ML20057B782
| ML20057B782 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/25/1983 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-83-298, NUDOCS 9309240001 | |
| Download: ML20057B782 (17) | |
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'S RULEMAKING ISSUE (Notation Vote)
July 25, 1983 SECY-83-298 i
For:
The Commission From:
James A. Fitzgerald Assistant General Counsel i
Subject:
FOIA APPEAL 83-A-13 (DEVINE)
Discussion:
By letter dated June 16, 1983, Thomas Devine of the Government Account-ability Project (GAP) appealed the NRC response to FOIA-83-77, GAP's Feb-ruary 8, 1983 Freedom of Information Act (FOIA) request for material relating to contacts between NRC and Cincinnati Gas
& Electric Company or Bechtel Corpora-tion regarding the independent audit at l
Zimmer Nuclear Power Plant.
The NRC's initial response, dated May 16, 1983, released 31 documents and withheld three in part and three, including two Office of Investigations (OI) reports on Zimmer, in their entirety.
Mr. Devine's appeal focused on the two OI reports and the failure to identify background documentation related to one of the OI reports (re allegations regarding the presence of Bechtel on site prior to November 1982).
CONTACT:
Richard A.
Parrish, OGC laiormf:03 in this leerd nn dMeted 4-3224 ia :::cmdane z;lh the Fredom of inictmation i
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Recommendation:
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Attachments:
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2/8/83 FOIA request 2.
5/16/83 response by NRC 3.
6/16/83 FOIA appeal 4.
Draft Response commissioners' comments or consent should be provided directly i'
to the Office of the Secretary by c.o.b. Wednesday, August 10, 1983.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wedne.3 day, August 3, 1983, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and. comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
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, GOVERNMENT ACCOUNTABILITY _ PROJECT f
. Institute for Policy Studies 1901 Que Street, N.W., Woshington. D.C. 20009 (202)234 9382 ]
i February 8, 1983 FREEDOM OF INFORMATION i ACI REQUESE I
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Director Office of' Administration
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-Nuclear Regulatory Commission i
Washington, DC 20555 4
To Whom It May' Concern:
i Pursuant to the Freedom of Information Act, 5 U.S.C.5552, I request a copy of all. documents mentioning,sconcerning, related l
or' referring to contacts between the Nuclear Regulatory Commission j
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("NRC"), including but not limited to NRC Region III staff, and
.the Cincinnati Gas.& Electric Company or the Bechtel Corporation-
'l or' any Bechtel company concerning a third party audit or third j
party review of the Zimmer Nuclear Power Plant.
" Contact" means i
in this context any oral or-written communication, discussion, I
telephone call, meeting, or other coincidence.of persons.
If any. documents responsive to this request existed at one time but no longer exist, please identify all such documents and j
the reason (s) for their removal or destruction, or describe the j
i circumstances under which such documents ceasec' to exist.
- N.,
.,_w I am requesting these records as part of an ongoing monitoring.
project concerning the adequacy of the Commission.'s efforts to protect the public health and safety.
Thereforg I' request that you, waive all search fees and copying fees which may be incurred to answer this request, since it benefits the general public.
f The Freedom of Information Act requires that this request be answered within ten (10) days.
Failure to answer the' request within this period will be considered an effective denial.
Thank you in advance for your attention to this matter.
i Sincerely Yours, 7
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'~ x...LA Lynne Bernabei Staff Counsel 1
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May 16,1983 Docket No. 50-358 Ms. Lynne Bernabei Staff Counsel Government Accountability Project Institute for Policy Studies ;
1901 Que Street, N.W.
IN RESPONSE REFER Washington, DC 20009 TO FOIA-83-77 4
Dear Ms. Bernabei:
s This is in response to your letter dated February 8,1983 in which you requested, pursuant to the Freedom of Infomation Act, copies of all docunents mentioning, concerning, related or referring to contacts between the Nuclear Regulatory Comission (NRC), including but not limited to NRC Region III staff, and the Cincinnati Gas & Electric Company or the Bechtel Corporation or any Bechtel company concerning a third party audit or third party review of the Zimer Nuclear Power Plant.
In a telephone conversation on March 10, 1983 with Mrs. Pappas, of. rqy staff,*she informed you we are waiving search and copying fees on the enclosed documents.
You also' agreed to an extension of time on your request.
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The documents as listed on Appendix A have already been made available for public inspection and copying at the NRC Public Document Room (PDR),
1717 H Street, N.W., Washington, DC 20555.
There is no fee for inspecting documents at the PDR. The charge for reproducing records located in the PDR is five cents ($0.05) per,page, as specified in 10 CFR 9.14(a).
If"you do not wish to visit the PDR to inspect or copy these records, you may obtain copies by calling (634-3273) or writing directly to the PDR. Upon your agreement to pay the copying charges, the PDR will arrange for the record to be copied by a private contractor servicing the PDR.
You sill be billed by the private contractor for copying charges, plus tax and postage.
Please find enclosed 25 docum'nts as listed on Appendices B, C, and D e
which pertain to your request.
Portions of docunents 1, 2, and 3 as listed on Appendix D are being withheld pursuant to the exemptions cited.
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The three documents as lisced.on Appendix E are being withheld in their entirety pursuant to the exemption cited.
8 Information being withheld pursuant to exemption (6) consists of names, addresses, and telephone numbers of references and notes taken during l
reference checks the disclosure of which would constitute a c.learly unwarranted invasion of personal privacy. This information is being withheld from public disclosure pursuant to exemption (6)(6) of the of the Freedom of Information Act (5 U.S.C. 552(b)(6)) and 10 CFR 9.5(a)
Commission's regulations.
Infomation being withheld pursuant to exemptions (7)(A) and (C) would interfere with an enforcement proceeding and would also constitute an unwarranted invasion of personal privacy.
This information is being j
withheld from public disclosure pursuant to exemptions (7)(A) and (C) of i
the Freedom of Information Act' (5 U.S.C. 552(b)(7)(A) and (C)) and
'10 CFR 9.5(a)(7)(1) and (iii) _of the Comission's regulations.
Pursuant to 10 CFR 9.9 and 9.15 of the Conrnission's regulations, it has been determined that the information withheld is exempt from production i
or disclosure, and that.its production or disclosure is contrary to the -
public interest.
The persons responsible for the denial of documents 1 2, and.3 as listed on Appendix D and document 3 as listed on Appendix E I
are the undersigned and Mr. James G. Keppler, Regional Administrator, j
Region III.
The person responsible for the denial of documents l'and 2 i
as listed on Appendix E is Mr. Ben B. Hayes, Director, Office of Investigation.
The denials by Mr. Keppler and' ntyself may be appealed to the Executive Director for Operations within 30 days from the. receipt of this letter.
Any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Coninission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision".
The denial by Mr.
Hayes may be appealed within 30 days ta the Comission and should be address,ed to the Secretary of the Comission.
This completes action on your. request.
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Re:
FOIA-83-77 Appendix A Documents In The Public Document Room 1.
11/10/82 Letter Dickhoner to Commissioners - Accession No. 8211150414 2.
11/26/82 Letter w/ enclosure Dickhoner to Keppler - Accession No. 8212270434 I
3.
12/28/82 Letter w/ enclosure Keppler to Dickhoner - Accession No. 8301040760 4.
1/10/83 Letter w/ enclosure Dickhoner to Keppler - Accession No. 8302010575
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5.
1/31 / 83 Letter w/ enclosure Dickhoner to Keppler - Accession No. 8302080169 6.
Summary of the document entitled, "Zimmer NPS - Allegations Regarding the Presence of Bechtel Representatives prior to November 1982" 7.
2/11/83 Letter Devine to Dircks w/ enclosures - Accession No. 8302170294 8.
1/31/83 Letter to Palladino from Devine w/ attached Affida'vit and ltr dtd 1/31/83 to Udall from Devine - Accession No.
8302070522 9.
3/16/83 Memorandum for Keppler, from Hayes, "Zimmer NPS - Allegations Regarding the Presence of Bechtel Representatives Prior to November,1982" Accession No. 8304040422 6
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Re:
F01A-83-77 Appendix B Documents Enclosed and Being Placed In The Public Document Room and Local Public Document Room 1.
11/24/82 Memo for Region III Files from Stephen H. Lewis re:
November 17, 1982 Meeting of Region III with Cincinnati Gas & Electric and Bechtel Regarding CLI-82-33, " Order to Show Cause and Order Immediately Suspending Construction".
2.
1/7/83 Memo for the File (Zimmer) from Guy H. Cunningham re: Meeting with W. H. Dickhoner, GC&E.
(1 page) (Enblosures listed on Appendix D) l 3.
1/14/83 Letter to James Hiller from George B. Jones re: Resume for Park A. Dallis.
(4 pages) 4.
1/20/83 Letter to James Keppler from Thomas Devine re: Meeting on Cincinnati Gas and Electric's (CG&E) Proposal of the Bechtel Corporation to Administer the Third Party Program at the Zimmer Nuclear Power Station w/ attachments.
(11 pages) 5.
1/25/83 Memo for Hudson Ragan from Stephen H. Lewis re: Reouest for Legal Opinion on Conflict of Interest (Zimmer) (2 pages) w/ attachment:
6.
1/26/83 Zimmer - Questions Raised by HRC.
(1 page) 7.
2/10/83 Memo for R. L. Warnick from J. R. Miller re: Proposed Bechtel Team.
(1 page) 8.
~2/17/83 Memo for William J. Dircks from James G. Keppler re: Zimmer -
Letter to Chairman Palladino from GAP Protesting the Manner in which Region III-is~ Reviewing CG&E's Proposal to have Bechtel Conduct the Zimmer Management Review w/ attachment.
(9 pages) 9.
2/22/83 Memo for T. A. Rehm from R. F. Warnick re: Region III Input for Response to Congressman Udall's February 14, 1983 Letter to Chairman Palladino w/ enclosures.
(9 pages) 10.
2/10/83 Memo for Chairman Palladino from William J. Dircks re:
Zimmer Independent Management Review Plan.
(20pages)
I 11.
2/18/83 Memo for William J. Dircks from Nunzio J. Palladino re:
Management Review of Zimmer Project, w/ ettsched. memo fm Gilinsky, dt-2/17/83; memo fm Ahearne dtd 2/15/83; memo fm Asselstine dtd 2/17/83; memo fm Palladino dtd 2/18/83.
(5 pages) i e
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Re:.F01A-83-77 l
4 Appendix B
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Documents Enclosed and Being Placed In The Public Document Room j
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and Local Pbblic Document Room-12.
1/13/83 Memo for The Chairman and The Comissioners from Victor.
Gilinsky re: Bechtel's Role at Zimmer.
(1 page) 13.
2/7/83 Memo for William J. Dircks from James G. Keppler. re:
Zimer Independent Management Review: Background Correspondence w/ attached 1/10/83 Letter to James Keppler from W. H..Dickhoner
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and 1/5/83 Letter to W. H. Henry from John F. McGuinn re:
Underwriting Involvement with the Owners of the Zimmer Project, (5 pages) i 14.
2/7/83 Letter to.J. Bruce Suits from James G. Keppler re: Selecting.
. l w/enclosurcs (1)gement Review Entity for the Zimmer Project Independent Mana Memo to RIII Files from S'. H. Lewis dated 11/24/82 (2) Letter to Keppler from CG&E dated 11/18/82 (3) Letter to Keppler from CG&E dated 11/22/82 (4) Letter to i
CG&E from Keppler dated 11/30/82 and (5) Memo' to RIII Files-3 from S. H. Lewis dated 12/01/82 and letter to Keppler from Sutts, 1/10/83.
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f01A-83-77 s.
Appendix C DRAFTS - Documents Enclosed and Being Placed in the Public Dncument Room and Local Public Document Room 1.
Undated Draft - Communications Between and Among CG&E, Independent I
Management Reviewer (Bechtel) and Independent Overviewer.
(3 pages) 2.
2/1/83 Draft - Letter to W. H. Dickhoner from James G. Keppler. re:
Review of CG&E's Management of the Zimmer Project.w/ enclosures.
(17 pages) 3.
Undated Drafts - Letter to W. H. Dickhoner from James G. Keppler re:
Review of CG&E's Management of the Zimmer Project w/ enclosures.
(31 pages) 4.
Unda'ted Draft - Letter in W. H. Dickhoner from J. G. Keppler re:
Proposed that Br chtel Power Corporation (Bechtel) be Retained as the Independent Droanization to Conduct the Review of CG&E's Management of the Zimier Project.
(1 page)
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- 5. ' Undated Drafts - Communications Between and Among CG&E, Independent Management Reviewer and Third Party Overviewer.
(21 panes) 6.
Undated Draft - Staff Evaluation of Cincinnati Gas & Electire Co. -
Proposal to Conduct the Review of the Manacement of the Zimmer Project in Accordance with Section IV.B(1)(a) of the Commission's November 12,1982 Order.
(73pages)
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7.
Undated Draft Memo for Chariman Palladino from William J. Dircks re:
Zimmer Independent Management Review Plan w/ attachments (20 pages) 8.
2/3 Routing and Transmittal Slip to Steve Lewis from Bert Comments on Tom T;ehm's l etter w/ attachment.
(3pages) 9 h
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Re:
APPENDIX D Portions of Documents Withheld 1.
1/24/83 Letter to James J. Keppler from Thomas' Devine w/ attached Affidavit (8 pages) - 7 page Affidavit Withheld -
Exem',otion 7(A) 2.
1/3/83 Letter to Jares G. Keppler from W. H. Dickhoner re: Bechtel Power Corporation Independent Review of the Management of the Zimmer Project w/ enclosed Bechtel proposal dated November 8,1982; List of CG&E - Bechtel Off-Site Meetings;
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List of Site Visits bp Bechtel Personnel; and Bechtel's Response to Questions B anc C dated December 29, 1982.
Contractformsnotwithdocument."
(64 pages) - Exemption 6 3.
11/23/82 Various Handwritten Notes on Partial Resumes (5 pages) -
Exemption 6.
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Re:
F01A-83-77 APPENDIX E Documents Withheld in Their Entirety EXEMPTIONS r
1.
3/16/83 The report entitled "Zimmer NPS - Allegations Regarding
'7(A) the Presence of Bechtel Representatives prior to November i
1982" 2.5 - 12/7/82 Report of Investigation - William H. Zimmer Nuclear Power 7(A)
Station - Allegations Regarding Quality Assurance Program and Construction Practices 3.
2/23/83 Memo for E. C. Gilbert from D. R. Hunter re: Fact-Finding 7(A)'.& (C?
Inquiry Regarding Early Involvement of Bechtel at Zimer Site w/ attached memo to D. R. Hunter from W. F. Christianson dated 1/27/83 (4 pages) i I
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'UOVERNMENT ACCOUNTABILITY PROJECT Institute for Policy Studies (202)234-9382 1901 Que Street. N.W. Washington. D.C. 20009 June 16, 1983 Mr. Samuel J. Chilk Executive Secretary Office of Admin.
Nuclear Regulatory Commission Washington, D.C. 20555 Re: FOIA 83-77
Dear Mr. Chilk:
This is an appeal pursuant to subsection (a) (6) of the Freedom of Information Act (FOIA), 5 USC 552) of Mr. J.M. Felton's partial denial of the February 8, 1983 FOIA request submitted by Ms. Lynne Bernabei on behalf of the Government Accountability Project (GAP).
More specifically, we appeal the denial of documents withheld pursuant to exemption 7 (A) as identified in Appendix E of the May 16 letter. We further appeal the failure to identify relevant agency records obtained during the investigation for the report entitled "Zimmer-NPS Allegations Regarding the Presence of Bechtel Representatives prior to November 1982" (Zimmer Bechtel j
Report).The Zimmer Bechtel Report is identified in the May 16 letter as document il, Appendix E.
The records identifiediand withheld pursuant to exemption 7 (A), appear to consist of agency reports and memoranda responding to allegations that arose from a GAP investigation.
GAP's client the Miami Valley Power Project (MVPP) charged that Cincinnati Gas and Electric Company (CG&E) and the Bechtel Corporation communicated about the Zimmer nuclear power station before the dates disclosed by CG&E to the NRC.
Although these records are being withheld because disclosure "would interfere with enforcement proceedings,"
GAP is not aware of any open enforcement proceedings on the allegations.
Indeed, the documents re16ased already indicated conclusively that the Office 'of Investigations had found no merit to the charges.
If the case on CG&E's communications with Bechtel has been c hsed and no enforcement proceeding is contemplated, exemption 7 (A) does not apply.- The 1974 amendment to the FOIA was aimed speci-fically at eliminating exemption 7 from matters relating to closed files. NERB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978); Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854 (D.C.. Cir.
1980).
In short, if the NRC has finished its proceedings GAP is entitled to and seeks the investigative basis for the finding of no false statements.
Even if enforcement action is still under consideration, the The courts have held that there is no records should be released.
harm to enforcement proceedings when potential defendants already have access to the information.
Coastal States Gas Corp. v.
Department of Enercy, 617 F. 2d at 870; Education /Instruccion Inc.
- v. HUD, 471 F. Supp. 1074 (D. Mass.1979).
If CG&E and Bechtel
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Mr. Samuel Chilk June 16, 1983 page 2 communicated with each other prior to the date they disclosed, they.must have been aware of it.
At a minimmm, government must de.monstrate the ways that disclosure will interfere with the proceeding at issue.
The burden of specificity is inten-sified when the target already has access to the contents.
Campbell
- v. Department of Health and Human Services, 682 F. 2d 256 (D.C.
Cir. 19 8 2).To date, there has been no attempt to explain how disclosure of the OI findings would interfere wid1 anything.
i GAP further appeals the failure to identify any d6cuments gathered during the OI probes into the charge of false statements.
These records are covered by the' original request as "concerning" and "related to" the NRC's communications with CG&E and Bechtel.
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The request includes all relevant agency records, including drafts reports.
If these documents are to be withheld, they must be indexed and the decision justified.
Vaughn v. Rosen, 484 F.
2d 820 (D.C. Cir. 19 73), cert. denied, 415 U.S. 977 (1974), Applegate v.
NRC, No. 82-1829 (D.D.C. May 24, 1983).
It is inconceivable that 01 made its investigative conclusions without an investigative file and draft reports.
As provided in the Act, we will expect to receive a reply to this administrative appeal within twenty working days.
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Sincerely, i
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Thomas Devine Legal Director
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