ML20216D194
| ML20216D194 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 06/22/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Asselstine J, Roberts T, Zech L NRC COMMISSION (OCM) |
| References | |
| CON-#287-3881 OL, NUDOCS 8706300479 | |
| Download: ML20216D194 (17) | |
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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COMMISSIONERS:
Lando W. Zech, Jr., Chairman SERVED JUN 2 31987 Thomas M. Roberts James K. Asselstine J
Frederick M. Bernthal Kenneth M. Carr 1
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'In the Matter of COMMONWEALTH EDISON COMPANY Docket Hos. 50-456-OL 50-457-OL i
(BraidwoodStation,UnitsNo.Iand2)
ORDER On November 7,1986, the Comission issued in_ camera an Order ("the j
Order") which resolved a dispute between the Licensing Board in this
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proceeding and the Comission's Office of Investigation over disclosure of f
certain investigatory materials. The Comission concluded against disclosure and issued thei0rder under a protective order of the same date. On June 1987, the' Comission released certain portions of the Order in response to FOIA Appeal 87-A-19C. Therefore, the protective order of November 7,1986 is hereby amended to the extent that, notwithstanding anything in that protective-l order to the contrary, it is to be construed to apply only to' those portions of the Order which were'not released in response to FOIA Appeal 87-A-19C. A i
8706300479 870622
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copy of the released portions of the November 7,1986 Order is attached to this order.
It is so ORDERED.
A9, F R THE COMMISSION
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g SAMUEL 4. CHILK N
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_ Secretary of ye Comission g
Dated at Washington,.D.C.
i thisldddayofJune,1987.
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.PPOTECTED ORDER.
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'N Uti1TED STATES OF ' AMERICA
- f40 CLEAR REGULATORY C0fEISSION
'86 NOV -7 P 3 :52 '
h' F F..ocM 1 !
Comissioners:
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,Lando W. Zech, Chairman f
Thomas M. Roberts James:K. Asselstine Frederick M. Bernthal mee9 NOV 101986 Kenneth M.~ Carr -
LIMITED SERVICE In the' tiatter ofi
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COMMONWEALTH EDISCN COMPANY
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Docket Nos. 50-456-OL-
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50-457-OL-
'(Braidwood' Station, Units fio.1 and 2) '))
ORDER
, the Comission took review of a dispute By Order between the Office of. Investigations-(01) and the Licensing; Board in the Braidwood operating licensing hearings. The Board had declared it's intent--
to require disclosure under protective order of certain: investigative materials and to subpoena an a11eger to whom OI had granted confidentiality.
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Applying the. procedures ~ outlined in' the-.
Comission's 1984-. Stater.ient of Policy on Investigation, Inspections, and -
Adjudicatory Proceedings, 49 Fed. Reg. 36032 (September 13, 1984)'the
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Comission's Order directed the Board to certify the relevant record to the 1
Comission for a decision.
l Applying both case law and the Comission's two policy statements on disclosure of sources 'and materials, we conclude against disclosure of the.
The 01 materials and against issuance of a subpoena to the alleger.
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. -
In order to protect the alleger's confidentiality and the ongoing investigation, this Order imposes This Order is being certain restrictions on the parties' future pleadings.
distributed to the parties under a protective order.
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BACKGROUND
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Already admitted to the.Braidwood 1icensing bearing was a contention alleging that certain named Comstock QC supervisors harassed and' intimida
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- Comstoc' QC inspectors.
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c the dispute have Subsequent actions of the parties and 01 concerning taken place according to the procedures se d Acjudicator'y Statement of Policy on Investigation, Inspections, an84) (" Polic Proceedings,49 Fed. Reg.36032[ September 13,19
. Investigations").
II. LEGAL PRINCIPLES
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tions,." full Under the Commission's Policy Statement on Investiga and d
disclosure of material information to adjudica the general rule..."
in the proceeding."
Id, at t
required to allow full resolution of all issues e or Mcwever the importance of-protecting a confidentib1'so tion or inspection can, "in col. 3.
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avoiding the compromising of an ongoing invest ga t nce of disclosi!
appropriate circumstances be as great as the impor a Loss of ties." Jj[._,at36033, col.11.
?infonnation to the Boards and par 11' investigation and inspection confidentiality _could harm the agency'slovera information to the NRC;.
i efforts by making other persons reluctant to br ng:f' documentl and compromise of an investigation byLrelea'se others to tak d
't conclusion of the investigation could lea oto an informed. licensing egency from ascertaining all the facts relevant e
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Even disclosure under protective order could breach promises decision.
Id.
of confidentiality, or enable the subject of an investigation to shield himself.
Id., at. col. 2.
With respect to confidentiality in particular, although.the Comissio'n k
does not lightly grant it, neither does the Comission lightly take it bac,
once granted.
... [C]onfidentiality should be granted only when necessary to: acquire information related to the Comission's responsibilities, or when j
warranted by special-circumstances." NRC Statement of Policy on.
i Confidentiality, 50 Fed. Reg. 48506, 48507, col. 3 (November 25,1985)
(" Policy Statement on Confidentiality"). However, once granted,
-confidentiality is to be given every due protection, even after a given
- l 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 "Where the disclosure of an informer's identity, or of the 48508, col. 2.
contents of his comunications, is relevant and helpful to the defen'se of the accused, or is essential to a f air determination of a cause, the privilege must give way."
Id._, quotino Roviaro v. United States, 353 U.S.
53,60-61(1957). "[T]he public interest in protecting the flow of information" must be balanced "against a party's right to develop his/her 50 Fed. Reg. 48508, col. 3.
Factors to.be considered in claim'or defense."
making this balance include:
(1)whether.the'informationwhichwouldbeprovidedbythe confidential' source could be gotten scme other way, (2) 'whether the information " relates directly" to the substantive contentions in the adjudicatory proceeding, (3) what the confidential source's.present.potition is, 5
(4) whether protection of confidentiality would entail the denial of a right to present rebuttal evidence or to conduct cross-exa5ination,and (5) whether disclosure is.necessary to make the adjudicatory record complete.
Id._, at 48508-09.I BALANCING THE NEEDS OF ADJUDICATION Af40 If(VESTIGA III.
I The chief argument in support.of the Board's intention to require disclosure and issue the requested subpoena is that the information in the 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.
i Mostlof these factors would sppear to be useful also in deciding:
I whether to release 01' documents.
2The Intervenors make a differant argument. According to them, the long preamble to the list of. specifics in the contention leaves room for
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- r. ore important, mexes a general allegttwn of inadequate organization,- an -
allegatien which may be backed up by evidence which does not involveOn the this language, the Intervenors argue that; (FootnoteContinueo; R.
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 QC 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 or no infonnation directly relating to the specific instances of harassment alleged in the contention, 01's investigatory files may contain more direct information about those instances, but the witnesses already coming before the Board provide the best evidence of what happened in those instances.
(Footnote Continued) falls within the scope of the contention.
However,'the intervenors' argument overs'tates the degree of openness This contention which this late-filed, hearing-expending contention has.
has from the beginning been explicitly characterited.by both the Board and the parties as a contention about See Applicant's and Intervenors' July 19, 1985 Joint sti~pulation on this contention, at 1; and the Board's August 1, 1985 Consistent with this characterization, Prehearing Conference Order', at 2.
the contention has been for some time limited -- in the interests of manageability -- to certain specific alleged instances of harassment and intimidation, See_ the' Board's May 2,1986 Memorandum and Order applying the fiv'e-part test in 10 C.F.R. I 2.714 for late-filed contentions, at 2-3; and 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
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nnt as but rather as going to tne intent of the QC managers involved in the instances specified in the contention.
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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 prepohderance 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 It is not clear, for instance, all, to 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.
would tend to show Of course, if true, the alleger's claims
- However, serious defects in matters not taken up in a hearing can still be addressed effectively in the Contentions must be specific, and the QC informal NRC Staff review process.
harassment contention in the Braidwood hearing is limited, by stipulation of See note 2 supra.
the parties, to specified instances of harassment.
In the Comission'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 a11eger stand to breached, or if 01's lose much if the alleger's confidentiality is files become'available before the investigation is closed.
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p breach his confidentiality, persons with Fioreover,- if we information which might be useful to 01, but who want and need confidentiality, might be less willing to come to 01, or any. other part of The' Comission's policy to encourage persons.to come forward
.the agency.
Lwith safety significant'information would be especially harmed'here because Damage would also be done to 01'.s work if its files i
are released to the parties. OI's-J inves'tigation-is ongoing and involves some persons are potentially targets of investigation who may'
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Release of their names could enable not yet know that they are targets.
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 9
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j alleger's confidentiality by requiring his testinony, we might be With each new bard-pressed to maintain confidentiality in the other cases.
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4 breach, the chance-that anyone will come to us in confidence will decrease
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0n the other hand, if we protect the alleger's 4
confidentiality, but release from 01's pertinent files everything not~
necessary to protect'the alleger, it will be hard not to. protect the confidentiality of other confidential sources in the case.- The more deletions to the files to protect confidential sources, the~1ess damage'
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ill be disclosure does.to the investigation, but the less useful the files w to the hearings.
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1 CONCLUSION AND ORDER For the reasons given above, the Commission concludes that the benefits -
which the requested access to 01 files and further breach of confidentiality f
would entail for the Braidwood adjudication are clearly outweighed by the harm these disclosures might entail for the alleger, for an -important-The Commission ongoing investigation, and for future investigations.
Se Intervenors' requests for access to the 01 files therefore denir related to-t... _.'.eger's claims and for a subpoena to be issued to the y.
j alleger. 0 i
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The.
Comission is also taking action to assure that O! finisbes.its The Comission will pay investigation in a prompt and thorough manner.
close attention to the results of 01's Work.
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Both the Board and the Intervenors argue that under 10 C.F.R. I 2.720 i
10 and Rule 45 of the Federal Rules of Civil Procedure, which call for the issuance.of subpoenas without regard to the admissibility of any evidence the subpoena might lead to, the requested subpoena must issue without regard 1
We believe, however, that since the Commission has the.
for confidentiality.
power to grant a motion to quash a subpoena, and can in its discretion:
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 perfortn only a perfunctory examination of the relevance of the witness' possible testimony before issuing.or enforcing a subpoena, close examination of the materiality and relev6nce 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 l
investigatory process and pledges'of confidentiality on the.other.
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This Order is being released to the parties under a protective order which imposes restrictions on the parties' use of this Order.
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It is so CRDERED.
A For'the Co ssion o
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i-SAMUEL p CHILK N
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$ecretary of the Comission l
Dated at Washington, D. C.
this day of November,1986 i
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UNITED STATES OF AMERICA NUCLEAR RESULATORy COMMill!ON
/
In the Matter of I
I COMMONutALTH ED180N COMPANY I
Occket No.(s) 50-456/457-OL 1
(Bralduced Nuclear Peeer Station.
i LIMITED SERVICE Units 1 and 2) 1 l
CERTIFICATE OF SERVICC a
I hereby certify that copies of the f oregoing Coasission Order have been served upon the following persons in accordance with the requirements of 10 CFR section 2.712.
Administrative Judge Adelnistrative Judge Gary J. Edles. Chatraan Theses 8. Moore Atomic Safety and Licensing Appeal Atcalc Safety and Licensing Appeal Soard Soard U.S. Nuclear Regulatory Cosatssion U.S. Nuclear Regulatory Consission Washington, DC 20555 Washington. DC 20555 Adsinistrative Judge Reginald L. Sotchy Administrative Judge Atomic Safety and Licensing Apocal Richard F. Cole Soard Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cosaission U.S. Nuclear Regulatory Cosaission Washington, DC 20555 Washington. DC-20555 Administrative Judge Administrative Judge Herbert Grossaan. Chairman A. D. Callihan Atosic Safety and Licensing teard A8 LIP U.S. Nuclear Regulatory Coastssten 102 Oak Lane Washington, DC 20535 Cak Ridge. TN 37830 Stuart A. Treby*, Ese*
Administrative Judge Office of the General Counsel B. Paul Cotter, Chairnan U.S. Nuclear Regulatory Coseission Atomic Safety and Licensing Board Panel Washington, DC 20535 U.S. Nuclear Regulatory. Commission Washington, DC 20555 Ben E. Hayes, Director.
Office of Investigations Administrative Judge U.S. Nuclear Regulatory Commission 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 Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
p.
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'. Doc k'et No. ( s 1 90-490497-OL o,
Cosatssion Order j
3 Richard P. Levi,:Esq.
office of the General Counsel U.S. Nuclear Regulatory Consnission Washington, DC 20555 i
j Dated at Washington, D.C. this s
10th day of November 1986 i
a>tt d(6HJ A.
Aumadragraa-wene senetary a tne c i
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