ML20054M212
| ML20054M212 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Hartsville, Phipps Bend |
| Issue date: | 06/29/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Tyrus Wheeler PETTIT & MARTIN |
| Shared Package | |
| ML20054M213 | List: |
| References | |
| FOIA-82-20, FOIA-82-A-5C NUDOCS 8207120100 | |
| Download: ML20054M212 (1) | |
Text
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'o UNITED STATES g '
".7, NUCLEAR REGULATORY COMMISSION g.,
eg' WASH ING T ON, D.C. 20555
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June 29, 1982 OFFICE OF THE SECRETARY Mr. Thomas C. Wheeler Pettit & Martin 1800 Massachusetts Avenue, N.W.
Washington, D.C.
20036 Re: FOIA Appeal 82-A-5C (82-20)
Dear Mr. Wheeler:
In response to your May 14, 1982 " Appeal from Initial F0IA Decision; F01A-82-20," the Commission has reviewed the two documents in question which had been withheld pursuant to Exemptions (5) and (7)(A) of the Freedom of Information Act (5 U.S.C. 552(b)(5) and (7)(A) and 10 CFR 9.5 and (7)(i)). The Connission has determined that these two memoranda entitled, " Memo from Resner to File,.
Subject:
Atlas Machine and Iron Works," dated November 9, 1981 and January 13, 1982, may now be released. The two documents are enclosed.
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Requested Mr. William J.
Dircks Executive Director for Operations APPEAL DE IN!IIAL FOIA DECISIOM.
U.S. Nuclear Regulatory Commission D - S S E. O N O Washington, D.C.
20555
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Re:
Appeal from Initial FOIA Decision; FOIA-82-20
Dear Mr. Dircks:
On January 19, 1982, in accordance with the Freedom of In-formation Act, 5 U.S.C. S 552, and your agency's implementing regulations, 10 C.F.R. S 9.3 et seq. (1981), I requested cer-tain documents regarding Atlas Machine & Iron Works, Inc.,
Gainesville, Virginia (hereafter referred to as "the Compa-ny").1/
By letter dated April 27, 1982, Mr.
J. M.
- Felton, Director of the Division of Rules and Records, Office of Ad-ministration, and Mr. James P. O'Reilly, Regional Administra-tor, Reg ion II, denied in part the request for documents.2/
In particular, the original FOIA request (FOIA-82-20) sought:
4.
All documents prepared by any employee of the NRC in response to, relating to, or commenting upon any document referenced in Categories 1, 2, or 3 above.
1/
A copy of the January 19, 1982 FOIA request is at-tached as Exhibit 1.
'e 2,_/
A copy of the NRC's partial denial of FOIA request FOIA-82-20, dated April 27, 1982, is attached as Exhibit 2.
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PETTFr & MARTIN Mr. William J.
Dircks May 14, 1982 Page 2 Categories 1, 2, and 3 pertained to reports or documents of any kind submitted to the NRC by the Tennessee Valley Authori ty under 10 C.F.R.
S 50.55 (e) or 10 C.F.R. Part 21 regard; g the Company's performance and quality assurance program and proce-dures on TVA nuclear construction projects located at Harts-ville or Phipps Bend, Tennessee.
Mr. J. M.
Felton, Director, Division of Rules and Records, Office of Administration and Mr.
James P.
O'Reilly, Regional Administrator, Region Il denied the aforementioned document request in part, stating:
. The NRC is withholding from public disclosure the remainder of its investiga-tive file, not otherwise identified above, entitled Investigative Case File 2F038 -
Subject:
Atlas Machine and Iron Works.
This file consists of approximately 20 pages of memoranda, notes, and records of conver-sations.
. This information is being withheld f rom public disclosure pursuant to Exemptions (5) and (7) ( A) of the Freedom of Information Act (5 U.S.C.
552 (b) (5) and (7) (A) ) and 10 C.F.R. 9.5 (a) (5) and (7) (i) of the Commission's regulations, because disclosure of the information would inter-fere with an ongoing enforcement proceeding or because the information consists of pre-decisional advice, opinions, and recommenda-tions.
For the reasons given below, the denial of this request for documents is improper.
Pursuant to 10 C.F.R.
S 9.11(a), it is requested that to the extent this FOIA request has been denied, the denial be reversed and the materials requested be promptly furnished.
I.
THE INFORMATION SOUGHT IS NOT EXEMPT UNDER 5 U.S.C. S 552(b)
A.
Exemption (b) (5) Does Not Protect the Requested Documents From Disclosure Under FOIA.
Exemption (b) (5) protects from disclosure under FOIA
" inter-agency or intra-agency memoranda or letters which would not be available by law to a party.
in litigation with the agency."
5 U.S.C. S 552(b) (5).
The House Report on FOIA, H.R.
Rep. No. 1497, page 10, explains this exemption as follows:
~.
PETTri & MARTIN Mr. William J.
Dircks May 14, 1982 Page 3 Thus, any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public.
Since the civil rules of discovery govern the scope of Exemp-tion (b) (5), Tennessean Newspaper, Inc.
v.
F.H.A.,
464 F.2d 657 (6 th Cir. 1972), it is significant that Rule 26 (b) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.,
as amended, pro-vides that:
- Parties may obtain discovery regard-ing any matter, not privileged, which is relevant to the subject matter involved in the pending action.
The Supreme Court narrowly interpreted the protective scope i
of Exemption (b) (5) in N.L.R.B.
- v. Sears Roebuck & Co.,
421 U.S.
132, 149 (1975), stating:
It is reasonable to construe Exemption 5 to exempt those documents, and only those doc-uments, normally privileged in the civil-discovery context.
[ Emphasis added).
As a result, in addition to the policy of disclosure which underlies FOIA, the policy favoring broad dis-covery in civil litigation also limits the application of Ex-emption (b) (5).
Accordingly, the only documents protected from disclosure are those ".
. which would not be available to any party in any litigation in which the agency having the records might be involved."
Verrazzano Trading Corp. v. United States, 349 F. Supp. 1401, 1405 (U.S. Cust. Ct. 1972).
In E.P.A. v. Mink, 410 U.S.
73, 80 (1972), the Supreme Court held that unclassified inter-agency or intra-agency advi-sory opinions in possession of the Government were exempted f rom disclosure under Subsection 552 (b) (5) of FOIA only to the extent that they would have been so exempt in discovery.
In its decision, the Court stated that:
l
. memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally l
PETTrr & MARTIN Mr. William J. Dircks May 14, 1982 Page 4 be available for discovery by private par-ties in litigation with the Government.
[ citation omitted]
. We must assume, that Congress legislated against the backdrop of this case law, particularly since it expressly intended "to delimit the exception [5] as narrowly as consistent with efficient Government operation."
S. Rep.
No. 813, p. 9.
See:
H.R.
Rep. No. 1497, p.
10.
The Court recognized a distinction between " materials reflect-ing deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other."
410 U.S.
at 89.
See also, Soucie v. David, 448 F.2d 1067 (D.C.
Cir. 1971) (Exemption 5 did not encompass purely f actual or in-vestigatory reports).
Even if a requested document is pre-decisional, as has been alleged in the instant case, "the privilege applies only to the
' opinion' or ' recommendatory' portion of [a document], not to factual information which is contained in the document."
Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980).
Consequently, facts in a pre-decisional doc-ument must be disclosed unless they are " inextricably inter-twined" with exempt. portions.
Ryan v. Department of Justice, 617 F.2d 781, 790-91 (D.C. Cir. 1980); Mead Data Central, Inc.
v.
Department of the Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977).
Courts have been rigorous in requiring agencies to dis-close non-exempt facts, severed from exempt deliberative mate-rials.
Exxon Corp. v.
F.T.C.
(I), 466 F.
Supp. 1088, 1097-99 (D.C. Cir. 1978), aff'd., No. 79-1995 (D.C. Cir. Oct. 3, 1980).
To summarize, in construing Exemption (b) (5), the Supreme Court has recognized a distinction between " materials reflect-ing deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other."
- v. Mink, supra, 410 U.S.
at 89.
In light of these authorities, to the ex tent the requested documents contain factual mate-rials, the NRC is required under FOIA to disclose the factual, investigative materials contained in Investigative Case File 2F038, " Atlas Machine & Iron Works, Inc."
PETTIT & MARTIN Mr. William J.
Dircks May 14, 1982 Page 5 B.
Exemption 7 Does Not Protect the Requested Documents From Disclosure Under FOIA.
Exemption 7 (a) provides that FOIA does not apply to matters that are:
investigatory records compiled for law en-forcement purposes, but only to the extent that the production of such records would (a) interfere with enforcement proceedings Exemption 7 imposes a duty on the Government to demonstrate that the information relates to a pending or prospective law enforcement proceeding.
N.L.R.B.
- v. Robbins Tire & Rubber Co.,
437 U.S.
214 (1978); Carson v. Department of Justice, 631 F.2d 1008 (D.C. Cir. 1980); Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854 (D.C. Cir. 1980).
In the instant case, there has been no indication or evidence of imminent law en-forcement proceedings by the NRC against TVA or Atlas.
- Indeed, we understand that all work on TVA's nuclear construction proj-ects at Hartsville and Phipps Bend, Tennessee has been termi-nated and deferred indefinitely, further eliminating the need-for immediacy in any law enforcement proceedings.
Disclosure of the requested documents would not interfere with enforcement proceedings or in any way impede the NRC's investigation.
Accordingly, NRC investigative Case File 2F038 must be disclosed under FOIA.
II.
SUMMARY
For each of the reasons given above, it is requested that the NRC's April ~27, 1982 denial of the FOIA request be reversed pursuant to 10 C.F.R. S 9.11 and the requested documents be furnished promptly.
In accordance with 5 U.S.C. S 552 (a) (6) (A)
(ii) and 10 C.F.R.
S 9.ll(b), I expect your decision within twenty days of your receipt of this appeal.
Since the agency's initial response to my request was not completed until April 27, 1982 (over three months f rom the date of my request), no additional time extensions are available.
10 C.F.R. S 9.13 (c).
.PETTIT & MARTIN Mr. William J.. Dircks May 14, 1982 Page 6 Thank you in advance for your prompt attention to.this appeal.
Sincerely, i
/,
G,_i~; /- (l, s. s - t,-
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. Thomas C. Wheeler of Counsel:
Joan R.
Gitelman PETTIT & MARTIN 1800 Massachusetts Ave., N.W.
Suite 600 Washington, D.C.
20036 TCW/JRG/sv Attach. (2)
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i Exhibit 1 PETTIT & MAM ilN SAN FTRANC@CO OFF1CE EAN FRANC C C er RN A 94,ii ATTORNEYS AT LAW to, ANocuc, o,,,c, 2049 CENTURY PARM EAST m e s a s.ues =,..,o A *TNE"5M'" '"CLucina pnor tsssowaL compomaisows n.aas 1800 M ASS ACHUSETTS AVENUE. N.W.
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.g T E L E C OPeE R: s20,2p 78S 5153 SAN JOSE. CAL #ORNIA 95113 ance a.+see (202) 785-5153 LONDON OFT 1CE THOMAS C. WHEELER Ad REEVES Mews LONO N WLENGLAND January 19, 1982
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CERTIFIED MAIL RETURN RECEIPT REQUESTED Mr. Daniel J. Donoghue Director Office of Administration U.S. Nuclear Regulatory Commission Washington, D.C.
20555 t.
Re:
Freedom of Information Act Request
Dear,
Mr. Donoghue:
Pursuant to the Freedom of Information Act, 5 U.S.C. S 552, and your agency's implementing reg-ulations, 10 C.F.R. S 9.3 et seq. (1981), I hereby request copies of each of the following documents regarding Atlas Machine & Iron Works, Inc., Gaines-ville, Vir Company") : ginia (hereinaf ter referred to as "the
}
)
1.
All written reports submitted to the NRC by the Tennessee Valley Authority under 10 C.F.R. S 50.55(e) or 10 C.F.R. Part 21 regarding alleged deficiencies in the Company's performance on nuclear construc-tion projects located at Hartsville or Phipps Bend, Tennessee.
2.
All documents submitted to the NRC by the Tennessee Valley Authority regarding the Company's quality assurance program or procedures.
)
3.
All other documents of any kind submitted to the NRC by the Tennessee Valley Author-ity evaluating or commenting upon the Company's performance on nuclear construc-tion projects located at Hartsville or Phipps Bend, Tennessee, i
l
PETTIT & MARTIN Mr. Daniel J. Donoghue January 19, 1982 Page two 4.
All documents prepared by any employee of the NRC in response to, relating to, or commenting upon any document re'erenced in Categories 1, 2, or 3 above.
5.
All documents or lists maintained by the NRC regarding the Company's eligibility to participate on nuclear construction projects, or the Company's acceptability as a supplier of fabricated steel struc-tures for nuclear construction projects, In accordance with 10 C.F.R.
S 9.14, I agree u,
to pay the applicable fees for the processing of this request.
If you have any questions, please call me at 785-5153.
Your attention to this request is appreciated.
Sincerely, r
n
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Thomas C. Wheeler TCW:sv
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Exhibit 2
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UNITED STATES ey g
NUCLEAR REGULATORY COMMISSION I
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-y WASHINGTON, D. C. 20555 PETTIT & MARTIN i Y ' d~)- [f L April 27, 1982 Thomas C. Wheeler, Esquire s
Pettit & Martin 1800 Massachusetts Avenue, N.W.
Washington, DC 20036 IN RESPONSE REFER TO FOIA-82-20
Dear Mr. Wheeler:
This is in further reply to your letter dated January 19, 1982, in which you requested, pursuant to the Freedom of Information Act, copies of five categories of documents concerning the Atlas Machine & Iron Works Inc., Gainesville, Virginia.
4 The following responds to each category of your request:
1.
Reports submitted to NRC by TVA under 10 CFR Part 21 or f50.55(e)
Appendix A contains a list of applicable documents which are already in the NRC Public Document Room (PDR) or which are being placed in the PDR.
Note that although the five inspection 21 or f50.55(e). reports concern Atlas, they do not specifically refer to Part 2.
Documents submitted to NRC by TVA regarding Atlas' quality _
assurance program or procedures There are approximately 1,300 pages of exhibits in the TVA
- v. Atlas Machine and Iron Works, Inc. litigation which have been provided to NRC.
Atlas already has copies of these documents, and additional copies are not being provided here.
3.
All other documents submitted to NRC by TVA Aphendix B lists 27 construction details drawings prepared by C. F. Braun and Company for GE/TVA.
that Atlas should have copies of all of these drawings.It is our' und addition, the following document is enclosed:
In C. F. Braun and Co/ General Electric /TVA Contract Specification 300-44 dated 2/25/77 with Field Change Requests 625 and 433
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Thomas C. Wheeler, Esquire 1 We are consulting with TVA on one other document, and will advise you subsequently of our. determination.
4.
All documents prepared by NRC The documents listed on Appendix C are enclosed.
The NRC is withholding from public disclosure the remainder of its investigative file, not otherwise identified above, entitled Investigative Case File 2F038 -
Subject:
Atlas Machine and Iron Works.
This file consists of approximately 20 pages of memoranda, notes, and records of conversations.
the two documents listed on Appendix D.In addition, we are withholding This information is being withheld from public disclosure pursuant to Exemptions (5) and (7)(A) of the Freedom of Information Act (5 U.S.C.
552(b)(5) and (7 (A)) and 10 CFR 9.5(a)(5) and (7)(1) of the Commission's regu)lations, because disclosure of the info would interfere with an ongoing enforcement proceeding or v.
because the information consists of predecisional advice, opinions, and recommendations.
5.
Eligibility lists to participate on nuclear construction projects The NRC does not maintain vendor eligibility lists to participate on nuclear construction projects.
pursuant to 10 CFR 9.9 and 9.15 of the Commission's regulations, it has been determined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest.
The persons responsible for the denial of this case file are the undersigned and Mr. James P. O'Reilly, Regional Administrator, Region II.
The person responsible for the denial of the documents listed on Appendix D is Mr. James J. Cumings, Director, Office of Inspector and Auditor.
The denial by Mr. O'Reilly and myself may be appealed to the Commission's Executive Director for Operations within 30 days from the receipt of this letter.
As provided in 10 CFR 9.11, any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the cw.i' ope and in the letter that it is an " Appeal from an Initial FOIA Decision."
The denial by Mr. Cummings may be appealed to the Commission and should be addressed to the Secretary of the Comission.
Si ere1,
J. M.
e to, Director Division of Rules and Records Office of Administration
Enclosures:
As stated l
(
Re: Fr '-82-20 T
Appendix A Letters from L. M. Mills (TVA) to J. P. O'Reilly (NRC) dated 1.
6/4/80 HTN-QEB 80-01, PBN QEB 80-01 (2 pages) 2.
9/19/80 HTH QEB 80-01, PBN QEB 80-01 (1 page) 3.
12/18/80 HIN QEB 80-01, PBN QEB 80-01 (3 pages)
- 4. '4/27/81 HTRD-50-518/81-10 (2 pages) 5.
6/2/81 HTRD-50-518/81-10 (3 pages) 6.
6/17/81 HTRD-50-518/81-13, -520/81-11 (2 page?;)
7.
6/18/81 PBRD-50-553/81-14 (2 pages) 8.
9/22/81 HTRD-50-518/81-13, -520/81-11 (3 pages)
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9.
10/1/81 HNP-A-087, HNP-A-108, HNP-A-109, HNP-A-ll5, and SX-19 (1 page) 10.
10/9/81 HTRD-50-518/81-13, -520/81-11 (3 pages) ll, 10/30/81 PBRD-50-533/81-14 (1 page) 12.
11/16/81 HTRD-50-518/81-13, -520/81-11 (1-page) 13.
12/10/81 HTRD-50-518/81-29, -519/81-22, -520/81-28, -521/81 !
PBRD-50-553/81-31, -554/81-24 (2 pages) 14.
1/26/81 HTRD-50-518/81-13, -520/81 PBRD-50-553/81-14 (3 pages)
Inspection Reports 15.
7/28/80 Report Nos. 50-518/80-13, etc. (7 pages) 16.
4/10/81 Report Hos. 50-518/81-05, etc. (8 pages) 17.
12/8/81 Report Nos. 50-518/81-21, etc. (5 pages) 18.
7/21/80 Report Nos. 50-553/80-10, etc. (12 pages) 19.
10/1/81 Report Nos. 50-553/81-07, etc. (10 pages)
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i Re: f' 4-82-20 Appendix B Twenty-seven Construction Details Drawings Prepared by C. F. Braun[.
and Company fnr GE/TVA
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- 18. Drawings entitled " Reactor Building Wall Embedded
_. i e
Details"
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3 Drawing No.
Rev Drawing No.
P,ev
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S-041 B 3
S-041 N 3
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S-041 P il S-041 D 5
S-041 R
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S-041 E 5
S-041 S 3
S-041 F 4
S-041 T 3
f S-041 H 3
S-041'u 1
S-041 J 3
S-041 W 3
'.I S-041 K 3
S-041 X 2
J S-041 M 3
S-041 Y l
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2 Drawings entitled " Reactor Buildin.g Drywell Wall Embedded Details" Drawing No.
Rev 1
l1 S-041 G 2
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J S-041 Z 0
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ij 2 Drawings entitled " Reactor Building Drywell Wall
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f Embedded Details" Drawing No.
Rev S-050 A 1
s S-050 B 2
1 Drawing entitled " Reactor Building Drywell Head Embedment" S-067 Rev. 2 u
3 Drawings entitled " Reactor Building, Shield Building Steam Tunnel Embedment" i
Drawing No.
Rev S-161 A 2
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S-161 B 2
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S-161 C 4
1 Drawing entitled " Reactor Island, All Building, New Structural Stehl Shapes" S-915 Rev. 1 i,
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Re: Ff
'.-82-20 Appendix C NRC Documents:
1.
5/13/80 Telephone Report by R.-W. Wright (1 page) 2.
5/13/80 Daily Report Entry.(1 page) 3.
Undated (should be 5/13/80) Form memo from C. E. Murphy Region II to Chief, Vendor Inspection Branch, Region IV (1 page) 4.
5/13/80 Action Item Control Form F02500124 (1 page) 5.
9/4/80 Memo from U. Potapovs, Region IV to C. E. Murphy, Region II (1 page) 6.
5/21/81 Daily Report Entries (1 page) i 7.
6/1/81
- Daily Report Entry (1 page) 8.
9/16/81 Memo from F to C. Alderson et. al. (1 page)
'9.
Undated, Inspector's Notes (2 pages) 10.
10/2/81 Memo from A. Herdt to C. Murphy (2 pages) 11.-
Undated Polaroid photographs of Hartsville containment including steam tunnel, access, and piping penetrations.
Copies
, of 14 low quality photographs (3 pages) o i
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Memo from Resner to File, Sdbject: Atlas Macnine and Iron Works
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