ML19295E983
| ML19295E983 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 12/08/1980 |
| From: | Bordenick B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Citizens Concerned About Nuclear Power, INC. |
| References | |
| FOIA-80-551 NUDOCS 8012100549 | |
| Download: ML19295E983 (7) | |
Text
}l c dbn. v. l 12/08/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUST0" LIGHTING AND POWER COMPANY,
)
Docket Nos. 50-498
_ET _M.
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50-499
)
(South Texas Project, Units 1 and 2) )
NRC STAFF ADDITIONAL RESPONSE TO CCANP
" REQUESTS FOR INFORMATION" I.
INTRODUCTION Representatives of Citizens Concerned About Nuclear Power (CCANP) have filed two " Request [s] for Infomation" from the Staff in this proceeding. E For the reasons set out in a Staff filing dated November 17, 1980, the " Request [s]
for Information" did not comply with the provisions of 10 C.F.R. Part 2 as regards formal discovery requests directed to the Staff.-- I However, Staff counsel forwarded the requests for information to the Executive Director for Operations (ED0) as if the requests had been properly made under those pro-vi s i ons.- -
The Staff also requested to and including December 8,1980, within which to substantively respond tb thc requests in question. The " Request [s]"
and the Staff's responses are set out below.
O"[CCANP] Request About Infomation From NRC Staff" filed by Ms. Barbara A.
Miller on October 28, 1980, and " Request for Information From The Nuclear Regulatory Comission Staff" filed by Ms. Kim Eastman on October 24, 1980 (postmarked November 1, 1980).
Both Ms. Miller and Ms. Eastnan are lay representatives of CCANP. Subsequent to the filing of the requests, legal counsel entered an appearance for CCANP and appeared at the prehearing con-ference held in Houston on November 19, 1980.
- ISee Atomic Safety and Licensing Appeal Board's decision in Pennsylvania Power
& Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-613, 12 NRC (September 23,1980), which summarizes, at pp. 7-8 of the slip opinion, the relevant provisions of the Conmission's regulations as they relate to formal discovery requests directed to the Staff.
I
- See 10 C.F.R. 62.744(a).
h L7-NN II.
RESPONSES 1.
CCAT1P has requested:
- *
- the names of those inspectors who supplied information about harassment at the South Texas Nuclear Project and the names of those employees who harassed and intimidated them.,4 /
Response
Pursuant to 10 C.F.R. 52.744(b), the EDO objects to producing the requested nanes since, as set out below, disclosure of such names is exempted under 10 C.F.P.. 12.790, which orovides:
- *
- final NRC records and documents,E including but not limited to correspondence to and from the NRC regarding the issuance, denial, anendment, transfer, renewal, modification, suspension, revocation, or violation of a license, permit, or order, or regarding a rule making proceeding subject to this part shall not, in the absence of a compelling reason for nondisclosure after a balancing of the interests of the person or agency urging nondis-closure and the pubblic interest in disclosure, be exempt from disclosure and will be made available for inspection and copying in the NRC Public Document Room, except for matters that are:
(7)
Investigatory records compiled for law enforcenent purposes, but only to the extent that the production of such records would (i) interfere with enforcenent proceedings, (ii) deprive a person of a right to a fair
._ trial or an impartial adjudication, (iii) constitute an unwarranted invasion _of personal privacy, (iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lwaful national security intelligence investigation, confidential information furnished only by the confidential source, (v) disclose investigative techniques and procedures, or (vi) endanger the life or physical safety of law enforcement personnel; (emphasis added) 10/
- Such records and documents do not include handwritten notes and drafts.
SRequest filed by Ms. Miller. See fn. 1, supra. Although the request does not so specify, the Staff assumes the words " inspection" and
" employees" refer to persons in the employ of Applicant and/or Brown and Root.
It has been consistently held that the names of persons providing infonnation to a Federal aaency, during the course of investigations for law enforcement purposes, need not be disclosed pursuant to a Freedon of Information Act request (5 U.S.C. 552(b)(7)), or in the course of discovery in adjudicatory proceedings.
It matters not if it be a crininal, civil, or administrative Droceeding.
See e.Q.
Scher v. United States, 305 U.S. 251 (1938); Wertz v. Robinson & Stevens, 368 F.2d lla (5th Cir.1966); Pooe v. United States, 599 F.2d 1383 (5th Cir. 1979);
OKO Coro. v. Willians, 461 F.2d 540, 553 (N.D. Tex.1978), cf. Roviaro v. United States, 353 U.S. 53 (1957). The reasons for the non-disclosure of the names of confidential sources was aptly set out in In re United States, 565 F.2d 19, 22 (2d Cir. 1977), certiorari denied sub. nom. Bell v. Socialist Workers Party, 436 U.S. 962 (1978), where the court stated:
Courts have long recognized, therefore, that, to insure cooperation, the fear of reprisal must be removed and that "the most effective protection from retaliation is the anonymity of the informer." Wirtz v. Continental Finance & Loan Co., supra, 326 F.2d at 563-64; see also McCrav v. Illinois, 386 U.S. 300, 306-09, 87 S.Ct.
1056,18 L.Ed.2d 62 (1967); Usery v. Local 720, suora, 547 F.2d at 527.
"By withholding the identity of the informer, the government profits in that the continued value of informants placed in strategic positions is protected, and other persons are encouraged to cooperate in the administration of justice." United States v.
Tucker, 380 F.2d 206, 213 (2d Cir. 1967).
Congress, also, has recognized the improtance of this protective neasure.
See, ed., United States v. Greenwood Municipal Seoarate School District, 406 F.2d 1086,1089-1090 (5th Cir.),
cert. denied, 395 U.S. 907, 89 S.Ct.1749, 23 L.Ed.2d 220 (1969),
See also e.o. Evans v. Dept. of Transoortation, 446 F.2d 821 (5th Cir.1971),
(pilot unsuccessfully souaht from FAA name of person who alleged he might be too mentally ill to be allowed to fly as a commercial pilot); Rural Housina Alliance v. Dept. of Aariculture, 498 F.2d 73, 79-82, (D.C. Cir.1974); and Pope v. United States, supra, (lawyer unsuccessfully sought documents (and names) from IRS concerning his alleged misconduct in practice before the agency).
The names sought by CCANP, both as to alleged harassors and harassees, were obtained by the Office of Inspection and Enforcement (0IE) during the early staaes of an investiaation into alleaed construction deficiencies at the South Texas site, under a blanket oledge of confidentiality.
The pledge of confi-dentiality was given to both those who were alleged to have been harassed and those who were alleced to do the harassing in order to investigate the Houston Lighting & Power Company's conduct of construction. Further, at that time it was not clear who was harassed (at what level of employment), and who did the harassing.
01E is of the view that this pledae of confidentiality, as to voluntary disclosure, must be protected if futura OIE investications are to be a viable and effective enforcement tool.
Further, 'here has been no showing at this time by CCANP that disclosure of the nares in ouestion is necessary to a proper decision in this proceedina or that the information is not reasonably obtainable from another source.
Before the identification of informants will be required,both these burdens must be shouldered by the one seeking the revelation of those individuals.
See In re United States, suora at 23-24. The Staff is attachina, as Attachment 1, a copy of OIE Investigatory Report No. 50-498/79-19, 50-499/79-19 dated April 28, 1980, which, while it does not set forth the names requested, sumarizes, inter alia, the sworn statements given to 01E by the individuals in question. S In the event CCANP is of the view that Attachment 1 does not fully provide the infor-mation they would require, assuming they had obtained the names sought, the Staff respectfully directs their attention to 10 C.F.R. 22.744(c) which sets forth the subsequent procedures to be followed as a result of the ED0's objection to producina the requested names.-
~5j
- The individuals are referred to by nunber.
- The Staff also notes that the Commission in Houston Lightina & Power Co.
(South Texas Project, Units 1 & 2), CLI-80-32, slio opinion at pp.13-14 stated that FOOTNOTE CONTINUED ON NEXT PAGE
. 2.
CCANP has also requested:
- *
- a copy of the closed door statement made by Victor Stello following the NRC investigation which led to the Show Cause Order; and * *
- itens identified by NRC investigators in this investigation which were not included in the Show Cause Order. _7/
Response
In response to the first portion of the above request, enclosed is a copy of a transcript dated April 15, 1980, on the " Briefing on Investigation of QA/QC Problens at South Texas Nuclear Project." (Attachment 2).
As to the second part of the above request, the Staff assumes that what is principally sought by CCANP are copies of Office of Inspection and Enforcement Inspection Reports.
Conmission regulations make these and other NRC Staff documents that are relevant to licensing proceedings, such as the subject proceeding, routinely available in the NRC Public Document Room.
10 C.F.R.
S/ F0OTNOTE CONTINUED FROM PRECEDING PAGE Citizens has offered a number of reasons why a hearing
[on the enforcement order] should be granted as a matter of discretion.
It claims that a hearing would require the NRC Staff to call as witnesses several persons who have not yet been identified, but whose interviews support the Director's order. This, in turn, would allow Citizens to learn the identities of those persons and to further question then.
However, as Houston suggests, Citizens can file either interrogatories with the staff or a Freedom of Information request with the Commission in order to learn the identities of persons with knowledge about the incidents covered by the Director's order.
These possibilities are a far cry from Citizens' fears that failure to have a hearing on the enforcenent order would be tantamount to denying to it the " evidentiary basis for the NRC actions in the Order to Show Cause."
2[ Request filed by Ms. Eastman.
See fn. 1, supra.
.' 12.790(a). The local Public Document Rooms for the South Texas Project are located at the Matacorda County Courthouse, Law Library, Bay City, Texas 77414 or at the Austin-Travis County Collection, Austin Public Library, 810 Guadaloupe Street, Austin, Texas 78768.
Accordingly, the category of documents, includina Inspection Reports, which CCANP has requested should be available at the above listed Local Public Document Rooms.
III.
C_0_N CLUS ION For the reasons noted above, the NRC has not at this time supplied the names requested by CCANP in request number 1.
However, a copy of a related investigatory report has been provided.
A copy of the transcript requested in the first part of request number 2 above is also enclosed.
The itens requested in the second part of request number 2 should already be available in the local public document rooms.
Respectfully submitted, A
Bernard M. Bordenick Counsel for NRC Staff Da ted at Bethesda, Maryland this 8th day of December,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Patter of
)
)
HOUSTON LIGHTING AND POWER COMPANY, )
)
50-499
)
(South Texas Project, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ADDITIONAL RESPONSE TO CCANP
" REQUESTS FOR INFORMATION"" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's intcenal mail system, this 8th day of Decenber,1980:
Charles Bechhoefer, Esq., Chairman
- Brian Berwick, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P. O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. James C. Lamb, III Jack R. Newman, Esq.
313 Woodhaven Road Lowenstein, Newman, Reis, Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Dr. Emmeth A.
Luebke*
Washington, DC 20036 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Melbert Schwarz, Jr., Esq.
Baker and Botts Atomic Safety and Licensing Appeal One Shell Plaza Panel (5)*
Houston, TX 77002 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section (7)*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Mrs. Peggy Buchorn Betty Wheeler, Esq.
Executive Director Tim Hoffman, Esq.
Citizens for Equitable Utilities, Inc.
Hoffman, Steeg & Wheeler Route 1, Box 1684 1008 S. Madison Brazoria, TX 77422 Amarillo, TX 79101 Kin Eastman, Co-coordinator Barbara A. Miller Pat Coy Citizens Concerned About Nuclear Power I f/l/Muy), M 5106 Cassa Oro Bernard M. Bordenick San Antonio, TX 78233 Counsel for NRC Staff