ML19345G390
| ML19345G390 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/03/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8104070153 | |
| Download: ML19345G390 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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HOUSTON LIGHTING AND POWER C0ftPANY
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50-499 (South Texas Project, Units 1 & 2)
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NOTICE OF APPEAL AND LIST OF EXCEPTIONS' g
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')3Ipih Jay it. Gutierrez Counsel for NRC Staff
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UNITED STATES OF R1 ERICA I4UCLEAR REGULATORY COM11SSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the flatter of
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H00ST01 LIGHTING AND POWER C0!!PANY )
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50-499
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(South Texas Project, Units 1 & 2) )
NOTICE OF APPEAL AND LIST OF EXCEPTIONS 1.
INTRODUCTION 1
Pursuant to 10 C.F.R. % 2.762 and 5 2.785(b)(1) the Staff hereby respectfully appeals the !1 arch 24, 1981, Memorandum and Order of the Atomic Safety and Licensing Board in the above-captionea matter granting Citizens Concerned About Nuclear Power's (hereinafter referred to as CCAf4P) " Motion For Ler/e To File Out Of Tine To Compel NkC Staff To Provide Information" and further granting, in part, its " Motion To Compel NRC Staff To Provide Information."1/
In the citernative, if the subject Licensing Board Order is detemined not to be subiect to appeal, the Staff respectfully requests that the Appeal Board exercise their discretionary power to review that Order under 10 C.F.R. 2.718(i) and 2.785(bfil).2/
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The subject order although relating to discovery, is appealable under the " Collateral Order Doctrine." Cohen v. Beneficial Loan Corp. 337 U.S. 541, 546 (1949). See also, Abney v. United States 431 U.S. 651, 656-662 (1977); Coopers & Lybrand v. Gurney 558 F.2d 1202, 120/ (5th Cir. 1977); Southern Methodist University Ass'n v.
Wynne & Jaffe 599 F.2d 707, 711-12 (5th Cir.-1979); Toledo Edison co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Units 1 & 2), ALAB-301, 2 NRC 853, 854 (1975).
(Continued) 2/
Footnote'2 appears on page 3.
By Board Order dated March 24, 1981, the Staff was compelled to disclose, subject to a protective order, the names of applicants' and applicants' contractors' QA/0C inspectors who supplied information in confidence ta the NRC about harassment at the South Texas Project and the 1/
(Continued)
The Supreme Court in Cohen held that orders which determine rights separate from, and collateral to, the main cause of action, and which are too important to be denied review and too independent of the principal action to require that appellate consideration be deferred until the entire case is adjudicated, will be deened final for the purpose of review.
337 U.S. at 546.
Subsequent case law has clarified and solidified the Collateral Order Doctrine in federal appellate practice. See, cases cited, supra.
To fall within the Cohen Collateral Order Doctrine, the challenged trial court order must meet three requirements:
(1) the lower court must have fully disposed of the issues sought to be reviewed on appeal; (2) the challenged order must not have been a mere step toward the final judgment on the merits, but must be collateral to the cause of action asserted; (3) the lower court ruling must affect important rights which would be irreparably lost if revied of the challenged order had to await final judgment and hence, to be effective, appellate review must be irrediate.
See, Southern
!1ethodist University Ass'n v. Wynne & Jaffe 599 F.2d 707, 711-12 (5th Cir.1979) holding a district court's pretrial order directing the disclosure of the identities of persons wishing to remain anonymous was a final, appealable order by reason of the Cohen exception.
Applying the Cohen requirements to the instant case:
(1) the Licensing Board's liarch 24, 1981, order represents its final action relative to the requested confidential information; (2) the dis-closure of confidential sources is collateral to the principal issue of deciding whether Houston Lighting & Power snould be granted an operating license for the South Texas Project and will not merge with'tha ultimate determination and; (3) the challenged Board order affects in an important way both the rights of those persons who wish to remain anonymous and the very manner by uhich the Office of Inspection and Enforcenent conducts its investigations at the South i -
Texas Project, as well as other nuclear facilities throughout the country.
Lastly, it must be stressed that the ruling in question cannot be cured by appeal following the final deposition of the licensing matter.
Once confidential sources are disclosed the harm has irreparably occurred. Thus, in view of the above, and in view of the fact hearings are scheduled to begin in this proceeding May 12, 1981, appellate review must be immediate to be effective, e
3-nanes of employees who were said to have harassed or intimidated the QA/QC inspectors.
(As a convenience to the Appeal Board, a copy of that order is attached herewith.) The individuals wnose identities are requested supplied information to investigators from the Office of Inspection and Enforcement, in exchange for a pledge of confidentiality, during an investigation into construction deficiencies at the South Texas Project. The requested information is normally exempt fron disclosure by reason of 10 C.F.R. % 2.790(a)(71; however, the Board in the instant case ordered disclosure under authority of 10 C.F.R. % 2.744(c) and (d). Sec-tion 2.744 permits a Board to compel c.sclosure of protected infornation af ter making certain preliminary findings concerning the relevancy of the 2/
Commission' practice per'mits discretionary interlocutory review of licensing board rulings where:
(1) the party adversely affected by. that ruling may suffer immediate and serious irreparable harn or; (2) the challenged ruling affects the structure of the proceeding in a basic and unusual manner.
Puget Sound Power and
- Light Comoany, et al. (Skagit Nuclear Power Project, Units 1 and 2)
ALAB-572, 10 NRC 693, 694 (1979)._~See 10 NRC at 695, ft nt. 5, for a discussion of those cases where discretionary interlocutory review has recently been granted; See also, Pennsylvania Power and Light Cocoany and Allegheny Electric Coooerative Inc.
(Susquenanna Steam Electric Station Units 1 ana 2) ALAB-613,12 NRC 31/, 321 (1980).
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requested information, the need for the information in order for a proper decision in the proceeding and a showing by the requesting party that the information is not reasonably obtainable from other sources.
The Staff takes exception to this Order for the reasons hereinafter assigned, and seeks appellate review on the ground, inter alia, that a recurring najor policy issue is involved in that the required disclosure of confidential sources would have a substantial chilling effect on further Staff investigations and the use of confidential sources by the Office of Inspection and Enforcement to obtain vital health and safety information during the course of investigations and inspections at both the South Texas Project and other nuclear facilities throughout the country.E y
Due to the ' Staff's position that a major policy issue is in need of clarification, the Staff by separate pleading has this date filed a " Motion for Certification Pursuant to 10 C.F.R. I 2.785(d)."
Specifically, the relative merits must be weighed concerning the value of ordering disc'osure of confidential sources during an evidentiary hearing in order to develop the fullest possible record, versus protecting confidential sources so as not to.hanper the Staff's inspections into the construction and operation of nuclear facilities which affect the health and saf:'.v of the public.
In addition, the Board has indicatt.d it will require the Staff to reveal the names of the. informants at the May hearing and possibly have.some of them produced as witnesses.
See, Board Memorandua and Order, March 24, 1981, p. 8.
II. LIST OF EXCEPTIONS i
The Staff appeals the Board's Or;er and assigns as error the following exceptions:
1.
The Board erred as a procedural matter in considering CCANP's untirely "lbtion For Leave To File Out Of Time To Compel NRC Staff To Provide Information" since the subject notien was filed approximately 42 days beyond the tine prescribed by the Board for the filing of such Motions (pp. 2-4 of liarch 24,1931, Order);
2.
The Board erred in finding that the names of the particular QA/QC inspectors who sup,311ed information in confidence to the Staff concerning harassment, and the names of the employees who allegedly ha assed and intimidated are necessary for a proper decision in this prc;eeding, since all the infornation obtained by these individuals has already been supplied to all the parties to this proceeding.
(pp. 6-7 of the~ tarch 24, 1931, Order) This is especially so since the identities, as i
opposed to the. substance of their statements, does not impact upon safety or health related natters;
- 3. ;The' Board erred in not making the requisite findings of~
~10 C.F.R. 9 2.744; 4
The Board erred by failing to first make an "in canera" inspection of the requested information in order to make the necessary 1
determinations anticipated by 10 C.F.R. 5 2.-744 prior to ordering disclosure.
In the instant case, this was a narticularly essential step
.in vies.of the Bo'ard's ann'ounced reason for requiring the names; to ensure the persons supplying infornation to the NRC are substantially the
- sahe.as those persons supplying information to intervenors relative to 1harassnent and ' intimidation.(p. 7 of the fiarch 24,1981, Order).
CONCLUSI0f1 As a result of the enumerated exceptions and the important policy matters impacted by the subject order, the Staff respectfully requasts
.the Appeal Board to take this matter on appeal, and for the reasons set forth in the Staff's " Motion for Direct Certification Pursuant to 10 C.F.R. 'l 2.785(d)" filed this date certify the subject appeal to the Commission so-that the Commission may pass on the major and novel questions of law, policy and procedure here involved.
Respectfully subpitted, Jay M. Gutierrez Counsel for NRC Staff Dated at Bethesda, fiaryland this 3rd day of April,1981
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14 UNITE 0'STAYESOFAMEMCA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. James C. Lamb Mr. Ernest E. Hill
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In the. Matter of
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HOUSTON LIGPTING AND
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Docket Nos. STN 50-498 OL POWER COMPANY, ET AL,
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STN 50-499 OL
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(South Texas Project
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Units 1 and 2)
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March 24, 1981 MEMORANDUM AND ORDER (Granting CCANP Motion to Compel NRC Staff to Provide Information)
On March 16,--1981, Citizens Concerned About Nuclear Power (CCANP) filed a motion pursuant to 10 CFR ?2.744(c) to campel tne NRC Staff to produce the identities and sworn statements _of those QA/QC inspectors who supplied the information whichiformed the basis of.the Staff's Order to Show Cause, dated Aoril 30,1980.3/' - Through oral argument at ;the prehearing conference l
On Madch 18,19S1, the NRC Staff. and the' Applicants (Houston Lighting and i
-_ Power Cc. et. al.) opposed the motion, both on. grounds of timeliness and on 3/~Tnerepresentativeof'CitizensforEquitableUtilities(CEV)-joined the representative of CCANP in signing the motion, although-the motion
-by'its terms is sponsored solely by CCANP.
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the merits (Tr. 666-691).
For reasons set forth below, and as announced at the conference (Tr. 685), we gran: CCANP's motion (as well as its companion motion to file out of time the foregoing motion to compel answers). Our grant of the motion to compel is limited to the names of QA/QC inspectors who supplied information to the NRC about harassment at the South Texas Project, and the names of employees who are said to have harassed or intimidated the QA/QC inspectors, and does not extend to the requested sworn statements..(In accord with the scope of CCANP's contentions, the names of employees are limited to those who are said to have harassed insosctors and do not encompass harassment of other than QA/QC inspectors.) The foregoing infermation need be made available only if subject to a protective order comparable to that under which CCANP and CEU have been directed to identify the names of certain of their informants.
1.
Intervenors' motion to compel--filed on the eve of the prehearing conference at which it was considered--was admittedly untimely. The Staff
'had refused to furnish the information requested of it in its filing dated December 8, 1980. Under normal rules, a motion to compel should have been
.fileo within 10. days of the Staff's response.
10 CFR %2.740(f).
But at our prehearing : conference in November,1980, we set February 2,1981 as the last date.for intervenors to file motions to compel.
We also had noted that
- schedule modifications would not be granted " absent a strong showing of good c a'u s e".
Second Prehearing Conference Order, dated December 2,1980, at pp. 5-7.
In support of its motion for leave to file out of time its motion to compel,: CCANP states that, from November,1980 through February,1981, it was represented by attorneys, and that CCANP assumed that all necessary discovery motiers had been filed within the pre:cribed tire periods by those attorneys.
CCAND went on to state that in March,1981, its attorneys informed-it that " unfortunate circumstances beyond their control" prevented their continuing to represent CCANP and that these samd circumstances pre-vented certain discovery motions (including a motion to compel against the Staff) from being timely filed.. At the prehearing conference the CCANP representative explained that he first learned of the attorneys' impending withdrawal during the last week in February, that he asked them to draw up motions to file discovery out of time, that they did not do so, and that he had received the case files only shortly before the prehearing conference (Tr. 674-675). As a further reason to permit the untimely filing, CCANP mentions the importance of the information to the proceeding and the circumstance that the information is not reasonably obtainable from another source.
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Neither.the Staff nor the Applicants regarded CCANP's explanation as an adequate showing of good cause. And both of them asserted that the delay wculd cause them some preiudice in the preparation of their cases.
Tr. 671-676.
Nonetheless, as announced at the conference, we regard the importance of CCANP's participation and its potential contribution to i
l creation of an adequate record as _ outweighing the timeliness f actors relied l
onEby the Staff and Applicants.
In particular, we do not perceive that our
. granting the motion will necfssarily relay the hearing.
In the j
circumstances o' this proceeding, we deem the excuse tendered by CCAN to be a' strong showing cf good cause.
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2.
Turning to the substance of the motion to compel, CCANP asserts that it needs the names of the QA/QC inspectors who supplied information to the Staff concerning harassment, as well as the names of employees who harassed and intimidated them, in order to support its contentions relating to such harassment. CCANP adds that it sought a hearing on the Order to l
Show Cause in part to obtain access to this type of information; and that, when that request was denied and we were directed to litigate the underlying show-cause issues in the context of this operating license proceeding, the Comission expressly permitted acccss to such information.
CCANP cites the following passage from the Comission's opinion, CLI-80-32,12 NRC 281, 289:
Citizens [ Cram] hs effered a number of reasons why a hearing 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 them. However, as Houston [ Applicants] suggests, Citizens can file either interrogatories with the staff or a Freedom of Information request with the Comission 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 f ailure to have a hearing on the enforcement order would l
be tantamount to denying to it the " evidentiary basis for the NRC L
actions in the Order to Show Cause."
The Staff objects to providing the sought names on the ground that they are exempted from disclosure by 10 CFR 2.790(a)(7)(iii) and (iv) as l
constituting "an unwarranted invasion of personal privacy" and as disclosing i
"the identity of a confidential source".
The Staff. states that NRC's investigation of harassment was conducted by the Office of Inspection and
5-Enforcement (OIE) during the early stages o' an investigation into alleged construction def ici-es at the South Texas site, under a blanket pledge of d
confidentiality gisco to both those who were alleged to have been harassed and those who were alleged to do the harassing.
The Staff also disagrees with CCANP's claim that the Connission's order in CLI-80-32 (p. 4, supra) automatically grants access to the names sought. The Staff asserts that the normal requirements of the NRC rules govern, and that CCANP has not satisfied the disclosure requirements of such rules.
We begin by agreeing with the Staff both that the information sought is exempt frcm automatic disclosure under 10 CFR %2.790(a)(7) and that the Comr.ission'3 Order did not supersede the normal requirements of the Rules of Practice. ' But we also find that CCANP has satisfied the recairements of those rules and (to the extent hereinafter set forth) is
-entitled to the sought information, subject to a protective order.
Documents exempt from full disclosure under 10 CFR 52.790 may
~ nevertheless by produced under the provisions of 10 CFR s2.744(c) and (d),
which read as follows:
(c)- If the.E:ecutive Director for Operetions objects to l
r*oducing a record or document, the requesting party may apply to.the presiding officer, in' writing, to i
comoel production of that record or document. The application -shall set forth the relevancy of the record or document to the issues in the proceeding.
The record or document covered by the application shall be produced for the "in camera" inspection of the presiding officer, exclusively, if requested by the presiding officer and only to the extent necessary'to determine--
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(1)
The relevancy of that record or document; (2) Whether the document is exempt from disclosure under under {2.790; (3) Whether the disclosure is necessary to a proper decision in the proceeding; (4) Knether the document or the information therein is reasonably obtainable from another source.
(d) Upon a determination by the presiding officer that the requesting party has demonstrated the relevancy of the record or document and that its production is not exempt from disclosure under %2.790 or that, if its disclosure is necessary to a proper
- exempt, decision in the proceeding, and the document or the information therein is not reasonably obtainable from another source, he shall order the Executive Director for Operations to produce the document.
Furtnermore, interrogatories of the Staff such as have been propounded here may be recaired to be answered under the terms of 10 CFR 52.720(h)(2)(ii):
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- a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the-Executive Direc-tar f~ Ocerations.
Upon a finding by the presiding off#
It answers to the interrogatories are necessary to
.ger decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source, the presiding officer niay require that the staff answer the interrogatories.
Knere information covered by 10 CFR %2.790 is required to be revealed in response to interrogatories or document requests, the Board is authorized--indeed encouraged--to subject such information or documents to a Drotective order and, if the information is offered into evidence, to hold in camera sessions of the hearina.
10 CFR 2.790(D)(6).
As announced at the prehearing conference, we find that the names of the-particular 'QA/QC inspectors who supplied information to the Staff
concerning harassment, and the names of the employees who allegedly harassed and intimidated those inspectors, are not only directly relevant to CCANP's contentions but are also necessary to a proper decis4n in this proceeding.
Specifically, it is important to know whether the individuals who allegedly reported harassment to the intervenors are the same as those who allegedly reported it to the Staff.
If they are different, the scope of the harassment questions which we : rust adjudicate may be far broader and widespread than if the individuals reporting to the intervenors and to the Staff are identical.
Moreover, proper development o# the record in this proceeding in an expeditions manner sugcests that the r,ames of indiviavals snould be made available on discovery rather than waiting for the evidentiary hearing.
Finally, by its very nature, the information car or.ly be obtainable from the Staff.
For these reasons, we are granting CCANP's motion to the extent it seeks the names of individuals-identified above.
The inforrtation furnished shall be _ subject to a protective order along the lines of that approved with
. respect to the intervenors' informants.
We note that, as in the case of CCANP's informants, the order to produce is limited to tha names of QA/QC insoe: tors who provided affirmative information about ha mment and to e ployees who provided ~information about the harassment or intimidation of QA/QCinspectors.1/
l At the prehearing conference CCANP also sought to h3ve revealed the names of individuals who were interviewed by members of the Comission's Office of Inspector and Auditor (OIA). The Board denied the request for those names on the ground that the -inspection undertaken by OIA was performed directly for the Comission and not for us3 in.proceecings bearing upon-the operating. license or the s&.ow cause order. Tr.
707-713.
(Inspections relating to those prcceedings were undertaken by 0IE and the information required to be produced is limited to that gathered through the OIE. investigation.)
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We are not granting the portion of CCAND's cotion seeking the sworn statements of informants.
The Staff advises the substance of that information has already been revealed in the investigative report, which has been furnished to the intervenors. Absent some affirmative information to i
the contrary--which has not been provided us-, we will assume that the Staff has incorporated all relevant portions of those statements into its investiyative reports. Moreover, the intervenors will be provided the names of the i.7dividuals who had furnished the sworn statements and can thus ascertain the completeness of the Staff svnnaries. For these reasons, the
'qtervenors have not demonstrated that this information is not r easonably available from any other source. See 10 CFR 42.744(c) and (d), suora.
3.
Because the dates for identification of witnesses and service of prepared test icony depend in part on the date when CCANP receives *.he names in cuestion, we urge the Staff to furnish this information as soon as possible--hopefully, within 10 days of this Order.
(The Staff is being hand-served today ac.d thus should furnish the information no later than April 3, 1981.) ~Because the Staff may seek appellate review of this Order (Tr. 688), we are imposing no definite cate by which the names must be furn oned; the Staff will thus not have to utilize needed preparation time in order tof obtain a itay order if it should choose to seek appellate review.
We reiterate however, that at the. hearing we will require that the Staff reveal the names of the inspectors and informants and possibly have some of them produced as witnesses.
Thus, appellate review of this Order will likely result in delay of at least some aspe:ts of the evidentiary t
hearing.
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For the foregoing reasons, and confirming the action taken at the prehearing conference' on March 18, 1981, it is, this 24th day of March,
- 1981, ORDERED a.
That CCANP's " Motion for Leave to File Motion Out of Time to Ccnpel NRC Staff to Provide Information" is hereby granted.
b.
That CCANP's " Motion to Compel NRC Staff to Provide Information" is granted to the extent that the Staff must reveal the names of-the QA/QC inspectors who supplied information to OIE about harassment at the South Texas Nuclear Project and the names of those employees who allegedly harassed and intimidated those inspectors, and is denied in all other. respects. The Staff is urged to provide these names within 10 days of the date of this Order.
FOR THE ATOMIC SAFETY AND LICENSING BOARD s'
L lu. Ih]
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Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE l
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UNITED STATES OF A'4 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0'i!C SAFETY AND LICENSING APPEAL BOARD In the !!atter of
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HOUSTON LIGHTING AND POWER COMPANY,)
Docket Nos.53-498
. _ET _AL.
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50 499 (South Texas Project, Units 1 a 2) )
CERTjf! CATI 0FSWICE I nereby certify that copies of "fiOTICE OF APPEAL AiO LIST OF EXCEPTIONS" 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 conmission's 1
iritarnal naii system, this 3rd day of April,1931:
Richard S. Salwin, Chairman
- Mr. Ernest E. Hill Atomic Safety and Licensing L u rence Livermore Laboratory Appeal Board Unisersity of California U.S. Nuclear Regulatory Commission P.O. Box 808, '.-123 Washington, DC 20555 Livermore, CA 94550 Dr. John H. Buck, Member
- Melbert Schwarz, Jr., Esq.
Atomic Safety and Licensing Baker and Botts Appeal Soard One Shell Plaza U.S. Nuclear Regulatory Commission HoJston, TX 77002 Washington, DC 20555 Charles Bechhoefer, Esq., Chairman
- Mrs. Peggy Buchorn Atomic Safety and Licensing Executive Director Board Panel Citizens for Equitable Utilities, U.S. Nuclear Regulatory Commission Inc.
Washington, DC 20555 Route 1, Box 1684 Brazoria, TX 77422 Dr. James C. Lamb III 313 Woodhaven Road Brian Berwick, Esq.
Chapel Hill, HC 27514 Assistant Attorney General-Environmental Protection Division P.O.' Box 12548, Capitol Station Austin, TX 78711
Jack R. Newman, Esq.
Betty Wheeler, Esq.
Lowenstein, Newman, Reis, Tim Hoffman, Esq.
Axelrad & Toll Hoffman, Steeg & Wheeler 1025 Connecticut Avenue, N.W.
1008 S. Madison Washington, DC 20036 Amarillo, TX 79101 Kim Eastman, Co-coordinator Atomic Safety and Licensing Barbara A. Miller Board Panel
- Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atonic Safety and Licensing San Antonio, TX 78233 Appeal Board
- U.S. Nuclear Regulatory Conmission Docketing and Service Section*
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 l-
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