ML20215M012

Partially Withheld Order Concluding That Further Breach of Confidentiality Would Harm Alleger & Future Investigations. Intervenor Access to Ofc of Investigations Files Denied.W/ Certificate of Svc.Served on 861110 (Limited Svc)

ML20215M012
Person / Time
Site:	Braidwood
Issue date:	11/07/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20215L977	List: ML20215L975 ML20215M012
References
FOIA-87-21, FOIA-87-A-19 OL, NUDOCS 8706260247
Download: ML20215M012 (15)

Text

.

g' PPOTECTED ORDER

,c .

UtilTED STATES OF AMERICA

's flVCLEAR REGULATORY C0f1 MISSION-

'86 NOV -7 P3 32 CFF.

00CM A!

Comissioners: -.

Y ' *-

Lando:W. Zech, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Kenneth M. Carr e-wr0 NOV 101986 LIMITED SERVICE In the fiatter of

)

COMMONWEALTH EDISCN COMPANY ) Docket Nos. 50-456-OL

) 50-457-OL (Braidwood Station, Units tio.1 and 2) )

)

ORDER By Order , the Commission took review of a dispute between the Office of Investigations (01) and the Licensing Board in the Braidwood operating licensing hearings. The Board had declared its intent to require disclosure under protective order of certain investigative materials and to subpoena an alleger to whom OI had granted confidentiality.

8706260247 870622 PDR FOIA -.

q WHICHE87-A-19 PDR.;

Applying the procedures outlined in the j i

Comission's 1984 Statement of Policy on Investigation, Inspections, end ]

l Adjudicatory Proceedings, 49 Fed. Reg. 36032 (September 13, 1984) the l 8' f W## $*I*I*A I

In SCC 0 anc L*x2d,4f9M"y\ . DM-89-j l

o. '

l 4 ,

Comission's Order directed the Board to certify the relevant record to the Comission for a decision.

Applying both case law and the Comission's two policy statements on disclosure of sources and materials, we conclude against disclosure of the 01 materials and against issuance of a subpoena to the alleger. The investigative materials are not essential for a fair resolution of the ,

issues in the hearing; the investigation,

., would be hamed by the Board's proposed disclosures; last, to protect confidential sources, - f In order to protect the alleger's confidentiality and the ongoing investigation, this Order imposes certain restrictions on the parties' future pleadings. This Order is being distributed to the parties under a protective order.

I. BACKGROUND i

i i

2

li: .  :*  ;, ' ,

I.

~Aiready admitted to the Braidwood licensing bearing was a contention alleging.that-certain named Comstock'QC supervisors harassed-and intimidated. 'l I

Comstock'QC inspectors.

3

)

' Subsequent actions- of the' parties and 01- concerning the dispute beve taken place according to the procedures set out in the Commission's 1904 Statement of Policy on Investigation,; Inspections, and Adjudicatory Proceedings, 49 Fed. Reg. 36032 (September _ 13,1984)("PolicyStatementon s

.]

Investigations").

s II. LEGAL PRINCIPLES Under. the Comission's Policy. Statement on Investigations, " full disclosure of material information to adjudicatory Boards and the parties is the general rule . . ." 49 Fed. Reg. 36032, col . 2. "Such disclosure is required to allow full resolution of all issues in the proceeding." Id., at col. 3. However, the importance of protecting a confidential source or avoiding the compromising of an ongoing investigation or inspection can. "in i I

appropriate circumstances be as great as the importance of disclosing the inforination to the Boards and parties." Id., at 36033, col. 1. Loss of

. confidentiality could harm the agency's overall investigation and inspection efforts by making other persons reluctant to bring information to the NRC; and compromise of an investigation by release of documents before the conclusion of the investigation could lead others to take steps to keep the agency from ascertaining all the facts relevant to an informed licensing 4

1 o :

decision.... Id. Even disclosure under protective order could breach promises of confidentiality, or enable the subject of an investigation to shield himself. Id., at col. 2.

With respect to confidentiality in particular, although the Commissio'n does not lightly grant'it, neither does the Commission lightly take it back,

once granted. "

... [C]onfidentiality should be granted only when necessary to acquire ~ information related to the Commission's responsibilities, or when warranted by special circumstances." NRC Statement of Policy on Confidentiality, 50 Fed. Reg. ~48506, 48507, col. 3 (November 25,1985)

(" Policy.Statementon-Confidentiality"). However,'once gr6nted, confidentiality is to be given every due protection, even after a'~given confidential ' source is no longer involved'in an investigation or the investigation is closed. Policy-Statement on Investigations, 49' Fed. Reg.

at'36033, col. 1. Only on rare occasions is the identity of a' confidential source to be divulged. Policy Statement on Confidentiality, 50 Fed. Reg. at-48508, col. 2. -" Where the disclosure of an informer's identity, or of the

~

contents.of. his communications, is relevant and helpful to the defense'of the~ accused, or-is essential to a fair determination of a cause, the privilege must give way." ' Id., quoting Roviaro v. United States, 353 U.S.

53,160-61 (1957). "[T]he public interest in protecting the flow of i

information" must be balanced "against a party's right to develop his/her claim or. defense." 50 Fed. Reg. 48508.. col. 3. Factors to be considered in making this balance include:

(1) whether the information which would be provided by the  ;

confidential source could be gotten some other way, (2) whether.the information " relates directly" to the substantive  ;

contentions in the adjudicatory proceeding, I (3) what.the confidential source's present position is, 1

5 i

l (4)whetherprotectionofconfidentialitywouldentail.thedenial of a right to present rebuttal evidence or to conduct cross-examination, and

'(5) whether disclosure is necessary to make the adjudicatory record ]

complete. .

< Id., at 48508-09.1 III. BALANCING THE NEEDS OF ADJUDICATION AND INVESTIGATION

'The chief argument in support of the Board's intention to require 1

disclosure and issue the requested subpoena is that the information in the 1 01 files connected with the alleger's claims, and the information which reasonably could be expected to be elicited from him in deposition or in the hearing, are relevant to the Intervenors' contention on quality control. . As noted above,'the Intervenors' contention in the hearing is that the QC manager and managerial Staff have harassed and

' intimidated QC inspectors.

L IMest of these factors would appear to be useful also in deciding.

.whether to release 01 documents.

2 The Intervenors make a different argument. According to them, the long preamble to the list of specifics in the contention leaves and, room for perhaps more important, innes a general allegation of inadequate organization, an allegation which may be backed up by evidence which does not involve On the basis of this language, the Intervenors argue that (Footnote Continueo; 6

4 d

However, af ter an application of the criteria listed in the Commission's Policy Statement on Confidentiality, it does not appear that ,

the' alleger's testimony, or the related information in 01's possession,-is.

in the words of Roviaro,'" essential to a fair. determination" of the'0C harassment contention. .

First, although' at least some of the information the alleger would provide could not be gotten except from him, he very likely will have little 1 or no information directly relating to the specific instances of harassment alleged in the contention, 01's investigatory files may contain more

' direct inicrmation about those instances, but the witnesses already coming before the Board provide the best evidence of what happened in those instances, t

(Footnote Continued) falls within the scope of the contention.

However, the intervenors' argument overs'tates the degree of openness which this. late-filed, hearing-expanding contention has. This contention has from the beginning been explicitly characterized by both the Eoard and l j

the parties as a contention about See Applicant's and Intervenors' July 19, 1985 acint i stfpulation on this contention, at 1; and the Board's August 1,1985 l Prehearing Conference Order, at 2. Consistent with this characterization, the contention has been for some time limited -- in the interests of '

manageability -- to certain specific alleged instances of herassment and intimidation, See the Board's May 2,1986 Memorandum and Order applying the l five-part test in 10 C.F.R. I 2.714 for late-filed contentions, at 2-3; and i

, ~

the Applicant's and Intervenors' July 19, 1985 joint stipulation, at 1.

Moreover, the Board, which is as of now the principal (though not final) authority on the scope of the contention, treats the

'~

nnt as but rather as going to the intent of the QC managers involved in the. in5Lonces specified in the l contention.

~ \

i w -

p .

Second, and'also on the directness of the relation between the

-information sought and the substance of the contentions, even if.it were shown by a preponderance of the evidence in the hearing record that the alleger's claims were true, the proof would go directly only to

, and only indirectly, if at I

all, to . It is not clear, for instance, that if the evidence for and against the proposition that were evenly balanced, the alleger's testimony, if judged true, wo.uld tip the balance.

Of course, if true, the alleger's claims would tend to show serious defects in However,  !

matters not taken up in a hearing can still be addressed effectively in the informal NRC Staff review process. Contentions must be specific, and the QC harassment contention in the Braidwood hearing is limited, by stipulation of the parties, to specified instances of harassment. See note 2 supra.

In the Commission's judgment, no party stands to gain anything significant in the litigation of this particular QC contention from either the alleger or 01's files. However, the Commission and the alleger stand to lose much if the alleger's confidentiality is breached, or if 01's files become available before the investigation is closed.

)

1 a

1 4

i 8

J

Moreover, if we breach his confidentiality, persons with information which might be useful to 01, but who want and need i confidentiality, might be less willing to come to 01, or any other part of the agency. The Comission's policy to encourage persons to come forward with safety significant information would be especially harmed'here because Damage would also be done to 01's work if its files are released to the parties. Ol's i investigation is ongoing and involves some persons are potentially targets of investigation who may not yet know that they are targets. Release of their names could enable them to shield either themselves or others.

Thus, the hearing would probably not adequately substitute for a damaged investigation.

Last. 01 may have granted, or may eventually grant, confidentiality to others in the course of this investigation. Thus, if 01's files are opened to the parties, we may repeatedly face having to balance the competing needs of confidentiality and adjudication. If we have breached the

. i I

i l

i I

9

alleger's confidentiality by requiring his testinony, we might be hard-pressed'to maintain confidentiality in the other cases. With each new ,

breach, the chance that anyone will come to us in confidence will decrease.4 1

i i

i I

i I

l 1

l 40n the other hand, if we protect the alleger's >

confidentiality, but release from 01's pertinent files overything not necessary to protect the alleger, it will be hard not to protect the confidentialityiof other confidential sources in the case. The more deletions to the files to protect confidential sources, the less damage disclosure does to the investigation, but the less useful the files will be ]

J to the hearings. j 10 J

-/

l i

I 1

CONCLUSION AND ORDER For the reasons given above, the. Commission concludes that the benefits

'l

.which the requested access to 01 files and further breach of confidentiality would entail for the Braidwood adjudication are clearly outweighed by the l harm these disclosures might entail for the alleger, for an important 3 ongoing investigation, and for future investigations. The Commissicn j i

therefore denies the.Intervenors' requests for access to the 01 files i

.related to the alleger's claims and for a subpoena to be issued to the ,

I: 15 L

~

alleger.10 l

1 The  !

Comission is also taking action to assure that 01 finisbes its

-investigation in a prompt and thorough manner. The Commission will pay  ;

close attention to the results of 01's Work.

i l

?

l l

l 10 Both the Board and the Intervenors argue that under 10 C.F.R. I 2.720 and Rule 45 of the Federal Rules of Civil Procedure, which call for the i

issuance of subpoenas without regard to the admissibility of any evidence '

the subpoena might lead to, the requested subpoena must issue without regard 1 for. confidentiality. We believe, however, that since the Comission has the i power to grant a motion to quash a subpoena, and can in its discretion 3 refuse to enforce a subpoena - the Comission can in effect shorten the process by ordering that a Board not issue the subpoena in the first place.

While in the ordinary case we might perform only a perfunctory examination of the relevance of the witness' possible testimony before issuing or l enforcing a subpoena, close examination of the materiality and relevance of '

the possible testimony is demanded here to ensure appropriate balancing between the competing interests of a thorough examination of contested issues on the one hand and of protection of the integrity of the  ;

investigatory process and pledges of confidentiality on the other.

l 16

This Order is being released to the parties under a protective order which imposes restrictions on the' parties' use of this Order.

It is so CRD m% For'the CO 55 "

o g LLl 4# j. ~

S H EL t K N 4***M $ecretary o ,comission Dated at Washington, D. C.

this day of November, 1986 f

a

)

1

• \

17 i

a uN37ED $70TES CF AMERICA NUCLEAR REGULATORY COnMI5310N In the Matter of I I

COMMONWEALTH ED!80N COMPANY l Docket No.(s) 50-456/457-OL I

(Bralduced Nutteer Power Station. I LIMITED SERVICE Units I and 2) l l

CERTIFICATE OF BERVICE I hereby certif y that cooles of the f oregoing Cosatssion Order have been served upon the following persons in accordance with the requirements of 10 CFR section 2.712.

Administrative Judge Administrative Judge Gary J. Edles. Chatraan Thomas 8. Moore Atoalc Safety and Licensing Appeal Atoste Safety and Licensing Appeal Board Icard U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Coasission Washington DC 20555 Washington, DC 20555 Administrative Judge Reginald L. 60tchy Adelnittrative Judge Atomic Safety and Licensing Apoeal Richard F. Cole Board- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Consission Washington, DC 20555 Washington. DC 20555 Administrative Judge Administrative Judge Herbert Grossaan. Chatraan A. D. Callihan Atomic Safety and Licensing Board ASLIP U.S. Nuclear Regulatory Coasission 102 Oak Lane 9ashington. DC 20555 Dak Ridge, TN 37830 l

Stuart A. Treby'. Esc. Administrative Judge Office of tha General Counsel B. Paul Cotter, Chairman U.S. Nuclear Regulatory Cossission Atomic Safety and Licensing Board Panel Washington. DC 20555 U.S. Nuclear Regulatory. Commission I Washington, DC 20555 l

l Ben E. Hayes, Director l

Office of In'vestigations Administrative Judge U.S. Nuclear Regulatory Comission Alan S. Rosenthal, Chairman Washington, DC 20555 Atomic Safety and Licensing Appeal Panel Washington, DC 20555 Victor Stello, Jr., Director Office of the Executive Director Carolyn Jourdan, Esq.

for Operations Office of the General Counsel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 1

- ~ ~ -

g.w , .

6 .l j - DocketfNo;[si'-L80/4Sd437-0E s

-. - consission Order 1

. 3,

' ),\ ,

Q-g, c '

4 L. : ,

's Richaid P..LeN ,1 Esq. . ,

Office of'tbo: General Counsel

.. _ U.S. ' NuclearfRegulatory Consnission L, -

Washingtoni.'DC',10555.

s l- ,

(

I .,

'N '

\

Dated at' Wastiing.on, D.C. this '

loth day of November 1986 Offi

-- - olYthe Codnission.-

- - fkthe./Secretary Y]' ----- '

f

-d.- '.,

-(

i e

' \ . 1 l

s

\ I- m .

s i

N t F

U, '

(3 h-

'e k

l: .w . , , .

.