IA-86-181, Final Response to Appeal of Denial of FOIA Request for Documents Re Comanche Peak,Identified as 1,3-9 & 11-15 on App to Grimsley .Documents Do Not Reflect Final NRC Decisions & Withheld (Ref FOIA Exemption 5)

Final Response to Appeal of Denial of FOIA Request for Documents Re Comanche Peak,Identified as 1,3-9 & 11-15 on App to Grimsley .Documents Do Not Reflect Final NRC Decisions & Withheld (Ref FOIA Exemption 5)

ML20212N790
Person / Time
Site:	Comanche Peak
Issue date:	08/22/1986
From:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Garde B ENVIRONMENTAL WHISTLEBLOWER CLINIC
References
FOIA-86-181, FOIA-86-A-112 NUDOCS 8608290172
Download: ML20212N790 (5)

Text

u

.- g(L-Otb f Et%uq jg UNITED STATES

[g p, NUCLEAR REGULATORY COMMISSION n j WASHINGTON,D C.20555

%,...../

AUG 22 W Ms. Billie Pirner Garde, Director Environmental Whistleblower Clfaic 1555 Connecticut Avenue, NW, Suite 202 IN RESPONSE REFER Washington, DC 20036 TO F01A-86-A-112 (86-181)

Dear Ms. Garde:

This is in final respcase to'your letter dated July 9,1986, in which you appealed Mr. Donnie H. Grit.31ey's letter dated June 10, 1986, which denied access to fifteen records. This response addresses the denied records which are identified at numbers 1, 3 through 9, and 11 through 15 on the appendix to Mr. Grimsley's letter of June 10, 1986. By letter dated August 13, 1986, Mr. Chilk addressed the two records identified at numbers 2 and 10 on that appendix.

Acting on your appeal, I have carefully reviewed the records in this case and have determined that the previously withheld records, identified on the enclosed appendix, will continue to be withheld from public disclosure pursuant to Exemption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations. Therefore, your appeal is denied.

While reviewing the records subject to this appeal, it was noted that several of the withheld records consist of an underlying draft record and a ,

one or two-page cover for the draft, which are routing and distribution forms and typing cover pages. The forms could be separated from the underlying drafts, but they will not materially respond to your request and some of the forms themselves are dated while the underlying drafts are not. Accordingly, we have identified these forms on the appendix but will continue to treat the draft and forms as one record. Further, more detailed descriptions of the records have been included on the enclosed appendix.

The drafts and other records contain the preliminary advice, opinions, and recomendations of the staff in the deliberative process of determining proper enforcement actions regarding the Cemanche Peak plant. As such, they do not reflect final agency decisions. Exemption (5) was intended to permit the agency's withholding of such information to preserve the free and candid internal dialogue necessary for the careful formulation of agency decisions.

There are no reasonably segregable factual portions because release of the facts would permit an indirect inquiry into the predecisional process of the agency.

8608290172 860822 PDR FOIA GARDE 86-A-112 PDR

g =.ma Ms. Garde This is a final agency action. As set forth in the F0IA (5 U.S.C.

552(a)(4)(B)), judicial review of this decision is available in a district court of the United States in the district in which you reside, have your principal place of business, or in the District of Columbia, Sincerely,

. f c / -W f

/ /powd f%

W,477M r> r w/

Victor Stello, Jr.

Executive Director for Operations

Enclosure:

As stated 4

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

Re: Appeal FOIA-86-A-112 (F0IA 86-181)

, APPENDIX Records Denied in Entirety

. Exemption (5)

1. Undated Draft letter to Texas Utilities Generating Company Mr. R. Gray from J. Collins, (2 pages) w/ enclosure:

a. Undated Draft Notice of Violation and Proposed Imposition of Civil Penalty, (2 pages)

2. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132, (2 pages) <

w/ enclosures:

a. Undated Draft Order Imposing Civil Monetary Penalty, (4 pages)

b. Undated Draft Appendix, Evaluations and Conclusion (6 pages)

3. Undated Draft letter to h. Gary from R. DeYoung re: EA-83-132,(2pages) w/ enclosures:

a. Undated Draft Order Imposing Civil Monetary Penalty, (4 pages)

b. Undated Draft Appendix, Evaluations and Conclusion , (6 pages)

c. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132, (2 pages)

d. Undated Draft Distribution list, (1 page)

4. Undated Draft letter to R. Gary from R. DeYoung re:

EA-83-132, (6 pages)

, 5. 11/21/83 Routing and Distribution page (1 page) w/ enclosures:

a. Undated Cover form, (1 page)

b. Undated Draft letter to R. Gary from J. Collins, (2 pages)

c. Undated Draft Notice of Violation and Proposed Imposition of Civil Penalty ,

(2 pages)

6. 03/06/84 Note to R. Rosano and L. Westerman from R. Hoefling re: EA-83-132, (2 pages) l 1

7. 05/14/84 Routing and Distribution form (1 page) w/ enclosures:

a. Undated cover page (1 page)

b. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132, (3 pages)

c. Undated Draft Order Imposing Civil Monetary Penalties , (4 pages)

d. Undated Draft Appendix, Evaluations and Conclusion , (10 pages)

8. 06/07/84 Draft letter to R. Gary from R. DeYoung re: EA-83-1321, (2 pages) w/ enclosures:

a. Undated Draft Order Imposing Civil Monetary Penalty , (4 pages)

b. Undated Draft Appendix, Evaluations and Conclusions (5 pages)

9. 08/30/84 Memo for J. Axelrad from T. Westennan re: Letter and Order Imposing Civil Penalty,(1page) w/ enclosures:

a. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132,(2pages)

b. Undated Draft Order Imposing Civil Monetary Penalty , (4 pages)

c. Undated Draft Appendix, Evaluations and Conclusion , (6 pages)

10. Undated Typing cover page (1 page) w/ enclosures:

a. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132, (2 pages)

b. Undated Draft Order Imposing Civil Monetary Penalty , (4 pages)

c. Undated Draft Appendix, Evaluations and Conclusion, Annotations, (6 pages)

d. Undated Draft Distribution list, (1 page)

11. Undated Typing cover page (1 page) w/ enclosures:

a. Undated Draft letter from R. DeYoung re: toEA-83-132, R. Gary (2 pages)

b. Undated Draft Order Imposing Civil Monetary Penalty , (4 pages)

c. Undated Draft Appendix, Evaluations and Conclusion , Annotations, (6 pages)

d. Undated Draft Distribution list, (1 page)

12. Undated Typing ccver page (1 page) w/ enclosures:

a. Undated Draft letter to R. Gary from R. DeYoung re: EA-83-132, (2 pages)

b. Undated Draft Order Imposing Civil Monetary Penalty , (4 pages)

c. Undated Draft Appendix, Evaluations and Conclusion , Annotations, (6 pages)

d. Undated Draft Distribution list, (1 page)

13. 09/04/84 Routing and Distribution form, (1 page) w/ enclosures:

a. Undated Typing cover page (1 page) -

b. Undated Draft letter to R. Gary from J. Collins re: EA-84-89 (2 pages)

- . , , , , , ------,,,,,,.n - --- ,,,-

~

. g GOVERNMENT ACCOUNTABILITY PROJECT 1555 Connecticut Awnue, N.W., Suite 202 Washington, D.C. '20036 (202)232-8550 July 9, 1986 Victor Stello Executive Director for Operations U.S. Nuclear Regulatory Commission gggggggg Washington, D.C. 20555

~ k ~Il kb 6 [f fp-/

Re: Appeal of FOIA 86-18

Dear Mr. Stello:

This is an appeal pursuant to subsection a(6) of the Freedom of Information Act as amended (5 U.S.C. 522), of the actual denial of the Commission to release documents requested on March 6, 1986, by the Government Accountability Project.

By letter dated June 10, 1986, Donnie H. Grimsley, Director of the Division of Rules and Records, informed us that portions of 15 documents were being withhe?d from disclosure pursuant to FOIA Exemption 5., two of which contained Jitigation strategy and the remainder of which contained the preliminary advice, opinions and recommendations of the staff in the deliberative prccess regarding enforcement actions.

We believe we are entitled to the release of the portions of documents being withheld.

We expect your response to this appeal within 20 working days of your receipt so that we can determine whether to pursue this matter further in the ccurts.

Thank you for your consideration of this appeal.

Sincerely, B&PAGA Billie Pirner Garde Director, Environmental Whistleblower Clinic

/sls t7fJ -

uW U

. n T , - - , [p '

l

. */ '

UNITED STATES

'fg g g

NUCLEAR REGULATORY COMMISSION wAsumarow, o. c. mss -

j

.....* JUN 10 1986 Ms. Billie Pirner Garde, Director Environmental Whistleblower Clinic Government Accountability Project IN P.ESPONSE REFER 1555 Connecticut Avenue, NW, Suite 202 TO F0IA 86-181 Washington, DC 20036 ,

Dear Ms. Garde:

This is in response to your letter dated March 6,1986, in which you requested, pursuant to the Freedom of Information Act (FOIA), reconsideration of the Exemption (5) denials in our partial responses of October 25, November 1, and November 22, 1985, to F01A-84-779.

. The documents listed on the enclosed appendix have been reviewed, and it has been detemined that they will continue to be withheld from public disclosure 4

pursuant to Exemption (5) of the FOIA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Comission's regulations. l Documents 2 and 10 are attorney work-products the disclosure of which would reveal litigation strategy. The remaining documents are drafts and other documents containing the preliminary advice, opinions, and recommendations of the staff in the deliberative process of determining proper enforcement actions regarding the Comanche Peak plant. Release of this type of information would '

tend to inhibit the frank and candid exchange of information in future delibera-

. tions and thus would not be in the public interest. There are no reasonably segregable factual portions because release of the facts would permit an indirect inquiry into the predecisional process of the agency.

Pursuant to 10 CFR 9.9 and 9.15 of the Comission's regulations, it has been detennined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public .

interest. The persons responsible for the denial of documents 4, 5, 8, 9, 12, 13 and 14 are the undersigned and Mr. James M. Taylor, Director, Office of Inspection and Enforcement. The persons responsible for the denial of documents 1, 3, 6, 7,11, and 15 are the undersigned and Mr. Robert Martin, Regional Administrator, Region IV. The person responsible for the denial of documents 2 and 10 is Mr. Guy H. Cunningham, III, Executive Legal Director.

I l

e SPP

, - - ~,--;we p----, - -- ----wg- -

Ms. Garde The denials by Messrs. Martin, Taylor and myself may be appealed to the Executive Director for Operations within 30 days from' the receipt of this letter. Any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Comission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial F0IA Decision." The denials by Mr. Cunningham may be appealed within 30 days to the Secretary of the Comission and should be addressed to the Secretary of the Commission. ,

Sincerely, NY ')

Donnie H. Grimsley, Director Division of Rules and Records Office of Administration

Enclosure:

As stated l

l 1

I l

l

- - - . - 1

FOIA-86-181 Appendix

1. Undated Ltr to Texas Utilities Generating Company, Mr. R. Gray from J. Collins, w/ enclosures: Notice of Violation and Proposed Imposition of Civil Penalty (4 pages) i 2. Undated Notice: Litigation Stragegy for Comanche Peak (3 pages)

3. Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (12 pages)

4. Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (15 pages)

5. Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (6 pages)

6. 11/21/83 ' Draft Ltr to R. Gary from J. Collins re: NOV (6 pages)

7. 03/06/84 Note to R. Rosano & T. Westerman from R. Hoefling re:

EA-83-132(2pages)

8. 05/14/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132(19pages)

9. 06/07/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132(11pages)

10. 08/20/84 Note to Ed Christenbury from Joe Scinto re: Intimidation Issues in the Comanche Peak Proceeding (7 pages)

11. 08/30/84 Memo for J. Axelrad from T. Westerman re

Letter and Order Imposing Civil Penalty (13 pages) 1

12. 08/31/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (14 pages)

13. 08/31/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 with annotations (14 pages)

I 14. 08/31/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 with annotations (14 pages)

15. 09/04/84 Draft Ltr to R. Gary from J. Collins re: NOV (4 pages)

{

l

(202) 232-8550 ROJECT OUNTABluTY W enue.N. ., Suite 202 P aj X)36 6, 1986 i March M OF INFORMATf0N FREEDO FT- CUEST

• tions s

FotA-tI,-/ //

7CT 0110 ctor for OperaCommis ion

/  %/

s Dirc r Regulatory 20555 1cc # 84-779

.cn, D.C. OF FOIA APPEAL f thethe of by the subse ction (a)(6) 552) o c reque, stedComan he to U .S .C.

the uant am endedto (5 recordsrding Mr. Stello: appeal, tas purs ccess ct (GAP) rega to all  ; ' '

an 23, Thio of isInformation actual denial ofAc aility Proje cords relatingAugust i dem d re 49, dated of ' ~ - . , ,

siccion'sAccountabwer plant. GAP 84-1 requeste crnmu:nt clea r po 1984, Notification stigations. lton, Directorcuments being e of Inve ik n 984, J.M. Fe16 do October d in'1, BoardOffic d of the On by the to fy sporto liste4, November published 30,1 cords, advise 8 do cumentsdetermi-98 dated and v Re closureto us.

for wardeda dissed By letterof Rules our re iew. Felton to make lea the s jl thems bsequently re ed of portionof tho Divisioncvailable for15, 1985, Mr. sting reque u advis s t mtdo OctoberLabor um ents were Mr.withholding Felton oftion 1985 - [

On f se doc s the 7 (D) , and porOctober 25, t L

D:psrtment otho letter frca The their ed rele ase in 1985 s well aExemption6 withheldthey contain h nation, andOctober 25,uments, ato FOIA the [

An of 91 doc nt to FOIA Exemptionents 5 because sbeing andnd candid -

ents pursuauantdoc 12 um se commendation , nk a rolea um of 3 doc of uments pursed usto FOIA Exemption s and re the fras This nd informa-Mr.kR 1 20 doc lotter informpursuantdvice, would to inhibitdeliberation tendopinion future . James Ta I

Gntiretypreliminary informationainformation inMr . Felton , Mr .

of such of by -

exchangewas denied tion Msrtin.

-/ 1 n OA Cr?m

• h & W D f,V 'd%# (

SQ -

a

• of 2- d us ent, a a rev Mr.

w Felton informeand of one ommenda-and recExemption 5 candid November sed for our 1,1985, ieice, opinions 1cttorbeing innto datedreleapreliminary ld pursuantadv to FOIAthe frank andThis informa-ithhe to inhibit ions.

tend =

ontainingwhich se wouldwas ture and deliberatMr.

being w Martin.

of the relea Director d ocum'ents o ito of information in fu imsley,ing of Exemption Felton 2 ure5 W

.ign wac d nied by Mr. advis by 1985, Donnie purs uantGrRecords, to FOIAtheir wrote discloswas denied '

On November 22, d an entirety a Dion of Rules ld in theirattorney-work oduct andThe inform pr cu- tion ,

tg withhe strategy. of only thoseWedoon October 25, auto they werelitigation veal ied release 1985 At a id reCunningham.

Guy appealstotheFOIA Exemption 5 122 on November 22, den d nied do cuments.

of the '

ble portions I This letterwithheld access to the pursuantber entitled toreasonably segrega de an ceipt of 1, 1985; 1 into 383; 5we on are Novemshould bereleasable. of your re this i'{ -

days g olicvo within 20whether to pursue l sinitum therewhichrecponsecan are determine l d cum:ntsexpect your appeal. Yi We is appe a l so that we thic court. ur attention to th mattcr in sincerely, Thank you for yo y erv Gardenmental inic -

l:

Billiec PirnDire tor, En iroWhistleblo  !

I' L

5 5

l l

.