ML19312D555
| ML19312D555 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/11/1980 |
| From: | Weiss E SHELDON, HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003240613 | |
| Download: ML19312D555 (4) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Se$ 11I
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5eausst FOR THE ATOMIC SAFETY AND LICENSING BOARD W
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In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
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Restart)
(Three Mile Island Nuclear
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Station, Unit No. 1)
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UNION OF CONCERNED SCIENTISTS MOTION FOR AN ORDER TO COMPEL NRC STAFF TO ANSWER INTERROGATORIES Pursuant to 10 CFR 2.740(f), UCS moves the Board to compel
.the staff to answer Interrogatories #210 and 211.
Interrogatory #210 asks for the time and attendance cards since March 28, 1979, of the staff members who wrote and reviewed the staff's Status Report for TMI-l Restart.
USC stated that a computer printout of this data would be acceptable if accompanied by a key to the program and activity codes.
It is our understanding that such printouts are readily obtainable.
The staff objects on the sole ground that the information sought is not relevant to this proceeding.
In our earlier Motion to compel, UCS discussed the broad standards of relevance which apply to discovery; that discussion will not be repeated here.
By this question we are attempting to discover which staff members have been most actively involved in the technical analysis of TMI-l both 8008240 Ei l l5
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in order to identify possible witnesses and in order to prepare for cross-examination of those witnesses proferred by the staff at the hearings.This information is clearly discoverable.
Interrogatory #211 asks for the staff inputs to the Status Report.
The staff objects on the grounds that these are not final NRC records and documents and not discoverable, pursuant to i
10 CFR Section 2.790(a).
10 CFR Section 2.790 contains the NRC's regulations under the l
federal Freedom of Information Act, 5 USC Section 552.
The exemptions contained therein can legally be no broader than those provided by j
the Act.
Anything subject to disclosure by 5 USC Section 552 is subject to disclosure under 10 CFR 2.790.
The only pertinent statutory exemption is contained in 5 USC Section 552 (b) (1) (5), which exempts " 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."
The language in 10 CFR 2.790 (a) excluding " handwritten notes and drafts" from disclosure cannot broaden this exemption.
The purpose of the exemption is to protect the deliberative process of the agency.
However, a distinction is drawn between material that deals " solely with matters of law or policy" and those that are " matters of a factual nature."
Ethyl Corp. v.
E.P.A.,
478 F.
2d 47, 49 (1913).
The latter are to be disclosed.
Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect any internal working papers in which opinions
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are expressed and policies formulated and recommended.
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1
.. Bristol-Myers Co. v. F.T.C.424 F.
2d 935, 939 (1970), cert.
den'd 400 U.S.
824.
The inputs to the Status Report are in essence factual and technical reports by the staff reviewers.
They are very unlikely to present policy options or deliberative materials.
In any case the entire document cannot be withheld.
Any genuinely deliberative
-portions can be excised.
It is established that Simply because a document contains both purely factual material and materials reflecting deliberative or policy-making processes does not render the document automatically exempt fron discover.
Ethyl Corp. v. E.P.A, supra at 49.
For the reasons stated, JCS asks the Board to order the staff to respond to Interrogatories ##210 and 211.
Respectfully submitted,
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Ellyn R. Weiss SHELDON, HARMON & WEISS 1723 I Street, N.W.
Suite 506 Washington, D.C. 20006 (202) 833-9070 General Counsel to the Union of Concerned Scientists Dated: March 11, 1980 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC-SAFETY AND LICENSING BOARD l
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In the Matter of
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METROPOLITAN EDISON
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COMPANY, et al.,
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Docket No. 50-289
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(Restart)
(Three Mile Island
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Nuclear Station, Unit
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No. 1)
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CERTIFICATE OF SERVICE I hereby certify that a copy of " Union of Concerned Scientists Motion for An Order to Compel NRC Staff to Answer Interrogatories" was mailed postage pre-paid this lith day l
of March, 1980 to the following parties:
- Secretary of the Commission ATTN:
Chief, Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C.
20555 N
s Ivan W. Smith, Esquire Atomic Safety & Licensing Board Panel CCO'CCJ b
U.S. Nuclear Regulatory Commission d2
Washington, D.C.
20555 Dr. Walter H. Jordan Cilice of te W DMI hf >
6 881 W. Outer Drive Oak Ridge, Tennessee 37830 e
Dr. Linda W. Little 5000 Hermitage Drive Raleiegh, North Carolina 27612 George F. Trowbridge, Esquire Shaw, Pittman, Potts & Trowbridge 1800 "M" Street, N.W.
Washington, D.C.
20006 Jamos Tourtellotte, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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- Hand-delivered