ML20032B000
| ML20032B000 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/02/1981 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20032A996 | List: |
| References | |
| NUDOCS 8111040258 | |
| Download: ML20032B000 (11) | |
Text
,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
.In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289-SP
[
)
(Three Mile Island Nuclear
)
(Restart)
Station, Unit 1)
)
(Reopened Proceeding)
)
BRIEF IN SUPPORT OF EXCEPTIONS Introduction On October 22,
- 1981, the Special Master issued a
Memorandum and Order on Confidentiality
(" Order")
in which he
- hell, inter alia, that:
(1) the NRC Staff had no right to preven'. disclosure of the identities of the individuals involved in this matter, (2) he would decline to order confidentiality of the involved individuals' names under his authority as Special Master, and (3) that he would act as described "even though it still appears that a reasonable accommodation may be possible through n camera prc dines and protective orders" (Order at 13).
Each of these rulings is erroneous.
However, even if the rulings are
- correct, contidentiality for two of the three involved individuals should nevertheless be ordered by the Licensing Board for an additional reason not presented to or PDR
__ -_~
considered by the Special Master -- that the two individuals-will, as demonstrated by the accompanying affidavits' M decline to appear voluntarily and, if subpoenaed, will exarcise their Fifth Amendment rights and refuse to answer all questions on-this subject.
Argument NO REASON HAS BEEN ADVANCED. WHY THE LICENSEE'S LETTERING SYSTEM WOULD NOT SERVE TO DEVELOP A FULL RECORD. AND PROTECT 71L OPERATORS FROM EMBARRASSMENT AND PERSONAL JEPORADY.
The Licensee proposed a system of designated letters of the. alphabet as' substitutes for operators' names to protect them from embarrassment and possible personal jeopardy.
The NRC Staff and the undersigned took the position that' confidentiality should be raintained.
We suggested that the Licensee's proposal was a workable approach that should be followed.
No adequate reason for not adopting. such an approach was advanced by any party or stated by the Special Master.
He stated that:
"The system is working; discovery is proceeding rapidly."
Order at 3.
With respect to testimony at the forth-coming hearings, the Special Master conceded that "a reasonable i
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1/
Affidavits from each of the two individuals who 'will not testify without a subpoena and who would decline to answer all questions if called have been filed under seal with Chai; man Smith.
Copies have been sent under seal to Judges Jordan,
- Little, and Milhollin.
To preserve confidentiality, those affidavits have been omitted from the service copies.
I f- ;. - -, -
accommodation may be possible through h camera proceedings and protective or6ers."
Order at 13.
The lettering sys':em should be continued.
1 II.
THE SPECIAL MASTER SHOULD NOT HAVE OVERRULED THE NRC-STAFF.AND ORDERED IT TO DISCLOSE THE IDENTITIES OF THE INVOLVED INDIVIDUAIS.
We hereby incorporate by reference our September 28, 1981 " Memorandum With Respect to P2blic Disclosure of Identities of -nvolved Individuals" and the Memorandum of the NRC Staff, filed September 24, 1981, at 3-12.
I With respect to matters that may be only in the Staff's possession (Order at 9-10), it is nt.t it all " obvious" that facts with respect to the actions of the three involved individuals "will be important to the question of operator competence at TMI-1, and of great interest to the community surrounding the reactor."
Id,.
Two of the three individuals are not employed by Metropc11 tan Edison Company
(" Met Ed").
The third is so em-played, but is not engaged in licensed activities.
Accordingly, whatever may have occurred in the past, these three individuals are in no position whatsoever to affect the operation of TMI-1.
Since this proceeding is only concerned with the operation of TMI-1, and not unrelated matters (such as assigning fault or taking action with respect to individual licenses) it is clear that disclosure of the identities of these individuals would accomplish nothing.
1 4
T.
The Special Master a.eserts that te stin.ony - of the t
involved individuals is necessary because they "may give testi-mony which describes acts or words which amount to cheating by others, or which reflects upon management's possible implication in the ' cheating. "
Order at 9-10.
This statement ignores the fact that the former senior reactor operators have been already thoroughly interrogated concerning these issues and their sworn statements are a matter of public record.
The Special Master cites no evidence -- and we know of none -- that further inqui-sition is likely to produce additional relevant information.
The parties can advance contentions and propose findings based on what is already in the record.
Futhermore, since two of three individuals will not appear voluntarily at the hearings in this proceeding or testify if subpoenaed (see attached affidavits) disclosure of their identities and requiring their appearance at hearings would be an empty ritual.
These individuals should not be needlessly embar-rassed and have themselves and their families exposed to personal
(
jeopardy without purpose.
As to the third involved individual, he will not refuse to appear voluntarily or decline to answer questions on this matter.
However, since he is not engaged in licensed activities or is even assigned to TMI-1, no purpose would be served by calling him either.
With respect to matters
" reasonably available" (10 C.F.R.
S2.744 (1981)) from the Licensee, we believe that confi-dentiality should be maintained for the reasons set forth below.
-4~
III.
THE SPECIAL MAS'TER SHOULD HAVE EXCERCISED HIS DISCRETION TO AVOID DISCLOSURE OF THE IDENTITIES OF THE INVOLVED INDIVIDUALS.
We rely on the arguments in our September 28, 1981 Memorandum to justify non-disclosure.
As we demonstrated there, it is clear that disclosure of these individuals' identities would expose them and their families to severa embarracsment and, possibly, to personal risk.
We are at a loss to understand this crucial statement in the Special Master's memorandum:
"It is,
- however, clear now that testimony by those involved in
- cheating, and aboat those involved in
- cheating, will be of vital importance to issues in the reopened proceeding, and it is clear that all litigants have the right to participate effectively in exploring this testimony."
Order at 13.
(Emphasis added).
First, persons who are not empicyed by Met Ed (or GPU) have no
^bligation to testify in this proceeding, unless subpoenaed.
- Second, even if subpoenaed, such persons may excercise their right to refuse to testify under the Fifth Amendment.
- Third, even if testimony were to be forthcoming from these individuals, their testimony is not necessary to resolve the issues in this proceeding.
As in the so-called "information transfer" inves-2/
We recognize that the Special Master was unaware at the time of his ru linc, that the involved individuals might decline to appear voluntraily or exercise their Fifth Amendment rights.
e tigation before the Licensing Board (with respect to whether information about the TMI-2 accident was promptly transferred to the NRC by Met Ed employees on March 28, 1979), this matter can
'>e adequately resolved simply by calling NRC officials and i
Met Ed management personnel.
(The investigation is, after all, into the capability of Met Ed management to safely operate 4
TMI-1).
Even if testimony from operational personnel is neces-sary, it is clear that testimony is not necessary from former operators who (obviously) cannot affect'the operation of TMI-1.
IV.
TWO OF THE THREE INVOLVED INDIVIDUALS WILL NOT TESTIFY ON THE MATTERS AT ISSUE
- AND, ACCORDINGLY, SHOULD NOT BE IDENTIFIED.
As the accompanying affidavits demonstrate, two of the three involved individuals (both of whom are no longer employed by Met Ed) will not appear voluntarily and, if called, will decline to answer all questions with respect to the matters at issue in this reopened proceeding.
It is obviously fruitless to call such individuals or identify th'em because doing so would I
accomplish nothing.
It is clear from the affidavits of these two former operators that the Special Master erred in concluding that confidentiality should not be ordered.[ Had confidentiality been ordered, testimony might have been had from these former opera-tors.
- Thus, the Special Master has erroneously rejected our argument that operating personnel might be inhibited from speak-ing candidly about the events in which they were involved if they were publicly identified.
See Order at 9-10.
V.
THE NRC RECORDS IN QUESTION MAY NOT BE DISCLOSED UNDER THE PRIVACY ACT.
'The Privacy Act, 5 U.S.C.
5552a (1976), provides that
"[nlo agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains 5
U.S.C.
S552a (b) (1976).
That sub-section goes on to provide for eleven exceptions to the require-ment of non-disclosure quoted above.
None of the exceptions applies here.
The provisions of the Privacy Act apply only to a
" record which is contained in a system of records."
Clearly, the materials from NRC files "" i.ch would be disclosed by Judge Milhollin's order are' records " contained in a system of records".
They pertain to three individuals who are licensees of the NRC, with individual license numbers, and as_to whom files are main-tained by license number.
This clearly brings such records within the definition of " system of records".
5 U.S.C.
5552a (a) (5) (1976); 10 C.F.R. 59.51(e) (1981).
The Privacy Act provides for criminal penalties for willful disclosure of records subject to its nondisclosure provisions.
This underscores the seriousness of Co.ngressional purpose.
We submit that under the Privacy Act the NRC should not not disclose the contents of its files, regardless of whether those materials may be obtainable from another source..
The Commission'b regulations track the statute virtu-ally woru for word (see 10 C.F.R. 59.80[1981]) and do not provide any exception (pd.)
or exemption (id.
at 59.95) for these records.
It follows that they may not be disclosed by the NRC to the parties to this proceeding or to the public.
Conc 1psion For the foregoing reasons, portions of the Special Master's October 22, 1981 Memorandum and Order on Confidentiality are erroneous and should be reversed.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By ~$dAssad $
0
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(J P'artncr g 1333 New Humsphire Av5., N.W.
Suite 1100 Of Counsel:
Washington, D.C.
20036 (202) 457-7500 EUGENE R.
FIDELL Attorneys for Two of Three MICHAEL F. McBRIDE Involved Individuals SMITH & SMITH, P.C.
2931 North Front Street Harrisburg, PA 17110 of Counsel:
(717) 232-0506 DAVID E. COLE Attorney for One of Three Involved Individuals j
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BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Do'cket Nc 50-289
)
METROPOLITAN EDISON COMPANY
)
(Restart)
)
(Reopened Proceeding)
(Three Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that I have, this 2nd day of November, 1981, served copies of the foregoing documents entitled " Exceptions, Notice of Appeal, and Brief in Support Thereof" either by hand delivery, Express Mail, or by mailing copies thereof by first class mail, postage prepaid and properly addressed to the following:
Ivan W.
Smith, Esq.
Ms. Majorie A. Aamodt Administrative Judge R.D.
- 5 Atomic Safety & Licensing Coatsville, PA 19320 Board Panel (Express Mail)
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (Hand delivery) (6 copies)
Dr. Walter H. Jordon Mr. Thomas Geruskv Administrative Judge Bureau of Radiation 881 W.
Outer Drive Protection Oak Ridge, TN 37830 Dept. of Environmental (Express Mail)
Resources P.O.
Box 2063 Harrisburg, PA-17120 Dr. Linda W. Little Mr. Marvin I.
Lewis Administrative Judge 6504 Bradford Terrace 5000 Hermitage Drive Philadelphia, PA 19149 Raleigh, NC 27612 (Express Mail)
George F. Trowbridge, Esq.
' Metropolitan Edison Shaw, Pittman Potts & Trowbridge Company 1800 M Street, N.W.
ATTN:
J.G.
- Herbin, Washington, D.C.
20006 Vice Pres _ dent (Hand delivery)
P.O.
Box 542 Reading, PA 19603 e
ee-
Xarin W. Carter, Esq.
Ms. Jane Lee 535 Executive House R.D.
3; Box 3521 P. O., Box 2357 Etters, PA 19603 Harrisburg, PA 17120 Honorable Mark Cohen Walter W. Cohen 512 D-3 main Capital Building Consumer Advocate Harrisburg, PA 17120 Dept. of Justice Strawberry Square 14th Floor Harrisburg, PA 17127 Mr. Thomas Germine John Levin, Esq.
Deputy Attorney General Pennsylvania Pubic Division of Law - Room 316 Utilities Commission 1100 Raymond Boulevard Box 3265 Newark, NJ 07102 Harrisburg, PA 17102 Allen R. Carter, Chairman Jordon D. Cunningham,.Esq.
Joint Legislative Fox, Farr and Cunningham Committee on Energy 2320 N.
2nd Street Senate Gressette Building Harrisburg, PA 17110 Suite 513 Columbia, SC 29202 Mr. Robert Q. Pollard Ms. Louise Bradford 609 Montpelier Street Three nile Island Alert Baltimore, MD 21218 315 Pfeffer Street Harrisburg, PA 17102 (Express Mail)
Dr. Chauncey Kepford Ellyn R. Weiss, Esq.
Ms. Judith H. Johnsrud Harmon & Weiss Environmental Coalition 1725 K Street, N.W.
on Nuclear Power Washington, D.C.
20006 43 Orlando Avenue State College, PA 19808 Ms. Frieda Berryhill, Chairman Mr. Steven C.
Sholly Coalition For Nuclear Power Union of Concerned Plant Postponment Scientists 2610 Grendon Drive 1725 I Street, N.W.
Wilmington, DE 19808 Suite 601 Washington, D.C.
20006 Ms. Gail Phelps Prof. Gary L. Milhollin ANGRY 1815 Jefferson Street 245 W.
Philadelphia St.
Madison, WS 53711 York, PA 17401 (Express Mail)
Atomic Safety and Atomic Safety and
. Licensing Appeal Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Secretary William S. Jordon, III, Esq.
U.S. Nuclear Regulatory
.Harmon & Weiss ATTN:
Chief, Docketing 1725 I Street, N.W.
& Service Br.
Washington, D.C.
20006 Washington, D.C.
20555 (Hand delivery) (3 copies)
The Christic Institute Lucinda Low Swartz, Esq.
ATTN:
Mr. John Clewett Ofc. of the Executive 1324 N. Capitol Street Legal Director Washington, D.C.
20055 U.S. Nuclear Regulatory (Hand delivery)
Commission Washington, D.C.
20555 (Hand delivery) 2 Michael F. McBride 1
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