuclear 8/21/85 9.

Ken Bossong, Critical Mass Energy Project 9/16/85 of Public Cititen i

r

..n.,,

r.

YANKEE ATOMIC ELECTRIC COMPANY T*'* oho"*(*")*'

'00 TWX 710 380 7619 CC'JLMD U5 *.R C 1671 Worcester Road. Frarn*ngharn, Massachusetts 01701 155 JL 15 M0 32 ru-in crreIT'hG's :

,r.JO, 1985 OOCK 8 RANCH AclEl Bue80 )

Se:reta.mr of the Ccrr.lssion 9103Ml3 315,

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N

.Y. ICES Reg"latory Ccrmission {g3 pg egjg 77) -

A.. d :CN: Docketing and Service Branch SLL n.:

Ccrnents Pertai.ning 'Ib the proposed Rule on " Adjudications; Special Procedres for Resolving Cordlicts Concerning the Dis:10sure or ibndisclosure of Infomation", (50 FR 21072)

Dear Sir:

Ye.kee Ato.-ic Electric Ccrpany appreciates the op;crtunity to ccrinent en the subject Pre;csed Rule. Yankee Atcr-ic cw.s and operates a nuclear pcwer plant in R0we. Massachusetts. Our Nuclear Services Divisien also pre. ides engineering and lice. sing services fer other nuclear power plants in the Nc.~heast including Ver ent Yankee, Maine YarAee and Seabrook.

While Ya.kee At:::-ic endorses the adoptico.cf procedural rules which w:uld properly protect cer. fide.tial irdcrution, we believe the Pro;esed Rule co.tains two infim.ities which could lead to denial of a licensee's due process rights, and which tray violate the Ad.inistrative Procedure Act.

We w:,sh to su;;est an alternate precedure which avoids these problers, yet achieves the ccer.ission's stated goals.

The first probler. we see with the Pro;csed Rule is that it would pe -.it IE Staff, as a m to the pending adjudication, to part.icipate in the in ca.e.ra review, while excluding all other parties. 'Ib allow a.y party, even the agency itself, to bring ex-parte pressures to bear in a pe. ding case violates notions of fundamental fairness and denies other pa.~les the opportunity for ecnfrentation and rebuttal.1 'Ib avoid ths probler., we suggest that each party be limited to filing on-the-record briefs with the office ccnducting the in carnera review. 'Ihe inicmntion 8

sought to be protected need not be disclosed in these briefs.

The second, and perhaps rere sig ificant problem, is that the pro;csed Rule would rem.it the very efficer who will render a decision on the merits of the adjud:, cation, to consider the co-Jidential information d nng an in care.ra review, and order that the information not be disclosed to the 1 an:n-en Valley Television Cort. v. United States, 269 F.2d 221

~

5 (D.C. Cir.1959) and Jarrett v. Scrivener, 225 F.Supp. 827 (D.D.C.1964).

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8507100469 B50730

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Se::retary of the Ccrr.ission July 10, 1985 j

Fage 2

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pa-ties. Alt?cu;h Preposed Section 2.795k a&cnishes the presiding officer to not rely en withheld inferration in naking decisions in the adjudication, we believe the officer ceuld not help but be influenced by the nondisclosed l'

infe:retion. Such influence could violate the exclusiveness of the record l

6: trine codified in the Ad.inistrative Procedure Act.2 If a procedure for l

er. In ca ara review of confidential infor ation is to be included in the nnal Rule, we suggest that it require that such review is to be conducted j

by an independent officer - one who is net connected with the pending adju:Ecation in any nn.nar.

Very truly yours, h

Of R. E. Helfr ch, Esquire Manager, Generic Licensing ETs. w 4

,i.-

,i I

k I

i i

i 2 e::1cn 7(d), 5 U.S.C. 556(e); see also Goldbare v. Ke11v, 397 U.S. 254, S

271 (1970).

1 i

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S = ' N C ' O N, C. C. F C C 3 6 4,g g M E M OOm (2 CZs 8 5t*9 8 CC sets avt hwt ce **C amatescas July 2 2, 19)'t,![ "3fM.d,,e== icoa*

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(P e #3 Mr. Samuel J. Chilk Secretary of thi Commission U. S. Nuclear Regulatory Commission Washington, D.C.

20555 Attn:

Do c k e t i ng and Service Branch Re:

Co:uents on Proposed Rule Regarding Ex Parte In Camera Presentations:

Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information (50 Fed. Rec. 21072, May 22, 1985).

Dear Mr. Chilk on Wednesday, May 22, 1985, the Nu'elear Regulatory Commission ("NRC") published in the Federal Register a proposed rule that would amend 10 C.F.R. Part 2 by adding new sections 2.795a through 2.795k, as well as making conforming modifications to 10 C.F.R. 652.750, 2.740(b)(1), and 2.780(a).

See 50 Fed. Reg. 21072 (May 22, 1985).

On behalf of Duke Power Co., Mississippi Power & Light Co., Northeast Utilities, Pacific Gas & Electric Co., Southern California Edison Company, and, Washington Public Power Supply System, we respectfully submit the following comments.

l

i-I.

Introduction A.

Backcround on August 10, 1983, the NRC published a Statement of Policy on Investigations and Adjudicatory Proceedings.

See 48 Fed. Reg. 36358'(198.3).

This policy statement outlined a process which forms the backbone for the current proposed rule:

the use of ex parte in camera presentations to the 1

1 Board that is presiding over the licensing hearings for a particular f acility whenever the Staf f or OI has confidential t

information that they believe to be relevant to a material issue in the licensing proceeding, but that they assert cannot be presently revealed to the public or the other parties withcut prejudice to an ongoing invest,idation or inspection.

See 48 Fed. Reg. 363'59.

At that time, the NRC sought public com ent on the advisability of using this procedure or some alternative to resolve the conflict between a presiding of ficer's need to be informed of material developments relevant to the pending adjudication and the need for OI and the Staf f to maintain what was described as the integrity of ongoing inspections or investigations.

See id.

The 1983 policy statement noted that an NRC task force

(" Task Force) was currently considering this matter.

See 48 1/

The term's " Board" and " presiding of ficer" are used interchangeably in these comments.

=

Fed. Reg. 36358.

On December 30, 1983, the Task Force issued its reporp, entitled " Report of the Task Force on Investigations, Inspections and Adjudicatory Proceedings"

(" Task Fo rce Report").

The final recommendations of the Task Force were subsequently embraced by the Commission in its September 13, 1984 Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings (49 Fed. Reg. 36032 i

(1954)), as well as the current proposed rule which is the subject of these comments.

Compare Task Force Report at 3 i

with 49 Fed. Reg. 36033-34, and 50 Fed. Reg. 21073-74, 21075-77.

The recommendations and observations of the Task Force, l

which were adopted in the 1984 policy statement and the c u r r e r. t preposed rule were as follows:

1.

Full disclosure of material idYormation to adjudicatory boards is the general rule.

2.

Some disclosure conflicts will be inevitable.

3.

Disclosure issues should initially be determined by the adjudicatory boards.

4.

Procedures for the resolution of disclosure conflicts should be established by rule.

5.

Appellate review of Licensing Board decisions 4

should be available on an expedited basis.

1 I

6.

Current Board Notification procedures should not be changed in this rulemaking.

i 7.

The disclosure / nondisclosure procedure should apply to information in the possession of all NRC offices.

See Task Force Report at 3, 4-14.

n ey-,

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4 The proposed rule was published for comment on May 22, 1935." Set 50 Fed. Reg. 21072 (1985).

The proposed procedures the.selves, utilizing ex parte in camera presentations to the presiding of ficer (be it Licensing Board, Appeal Board, or Administrative Law Judge), are contained in the proposed 10 C.F.R.

Il2.795a through 2.795k.

See 50 Fed. Reg. 21075-77.

Additionally, conforming amendments are proposed to 10 C.F.R.

t t

52.730 (motions), $2.740(b) (scope of discovery), and i 2.780 (el parte communications).

See 50 Fed. Reg. 21075.

These co.-.ents do not address in detail each section contained in 1

the proposed ruler rather, they focus on the underlying infirmities with the use of ex parte in camera presentations to a decision maker in an ongoing adjudicatory proceeding and i-

~

propose a different approach.

/

B.

An Alternative to the Proposed Rule We conclude that a more traditional solution to this problem, as proposed herein, should be adopted.

A preferable scheme would consist of essentially two alternative courses of I

action that may be pursued when an NRC of fice has information, l

which it wishes to keep confidential, but that may be relevant to an ongoing adjudication:

1.

Subject to an appropriate protective order prohibiting further dissemination of the l

information, allow the Board and selected j

representatives of all parties to the i

adjudication to have access to the information and allow them to be present at any in camera hearing before the Boards or i

l t

__._,_--_,n.

.__a_ _,,,,,,

/

. {

2.

Publicly inform the Board and all parties that an inspection or investigation is ongoing, but yithout revealing any details that could compromise that undertaking or unnecessarily reveal confidential sources.

In the absence of a showing warranting a stay, a suspension, or a def erral of further proceedings, the Board would proceed.

The inspection or investigation would then be completed in parallel and appropriate public reports issued.

Based on any outcome-determinative new information contained in the NRC reports, the parties could then follow the conventional provisions of the NRC's Rules of Practice and move for summary disposition on contentions, submit late-filed contentions, request additional hearings (if the record is not yet closed), move to reopen the record (if the record has already been closed), or, in the event that final agency action has been taken on the license application, file a petition l

pursuant to 10 C.F.R. 62.206 or intervene in an enforcement proceeding that has been instituted as a result f the inspection or investigation results.2 i-As described below, use of this manner /of proceedin2 instead of the procedures outlined in the proposed rule is more consistent with established NRC precedent, the Atomic Energy Act, and basic considerations of due process.

l l

l 2/

Naturally, even though the NRC of fice in possession of the undisclosed material information may have initially decided to continue an investigation without informing

[

the board and parties of its substance, it may later chose to reveal to the board and all parties any interim findings under a suitable protective order.

In accordance with the suggested procedure outlined above, the part,les would then file appropriate motions for l

reopening, stays, or other relief, or (in the case of information meeting the Catawba standard) late-filed contentions as allowed under the Rules of Practice.

See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),

ALAB-687, 16 NRC 460, 470, 470 n.17 (1982), as modified, C LI-8 3-19, 17 NRC 10 41 ( 19 8 3 ).

l

II. Discussion A.

the Duty to Ditelose The primary source of the conflict concerning disclosure or nondisclosure of information, which the proposed rule seeks to resolve, is the case law doctrine that each party has a duty to inform the Board and other parties of material developments relevant to a pending adjudicatory proceeding.

See Duke Power Co. (William D.

McGuire Nuclear Station, Units 1& 2), ALAB-143, 6 AEC 623, 625-26 (1973).

As explained by the Appeal Board In all future proceedings, parties must inform the presiding board and other parties of new information which is relevant and material to the matters being adjudicated.

.. (T} his does not mean that the staf f or applicant can be permitted.tb leave the presiding body and the other carties to the proceeding in the dark about any change which is relevant and material to the adjudication.

Changes may take place but they must be r

disclosed.

If the presiding board and other parties are not informed in a timely manner of such changes, the inescapable result will be that reasoned decision-making would suf fer.

Indeed, the adjudication could become meaningless, for adjudicatory boards would be passing upon evidence which would not accurately reflect existing facts.

The disclosure requirement we impose is not the product of any overly procedural formalism on our part -- it coes to the very heart of the adjudicatory process.

Its sacrifice for the sake of expediency cannot be justified and will not be tolerated.

Id. (emphasis added).

The NRC's proposed rule ignores the fact that the disclosurt requirement requires disclosure not only to the presiding board, but to the other parties to the proceeding as well.

See id.3 Because the disclosure requirement emanates f rom "the very heart of the adjudicatory process," permitting disclosure to the board alone does not satisfy that disclosure requirement.

See ALAB-143, 6 AEC at 626.

That is because "the adjud'.catory process" is at its heart an adversary process, which cannot function properly when the decision-

)

making board, but not all of the adversary parties, is made aware of information relevant to a material issue being i

adjudicated.

This requirement to inform the Board and the parties can be satisfied by disclosure to selected party representatives under an appropriate pi5tective order when the circumstances justify a departure from the Commission's 1

general policy in favor of public d.sclosure.

Other decisional precedent f rom the Commission justifies the approach suggested in these comments.

Simply because new information relevant to an adjudicatory proceeding has arisen, 3/

Although the proposed rule and the most recent statement of policy quote the need for disclosure as applying to,

the other parties as well as the Board (see 50 Fed. Reg. 21072, c,ol. 3 (1985); 49 Ted. Reg. 36032, col. 3 (1984)),' the need for disclosure to the other parties is not treated in the same way as disclosure to the Board.

Perhaps this is an artifact from the NRC's original 1983 Statement of Policy, which spoke only in terms of a duty to inform the Board.

See, e.c.,

48 Fed. Reg. 36358, col. 3 (1983).

~

that does not necessarily mean that the informatior must be litigated, before the Board.

See Cincinnati Gas & Electric Co.

( Wm. H. Zimmer Nuclear Power Plant, Unit No.1), CLI-82-20,16 NRC 109 (1982).

Indeed, the Zimmer case provides ' ample 1

precedent for following the NRC's accepted procedural rules, l

e.c. involving reopening the record, when new information j

becomes available through ongoing NRC investigations.

See id,.

l at 113-11; see also Catawba, ALAB-687,16 NRC 460, 470, as a

mcdified, CLI-83-19, 17 NRC 1041.

These traditional procedaral rules of the Commission have been enacted properly i

and applied f airly for a significant period of time; they are 1

l entitled to respect and deference on judicial review.

See, l

e.g.,

Vermont Yankee Nuclear Power Corp.

v.

Natural Resources Defer.se Council, Inc., 435 U.S. 519, 5,2'4-25 (1978); BPI v.

j AEC, 502 F.2d 424, 428-29 ( D.C. Cir.1974 ); see also Easton j

Utilities Commission v. AEC, 424 F.2d 847, 8 50-51 ( D.C. Cir.

1 i

1970) (en bane) (late intervention rules in 10 C.F.R. 52.714 are a proper exercise of rulemaking power under the Atomic Energy Act).

The Zimmer and Catawba cases recognize that simply because an issue is not litigated in hearings, the j

public health and safety is still amply protected through the inspection, investigation, and other regulatory functions of 1

l 1

i i

l l

i

~ -

the NRC.

Vermont Yankee and BPI establish that fl89a of the Atomic Engrgy Act does not require otherwise.4

~

Thus, the first major source of dif ficulty with the NRC's proposed rule stems from the fact that the Commission has unne:essarily chosen to place a higher priority on following one half of the doctrine of ALAB-143 (by requiring only that the Board, but not the other parties, be informed of relevant and material new information), while placing a lower priority on (or disregarding) the other half of the doctrine of ALAB-143 (which requires that the other parties, as well as the Beard, be informed of relevant and material new information).5 4/

The recent Court of Appeals decision Union of Concerned Scientists v. NRC, 735 F.2d 1437 (DgC. Cir. 1984),

U.S.

105 S. Ct. 815 (1985) does not limit the Commission's power to define what issues are material to the licensing decision, but it does require that once a particular issue is material to the licensing decision, then, under 5189a of the Atomic Energy Act, that issue must be available for litigation as part of the licensing hearings.

Once it is apparent that the results of an NRC inspection or investigation will be material to the licensing decision, then $189a, as interpreted in UCS, requires that the parties be made aware of the information, subject to a protective order if appropriate, and the matters are then available for litigation in accordance with the rules of practice concerning, e.o.,

reopening the record and late-filed contentions.

See 735 F.2d at 1448-49.

5/

The proposed rule quotes the disclosure requirement as being applicable to the Board and all the parties, but does not articulate a justification for excluding parties other than one the conclusory assertion that this is necessary "to avoid compromising an NRC inspection or investigation or to protect a confidential informant."

See_50 Fed. Reg. 21072, col. 3.

t.

This the Commission has chosen to do because of the counterv, ailing interest in preserving, the integ,rity of ongoing inspections or investigations and protecting the identity of confidential sources.

Depending on the facts of each case, these may or may not be legitimate interests, but because the Commission's licensing process is governed by.the Atomic Energy Act, the Administrative Procedure Act, and censiderations of due process, the Commission is risking judicial reversal when it allows these policy interests in confidentiality of i'nvestigatory activities to take precedence over the rights of parties to the adjudicatory process.

This is particularly true when there is an alternative set of pro:edures, such as is proposed in these comments, which can prctect any legitimate confidentialit,9-interests as well as the rights of the parties to licensing proceedings.

3.

Legal Prohibitions Against Ex Parte In Camera Proceedings The most fundamental problem with the NRC's proposed rule is that it allows ex parte presentations of information to the presiding of ficer, presumably only to allow the Board somehow to satisfy itself that the decision it will be reaching is not incorrect, or to allow the Board to reschedule hearings on particular issues or otherwise delay issuance of a decision until all of the information has been collected (so as to allow subsequent litigation of the

-__,--n

_--n.

withheld information once the investigation is complete).

See i

i 50 Fed. Reg. 21072, col. 3.

As discussed below, this can have I

the same effect as granting an ex parte stay of substantial 4

duration without observing the accepted safeguards codified in 10 C.F.R. 12.788.

The board is explicitly precluded from relying on the information received ex parte in camera "in making any decision in the pending adjudication unless all parties to the pending adjudication have been accorded access to the information."

See Proposed $2.795k, 50 Fed. Reg. 21077.

Hewever, in hearing an ex parte in camera presentation by the j

Staff, the Board will necessarily be impermissibly relying on a one-sided view of the situation to the extent that it withholds or otherwise delays issuance,ief a pending decision i

becaase the Staff has informed the Board in an ex parte in camera session of further information which will probably need to be litigated.

This is the functional equivalent of allowin; the Staff to request an ex parte stay of indeterminate length without consideration of the relevant l

1egal standard incorporated in 10 C.F.R. 92.788.

Furthermore, because the stay / delay application is heard ex parte in camera and the record is sealed, the license applicant and the intervenors:are not informed of the basis for the stay.

They have no opportunity to rebut or propose alternative courses of action, and no record basi:s on which to argue on appeal.

Such 1

i

- - - -, - ~. - -. -

A a procedure is foreign to Anglo-American jurisprudence.

In federal pudicial proceedings, ex parte temporary restraining order ( "TRO") applications are only entertained in extracedinary circumstances; the TRO (if granted) is only of a brief durations the factual basis for any such TRO is i-ediately re'vealed to the parties once the order is entered; and further proceedings involving all parties occur within a i

few days.

See Fed.

R. Civ. Pro. 65(b).

And what other purpose is there for presenting this infer ation to the Board except to decide whether to delay a decisien or hearing session?

If the Staff's inquiries will reach a stage where they can be timely litigated without 4

delaying the current hearing schedule, there is no need for 4

~

l any ex parte in camera presentation..It should suffice for i

the Staff to publicly inform the Board and the other parties that there is an undisclosed investigation or inspection i

effort currently ongoing and that the Staff will accordingly:

l supple ent at the first possible opportunity the list of witnesses it will call, provide additional prefiled testimony, and update outstanding discovery requests, all in conformity with the NRC's conventional Rules of Practice.

If the Staff's l

developing information cannot be litigated under the current hearing schedule (or if the evidentiary record is already closed), then the Staff should file a motion for a stay or i

move to reopen the record.

If the Staff is not prepared to 4

i a

1 reveal publicly the basis for these motions, then th'e board I

should rgceive briefs on these motions and hear arguments in 6

camera, but allow appropriate representatives of all the i

ether parties to be present to present their positions and any relevant facts under a strict protective order preventing 1

f these representatives from in any way revealing the infermation that the Staff presents in the in camera stay or i

recpening proceeding.

This manner of proceeding has several advantages:

1) it satisfies due process requirements for administrative proceedings while doing a minimum of violence te the current, tested, traditional Rules of Practicer 2) it i

fu;1y cc ;11es with the obligation to inform not only the i

Ecard but also the other parties of new, material, relevant s

infermation: 3) it actually provides.the Board with a better factual and legal basis by allowing all the parties to raise additional facts and arguments, possibly precluding an 1

unnecessary delay in the proceedings because of an easily clarified Staf f misperception or error; and 4) it promotes greater public confidence in the NRC, its adjudicatory proceedings, and the ultimate safety of licensed f acilities.

These advantages are discussed in detail below.

First, The Boa'd should allow the presence (under protective 6/

r order) of at least one or two legal and unimplicated technical representativos of each party, perhaps with the staff's concurrence (in case a party representative l

is implicated in the investigation).

i I

t: wever, we must address what appears to the only possible objectiog to the alternate procedure outlined in these ec-ents.

1.

The Underlying Assumption of Party Representative Misconduct The NRC has,as yet failed to make explicit in either of its two prior policy statements or in the proposed rule why all parties cannot have access to the information under strict protective orders.

Specifically, the NRC would allow ex

arte in ca era presentations in some (perhaps limited) cir: u. stances, precluding even one representative from each party to be present, even under the most strict protective crder.

This presumes that the NRC does not trust even one representative of each party, sworn to,. confidentiality and subject to pctentially severe sanctions for any breach of c:nfidence, to be entrusted with material, relevant, new infer ation which if revea;ed could compromise an inspection or investigation.

Such a presur;ttur cf misconduct and vielatien of ethical and moral obligations by limited party representatives is an invalid and unacceptable basis for denying parties their due process rights in an adjudicatory process.

See, e.c., Commonwealth Edison Co. (Byron Nuclear 2/

The proposed rule simply states, "[t]here are, however, certain situations in which any disclosure of information, however restricted, could af fect the conduct of an inspection or investigation." 50 red. Reg.

21072, ecl. 3; see Proposed 12.795a, 50 Fed. Reg. 21075.

Pcwer Station, Units 1 & 2), ALAB-735, 18 NRC 19, 23-25 (1983). iAs explained by.the Appeal Boards Up to this point at least, licensing and appeal boards have acted on the assumption that protective orders will be obeyed.

Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 400 (1979).

On that assumption, beards have permitted the disclosure to parties of a wide variety of sensitive information -- including the details of plant security plans.

See, e.g.,

Pacific Gas and a

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592, 11 NRC 744, 746, and ALAB-600, 12 NRC 3 (1980);

Consolidated Edison Co. (Indian Point Station, Unit No. 2 ), ALAB-177, 7 AEC 153 (1974 ).

But see Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 477 (majority), 484-85 (dissent) (1981).

To cur knowledge, there has never been a breach cf an NPC protective order that seriously threatened the confidentiality of the information revealed under that order.

If, nevertheless, the staff has.some basis for believing that there is an actual, as opposed to purely theoretical, risk of such a breach here, it had the obligation to document that basis.

11. at 25.

Indeed, the experience of some of those submitting these ce ments, who have participated in in camera NRC proceedings subject to prote:tive order, does not justify any such presumption of illegal conduct by any party, whether the applicant, the Staff, or an intervenor.

Should any such violation h'appen, there are full and severe sanctions available, for examples disbarment or suspension of attorney representatives; suspension of a party or its representative

under 10 C.F.R. 52.713; a judgment before the Department of Labor un4er 5210 of the Energy Reorganization Act of 1974, as a ended (42 U.S.C. 55851) reinstating and compensating any informant who is discriminated against for providing information to the NRCr and a civil penalty against the licensee pursuant to 10 C.F.R. 550.7 for any such Department cf Labor finding of a $210 violation.8 Accordingly, there is nc legitimate reason for requiring the Staf'f's in camera presentations to be conducted ex parte.

If there is a fear that ene of the party representatives may be implicated in the i..vestigation, the rules could provide that the NRC Staff w:ald have a veto as to who may be the ene or two representatives (legal and technical) of each party who shall i-be allowed to participate under a prot'ective order in the in ca cra hearings.

8/

Indeed, the essential purpose evident in the statutory and regulatory language of $210 and 10 C.F.R. 150.7 is to protect from retaliation anyone who provides information to the NRC.

See 5210(a) of the Energy Fecrgani:ation Act, 42 U.S.C.

55851(a) 10 C.F.R. 550.7(a); see also Brown & Root, Inc. v. Donovan, 747 l

F.2d 1029, 1036 (5th Cir. 1984).

These provisions offer not only a powerful deterrent against any feared retaliation against confidential informants, but also provide full remedies to anyone who has suffered retaliation for contacting the Commission or participating in a hearing, investigation, er other similar proceeding.

Therefore, fear of retaliation provides no basis for excluding party representatives (under a protective order, if necessary) frem any in camera hearing.

1 Perhaps there is an unstated fear that an applicant will correct khe defect or defects that are under investigation by the NRC before the investigation is completed.

The Cc.nission's inspection rights and strict requirements for raintaining documentation of all safety-related repairs should previde the Staff with anple means for documenting the as-fcund cendition and each step of any repair or replacement.

i in su, there seems to be no reasonable basis for the Staff or cther NEC offices to insist that no one who represents the j

applicant or intervonor (even under a protective order) may knew what the Board needs to be told about ongoing inspections cr i.vestigations.

If there is no such reasonable basis, then this pe. chant for secrecy and this investigatorial mind-set are a wholly inadequate justification'for denying the basic rights of parties to adversarial litigation.'

As discussed supra, there is no need for the creation of special procedures as novel and elaborate as those in the prepcsed rules it is adequate for the Staff to file a motion i

fer a stay of issuance of a decision, a motion to reopen the i

ree:rd, or a motion to delay an evidentiary hearing (any of which may be conducted in camera, as necessary), or simply a l

C/

ThefohmerAtomicEnergyCommissionStaffinitiallytook a similar view of inspection reports, releasing only "saniticed" versions (if any) to the parties.

Now, of j

course, such reports (except for proprietary,or security.

information) are routinely made public..

i

. notification that the Staff will soon be providing further testimoqy and discovery updates.

The advantages of proceeding as described in these comments, and for not adopting the preposed rule, are discussed below.,

2.

Due Process Limitations.

As demonskrated above, despite the proposed 52.795k (50 Fed. Reg. 21077), unless the Staff ex parte in camera presentation is made so early in the hearing process as to be essentially unnecessary and premature (e.o. in the same time fra e as rulings on the admissibility of contentions), the Scard could make a decision with the same impact as granting a stay -- a decision to delay hearings, reschedule hearings, or defer issuance of a decision -- based on the Staff's i-information, and without any of the traditional safeguards involved in a stay application.

Accordingly, as described belew, fundamental tenets of due process are violated by the proposed use of ex parte in camera presentations by the Staff te the Board.

The courts have often articulated the dangers associated with such ex parte communications.

E.c.,

National Small Shi;ments Traffic Conference v.

ICC, 590 F.2d 345, 350-51 (D.C. Cir. 1978).

Thus although (these particular ICC) hearings 4

are not required to be conducted in accordance with Section 556 and 557 of the APA and the Commission " enjoys substantial flexibility to structure the hearings, it must provide depending on the nature of the case.

9 I

/

Y 1

that freedomisnoda'bsolute."

The statutory requirement of a hearing, like the requirement of comment in notice and comment rulemaking, I" imposes,certain minimum constraints on the procedure followed by the agency."

One of those constraints is the disallowance of recourse to ex pa' rte communications.

Such contacts are offensive in two fundamental respects:

(1),they violate the basic fairness of a hearing.which ostensibly assures the publi'c a right to participate in agency decisionmaking, and (2) they foreclose effective judicial review of the agency's 4

final decision.

5 Id. at 351 (footnote omitted).

Although the second concern s

I ident fied by the ccurt (the need for an adequate record for a

judicial revie'w) is mitigated under the NRC's proposed rule i

due to the requirement to keep a verbatim, sealed transcript, t'.e parties cannot argue to the court based on that transcript unless the NRC or the court opens it to them.

Even this would in nc way alter the fundamental offeniiveness of the Cc-sissien's proposed rule for violating the basic right to participate in the making of the record.

Id.; see also Natienal Wildlife Federation v. Marsh, 568 F. Supp. 985, 993 n.14 ( D. D. C.

1983) (availability of record of ex parte contacts fer judicial review does not altersthe impropriety of th[ex-partecontacts).

Denial of access to'information presented ex parte in ca. era to the Licensing Board by the Staf f or OI regarding 4

issues pending before that tribunal can constitute a denial of 1

administrat.ive due process if and when the information is

l relied on by the Board -- as it necessarily would be relied upon if khe Board delayed the proceeding or postponed decision and in effect granted an ex parte stay.

An applicant would be unable to respond to that information in order to test its reliability or truthfulness or provide rebuttal, explanation, or extenuation, and the applicant is thus prejudiced thereby:

Certain principles have remained relatively immutable in our jurisprudence.

One of these is that where governmental action seriously injurec an individual, and the reasonableness of the action depends on fact-findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.

While this is important in the case of documentary evidence, it is even more important where the evidence censists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivsted by malice, vindictiveness, intolerance,Jprejudice, or jealousy.

We have formalized these protections in the requirements of confrontation and cross-examination.

They have ancient roots.

They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right "to be confronted.with the witnesses against him."

This Court has been zealous to protect these rights from erosion.

It has spoken out not only in criminal cases, but also in all types of cases where administrative and reguir. tory actions were under scrutiny.

Greene v.

Mer1 rov, 360 U.S.

474, 496-97 (1959) (citations and footnoteomftted).

At bottom, in camera ex parte exchanges of information between the NRC Staff and a Licensing Board are inconsistent

~

S

i 21-with fundamental notions of fairness implicit in due process and with,the ideal of reasoned, public decisionmaking on the-rerits which undergird all of our administrative law.

See He e Sex Office, Inc.

v.

FCC, 567 F.2d 9, 56 (D.C. Cir.),

cert. denied, 434 U.S. 829 (1977).

The Fifth Circuit has said:

[T]he parties must generally be allowed an opportunity to know the claims of the opposing

. to present evidence to support

party, their contentions, and to cross-examine witnesses for the other side Thus, it is not proper to admit ex parte evidence, given by witnesses not under oath and not subject to cross-examination by the opposing party.

9:rnst/ v. Allen, 326 F.2d 605, 608 (5th Cir. 1964) (citations cr i t. t e d ).

Ex parte information cannot be relied upon in any marmer by a Board.

To do so would red ce the hearing to sc.cthing less than the adversary proceeding that the Atomic Energy Act has been read to require for facility licensing.

Fundamental principles of fairness require that all parties be aware of the content of information presented to the Board and be given the opportunity to test its reliability or f

truthfulness, and be given the opportunity to present rebuttal testimeny if deemed necessary.

See Greene v. McElrov, 360 m

-m

U.S.

at 496-97.

Even delaying adjudicatory hearings or issuance.*of a decision based on such ex parte information violates due process of law, as even one day's unnecessary delay in a facility's operation can cost the ratepayers and investors as much as a million dollars or even more.

The examples of judicial and administrative precedent cited in the Commission's Task Force Report do not justify the ex parte in camera presentations outlined by the proposed rule.

See Task Force Report at 7-8.

The Task Force cites in camera ex parte examination of documents as precedent.

Such an examination of documents, usually to rule on claims of privilege warranting protection from discovery, is a far cry frem hearing an oral presentation of new information which is i-as yet in a primordeal state, but whidh is material and relevant to the issues being adjudicated.

In camera judicial examination of documents to rule on a claim of privilege involves no determination of the truth and accuracy of the documents' contents.

The ex parte in camera testimony or cther oral presentation from the Staff, with likely cuestioning by the Board (and perhaps later the Commission) is quite unlike this cloistered review of discovery documents.-

The Board will be interested in the basis of the Staff's information#, and must necessarily rely on hearsay, Staff impressions, and other human observations and interpretations, particularly in the case of information from confidential

informants.

In short, all of the risks identified by the SupremegCourt in Greene v. McElroy that necessitate cross-examination in administrative and judicial proceedings are present when the Staff makes an ex parte in camera presentation to the Board. 'These problems are not present when exa-ining documents in camera to resolve privilege claims er Otherwise rule on their discoverability.

Indeed, the ultimate issue for determination (discoverability) is I

altogether dif ferent than with the proposed rule (potential safety significance and accuracy of information).10 The Federal Communications Commission ( "FCC ")

precedent cited by the Task Force Report (at p.8) similarly provides no suppcrt for the Ccmmission's proposed rule.

See In Camera Presentatien of Classified-Informati.on', FCC 78-755, Docket No.

ISS7E (Oct. 26, 1978), 1 printed in 44 Ad.L.2d (Pike &

L Fischer) 502.

That decision allowed ex parte in camera briefing cf the FCC by the Department of Defenso concerning national security information classified " Top Secret."- See i

id. at 503. The FCC allowed this ex parte in camera briefing because the FCC is specifically authorized by statute to withhold material "containing secret information affecting the natienti defense." See id. at 505.

It is significant that the 10/ Such in camera judicial review of documents frequently results in providing the other parties with " sanitized" versions with the privileged, propriety, or security, l

information deleted.

Atemic Energy Act similarly protects information which may compromise the national defenso and. security, but there is no ecmparable statutory authority protecting information relating to engoing inspections and investigations or confidential informants.

Cf. 15141-48 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Il2161-68.I1 Absent any such comparable, explicit statutory basis in the Atomic Energy Act for cencealing investigatory matter from participants in ongoing hearings, the cited FCC decision provides no additional authority for the NRC's proposed rule, which would disallow even li..ited party representatives attending certain in camera 12 sessions.

3.

Policy Arcuments Against the Proposed Rule 5-We note that the most recent NRC S'tatement of Policy, the Task Force Report, and the Proposed Rule speak of "the Cc missien policy favoring full disclosure."

See Task Force 11/ The Freedom of Information Act ("FOIA") limits the release of investigatory information to members of the public who request such documents under the procedures in FCIA (see 5 U.S.C.

5552(b)(7)), but FOIA provides that that statute does not authorize any other withholding of information except as specifically provided in FOIA.

See 5 U.S.C. 5552(c).

12/ The judicial precedent cited by the Task Force is similarly inapplicable, being grounded on protection of the national defense and security and preservation of state secrets.

See Task Force Report at 8, citing Bendix Aviation Corp. v. FCC, 272 F.2d 533, 544 (D.C.

~

Cir. 1959), cert. denied, 361 U.S. 965 (1960); Heine v.

Raus, 399 F.2d 785 (5th Cir. 1968).

I

. Report at 3, 4-5; 49 Fed. Reg. 36032, col. 2, 36033, col. 3 (1984); $0 Fed. Reg. 21073, col. 3 (1985).

Yet the impact end design of the proposed rule obfuscates that general policy, burying it in a provision that provides no more than lip service to the policy favoring full disclosure.

See Proposed 12.795e, 50 Fed. Reg. 21706.

Proposed Section 2.795e is worded in such a way as to make disclosure of the information see-to be the exception and not the rule:

(a)

After consideration of a motion from an NRC of fice for a protective order to impose conditions on or to withhold disclosure of information, including an ex parte in camera cral presentation, and after finding that the information subject to the motion is both relevant and material to the pending

~

adjudication, the presidinc officer shall determine, in light of the Commission policy favoring full disclosure, whe ther disclosure of the information without a/ protective order could adversely affect the ability of the NRC to conduct an investigation or inspection fully and adequately or to protect the identity of a confidential informant and whether and to what extent all or part of the information should be withheld from disclosure or only disclosed subject to conditions.

Proposed 52.795e(a), 50 Fed. Reg. 21706 (emphasis added).

The NRC's asserted general policy in favor of full. disclosure wculd be much more effectively implemented if the last portion of the above quoted proposed section were rewritten as follows:

. the presiding officer shall determine, in light of the Commission policy favoring full disclosure, whether restricting disclosure of the information thrcugh a protective order is necessary to preserve the-I

integrity of an'NRC investigation or inspection or to protect the confidentiality lof an informa'nt (when it has found ample justification for such has been shown), and to what extent the information should be provided to representatives of the parties to the litigation under an appropriate protective agreement or with identifying details eliminated, if warranted.

Similarly, the Commission s asserted policy in f'avor of i

full disclosure is belied by the fact that the proposed rule lays cut elaborate appellate procedures involving automatic stays of a licensing board decision disclosino information, with mandatory certification of such a disclosure decision to the Cc-.ission, and an accompanying discussion of the appellate procedure invcived shou'1d the Licensing Board decide to disrlose the information.

See Proposed il2.795e-2.795h, 50 i-Fed. Seg. 21076-77.

Yet the proposed

rule provides no procedure for the applicant or intervenor to appeal a decision that prevents disclosure of the Staff's new information that is material and relevant to the adjudication.

At least a cross-reference to one of the more conventional portions of the Rules of Practice (if not a sentence or two in one of the new proposed sections), explaining how an applicant or interven0r may appeal a Board's nondisclosure decision, would be in better keeping with the Commission's general policy in favor of fdll disclosure.13 13/ We note that proposed sections 2.795e(d) and 2.795f(b) provide that the applicant and intervenors may file (rootnote 13 c'entinued on next page)

O J

Finalay, we must emphasize the practical and procedural difficulties that would be presented by the proposed rule.

When a party is attempting to prepare for a hearing before a decision maker who is already aware of material, relevant information of which that party is unaware, it i's very difficult to know how to structure and focus one's case.

Certain evidence, presented in good f aith, could be uncenscicusly dismissed by the Board as based on "s tale "

infermation.

The situation would be not unlike attempting to represent a criminal' defendant when the prosecutor h'as secretly told the judge that the police have an eyewitness who saw the defendant cctait the crime, but that the eyewitness is reluctant to testify in public.

The potential for an unfair influence on the decision maker (cons 51ous or unconscious) is undeniable.14 (Foctnote 13 continued from previous page) briefs before the Commission when the Commission hears an appeal of a decision granting disclosure.

See 50 Fed. Reg. 21076-77.

This is purely a hollow, formal gesture, because the relevant facts are unknown to the other parties, the prior and subsequent arguments are ex parte in camera, and the Staff need not even serve its brief on the other parties.

See Proposed 52.795f(b), 50 Fed. Reg. 21077; cf. Morgan v. United States, 304 U.S.

1, 16-20 (1938); United States Lines v. FMC, 584 F.2d 519, 537-41 (D.C. Cir. 1978).

14/ Indeed, Appeal Panel Chairman Rosenthal has noted on several occasions the unfairness inherent in Board notifications that present largely unscreened allegations.

. ?

Conclusion In IJght of the Commission's ongoing concern with the i

public's perception of NRC activities, the Commissioners cheuld be loath to engage in ex parte in camera proceedings.

Such secret hearings certainly do not promote the public's confidence in'the integrity and completeness of NRC licensing preceedings (in which public participation is encouraged under the Atcmic Energy Act and the NRC's regulations), nor does it reinferce the public's awareness of the NRC's general policy in favor of full disclosure.

Furthermore, public confidence in the safety of licensed facilities or the integrity of the utility applicant is not furthered by the inevitable media publicity surrounding " secret briefings" of NRC Licensing Ecards.

Accordingly, the NRC should $~inimize the use of in ca era proceedings.

When such in camera' proceedings must be held, due to concerns, determined to be well founded, about corpremisin; ongoing inspections or investigations or revealing confidential sources, then the NRC should at a cinimun allow selected representatives of all parties, subject te an appropriate protective order, to participate in any in ca era proceeding.

Such a practice would be consistent with that followed when dealing with highly sensitive plant security plans.

Even if the public does not presently know the substance of the proceeding, public knowledge that all parties, including interested governmental entities and

"public' interest" intervenors, have representatives present, should enhance the public's appreciation of the integrity of the NRC'k licensing process.

Most important, however, allowing representatives of all parties to be present for in camera proceedings satisfies the requirements e,f due_ process of law that are inherent in Anglo-American jurisprudence.

Accordingly, we recommend that the NEC withdraw the proposed rule and enact in its place a much more traditienal procedure:

(1) recognizing the fact that Ocmmission precedent.and due process requires informing not only the Beard, but also the other parties of relevant new information; (2) allowing the Staff or other NRC offices to either (a) present preliminary new information in camera with selected representatives of all parties present subject to a prctective order; or (b) inform the $ ard and parties that an investigatien is ongoing, but refrain from presenting preliminary new information until the inspection or investigation can be made public, and then supplementing discovery responses, supplying additional prefiled testimony,

.eving to reopen the record, and moving for a stay, as necessary under the current Rules of Practice; (3) if the new information does not merit reopening the record or introducing new, late-filed contentions, the issues can be resolved through enforcement action or negotiation outside the hearing t

i 1

process in accordance with the Zimmer case and consistent with l

ases such as BPI v.

AEC.

Wi.th the increased risk of judicial reversal of lengthy licensing proceedings if the Commission in does adopt and employ the proposed rule, the commissioners e:uld be well advised to follow the more traditional, effective, and credible process outlined in these comments.

We urge that the alternative described herein be given sericus consideration as a preferable alternative to the prepcsed rule.

We are grateful for the opportunity to comment en the Com.ission's proposal.

S i nce,re ly,

.(

Joseph'B. Knotts,IJr.

J. Michael McGarry, III Nicholas S. Reynolds Mark S. Calvert

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July 22, 1985 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attention:

Docketing and Service Branch tear Mr. Secretary:

By notice published on May 22, 198.5, the Nuclear Regulatory Ccerission requested comments on propos'ed amendments to Part 2 of its regulations (50 Fed. Reg. 21,072).

The proposed amendments would establish "special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection not yet concluded or which would reveal the identity of a confidential informant and deemed relevant and material to an adjudication."

(50 Fed. Reg. 21,072.)

These comments are filed on behalf of Florida Power & Light Company and Houston Lighting and Power Company.

The amendments would implement the Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings adopted by the NRC last year (49 Fed. Reg. 36,032 (September 13, 1984)).

The purpose of that Statement of' Policy is to establish a procedure by which to resolve conflicts betwe.en the NRC's duty to disclose information to licensing boards and parties and the need to protect that information or its source.

(49 Fed. Reg. 36,033.)

The Statement of Policy records the Commission's decision to permit "in camera presenta-tions by the Staff or OI" to licensing boards while excluding all representatives of the applicant or licensee and intervenors.

1 NewxAs $ HoLTz xozn,P. C.

Secretary of the Commission July 22, 1985 Fage 2 '

4 4

The amendments now. proposed would incorporate that decision into NRC regulations.

We respectfully submit that.the proposed regulations and the Policy Statement from which they stem are an unsatisfactory--and, indeed, unfair--resolution of the perceived conflict.

The parties to an NRC proceeding have a duty to advise boards and other parties of new information which is relevant and material to issues in the proceeding.

The NRC Staff i

shares this duty but an investigating or inspecting office may conclude that it must avoid public disclosure of certain L

"new information" either "to avoid compromising an ongoing investigation or inspectien" or "to protect confidential sources" (or both).

(.49 Fed. Reg. 36,033.)

The Commission has emphasized that "it favors full disclosure to the boards and parties, that information should be protected only when necessary, and that any. limits on disclosure to the parties should be limited in both scope and duration to the minimum necessary to achieve the purposes of the non-disclosure policy."

(Id.)

Nevertheless, the Commission proposes to i

permit any NRC office on an ex parte basis to advise a licensing l

board of information relating to-an investigation or inspection and request a protective order "to impose conditions on 3

or to withhold disclosure of information."

(Proposed 10 C.F.R. 5 2.795c.)

i The notices published by the Commission in connection with the Policy Statement and the proposed amendments both fail utterly to justify the Commission's ex parte, in camera approach.

We will, of course, agree that there may be information which should not be made public but that fact cannot in and of itself justify the confiding of such information to a licensing board on an ex parte basis.

The procedures which the Commission seeks to establish 2

would come into play only if the NRC office possessing certain information concludes that it is relevant and material to the pending proceeding and that it must be protected from public disclosure in some specific way.

At least these questions are thus involved:

Is the information relevant and material to the proceeding?

Would disclosure of the information without a protective order compromise or impede an investi-gation or compromise a confidential informant?

a 1

rm m

r.

r

Nrwx4x & Hot.rz2xozn.P. C.

Secretary of the' Commission July 22, 1985 Page 3 '

e Is protection of the information required?

What is the minimum protection needed?

We believe,it is essential for boards charged with resolving those questions to have the views of the parties.

For example, how can a board make a reasoned determination that certain information is or is not relevant and material to issues in a proceeding unless it hears the views of those familiar with the issues in the proceeding?

Can a board make a reasoned decision as to the minimum protection required if it hears only from those who developed the information?

In our view, considerations of fairness as well as elemental due process require at least that counsel "for all parties be permitted to receive the information under protective orders which prohibit any transmittal of the information to others than counsel.

Counsel would then assist the board in deciding the questions identified above and any others which might be involved.

Please note that we refer to counsel for the parties and mean thereby to include counsel for the NRC Staff who is presently being excluded from discussions before boards in at least some cases.

(See attached Notice dated Jun'e 4, 1985, in Waterford.)

The procedure suggested above is not unprecedented in NRC practice.

Boards regularly grant requests for orders protecting information for reasons of security, personal privacy, proprietary interest, etc.

We know of nothing inherent in the nature of information relating to an NRC investigation or inspection which could be said to render our proposal unacceptable.

Certainly the Commission has stated no justification for the treatment it proposes for such information.

There is an implied assumption that represen-tatives of parties would not comply with a protective order but, again, there is no apparent basis for that assumption.

To the best of our knowledge, in the past NRC protective orders have been honored and the Commission's 1984 and 1985 notices contain nothing to suggest that such orders would not be honored in the future.

In our' view, it is inherently contradictory for the Commission to state that it favors full disclosure while adopting a procedure which must necessarily encourage its own employees to seek to avoid full disclosure.

We anticipate the response that the regulation prohibits use by boards.

,Nzwxa & Hor.rztsorn. P. C.

Secretary of the Commission July 22, 1985 Page 4

l of information subject to a protective order in making decisions unless all parties-have been accorded access to the information either with or without conditions.

The response to that is simple:

No justification has been offered for routinely forcing board members to " segregate" unusable from usable information in the " records" of their minds.

The proposed regulation permits an NRC office to approach a licensing board with an oral motion for a protective order and to make oral presentations to the board ex parte in camera.

In light of these provisions, we suggest that, if adopted, the regulation must make clear,that any NRC l

office must reduce to writing the information for which it seeks protection.

If that information is not in writing, the possibility of confusion and misunderstanding would be too great and subsequent review could be impossible.

We urge the Commission to revise its policy and proposed i=plementing procedures to require that an NRC office seeking to prevent public disclosure of information of these types first request the board to issue a protective order requiring any counsel for other parties who receives the information to refrain from disclosing it to anyone.

Thereafter, counsel for all parties would participate in the Board's efforts to determine whether the information sh~ould be disclosed i

and en what condition.

Very truly yours, t

9.f!AA Jie 1

Kathleen H. Shea l

KHS:pg i

Attachment l

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ie e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

.Christine.N. Kohl, Chairman June 4, 1985 Dr. W. Reed Johnson Howard A. Wilber C0h!* E **

%.C

)

In the Matter of 15 JW -4 P3 :59 3

LOUISIANA. POWER & LIGHT COMPANY

)

Docket No. 50-382 OL

)

CT!;* i.* - 5 :. ;.

(Waterford Steam Electric Station, )

00C"EiiNG 1 5Er -

BRANCH Unit 3)

)

A 5 ~4 Q

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on May 30, 1985, we held an in camera hearing with only representatives of the Commission's Office of Investigations (OI) present.

The purpose of the hearing was to determine if matters currently under investigation by OI are relevant to matters pending before us in this adjudicatory proceeding.

See 49 Fed. Reg. 36,032 (1984).1 During the course of the hearing, we posed a number of questions that OI's representatives were not able to answer at the time.

In an in camera order issued today, we request that additional information, or reasonable access to it, from OI.

FOR THE APPEAL BOARD d bNwh-C. Ayan Shoemaker l

Secretary to the I

Appe'al Board 1

1 A verbatim transcript of the hearing was made; OI_has.

been provided one copy, and the original and three additional copies are being kept under seal.

l

J dxas s9 Ens Atomic Industrial Forum, Inc.

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7101 Wisconsin Avenue b[ a[/d7 Bernesca MD 20814.4805 Te eenene (3011654-9260 TWx 7108249602 ATOMIC FoR oC OSCKE*ED

ss: :

July 23, 1985 15 Ji 25 40 28 q"]C.M E DN G & S E O,q: '

CE DF 3Ech..

a ERANCM Secretary of the Commission U.S. Nuclear' Regulatory Commission Washington, D.C.

20555 Attention:

Docketing and Service Branch

Dear Sir:

On May 22, 1985, the Commission published for comment a proposed rule entitled " Adjudications; Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information."

(50 F.R. 21072-77, May 22, 1985; corrected 50 F.R. 23138-39, May 31, 1985).

The Atomic Industrial Forum's Lawyers Committee submits the following comments for the Commission's consideration.

In August of 1983, the Commission took the first regulatory step in this subject matter area when._it issued an interim Statement of Policy (48 F.R. 36358-5.7, August 10, 1983) which permitted in camera presentations to licensing boards by NRC staff of matters relating to pending investigations.

Such presentations were to occur with notice to other parties but without disclosure of the substance of the ongoing investiga-tion.

Subsequently, the Commission received the report of its roceedings and internal Task Force on the use of in camera p(49 F.R. 36032-34, promulgated a revised Statement of Policy.

September 13, 1984).

The May 22, 1985 proposal is intended to implement the latter policy.

The Commission's Statement of Policy and proposed rule attempt to strike a balance between two, sometimes conflicting, goals.

One goal is to assure that every party to an adjudicatory pro-ceeding is provided an opportunity to participate fully in the litigation of matters which may affect that party's interests.

The second is based on the recognized need to protect certain investigatory information from disclosure, where disclosure could hamper the regulatory responsibilities of the Commission and its staff.

The Lawyers Committee believes that the balance struck by the Commission in the proposed rule gives far too much weight to protecting investigatory information.

The proposal'does not appear to be consistent with basic principles of fairness and due process.

JJL E C '.555 ggg

e Secretary July 23, 1985 n

It is our position that, as a matter of general policy, ex parte in camera procedures should be utilized only when a board concluHes that it must do so.

The Commission should expressly instruct i ts boards that, to the maximum extent practicable, boards are to authorize representatives of other parties to participate meaningfully in the decision regarding whether investigatory information should be disclosed and under what conditions.

When investigatory information is in documentary form, essen-tially the same procedures as found in 10 CFR 2.744 should t

apply.

The NRC Staff may seek a licensing board order that documents need not be disclosed, or that disclosure should be restricted.

In making its decision, the board must consider whether the document is relevant and material, properly exempt from disclosure, necessary to a proper decision in the proceeding, and reasonably obtainable from another source.

If the document is not relevant and material, it obviously need not be disclosed.

On the other hand, if the document is relevant and material, and not exempt-from disclosure, it should be disclosed.

Finally, if the;_ document is relevant and material and exempt from disclosure,.but its disclosure is necessary to a proper decision in the proceeding, the document should ordinarily be disclosed.

Of course, disclosure may be subject to an appropriate protective order which restricts its 1

disclosure to avoid, or at least lessen, any adverse conse-i, quences which might flow from such disclosure.

Section 2.744 does not require that the licensing board review the documents in question without the benefit of the views and arguments of all of the parties to the proceeding.

Rather, the regulation grants the board discretion to review the document i

in camera without disclosing its contents to.the other parties.

l UIven the importance of protecting the right of a party to participate in all aspects of the adjudicatory process, it seems clear that if there is a close question regarding whether i

the document should properly be disclosed, a board should re-quest the views of all parties to the proceeding who may be affected by the board's decision.

Obviously, any procedure i

selected by the board which permits such ?articipation should ensure, to the maximum extent possible, t1at the information will not be disclosed to the general public.

1 y.

t

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Secretary July 23, 1985 It is also possible that NRC employees way wish to furnish to a board investigatory information which has not yet been reduced to writing.

Such information would almost certainly be prelim-inary and incomplete and consequently, in our view, is unlikely to be relevant and material to the issues before the licensing l

board.

Boards should be instructed that, except under the most extraordinary circumstances, representatives of the other parties should be permitted access to the information.

This type of guidance from the Commission would be consistent with the general policies underlying the Commission's Rules of Practice and would eliminate serious questions of fairness inherent in permitting NRC employees to communicate privately with a licensing board.

The Committee agrees that there may be extraordinary circum-

' stances which would justify preventing a party from attending in camera sessions.

For example, if there is a reasonable Fasis for believing a party may.not abide by a protective order and the disclosure of investigatory information would seriously hamper the Commission's regulatory responsibilities, it would be appropriate to refuse attendance by the party in question.

grounds for r' fusing to permit attend-If there are sufficient e

ance by one or more parties, the boards should be instructed to have the session transcribed.

In addition, the board should be careful to limit its inquiry to those facts which are necessary for the board to decide whether the information is relevant and material and whether it should be disclosed under appropriate conditions.

Sincerely, f

h GeneralCou(jel LH:mm l

)

j I

I

^

uma **% _A 8 590KD ltutE 718.A Iredell St.

yd7)f,,//4LE)

Durham, NC 27705 8-21-85 Secretary, USNRC, Attn Docketing and Service, Procesed Rule 50 PR 21072 Washington DC 20555 0

Comments of Wells Eddleman First, the proposed rule app'Sirgejpe rAecessary.

The Staff can always move for a protective order W eP1Qi the identity of a confidential informatt or to propt o,ther information dich could rule requiring Commission review and a'n}Te' mise an investigation. reveal an i

A confidential informant's name or other i~dentifying information could be of use, but the best policy would simply be not to reveal the identity of confidential informants.

Of course, if the NRC really wants to protect those do give it information, it could be much more supportive of whistleblowers.

The Staff's typical attitude now does not tend to give confidential informants much confidence in the investigation or their concerns.

The Staff seems to do as much as it possibly can to classify concerns "non-safety" related, to find exculpatory evidence for a utility or plant builder, and, e.g. in the case of Chan Van Vo, amparently does not follow up with intervetws of persons identified by an informant as being able to confirm allegations.

Another eroblem is that this rule allows the staff and presiding officer to take action off the record without a record being nreserved.

Conversations, oral motions, and arguments other than a formal presentatien are not required to be transcribed.

Thus, even board.

members (other than the presiding offiefr) won't know what is going on.

And there will not be any record to review later, or there will be an inadequate record.

The rule also compromises the right et the public to a full hearing on safety-related issues and other issues material to a licensing decision.

That right is guaranteed by the Atomic Energy Act, Section 189a, and the NRC does not have the authority to change that.

Nothing in the proposal exempts intervenors from the extra burdens associated with late-filed contentions, even if the information resulting from an informant or confidential investigation is later i

made available in the record.

Thus, intervonors get a " Catch-22" i

situation in which a decision made e x parte can prevent their access to facts, but they still bear the burden of lateness dues to that decision.

I Obviously, the purpose of Board Notifications is to let licensing E boards know about material issues.

It is therefore unreasonable to E

nrevent boards from acting on those issues.

A better solution here M

is to preclude a licensing action until such issues have been made 9

public and there has been a full opportunity to litigate them.

This 3:

can be done while protecting confidentiality of informants.

The attempt in this rule to shield information without an ongoiry.,;

i investigation seems to indicate administrative laxity by NRC in j

its investigations.. Obviously,. any allegation by a. confidential

- g l

informant or anyone else, that would reasonably require.a Board.

Notification, should be worthy of investigation (and a request for a protective order).

Certainly there should not be disclosure to licensees or aaelicants, hold information confidential when a nrotective order is offices to and not to other parties.

By not requiring all NRC appl i e d fordhiRR@nSr.n'U:nuannro ornm,cu mna A smM -m

JKAET CJ'tBG p gutE (car-L No7.t)

Ufc UNITED STATES OF AMERICA

$3 23 g,,

NUCLEAR REGULATORY COMMISSION

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Proposed Rule: 10 CFR Part 2

)

Adjudications; Special Prodecures )

for Resolving Conflicts

)

Concerning the Disclosure or

)

Nondisclosure of Information

)

50 Fed. Reg. 21072 (May 22,1985)

)

COMMENTS BY THE UNION OF CONCERNED SCIENTISTS AND NUCLEAR INFORMATION AND RESOURCE SERVICE The NRC has published a proposed rule designed to protect the identity of confidential informants and the contents of certain inspections and investigations during licensing hearings.

The proposed rule would allow the NRC staff to make special, confidential requests to Licensing Boar s for protective orders where disclosure cf the information would " prejudice an inspection or investigation" or " reveal the identity or otherwise compromise a confidential informant."

Proposed S 2.795b.

The other parties to the hearing would receive notice that such a request had been made, but would not be allowed to review the notion or to attend any sessions with the Licensing Board.

The proposed rule addresses a legitimate need to protect certain NRC investigations and the identity of whistleblowers.

As it is currently written, however, it seriously infringes on the public's right to be informed of and to litigate safety issues that bear on whether a license or amendment should be granted.

The rule should strikes a better balance between 43 27 G55 E

m 3 g tfc:d......w w.~

. 3

~

maintainihg the confidentiality of investigations and protecting the public's right to participate in licensing proceedings.

At a minimum, the rule should provide for disclosure of all information material to the issuance of a license before the license is granted.

The proposed rule contains the following serious defects:

I.

The proposed rule would allow the NRC to license nuclear plants without offering an opportunity for a hearing on all material safety issues,.

The right to an adjudicatory hearing on all issues material to a licensing decision is guaranteed by Section 189a of the Atomic Energy Act.

Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444-5 (D.C. Cir. 1984), cert. denied,105 S.Ct. 815 (1985).

In effect, this proposal would allow the NRC to foreclose intervenors from litigating some relevant and potentially serious safety issues by de'nying access to the information during the pendency of licensing hearings.

The information potentially subject to nondisclosure encompasses virtually all issues relevant to licensing, ranging from manangement competence to the quality of individual safety systems.

Moreover, the proposed rule's loose standard for determining what constitutes inspections and investigations makes it easy for 3,2 the NRC staff to avoid disclosure of troublesome or embarrassing

,9 information.

The staff may obtain a protective order simply by p ' T-)

.g initiating an inspection, or even by stating toithe Licensing Y

~

Board its intention to investigate a prcblem.

Intervenors would have no opportunity to challenge such assertions.

While the Commission may have a legitimate need for confidentiality during an inspection or an investigation, that need does not override the Commission's obligation to offer an opportunity for a hearing on " protected" issues if they are material to the issuance of a license.

Whether the Commission releases information publicly or discloses it under a protective agreement to the parties, it must provide some opportunity to litigate the issues before a license is granted.

"The Commission I

is entitled to' great freedom in its efforts to structurf.-its proceedings so as to maintain meaningful participation, but one of its coals must be to assure that there is meaningful ublic participation."

Union of Concerned Scientists v. NRC, supra, 735 F.2d at 1446, quoting Bellotti v. NRC, 725 F.2d 1380,1389 (Wright, J., dissenting) (emphasis in original).

In apparent recognition of this principle, proposed S j

2.7951 requires the Licensing Board to place protected information (excluding names of confidential informants) in the l

public record of a "pending adjudication" once an investigation or inspection has concluded or the NRC staff withdraws its objection to disclosure.

However, this provision does not IAs the Commission states in the preamble, the rule would apply not only to pending investigations and inspections, "but may also include information on the basis of which the NRC m i

whether to initiate an inspection or investigation.gy determ ne 50 Fed.

Reg. at 21075, Col. 1 (emphasis added).

\\

adequately guarantee that an investigation will actually be concluded before a hearing record closes or even before a license j

is issued.

Moreover, it doesn't assure that intervenors will not be precluded or discouraged f rom litigating the issues by having to meet heavy burdens for reopening the record or filing late contentions.

The rule should state specifically that no licensing decision will be made, nor will the hearing record be closed, before all material information has been made available to the parties.2 Because intervenors are not responsible for the late availability of the information, the rule should also state that contentions on these issues will be judged according to the Commission's standards for initial filing of contentions.

II.

The proposed rule prevents Licensing Boards from considering issues that are subject to protective orders.

i-We understand 'that one of the purposes of this proposal is to allow the staff to brief Licensing Boards on serious safety problems affecting licensing decisions without jeopardizing the confidentiality of the staff's investigations of the problems.

However, the proposed rule defeats this purpose by preventing the Licensing Board from doing anything with the information.

The proposal provides that once a protective order has been issued, In most cases, the identity of a confidential informant would not need to be disclosed in order to litigate technical issues bearing on the safety finding required for issuance of a license or amendment.

In the event that the identity of an informant was determined to be material to a licensing decision, however, the-Board would be required to disclose the identity of the informant-under a protective agreement.

no information subject to the order can be used by the Licensing Board in making anj( decisions in the pending adjudication unless all parties have been given access to the information.

Proposed 5 2.795k.

Under this provision, a Licensing Board would have no authority over the safety issues covered by a protective order until the inspection or investigation had concluded or the NRC staff had consented to disclosure.

Thus, the Licensing Board could not evaluate the adequacy of an NRC staf f investigation during its progress, or even decide to postpone a decision on an issue related to the investigation.

While this provision would protect an intervenor from illegal ex parte decisions by a Licensing Board, it would also hamper the Board's ability to make fully informed decisions.

If, for example, the license was scheduled for issuance prior to completion of an investigation, the Boa'rd might never have the

'A

'"I L.N f (

opportunity to weigh serious safety allegations in its decision.

3-4, pr And, no matter how relevant a pending, protected investigation might be to issues under litigation in a licensing hearing, the Board would have no authority to consider the investigatory evidence as part of the whole case.

The rule should preclude the Licensing Board from making any final decisions until all information material to the issuance of the license has been disclosed for consideration by the Board and the parties.

Se DM9 9

L 6-III. The proposed rule conflicts with the Freedom of Information Act.

?

The Commission states that it does not intend to use these proposed procedures to shield information properly subject to disclosure under the Freedom of Information Act (FOIA).

50 Fed.

Reg. at 21074, Col. 1.

However, the proposed rule provides much broader protection for information relating to inspections and investigations than is conferrred by the FOIA.

The Freedom of Information Act, 5 U. S.C. 552(b) (7 ) ( A),

exempts from disclosure " investigatory records compiled for law enforcement purposes, but only to the extent that production of such records would interfere with enforcement proceedings."

In interpreting this section, the courts have held that the government must demonstrate that the infgrmatic'n relates to a 1

" concrete prospective law enforcement proceeding."

Carson v.

U.S. Department of Justice, 631 F.2d 1008,1018 (D.C. Cir. 1980).

(emphasis added).

In stark opposition to these holdings the Commission states that, in order to qualify for a protective order under the proposed rule, the information "need not relate solely to an ongoing inspection or investigation but may also include information on the basis of which the NRC may determine whether to initiate an inspection or investigation."

50 Fed. Reg. at 21073, Col.1 (emphasis added).

This language would allow the

'l[ E Commission to shield virtually any allegations based only on the speculation that they might lead to an inspection'or an investigation.

The proposed rule should require the NRC office i

.._.._v.._

7

requesting a protective order to demonstrate that allegations are being reviewed actively under the Commission's procedures for management of allegations.

The proposed rule also contains a confusing provision which implies that the Licensing Board need not make the maximum disclosure required by the FOIA unless a FOIA request is made.

Proposed sec. 2.795j(b) provides that when a FOIA request is 50 D#I '

w.14Cs.L) received for information that has been withheld under a r/dL l~~M 4

protective order, the presiding officer must review the record

'and determine, in the light of any exemptions that may validly be claimed under the provisions of the FOIA and the Commission's regulations, whether the information in whole or in part continues to be protected or whether and under what conditions it may be released."

The rule should state., clearly that from the outset, the Licensing Board's standard Ior disclosure of information is at least as broad as the FOIA.

IV.

The proposed rule does not provide adequate assurance that inconsistent disclosures will not take place.

In the past, the NRC of ten has made inconsistent decisions regarding disclosure of information.

Requestors have been denied-documents under the Freedom of Information Act, only to find that the withheld documents were released previously to the licensee or some other party.

The problem seems to lie in a lack of procedures for communication of disclosure decisions between various NRC offices.

}

1 3

i

~ This proposed rule has the potential to compound the problem of inconsistent disclosures.

Allegations may be in the custody of several different NRC offices at once, including the offices of Nuclear Reactor Regulation, Inspection and Enforcement, and Investigations.

These offices operate under a policy that all allegations should be disclosed to licensees and applicants unless 'the disclosure would jeopardize an inspection or investigation or compromise a confidential witness.

" Proposed NRC Manual, Chapter 0517, Management of Allegations," S 058.

Hence, these offices may disclose allegations to a licensee or applicant long before they become relevant to a licensing adjudication.

Similarly, information may be released under the FOIA before it is raised in an adjudication.

In order to ensure that Licensing Boards are not asked to phield information that is already in the possession of the licensee or applicant, the rule should require that any NRC office seeking a protective order must certify to the Licensing. Board that it has consulted all other offices that have custody of the information, and determined that none of it has been disclosed to the licensee or any other party.

Respectfully submitted, M.:MU Nina Bell iane Curran Nuclear Information and Harmon & Weiss Resource Service 2001 S Street, N.W.

l 1616 P Street, N.W.

Suite 430 Suite 160 Washington, D.C.

20009' Washington, D.C.

20036 (202) 328-3500' (202) 328-0002 l

August 23, 1985 1

I

AJGK1' EUEB G D

FWI I 3

aug s: 02 1951 L.bM //d7 DOU.ETED -

.; --e.:s er.Ch:: Cits ens ror pes =ensitie Energy. Inc. (*0CRE.p5MC

. t*e : ::Osed rule 'Anjuescorsens Special.Frecedures for

es:1 2; Cetrisets C:9:eening the Disclosure er Nondit el %=5"r e. G 26p38 U

r :.r: =seien-sc. r; :le7: may ::. Ices)

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r-s proposal is dosteolly unreir an that it g a ve s s p gego3 t.: ngagacy i

NRC s eor r opa:ed6G A SEFVh.*.

: valeses rer w:t-+cicing inrereotien to the rwesRANCH..'_

te et-er porties.

Interveners, wn: may have eenridentiof g si': monts or :nvestsscesens e r ene:r own. will de recuiree'to l

castless t

e re while the Starr ecy mole es porte (n comero sstnat:515 o*e resentatsent sunt to recuest that informotion ns; ce relesse=,

shtle e.e neee Tse crctectsen er such matters is important.

3

t -: e : creta t t*c-e r:sr and ::melete odjudication _

c' s! sues ster

.91 te 11:enssng s:tions, as required by Section 4 l

15 Or the otems: Energy Act. os interpreted by Union of C

e'ne: 5:iertists v.

NRC. 735 p.0d 1637 (D.C..Cir.

1984).

Tnere nes=s e: ce o certer c o l o r.c e m e e w e e r. enese twe Joetors.

1 1

TM.s ::.12 te c:::r:lisher my h o.': n g 31; inr: ests:r des ee Ss fer

: ::s::i:- rt:r gens

1 eis:1:sure made o.' oil ot l e te the ec ties u9:e* a cretectsve orde*, and holdsng,ony heorangs

.: err sng the p etecter infermetten [n comeen, wsth only the ssgnatCrs tC the Cr0tectsve Crder Cresent.

Tc css curoga ci: lota:ns cr : : ge:;i. e creers, strs:t pensities shovic ce vcstatie c e-r

e=.

-F it as preven ceycnd a reos:natie c:utt tha: S ceas:n cr ;crty was eescensitie for disclosu*e er.d tne ess:lesure resulte: an mora t: on investsgotson ci cetradentaci strettort.

The penalties she'wle include denial of o license, essmsssel er o corty, one discorment or ottorneys.

The NRC's own policies and octual personnel behavior indicate that the pecposed measures will selectively block the dN' riow of informotien.

Intervenors will te denied necess to information, while licensees are.routsnely informed or allegottons and investigotions, Thss is cetually NRC solicy as ersteen in

Proposed NRC Monuoi, Chapter 9517. Monogement or Allegotsons.'

It is ruether known t: OCRE that on snesviduci reereri: werksng out er NFC's Regien III mode st his personal

1:-) te esselose the identity er informonts to the licensees FC-w a. c - t *. e y worke=.

Ur.less one until the NEC hos paoven its

1 s t; TC Cencu:t rai" c '. e t *.: P e u g " investigotsens. st should

t CE s se r Pr 118795

t cevacutis ms6es n: sense t: '. th*:12 i :f:rmata:t it.te ere's that

r. c s teer released tc 12 ensees cr te the C6: 1: 2 TMs Star' 19 its 19sEe:ta:n 'eCO*ts d:es nOt ade*tir, sr.c:v :vals tr nc7e ever, w h e r.

they have moce Outli: statersets

t.9 meosa.

Th:s ATCFCsol WCuid give the Stofr tCo {.ver power

w:th-ele ist: esti:n c1rese: -eleasee tercugh other. econs f*:-

tte cefo:: o;;rf Er ess e/ merel; cloiting that the

rf:*rar :' is the nutas:t er c r.

t r. v e s t : g o t : C n.

This wouls tee"e ; s e e e r v e r.c e s reen a de * :s t y s.g watrosses ce l i ra seg

frs: s s ' 9 5 =. swc1: 01; br:.? t: sne:s rt: 011escii:rs.

*.. e s : 19 3 : s : ?. s.

c-e-r cr:eTe*t s ti:ns, y

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39e 1 4.,.

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~4 real CCE Ptunsty tC resPCnc to the Stoff's claims FDP the need 5 '.

r:r :enti=e ticists as 32 no-te in comero proceedings are

rterc1?ter.

N: cne will be atie t: refute the Staff's actions are cessments os ehezr e

r. tent will me unknown.

This gives the,

i:Dr' ur.w?**0ntee ECWer tC Chart the CCurse Of a proceeding. SHd F

s s i k 1 *f t

e e t e e r.i n e its OutCQme, by declariB9 infetteti9n Ove t

ess*1:sure os at may be the subject,Cf.'8M JnSPettien s

4 c*

arvestigati r.

The pctential for abuse here 4 s axtrept.' ;

'

rrita -

Ec-~'ul t: a licensee may never he revealed if the etsfr 05::161 t: cle:- evemstien e r.

thss tosis.

T h e f u l t ' s h e v 1 6 2-picnntst 1stensing ceares r em reaching o Final decision until all

~

1"': r m ee t s c n e.c t e r s al tc the issuance of the license has.been cts:1ctec ec tre sc*eies.

A new cc9tentsor bosee en re:ently-elecie: c te :51

evicusly held tc te cenr seentici shcula te v=ges occe eia; to eMe stensores rce rilirs inatial c:nte.ts:tr.

e"e-s r recpentry or the reecre is invcivee.

Intersen:Ps th ule net have te meet heovy burdens for

sz=e etter e' cententzens nosee upon material previously.

Un?'.atis=le t; the.

k F a no11:

tre prec:ses rule is s n e e n s s s.t e n t with the Free =cm

f I-r:*estson 40t.

The NE.C tcy n:t M r.v e regulati:ns granting two cuelic less o: cess to intermation ehon moes FOIA.

General

-Ele:tri: Cc.

v.

N C. C. (7th Cir. 1984. Case No. S'-2966). 4118 op.

at 4.

The p*:;esee rule woule shield'intermation a cn the tosis of which the N 0 moi eftermine whether to inst:ste on inscoction er anvesesysti:n.'

50 rE 01072.

This is incensistent with j

Judiesol intercretation of FOIA Exemption 7 (investasatory PO ceds), w>ich osplies only to inroemotion Concerning o l

een:vete s espective icw enforcement orceeeming.

Corsen v.

D0J.

431 F.0 1005. 191E (D.C. Cir. 1960).

The Fresent Frcsess wru*a smiele virtualli ony a r.r c e m o t s e n cr 1

.ht:h the Storr reels might be the sut.ect of an inspectict

..*eE ta g.*.titt..

AIFOst G n.V ectter CCule foil int 0 thot-CategCry.

t6ut :~estir; the potential rcr abuse.

7"e

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M a'.*i " ; s e r O'J s d e f t 1 e r:Cies. s%Ou15 Mot *De PFrCVe=.

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Felts *Tfully s u t.t a r t e d.

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DIENuclear

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'85 AJG 30 A10:46

$'E3.h$'*"Y TELEX 136482 Writer's Direct Dial NumDer:

p CD' i ;.1 August 21, 1985 Mr. Samuel J. Chilk Secretary of the Comission U. 5. Nuclear Regulatory Comission Washington, DC 20555

Dear Mr. Chilk:

Subject:

Request for Coments on Adjudications Proposed Rule (10 CFR Part 2)

The staff of GPU Nuclear Corporation herewith submits cor:vnents on the subject proposed rule.

Coments were requested in a May 22, 1985 Federal Register notice (50 FR 21072).

As a general coment, we believe this proposed rule appears to achieve its purpose in providing shielding /confidentialitys-for informants, however we see specific problems with the proposal and these are listed below.

The proposed rule could provide some difficulties for licensees and other parties to investigations, inspections or adjudicatory procedures.

The rule is not clear on how the basic constitutional right to be able to confront accusers will be maintained in these semi-judicial proceedings.

An additional requirement to maintain fairness in these proceedings is also of concern.

For example, if adverse material is revealed by a confidential informant, therefore unchallengable, how is a party to a proceeding protected and assured that this information is not used in the judgment of the presiding officer.

Although "under the proposed procedures, a presiding officer may not use information subject to a protected order in making any decision in the pending adjudication unless all parties to the pending adjudication have been accorded access to the information and given appropriate opportunity to address the information", the ability to exclude information can be questioned.

In addition, when "information is made available only under specified conditions" this may not allow an appropriate challenge or discrediting of adverse information in these proceedings.

Q u ts d6/5 p 10

)J 4 h p hp,

. M,osos,4 esce21

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3o w w.w..W,t.L..M//

0 GPU Nuclear is a cart of the General Pubhc Utilities System

2-In addition, the delays resulting from processing and granting protection to an informant may arbitrarily affect the licensee or a party to an adjudication.

We would request that the Comission attempt to clarify these points before finalizing this rule.

Sincerely, M %0 J. R. Thorpe Director Licensing & Regulatory Affairs RPJ:nk:2238f

.i~

94

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.ES SE.

Cong ess Watch. Crtca Mass Ene gy Prop:::. Heam Research Group. Utgaton Group. Tax Reform Group 19 P2:02 Septsaber 16, 1 N '~ ifC,C Jane R. Mapes Senior Regulations Attorney fC l

Fagulations Division Office of the Executive legal Director U.S. Nuclear Pegulatory Ccrrission Washington, D.C. '20555

Dear Ms. Papes:

We are writing to offer sme ccr: rents on the Nuclear Regulatory Ccrrission's prop: sed rule "Special Procedures for Resolv: Lng Conflicts Conceming the Disclo-sure or Ibndisclosure of Infomation" (Federal Recister, Vol. 50, Ib. 99, p.21072)

The procedures would restrict the disclosure of infomation in certain situations where the NRC staff felt that disclosure could " prejudice an inspection or inves-tigation" or " reveal the identity or otherwise c.u.pise a ocnfidential infomant."

While we understand the NBC's interests in protecting whistleblowers and pcssibly the confidentiality of sxe investigations, we believe the proposed rules pose a nu-ber of procedural and substantive PIcblers. 'Ihe wording of the

{

proposal is so broad in parts that it invites excessive anf possibly irproper withholding of infomation. Additionally, it creates the possibility of infor-mation being denisi to sze parties in a proedding while being made available-to others. And, perhaps most i::portantly, iti risks decisions made by Licensing Boards to be based on inecnplete and consequently inaccurate data.

The proposed rule would likely permit the shielding of more infomation frun the public than is intended to be protected by the Freedczn of Infomation Act.

The MIA's seventh exstption pemits an agency to withhold investigatory records related to and ccrpiled for law enforcement purposes - subject to a nurber of restrictions. Generally, withheld records must relate to actual enforcenent proceedings or at least "a concrete prospect of enforce:ent proceedings" must exist (MIA's legislative history - coments of Senator Hart,120 Cong. bc.

S9330 (daily ed. May 30, 1974)).

i ;

F.

1bwever, the proposed rule provides that "the infomation (to be withheld]

need ret relate solely to an ongoing inspection or investigation but may also include inforration on the basis of which the NRC may detemine whether to ini-I tiate an inspection or investigation." That is, to shield any docments that f

it may be unconfortable revealing, the NRC need only claim that the requested

)

infomation may passibly lead to an investigation at scme uncertain time in the future. 'Ihis provides a carpet under which the NIC could sweep a great deal of material it preferred rot be exposed to public scrutiny - whether justified or

(

l not.

Even if NRC raintains that it would release records in response to MIA requests that might othe sise be withheld under the proposed rule, there is a significant risk of inconsistent disclosures. Interpretations will vary frun official to official of what materials are properly withheld under the M IA

(2) f 1

I or any applicable withholding statutes. Further, since officials cons 4 % a FOIA request have scrne discretion tc release exenpt material, it is possible that one official could release records to one requester while another official d=id si-ilar or the same doctrients to another. NRC does not now have in place proce=

dures that insure consistent disclosure practices or which allow the tracking of f

prior disclosures.

i Consequently if the NRC places further restrictions on the flow of information i

through the enactment of the proposed rule, problems of inconsistant relemmas can i

be expected to worsen. And that raises the possibility that sczne parties, such as licensees or applicants, may be able to gain possession of materials that are si.ultanecusly denied to other parties, such as intervenors. There is etwiously no assurance that ene party will ocumunicate to another that it has acquired cur-1 tain records particularly if it-is adverse to its own position.

I 1

Of greater concern than the proposed rule's impact on information disclosure procedures, is its likely i:rpact on the substantive decision-making process,. As proposed, the rule provides that any information for which a protective order is granted could not be considered by the Licensing Board or any of the affected parties in a given proceeding. Moreover, there is.nothing to stop a Licensing Board frcrn issuing a final decision without having first seen and considered the.

j protected information.

l Thus, it is possible that information concerning, for exanple, serious safety l

short.ccr-ings at a plant oculd be withheld frcrn the Licensirx3 Board's considera-l tion. The Board could nonetheless proceed to issue a final decision on a license i

application for the plant. The consequences of a Licensing Board being unable to make a fully informed decision in such ciretrnatances could be dangerous at the j

least.

l Withholding information and related issues from an adjudicatory hearing would j

further seern to be in clear violation of the Atcznic Energy Act (5189a) which l

guarantees intervenors the right to a full review of all material issues in a 1

licensing decision. By denying access to selected information, intervenors would have no opportunity to frame issues or challenge the assertions of licensees.

i All parties have a right to a hearing on the protected issues and to have an i

opportunity to litigate those issues before a license is approved.

}

At the mini =ra, the proposed rule should be amended to provide for the follow-l ing safeguards:

(1) hhere a legitimate need exists to withhold any information via a protective order, then all affected licensing and other proceedings should be suspended until such time as it is possible to release the material. At the very i

least, no Licensing Board decisions should be regarded as " final" until all withheld information is disclosed to the interestad parties.

I j

(2) The standard enployed by a Licensing Board for disclosing information should be at least as broad as that provided for by the IDIA. Further, there should be no new restrictions placed on a:: cess to information tastil i

NRC develops internal procedures to insure consistency in.its disclosuri j

decisions.

These steps would help insure inplementation of the Otanission's policy of disclosing all material information to all parties in NIC adjudicatory W@s.

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4 We a'ppreciate this opportunity to provide oczments on the NRC's proposed rule. Please feel free to contact us if there are any questions regarding the pcir.ts raised in this let*#_r.

Sincerely,

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Ji i. 'h6MN-Ken Bossong, Direct C ) ject Critical Mass EnerJy Bro of Public Citizen bD i-J 49 l

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Jane R. M1 pes Senior Ib ulations Attorney J

IWJulations Division Office of Dcecutive Icjal Director U.S. thrlear Ibjulatory Otmnission Washington, D.C.

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s Comparative Text Identifying Differences Between Proposed and Final Rule O

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Comparative Text Identifying Differences Between Proposed and Final Rule New text underlined. Deleted text lined through.

(Note: The under-lined words "M camera" and the underlined subheadings in 6 2.740(b) are notnewtext.)

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended and 5 U.S.C. 522 and 553, the Nuclear Regulatory Commission is preposine-to-adept adopting the following amendments to 10 CFR Part 2.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.

1.

The authority citation for Part 2 is revised to read as follows:

Authority: Sections 161, 181, 68 Stat. 948, 953, asamended(42U.S.C.

2201,2231);sec.191,asamended, Pub.L.87-615, 76 Stat. 409 (42 U.S.C.

2241); sec. 201, 88 Stat. 12A2, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.

853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat.1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C.

i 2132,2133,2134,2135,2233,2239). Section 2.105 also issued under Pub. L.

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97 415, 96 Stat. 2073 (42 U.S.C. 2239). 1 Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sest4 ens-2,399-2,399-alse 4sswed-ender-Pub,-h,-97-415,-96-Stats-2971-f42-U,S,G,-2133), Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719, and 2.795k also issued under 5 U.S.C. 554. Sections 2.754, 2.760. 2.770 2.780 also issued under 2

5 U.S.C. 557. Sections 2.790 and 2.795j also issued under sec. 103, 68 Stat.

936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 U.S.C.

553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).

Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat.1473 (42 U.S.C. 2135). Appendix 8 also issued under sec. 10, Pub. L.99-240, 99 Stat. 1859 (42 U.S.C. 2021,1).

2.

In 6 2.730, a new paragraph (1) is added to read as follows:

$ 2.730 Motions.

(i) The provisions of 5 2.730(a) thrcugh (h) are not applicable to motions filed pursuant to $$ 2.795a through 2.795k.

3.

In i 2.740, paragraph (b)(1) is revised to read as follows:

9 2.740 General provisions governing discovery.

1

3-(b) Scope of discovery.

(1)

In eeneral.

Parties may obtain discovery.regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including _the existence, description, nature, custody, condition, l

and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For the purposes of this section, ' privileged matter includes information subject to a protective order issued under the special procedures in il 2.795a through 2.795k.

In a proceeding on an applica-l tion for a construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in 9 2.751a and shall relate only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion of that prehearing conference.

In such a proceeding, no discovery shall be had after the beginning of the prehearing conference held pursuant to i 2.752 except upon leave of the presiding officer upon good cause 1

shown.

It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

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5 5-2,780--Ex-parte-eemmunfeatiens, fa)--Exeept-as-prev 4ded-under-the-speefal-preeedures-4n-li-2,795a threwgh-2,795k-er-in-paragraph-fe)-ef-this-seatien,-neither-fi)

Gemmissieners,-memkers-ef-the4P-4mmediate-staffs,-er-ether-NRG eff4efais-and-employees-whe-advise-the-Gemmissioners-4n-the-exereise-ef the4P-quast-fedisfal-funet4ngs-w414-Pequest-er-entertain-off-the-Peeerd exeept-frem-eaeh-ether,-ner-(2}-aPy-party-to-a-preeeeding-feP-the 4sswanee,-den 4alv-amendment,-transfer,-Penewals-mediffeation -suspen-s s4en,-er-reveentien-ef-a-44eense-er-permit,-er-any-eff4eer -employee, s

representative,-er-any-ether-persen-dipeetly-op-4mdireetly-aeting-4n beh a l f-t h e ree f,-s h a ll-s u bm i t -e f f-t h e - re s s ed - t e -G emm i s s i o ne r s -e r-s v e h f

staff-members,-efffe&als,-and-employees,-any-evideneev-explanation, analysis,-er-advice,-whether-ww44 ten-er-eral,-Pegarding-any-substantive matter-at-issue-in-a-preeeeding-en-the-weeerd-then-pending-before-the N R G-f e r-t h e-4 s su a nee s -d e n ia l,-ame n dme n t y - t ra n s fe r,- P e newa l s -med i f f e a -

I 44en,-suspens4en,-er-reveeat4en-ef-a-lieense-op-perm 4te--Fer-the purreses-ef-this-seetten,-the-term upposeed4ng-en-ghe-pegepd-then pending-before-the-NRC2-shall-inelvde-any-application-ep-matter-whfah has-been-met 4eed-fer-hearang-er-eeneerning-whfeh-a-heap 4mg-has-been Pequested-pursuant-te-this-parte 1

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In ! 2.781, paragraph (a) is revised to read as follows:

5 2.781 Separation of functions.

(a)

In any proceeding under this subpart, any NRC officer or employee engaged in the performance of any investigative or litfoating function in that proceeding or in a factually related proceeding may not participate in or advise a Commission adjudicatory employee about the initial or final decision on any disputed issue in that proceeding, except--

(1)

In accordance with the special procedures in 69 2.795a through 2.795k of this part; (2) As witness or counsel in the proceeding; (3) Through a written communication served on all parties and made on l

the record of the proceeding; or l

i (4) Thrcugh an oral communication made both with reasonable prior notice to all parties and with reasonable opportunity for all parties to respond.

5.

In Subpart G, imediately following i 2.790, a new center heading and new sections 2.795a through 2.795k are added to read as follows:

SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF CERTAIN SENSITIVE INFORMATION IN LICENSING PROCEEDINGS REkATING-TG-AN-NRG-ENVESTIGATEGN-9R INSREGT10N-GR-T9-THE-49ENTITV-GF-A-G9NFIDENTIAb-INFORMANT AND-9EEMEB-REbEVANT-AND-NATERIAk-T9-A-pENDENG-A9JW94GATEGN 6 2.795a Applicability of special procedures; official file.

(a)

Sections 2.795a through 2.795k specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to-an-4nvestigat4en-er-inspeetson-er to the identity of a confidential i

informant or obtained during an investigation or inspection and deemed relevant and material to a pending adjudication. These procedures apply to all NRC offices.

The procedures are to be used whenever-an-NRG-off4ee may-be-required when, in accordance with the Commission's board notification policy or pursuant to a request from a presiding officer, an NRC office may i

be required to produce information in a pending adjudication the disclosure 2

of which and-the-NRG-effiee-having-the-4nfermatien-believes-that-d4selesure j

ef-the-4nfermation without a protective order would prejud4ee-an-4mvest4ga-2 tien-er-inspeetion-er reveal the identity of a confidential informant or prejudice an ongoing investigation on inspection.

(b) As used in il 2.795a through 2.795k, the term " presiding officer" includes an administrative judge, an administrative law.iudge, an Atomic Safety and Licensing Board, and an Atomic Safety and Licensing Appeal Board.

(c) Unless and until publicly released, all documents required by or relating to the special procedures in I! 2.795a through 2.795k shall bear i

I 1

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N the docket number and title of the proceeding, be marked "Not For Public Disclosure - Protected Under 10 CFR il 2.795a - 2.795k," and bjt transmitted to the Secretary in sealed double envelopes for deposit in the protected section of the official docket file.

9 2.795b Requirement to disclose relevant and material information.

In accordance with the Commission's board notification policy, infor-mation relating-te-an-investiga44en-er-inspeetien-er-te-the-4dentity-ef-a eenfident4al-4nfermant-and deemed relevant and material to a pending adjudi-1 cation shall be disclosed to the parties to the adjudication by the NRC office having the information unless the information would reveal the identity of a confidential informant or prejudice an ongoing investigation or inspection. When an NRC office has information which it deems relevant and material to a pending adjudication but which could reveal the identity of a confidential informant or prejudice an ongoing investigation or inspec-tion, the that NPC office shall requests the presiding officer by motion to issue a protective order imposing conditions upon the manner in which the i

information is disclosed or withholding the information from disclosure.

because-diseleswee-w4thout-a-pretee64ve-erder-weWid-pre,4Wdiee-an-4nspeet4em er-4mvest4 gat 4en-er-revea4-the-4dentity-et-a-senf4dential-4nfermante i 2.795c Motion for protective order; notice of motion.

(a) A motion for a protective order to impose conditions on or to withhold disclosure of information shall be addressed to the presiding 4

officer by the NRC office having tFe information.

At the time a motion is

i made and without revealing the substance of the information subject to the motion, the NRC office shall notify the parties to the adjudication and the Director, Division of Rules and Records, Office of Administration, U.S.

Nuclear Pegulatory Commission, that a protective order to impose conditions on or to withhold disclosure of information has been requested.

(b) A motion for a protective order may be made orally or in writing, may include a request for an ex-parte in camera oral presentation, without other parties present, and shall include the following information, as appropriate:

(1) A brief description of the nature of the information subject to the motion; 4

(2) A brief explanation why the information is relevant and material to the pending adiudication; (3) A brief statement ind4 eating-hew-the-informatien-relates te-an-inspeetien-er-4nvestigatien-and-the-status-ef-the-inspeetfen-er invest 4gatien,-4neluding-the-estimated-time-ef-eemplettent whether the 1

information was obtained from a confidential informant or during an onaoing investigation or inspection; (4}--A-statement-that-the-49fermatien-reveals-the-identity-ef-a eenf4deptfal-4mfermantt (6) (4) An explanation of the basis of the motion for a protec-tive order to impose conditions on or to withhold disclosure of the information, including a brief explanation why and to what extent dis-closure of the information without a protective order will eempremise er-impede-the-eenduet-ef-an-4mvestigatien-er-inspeetfen,-er reveal the

. identity or othenvise compromise a confidential informantt or will prejudice an ongoing investigation or inspection; (6) (5) The proposed relief requested.

! 2.795d Consideration of motion by presiding officer; procedure.

(a) A motion from an NRC office for a protective order to impose conditions on or to withhold disclosure of innarmation shall be considered by the presiding officer in, camera without other parties ether-than-the-NRG staff present.

l (b) The presiding officer may require or permit the NRC office making the motion to make an ex-parte in camera oral presentation.

Attendance at an ex-parte in camera oral presentation shall be limited exclusively to the presiding officer, to appropriate NRC personnel and to 2

any witness appearing at the reauest of the NRC office or the presiding officer,2 and to a court reporter. The presiding officer shall premptly notify all parties to a pending adjudication of the occurrence of when any ex-parte in camera oral presentation w411-be-held, The notice shall state 2

the purpose,-time,-and-place of the ex-parte in camera oral presentation and the approximate date a ruling concerning the disclosure or nondisclosure of the information subject to the presentation may be expected. The identity of any witness and the substantive content of the information shall not be dis-closed.

If an ex-parte in camera oral presentation is conducted, a verbatim transcript shall be made.

..a.

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G 2.795e Determination to grant or deny motion for protective order; requirement for Commission review.

(a) After consideration of a motion-from an NRC office for a protective order to impose conditions on or to withhold disclosure of information, including any ex-parte in camera oral presentation, and after j

finding that the information subject to the motion is both relevant-and material to the pending adjudication, the presiding officer shall determine, in light of the Comission policy favoring full disclosure, whether i

disclosure of the information without a protective order could adversely affect the ability of the NRC te-eenduet-an-$nvest4gi iien-er-inspee64en fvily-and-adeewately-or to protect the identity of a confidential informant or to complete an investigation or inspection and whether and to what extent i

all-er-part-ef the information should be withheld from disclosure or only disclosed subject to conditions.

(b) Every ruling requiring disclosure of the identity. of a confidential informant shall be certified to the Commission for review..

i Pending Comission review, the order of the presiding officer shall be l

stayed.

(c)(1)Ifthepresidingofficergrantsthemotion,thepresiding officer shall issue a protective order withholding disclosure of the 1

l information or conditioning its release, as requested, appropriate.

(2)

If the presiding officer detemines that the motion should be f

denied in whole or in part, the presiding officer shall notify the NRC office submitting the motion of the intent to order disclosure. The j

notice of intent to order disclosure shall specify the nature.of the i

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i information to be disclosed, the terms and conditions of any proposed 4

order and the basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection or concurrence.

(3)

If the NRC office concurs in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order

. proposed.

(4)

If the NRC office objects to the disclosure specified in the notice of intent and any such objection is disallowed, the presiding j

officer shall promptly certify the objection, the ruling disallowing i

the objection and the accompanying record required by 5 2.795f to the Comission for g-pawte,i_n camera review, without other parties present.

n The order of the presiding officer shall be stayed pending Comission review.

(d) The presiding officer shall prcirptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, l

Office of Administration U.S. Nuclear Regulatory Comission that a rulirc relating to the disclosure or nondisclosure of information has i

been issued or has been certified to the Comission for ex-parte in, camera review, without other parties present. A notice of certifica-I tion shall state the reason for the certification, the certification 'date, and that, in accordance with 9 2.795f, any party to the adjudication may file a timely brief with the Comission.

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. 1 2.795f Record for Comission review; briefs.

(a) Every information disclosure ruling certified to the Comission for ex-parte in camera review pursuant to i 2.795e will be accompanied by a record which shall consist of the information provided to the presiding officer ex-parte in camera, all documents filed with the presiding officer by the NRC office making the motion for a protective order, including any statements of concurrence or objection, the transcript of any g-parte M camera oral presentation, the presiding officer's notice of intent to reouire disclosure 2 statement of reasons why the information should be disclosed, and the-presiding-effieeris-erder, information disclosure i

ruling.

(b) Within ten days after the presiding officer issues an order certifying an information disclosure ruling to the Comission for g-parte g camera review, the NRC office may file a brief with the Comission in support of its objections to disclosure. The NPC office shall notify all parties to the adjudication that an NRC brief has been filed, but need not serve a copy of the NRC brief on the parties to the pending adjudication.

Within seven days after service of the NRC notice, any party to the pending adjudication may file a brief with the Comission.

i ?.795g Comission review.

1 (a) Every information disclosure ruling certified to the Comission for review under 9 2.795e, together with the accorrpanying record and any briefs, shall be considered by the Comission g camera without other parties ether-than-the-NRG-staff present. Upon its own initiative or upon request

. by the NRC office making the motion for a protective order, the Commission may conduct an ex-parte in camera oral presentation without other parties present on any matter certified to it for review under 6 2.795e.

(b) After review of the certified information disclosure ruling, the accompanying record and any briefs, the Commission shall decide whether to affirm, reverse, or amend the ruling.

The Commission order may include any terms or conditions deemed necessary or appropriate.

i i 2.795h Consent to disclose information; notice.

(a) The NPC office seeking upen-whose-metien-the-presiding-offieer-SP the-Gemmissien-has-4ssued a protective order under 5 2.795c imposing-eendi-tiens-en-er-w4thhelding-the-diselesure-ef-4mfermatien shall notify the pre-siding cfficer or the Commissicn, as appropriate, and the Director, Division of Pules and Records, Office of Administration, U.S. Nuclear Regulatory Commission when (1) the office no lancer objects to the disclosure of all or part of the information; its-ebjeetien-te-d49elesure-te-the-parties-te-the p e n d i n g -a dj u d ie a t i e n -e f-a ll-e r-a ny-p e r t i e n -e f-t h e-4 n fe rma t i e n - s u bj ee t - te - t he order-4s-withdrawn,-when (2) the inspection or investigation to which all-er any-pertien-ef the information subject to the order relates is completed,1 or when-4t-learns-ef (3) there is any other change in the status of the protected information.

(b)

Information which an NRC office has consented to release may shall be disclosed to the parties and plaeed made available for inclusion in the public record of the pending ad.iudication without-further-erder unless the

e infomation relates to the identity of a confidential informant or unless the Commission has ordered otherwise. The identity of a confidential infomant may only be released by order of the Commission.

9 2.7951 Fx-parte-4n In camera record.deerred sealed pending further order.

(a) Whenever the presiding officer under 6 2.795e, or the Comission under 5 2.795g, issues a protec+.ive order to impose conditions on or to withhold disclosure of information, the ex-parte 3 camera record on which i

the order is based shall be deemed sealed pending further order.

(b) No part of any ex-parte h camera record containing information pertaining to the identity of a confidential informant may be included in the public record of a pending adjudication or be made publicly available in any other way except pursuant to Commission order.

i l

(c) After notice by the appropriate NRC office that an-4nspection-er 1

4mvest4gatien-has-been-eempleted-er-that objection to the disclosure of infomation has been withdrawn, or that an investigation or inspection has I

been ecmpleted, wh4ehever-4s-earlier, and subject to the requirement in paragraph (b) of this section and to any other exemption from mandatory l-public disclosure that may validly be claimed under the Comission's regu-l lations, including any exemption that may be available under i 2.790 or il 9.5, 9.61 or 9.95 of this chapter, the presiding officer or the Commis-sion, as appropriate, shall order the ex-parte in camera record ineluded unsealed and the information made available for inclusion in the public record of the pending adjudication.

i S,

e 5 2.795j FOIA request for release of protected information; release determination review.

(a) The Director, Divisicn of Rules and Records, Office of Administration, U.S. Nuclear Pegulatory Comission, upon notice by an NRC office that information subject to an FOIA request is also subject to a protective order issued under i 2.795e or 6 2.795g, shall promptly notify l

the presiding officer or the Comission, as appropriate.

(b) Upon notification of an FOIA reouest for release of protected l

infomation, the presiding officer or the Comission, as appropriate, shall i

review the bases for issuance of the protective order and determine, in the light of any exemptions that may validly be claimed under the provisions of the Freedcm of Information Act and the Comission's regulations, whether the information in whole or in part should continue to be protected or whether and under what conditions it may be released, i

i 9 2.795k Prohibition against use of infomation subject to protective order.

Infomation subject to a protective order to withhold disclosure may t

)

not be used by the presiding officer in making any decision on the merits on l

any issue in controversy in the pending adjudication unless all parties to the pending adjudication have been accorded access to the information either with or without conditions.

Dated at Washington, D.C., this day of 1987.

i For the Nuclear Regulatory Comission.

i A

Samuel J. Chilk Secretary of the Comission

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Federal Register Notice of Withdrawal of Proposed Rule

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NUCLEAR REGULATORY COMPIISSION i

10 CFP PART 2

-i i

Adjudications; Special Procedures for Resolving Conflicts Concerning the Disclosure or i

Nondisclosure of Information i

AGENCY:

Nuclear Regulatory Commission.

j i

ACTION:

Withdrawal of proposed rule.

SUMMARY

The Nuclear Regulatory Commission is withdrawing a proposed l

rule published in,the Federal Register on May 22,1985 (50 FR 21072.)

In this rule, the Commission proposed amending its rules of practice to provide l

special procedures for resolving conflicts concerning the disclosure or i

j nondisclosure of information relating to an NRC investigation or inspection not 1

yet concluded or which would reveal the identity of a confidential informant I

and deemed relevant and material to an adjudication.

The Commission has decided that in view of the few remaining licensing proceedings and the consequent limited number of occasions in which the proposed procedures t

might be used in those proceedings, an existing policy statement is an adequate means of resolving these conflicts and thus there is no need at this 1

time to codify the proposed procedures.

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i DATE:

This withdrawal is effective (insert date of publication of notice of withdrawal in the Federal Register.)

FOR FURTHER INFORMATION CONTACT:

Jane R. Mapes, Senior Attorney, Rulemaldng and Fuel Cycle, OMee of the General Counsel, U.S.

Nuclear I

Regulatory Commission, Washington, D.C.

20555; Telephone: '(301) 492-8695.

i SUPPLFMENTARY INFORMATION:

In its Statement of Policy on Investiga-tions, Inspections and Adjudicatory Proceedings published in the Federal Register on September 13, 1984 (49 FR 36032-36034) the Commission reemphasized the importance and need for full disclosure of information in an adjudication so that all issues in controversy in the adjudication may be fully resolved.

At the same time, the Commission recognized the need in certain circumstances to limit disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential informant.

In its policy statement, the Commission identified a procedure under which the NRC staff would provide an adjudicatory board with an explanation of the basis for its concern about disclosure and would present the information to the board in camera without other parties present.

Recognizing that this procedure would be a departure from normal Commission practice, the Commission directed the staff to initiate a rulemaking proceeding.

Accordingly, on May 22, 1985, a notice of proposed ru:emaking was published in the Federal Register (50 FR 21072-21077) proposing amendments to the i

Commission's rules of practice (10 CFR Part 2) that would provide special-

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ex parte in camera procedures for resolving conflicts concerning the disclosure or nondisclosure of information deemed relevant and material to an adjudication and relating to an NRC investigation or inspection not yet concluded or likely to reveal the identity of a confidential informant.

On May 31, 1985 (50 FR 20138-23139) a correction notice was published.

On July 26, 1985, tha date for submitting comments on the proposed amendments was extended to August 23,1985 (50 FR 30446-30447).

i 1

The Commission received nine letters of comment expressing the views of interested utilities, professional organizations, private counsel, intervenors and individual members of the oublic.

No commenter was satisfied with the text of the rule as proposed.

P. lost of the commenters recognized the Commission's need to withhold or otherwise protect information in order to protect a confidential source or to avoid compromising an ongoing investiga-J tion or inspection and the consequent necessity for in came$a presentations.

1 l

Ilowever, the commenters uniformly opposed using ex parte techniques to l

achieve that objective.

The principal objections voiced by the commenters were that the proposed procedures are illegal, unnecessary, contrary to due process and unfair.

One commenter stated that if the: Commission's rules of practice were amended as proposed, decisions reached in proceedings in which the proposed procedures were used would be subject to a greatly increased risk of judicial reversal.

In addition, the proposed amendments w'ere faulted as bad public policy.

Several commenters' suggested alternative methods, dependent principally upon the use of protective orders, to achieve the objectives sought by the Commission.

t

, c P

- Since publication of the notice of proposed rulemaking in 1985, the Commission has made certain decisions respecting its' board notification policy and procedures which are expected to reduce significantly the occasions on which the proposed procedures would actually be used.

For, as the Commission made clear when it promulgated its Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings, the Statement and any implementing procedures only take over "once a determination has been made, under established board notification procedures, that information should be disclosed to the boards and public but OI [the Office of Investigations) or staff believes that the information should be protected."

(49 FR 36032 at 36033, September 13, 1984, emphasis supplied.)

The Commission's board notification policy and procedures have been in effect for many years and serve an important purpose--to keep the boards and the Commission advised of matters which may need to be considered in making licensing and other regulatory decisions, particularly matters which present serious safety or environmental issues.

Recently, the Commission directed significant changes in the manner in which its board notification policy and procedures are implemented.

These changes. were first enunciated by the Commission in a Memorandum and Order issued January 30, 1986 in Louisiana Power a Light Company (Waterford Steam Electric Station, Unit 3)

Docket No. 50-383-OL, CLI-86-1, 23 NRC 1, affirmed sub. nom. Oystershell Alliance, et al. v. U.S. Nuclear Regulatory Commission, et al., No. 85-1182, U.S.C.A.D.C.,

September 9,

1986, F.2d Subsequently, at the express direction of the Commission, the changes in the manner-in which the I

1

i 1

k.

G

- Commission's board notification policy is being implemented were formally incorporated in NRR Office Letter No.

19, Revision 3,

issued May 29, 1986. 1 On June 3, 1986, the Executive Director for Operations directed other NRC staff offices to revise the implementation of their board notification policy and procedures consistent with Revision 3 of NRR Office Letter 19.

Under the Commission's board notificatfor policy and procedures as now implemented, NRC offices and staff SI are only required to notify the boards when they are apprised of allegations and new information not previously submitted to the boards which are relevant and material to the issues in controversy in the proceeding.

If the information is not relevant and material, the staff has no obligation to inform the boards.

Moreover, under current practice, the facts on which an allegation is based must be substantiated and the implications drawn from those facts must be shown to be valid before any notification is made.

The above-described changes in the implementation of the Commission's board notificatfor policy are expected to have the effect of severely limiting the circumstances in which the proposed procedures would be applicable.

These circumstances are further limited by the fact that the number of pending

-1/

This document is available for inspection at the NRC Public Document Room,1717 H Street, N.W., Washington, D.C.

2/

As used in this preamble, the term " staff" is intended to refer to all

~

NRC offices.

I r

P

. licensing adjudicatory proceedings is small and it is unlikely that large numbers of new proceedings will be initiated in the near future. ~

The Commission has reviewed its Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings in light of the above-described 1

changes.

On the basis of the guidance provided in the Policy Statement, the Commission has concluded that it could, using existing procedures, adequately protect information from disclosure in those very rare instances in which such protection might be needed.

In view of the controversial nature of the proposed procedures and because it now appears that such procedures will seldom be used, the Commission has also concluded that codification of the proposed procedures in the Commission's rules of practice is not warranted.

Accordingly, for the foregoing reasons, the Commission hereby withdraws the notice of proposed rulemaking published on May 22, 1985 (50 FR 21072 -

21077), and terminates this rulemaking proceeding.

Dated at Washington, D.C., this day of

, 1987.

For the Nuclear Regulatory Commission Samuel J. Chilk Secretary of the Commission j

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ML20215G251

Contents

Text

Subject:

Purpose:

Background:

Enclosures:

SUMMARY

Dear Sir:

Dear Sir:

Dear Mr. Chilk:

Subject:

Dear Ms. Papes:

SUMMARY

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Seeks Commission Decision on Approval of Notice of Final Rulemaking or Approval of Notice Withdrawing Proposed Rule Re Relationship Between Investigation/Insps & Adjudications
Person / Time
ML20215G251
Issue date:	02/25/1987
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20213F620	List: ML20213F617 ML20214F982 ML20214F998 ML20214G048 ML20214G053 ML20214G060 ML20214G070 ML20214G082 ML20214G083 ML20214G087 ML20214G089 ML20214G093 ML20214G098 ML20214G110 ML20214G126 ML20214G133 ML20214G136 ML20214G142 ML20214G145 ML20214G151 ML20214G163 ML20214G176 ML20214G184 ML20214G187 ML20214G195 ML20214G200 ML20214G222 ML20214G228 ML20214G239 ML20214G253 ML20214G262 ML20214G264 ML20214G273 ML20214G275 ML20214G284 ML20215G093 ML20215G180 ML20215G185 ML20215G251 ML20215G294 ML20215H465
References
FRN-50FR21072, RULE-PR-2, TASK-RIA, TASK-SE AB78-1-066, AB78-1-66, SECY-87-051, SECY-87-51, NUDOCS 8703160408
Download: ML20215G251 (130)
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ML20215G251

Text

Subject:

Purpose:

Background:

Enclosures:

SUMMARY

Dear Sir:

Dear Sir:

Dear Mr. Chilk:

Subject:

Dear Ms. Papes:

SUMMARY

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