ML19309A918
| ML19309A918 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/24/1980 |
| From: | Swartz L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004010514 | |
| Download: ML19309A918 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDIS0N COMPANY,
)
)
(Three Mile Island, Unit 1)
NRC STAFF RESPONSE TO UNION OF CONCERNED SCIENTISTS MOTION FOR AN ORDER TO COMPEL In "NRC Staff Objections to Discovery Requests" dated Februrry 25, 1980, the NRC Staff objected to Interrogatories 210 and 211 posed by the Union of Concerned Scientists (UCS) in " Union of Concerned Scientists Second Set of Interrogatories to NRC Staff" dated February 1, 1980. On March 11, 1980, UCS filed a " Motion for an Order to Compel NRC Staff to Answer Interrogatories" (Motion).
The Staff continues its objection to both interrogatories and sets forth its reasoning below.
Interrogatory 210 Interrogatory 210 asks for time and attendance cards since March 28,1979 of the Staff members who wrote and reviewed the Staff's Status Report for TMI-1.
The Staff objected to this question on the ground that such infonnation is not relevant to this proceeding.
If NRC keeps " time and attendance" cards and " manpower system records." The former only show time spent at NRC while the latter indicate time spent on individual projects as well as sick leave, annual leave, uniou-activities, etc. The Staff, in responding to this request, is assuming that UCS seeks the manpower system records.
15004010514
1 Although UCS attempted to explain the relevancy of its request, the Staff continues its objection. UCS claims that the manpower systen records are needed to help them determine who potential Staff witnesses might be. The Staff, however, has already committed itself to providing the names of its witnesses when it decides who those witnesses will be.
Further, the manpower system records which show, inter alia, how much time certain individuals have spent on various projects falls within the ambit of the Privacy Act of 1974.2] The Act states that:
"No agency shall disclose any record which is contained in a system of records by any means of communication to.any person...
except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be-
...(2) required under section 552 of this title, [or]
...(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual....
5 U.S.C. 5552a(b).
The statute defines " record" as "any item, collection, or grouping of infomation about an individual that is maintained by an agency, including, but not limited to his... employment history and that contains his name.... ' 5 U.S.C. 5552a(4).
Thus, the information UCS seeks comes under the Privacy Act and NRC cannot release that infomation unless each Staff member concerned gives his written consent or unless UCS can show that its request falls under one of the exceptions 2/ The NRC Systems of Records which come within the Privacy Act include payroll accounting records and manpower system records. NRC Rules and Regulations, Volume II, Systems of Records NRC-21 and NRC-30.
, to the statute.
Given the relevancy objection which the Staff has interposed to the requested material, no effort has been made to obtain written consent from the twenty-four individuals involved.
In addition, UCS has the burden as to the applicability of the exceptions and such a burden has not been met in this instance.E Accordingly, the Staff objects to Interrogatory 210 on the grounds of relevancy and protection of personnel privacy.
Interrogatory 211 Interrogatory 211 asks for Staff inputs to the Status Report dated January ll, 1980. The Staff objected and continues to object to this interrogatory on the ground that only final NRC records and documents are subject to discovery under 10 C.F.R. 52.790(a).O
-3/ The only exceptions that could be applied to UCS' request are those listed above.
Disclosure of the time and attendance cards is not required under 5 U.S.C. 1552, the Freedom of Information Act. That Act exempts " personnel and medical files...
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy...."
5 U.S.C. liS52(b)(6).
In addition, UCS has made no showing of " compelling circumstances".
~4/
In its Motion, UCS states that 10 C.F.R. 52.790 contains the NRC regulations under the Freedom of Information Act (F0IA) and that the exemptions in 12.790 can be no broader than those in the Act. UCS is mistaken.
First, Part 9 of 10 C.F.R. contains NRC regulations concerning the Freedom of Infonnation Act.
See 10 C.F.R. 59.1.
Further, courts have consistently recognized the inherent dissimilarities between discovery and F0IA requests. Pleasant Hill Bank v. United States, 50 F.R.D. 97 (W.D.Mo 1973) (Department of Housing and Urban Development documents were not necessarily privileged for discovery purposes even though they may be exempt from disclosure to the general public under the Freedom of Information Act). The purposes of discovery and the Freedom of Information Act are different. Accordingly, they have differ ' 't procedures, rules, applications, and exemptions.
Finally, it is not clear that UCS would be entitled to this information even under the Freedom af Information Act which exempts from disclosure " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency...." 5 U.S.C. 5552 (b)(5). The Supreme Court in N.L.R.B. v. Sears, Roebuck and Company, 421 U.S. i32 (1975) construed this phrase "to exempt those documents, and only those documents, nomally privileged in the civil discovery context." Id. at 149. Thus, inasmuch as draft memoranda are privileged and not subject to discovery under NRC discovery rules, they are also exempt from disclosure under the Freedom of Infor-mation Act, 5 U.S.C. 5552(b)(5), and under the NRC regulations concerning FOIA requests, 10 C.F.R. 59.5(a)(5).
O However, pursuant to a conference call on Friday, March 21, 1980 between Chairman Smith, counsel for UCS, and counsel for the NRC Staff, the Staff has acknowledged that, although the inputs to the Status Report are not discover-able under 82.790(a), UCS could seek this information under 52.744.
For the sake of expediency, the Staff will proceed under 52.744.
While a request for documents under 52.790 is not a concomitant request under 52.744, the Staff will submit UCS' request for drafts of the Status Report to the Executive Director for Operations for his prompt decision.N If he has no objection to producing the drafts, this material will be sent to UCS immediately.b If he does object, the Staff will then produce these documents to the Licensing 1
Board for their M camera inspection and detennination under 52.744(c).
Conclusion For the reasons set forth above, the Staff continues its objections to UCS' Interrogatory 210. The Staff also objects to Interrogatory 211 on the basis of 12.790 but is proceeding as if UCS had submitted a document request under 52.744.
Respectfully submitted, Ab.
Y 1
l Lucinda Cow Ssartz
(-f Counsel for NRC Staff v
l Dated at Bethesda, Maryland, l
this 24th day of March, 19C"
-Sf While Mr. Smith indicated in the conference call that he believed that the Staff's original objection to Interrogatory 211 was essentially the objection described in 52.744(b), the Staff cannot eliminate the Executive Director for Operations from this decision-making process in which he is entitled to participate under the regulations.
y The Staff is in the process of compiling the requested documents but notes that some drafts may not have been retained.
UNITED STALES OF A'4 ERICA NUCLEAR REGULATORY C0!iMISSION B_EFORE THE ATOMIC SAFETY AND LICENSING BOARD _
In the Matter of METROPOLITAN EDISON COMPANY, Docket No. 50-289 ET AL.
Ihree Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO UNION OF. aCERNED SCIENTISTS MOTION FOR AN ORDER TO COMPEL", dated March 24, 1980 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 Coranission's internal mail system, this 24th day of March 1980:
- Ivan W. Smith, Esq.
rir. Steven C. Sholly Ato:nic Safety & Licensing Board Panel 304, South Market Street U.S. !!uclear Regulatory Corranission Mechanicsburg, Pennsylvania 17055 Kashington, D.
C.
20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Dept. of Environmental Resources Oak Ridge, Tennesse.e 37830 P.O. Box 2063 Harrisburg, Pennsylvania 17120 Dr. Linda W. Little 5000 Hermitage Drive Mr. Marvin I. Lewis Raleigh, North Carolina 27612 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 George F. Trowbridge, Esq.
Shaw, Pittman, Potts & Trowbridge Metropolitan Edison Company 1800 M Street, N.W.
Attn: J.G. Herbein, Vice President Washington, D. C.
20006 P.O. Box 542 Reading, Pennsylvania 19603 Karin W. Carter, Esq.
505 Executive House Ms. Jane Lee P.O. Box 2357 R.D. 3; Box 3521 Harrisburg, Pennsylvania 17120 Etters, Pennsylycnia 17319 Honorable Mark Cohen Walter W. Cohen, Consumer Advocate 512 0-3 Main Capital Building Department of Justice Harrisburg, Pennsylvania 17120 Strawberry Square,14th Floor Harrisburg, Pennsylvania 17127
John Levin, Esq.
Pennsylvania Public Utilities Com.
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Box 3265 Harrisburg, Pennsylvania 17120 Jordan D. Cunningham, Esq.
Allen R. Carter, Chairman Fox, Farr and Cunninoham Joint Legislative Committee on Energy 2320 North 2nd Street Post Office Lox 142 Harrisburg, Pennsylvania 17110 Suite 513 Senate Gressette Building Theodore A. Adler, Esq.
Columbia, South Carol'ina 29202 WIDOFF REAGFR SELK0WITZ & ADLER Post Office Box 1547
- Atomic Safety and Licensing Appeal Board Harrisburg, Pennsylvania 17105 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Ms. Ellyn R. Weiss Sheldon, Harmon, Roisman & tleiss
- Atomic Safety and Licensing ~ Board Panel 1725 I Street, N.W.
U.S. Nuclear Regulatory Commission Suite 506 Washington, D. C.
20555 Washington, D. C.
20006
- Docketing and Service Section Ms. Karen Sheldon U.S. Nuclear Regulatory Commission Sheldor Harmon, Roisman & !!ciss
!lashington, D. C.
20555 1725 I street, N.W.
Suite 506 Robert Q. Pollard Washington, D. C.
20006 609 Montpelier Street Baltimore, Maryland 21218 Ms. Mara.orie M. Aamodt R.D. #5 Coatesville, Pennsylvania 19320 Chauncey Kepford Judith H. Johnsrud Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801
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Ms. Frieda Berryhill, Chairman Coalition for Nuclear Power Plant
,'t Postponement Counsel for NRC Staff 2610 Grendon Drive Wilmington, ' Delaware 19808 Holly S. Keck Anti-Nuclear Group Representing York 245 W. Philadelphia Street' York, Pennsylvania 17404