ML20058E155
| ML20058E155 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/22/1982 |
| From: | Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8207280075 | |
| Download: ML20058E155 (19) | |
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UNITED STATES OF AMERICA
,{g NUCLEAR REGULATORY COMMISSION
\\
Before the Atomic Safety and Licensing Board Off'CEOPSECREur 4
CD^fiTj9f; # 3Efr':
c:..%.i In the Matter of
)
)
The Cincinnati Gas & Electric )
Docket No. 50-358 Company, et al.
)
4
)
i (Wm.
H.
Zimmer Nuclear Power
)
Station)
)
APPLICANTS' ANSWER TO MOTION BY MIAMI VALLEY POWER PROJECT FOR A PROTECTIVE ORDER Preliminary Statement On July 8,
1982, Miami Valley Power Project ("MVPP")
filed a motion requesting a protective order permitting it to withhold from disclosure the identities of' affiants allegedly providing information supporting MVPP's new contentions filed in conjunction with its motion to reopen the proceeding.
If the motion were
- granted, these identities would be withheld from Applicants, the NRC Staff and other parties to the proceeding and apparently made known only to the Atomic Safety and Licensing Board
(" Licensing Board" or " Board"). -1/
Applicants oppose this request, which the Licensing Board should deny for several reasons.
First, the so-called
-1/
While it is unclear from the Motion for a Protective Order itself, MVPP has indicated in its Mo+. ion for Leave to File New Contentions (p.28) that it intends to disclose the identities to the Licensing Board.
8207200075 820722 PDR ADOCK 05000358 q)5o3
" informant's privilege" upon which the motion is based belongs exclusively to the Government, in this case the NRC, and is not a privilege available to private individuals or groups such as MVPP. Second, this Board does not sit as a Court of Star Chamber under the rules of the Commission, to hear evidence from secret witnesses.
Applicants have a right to meaningful discovery and are entitled to confront and examine adverse witnesses.
- Third, no factual basis whatsoever has been shown that current or former employees need fear retaliatory actions as a
result of any disclosures.
Although a number of Kaiser Engineering, Inc.
(" Kaiser") and Cincinnati Gas & Electric ("CG&E") employees were interviewed by the NRC in the preparation of its formal investigatory report, AVPP has not cited a single instance of alleged reprisals against these individuals.
Argument I.
Withholding the Identities of Adverse Witnesses from Applicants and other Parties is Unauthorized Under the Rules and Violates Applicants' Richt to Due Process.
Due process of law requires that an applicant in an NRC licensing proceeding have access to all information on an unqualified basis which wi21 be made a part of the record of the application.
An applicant must have the identities of any adverse witnesses and the full substance of their allegation in order to litigate its case and defend against any adverse assertions made by such individuals.
As the Supreme Court stated in Jenkins v.
McKeithen, 395 U.S.
- 411,
428 (1969),
"the right to confront and cross-examine witnesses is a
fundamental aspect of procedural due J' /
The Court reiterated this point in Goldberg process."
v.
Kelly, 397 U.S.
254, 269 (1970), stating:
"In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine witnesses."
In the latter case, the Court reaffirmed the basic principle it had earlier laid down in Greene v.
McElrcy, 360 U.S.
474, 496-97 (1959), where it had held:
Certain principles have remained relatively immutable in our juris-prudence.
One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
While this is important in the case of documentary
- evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be fuulty or who, in fact, might be perjurers or persons motivated by
- malice, vindictiveness, intolerance, prejudice, or jealousy.
We have fornalized these protections in the requirements of confrontation and cross-examination.
It would therefore be unthinkable to withhold the identities of witnesses from Applicant and Staff and thereby deny them the fundamental right to examine and cross-examine adverse 2/
See also Fitzgerald v. H a m t n o.a. :<7 F.2d 755 (D.C. Cir.
1972.
- witnesses.
Otherwise, misstatements and even outright mistruths would perforce go unchallenged.
- Moreover, Applicant has a right to meaningful discovery which, under the Commission's rules, is intended "to eliminate, insofar as possible, the element of surprise (and] to shorten the actual
- trial, with its attendant expense and inconvenience for all concerned, while increasing the parties' ability to develop a complete record for decisional purposes.,,
/
3 The question most recently arose in the South Texas proceeding, where the Appeal Board reversed the Licensing Board's order directing the Staff to disclose the names of informants to intervenors.
As the Appeal Board stated, the informant's identity must be dicclosed wherc " relevant and helpful to the defense of an accused, or essential to a fair determination of a cause."
4/
The Appeal Board also stated that in a licensing proceeding, the applicant, not the intervenor, is "the accused."
5/
obviously, Applicants cannot conduct a proper defense against any new contentions admitted by the Board if it cannot examine and cross-exactne its accusers at depositions and at a hearing.
Equally significant, MVPP indicates
- that, in additi n to its 3/
Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 321-22 (1980).
1 4/
South Texas, ALAB-639, 13 NRC at 473-74.
5/
Id. at 474.
. affiants'
- names, it also intends to withhold unspecified portions of the affidavits' suhstance constituting "all identifying information." -6/
Given the breadth of MVPP's allegations, deletions of substance from the affidavits may prove fatal to Applicants' ability to refute their charges.
Accordingly, the Licensing Board in the Fermi proceeding, where the petitioner, like
- MVPP, expressed concern about possible reprisals against its informants or proposed witnesses, made it clear that the applicant is entitled to learn the identities of all such persons. -7/
And in Allens Creek, while no protective order was deemed necessary to protect the identity of a member of the petitioner organization, the Appeal Board stated that, in general, any withhald information should be supplied to the Board and "one or more designated representatives of the other parties to the proceeding."
8/
-6/
MVPP Motion for Protective Order at 4.
- Moreover, nondisclosure of the identities of witnesses and the substance of their testimony would be inconsistent with the stated purpose of the Board in litigating quality assurance contentions to provide a public airing of these issues.
j/
Detroit Edison Company (Enrico Fermi Atomic Power
- Plant, Unit 2),
Docket No.
50-341,
" Memorandum and Order Ruling on Discovery and Scheduling Motions" (February 15, 1980).
8/
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-535 9 NRC 377, 400 (1979).
. In this instance, Applicants' use of such information cannot as a practical matter be qualified so as to limit its distribution to Applicants' attorneys and one or even a small group of other individuals.
MVPP has made broad charges in its eight admitted contentions which will be answerable only with the assistance and direct input of top management, mid-level supervisors and line personnel of both CG&E and its contractors.
As the Appeal Board stated in an analogous situation in the Midland proceeding, licensing cases are extremely complex and require the input of numerous experts:
[C]ounsel conducting the cross-examination of a witness or a panel of wi;nesses often needs the assistance of his own battery of experts.
[Iln our proceedings - as well as in complex litigation elsewhere - it is not usually the presence of any one person which counsel needs;
- rather, he needs the assistance of several experts, collec-tively skilled in all the topics under discussion.
The highly technical and complex nature of our proceedings will in many instances demand that counsel have a
number of expert assistants ready to aid him during cross-examination of other parties' witnesses.
9/
Accordingly, all of the information furnished in any affidavits filed by MVPP and the right to cross-examine must be available to Applicants on an unqualified basis.
9/
Consumers Power Cocoany (Midland Plant, Units 1 and 2),
ALAB-379, 5 NRC 565, 569 (1977).
. -. ~,.
II.
MVPP Lacks Standing As A Non-Governmental Entity To Assert The Informant's Privilege.
MVPP's reliance upon NRC decisions granting qualified protection against the. disclosure of the identities of informants who made disclosures to the NRC as a basis for the issuance of a protective order is entirely misplaced.
4 The cases it relied upon do not hold that the protection afforded informants to Government officials under the common law and to NRC informants under the Commission's rules is available to nongovernmental entities such as MVPP.
As the Supreme Court stated in Roviaro v.
United States, 353 U.S.
1-53, 59 (1957), the basis of the informant's privilege "is the furtherance and protection of the public interest in effective law ' enforcement.
The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement. of ficials and, by preserving their anonymity, encourages them to perform that obligation."
Accordingly, the Court has unambiguously identified the
" informant's privilege" as one assertable i
exclusively by the Government:
What is usually referred to as-the i
informer's privilege is in reality the Government's privilege to withhold from disclosure the identities of persons who furnish information of violations of law to officers charged with enforcement of that law. 10/
Other decisions of the federal courts are uniform in recognizing the " informant's privilege" as belonging only to 10/
353 U.S.
at 59.
m
. the Government.
Indeed,- in Black v.
Sheraton Corp.,
SG4 F.2d 550, 556 (D.C.
Cir. 1977), the court expressly - held that a private litigant "has no right to assert er waive the privilege; it has no special relationship to cr influence over the government."
-11/
- Thus, the privilege may _be asserted only by the Government.
In the context of MRC proceedings, it has therefore always been understood _that the privilege applies to NRC proceedings only when informants have "made statements to compliance inspectors" or other NRC officials. -12/
It is also clear from the - Commission's regulations, as discussed most recently by the Appeal Board in South Texas, that the privilege is to be asserted by the NRC' with regard to its informants, and not by private parties claiming to have information from purportedly confidential sources. -13/
The
-11/
Similarly, in Usery v.
Ritter, 547 F.2d 528, 531 (10th Cir.
1977),
the court referred to the privilege as involving the " interest of the government in protecting its sources."
And in M.
ex rel. R and S v.
Board of Education Ball-Chatham Community Unit School District No.
5, 77 F.R.D.
463, 467 (S. D. - Ill. 1978), the court cited Professor Wigmore to the effect that the privilege applies only to communications to law enforcement officers.
12/
Northern States Power Comoany (Monticello Nuclear Generating Plant, Unit 1),
ALAB-16, 4 AEC 435,
- 436, aff'd, 4 AEC 440 (1970).
l_3_/
See generally Houston Lighting & Fower Company (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 473 (1981)
(discussing 10 C.F.R.
SS2.7 4 4 (d),
2.790 (a) (7) and 21.2).
The Appeal Board reversed the Licensing Board decision upon which MVPP relies.
South Texas, supra, LBP-80-ll, 11 NRC 477 (1980).
i l
, Appeal ~
Board.in that case underscored this important-distinction in noting that it was' fully appropriate that the staff did not object to disclosure of private-intervenors' informants; the informer's privilege inures
- only to law enforcement officials.
~Roviaro, supra, 353 U.S.
at 59.
Intervention in one Commission proceeding does not entitle Citizens to privileged information
- that, if disclosed, might jeopardize the NRC's likelihood of receiving similar reports in future cases involving other plants.
It-is the NRC's continuing need for confidential informants that made the Licensing Board's failure to recognize the importance of the privilege "short sited and arbitrary." 14_/
Accordingly, there is-no basis for affording MVPP this special governmental privilege which only the NRC may assert to protect its informants.
The
" informant's privilege" -
simply does not apply ~to these circumstances.
III. MVPP Has Made No Showing Of Possible Harassment Or Reprisals Against Its Witnesses.
l Even assuming that some form of relief were available to withhold the identities of a private party's witnesses for the reasons asserted by MVPP, it has failed to make any showing whatsoever of any real threat of harassment or retaliation.
Initially, it is noted that none of the unidentified individuals has submitted an affidavit personally requesting that his identity bc withheld or stating specific reasons why it should.
Certainly, the specification of an individual's reasons for seeking 14/
South Texas, supra, ALAB-639, 13 NRC at 478 n. 26.
1 1.
anonymity is a bare minimum to granting the request.
The Board is left_to grapple with unadorned speculation by MVPP that " physical harassment, threats and blackballing from the nuclear industry" in general will occur if identities ' are disclosed. -15/
Sheer rhetoric and conjecture provide no basis at all for the extraordinary relief requested.
As the Licensing Board stated in Point Beach when similar unfounded allegations were. presented in support of a request for a protective order:
We consequently find these charges to be utterly without basis.
Furthermore, we sonsider it highly improper for a party to cast aspersions on the integrity of another party without any supportive evidence.
We expect that counsel for
[the party]
will refrain from making any further disparaging comments unless they can be proved.
Hearsay from anonymous, supposedly
" reliable"
- sources, is not-a proper basis for publicly impugning any person's integrity. M/
In a more recent aspect of the same proceeding, the Licensing Board ruled that the names of employees of. the licensee or its contractors must be disclosed, despite the assertion of a generalized fear of " potential annoyance, enbarrassment, intimidation, oppression, and reprisals." 17/
-15/
MVPP Motion For Protective Order at 1-2.
(
M/
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2),
LBP-81-62, 14' NRC 1747, 1760 (1980).
-17/
Wisconsin Electric Power Company (Point Beach Nuclear
- Plant, Un:l.ts 1
and
- 2),
Docket Nos.
50-266-OLA and 50-301-OLA,
" Memorandum and Order" (April 22, 1982)
(slip op. at 3).
_ 11 _
Specifically, the Board stated:
All [movant) is asking is the right to obtain the names of these workers for the purpose of asking their voluntary cooperation in obtaining relevant information.
We have no reason to assume that these workers would object to being asked or that they would refuse voluntary cooperation in supplying information of potential importance to the health and safety of the public.
Nor do we have any reason to believe that either [movant] or the public would harass these individuals or that their identities would be released to the public. 18/
In North Anna, the Appeal Board held unequivocably that a
protective order cannot be issued on the basis of unsubstantiated, conclusory statements by the movant's affiant supposedly having knowledge of the
" good cause" supporting the motion.
The Appeal Board criticized the movant for its weak showing:
It is difficult to comprehend what might have led the applicant to believe that this state of affairs would be thought acceptable by us.
Manifestly, it will not do for an expert witness to state his ultimate conclusions on a
crucial aspect of the issue being tried and then to profess an inability - for whatever reason to provide the foundation for them to the decision-maker as well as the other litigants.
- Indeed, a
trier of fact would be derelict in the discharge of its responsibilities were it to rest significant findings on expressions of expert opinion not susceptible of being tested on examination of the witness.
A licensing board decision suffering from 18/
Id. at 6.
'I
- 12'-
such an infirmity would be a
fit candidate for reversal. M/
The Appeal Board noted that the proferred affidavit did "not even attempt to explain the basis for
[the affiant's]
knowledge on the essential matters as to which he
[h] as attested."
-20/
The Board concluded that "for all that appears from his affidavit
[the affiant]
was simply recounting what he had been told by other officials or employees of the company who possessed personal - as opposed to merely derivative knowledge of each of the matters encompassed by the affidavit.
Accordingly, we might well disregard the affidavit entirely on the ground that it was not shown to have been executed by a qualified individual."
L'1/
In this instance, MVPP's request suffers from the same infirmities and lacks even the essential formality of an affidavit.
The request should be denied for this reason alone.
MVPP's reliance-upon the Notice of Violation and related findings issued by the NRC on November 24, 1981 in this case is clearly misplaced.
The NRC expressly absolved Applicants' management of condoning any practices of M/
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 26 (1979).
-20/
Id. at 27.
21/
Id at 28.
I -
I harassment against QA/QC inspectors. -I While the NRC concluded that there had been instances in which QA/QC management had failed to maintain a sufficient degree of independence from cost and schedule, -I such " harassment" as a found by the NRC did not include the kind of reprisal and retaliation allegedly feared by MVPP's witnesses.
Additionally, the Company's top management has recently reiterated its strong concern regarding harassment of quality inspectors by construction workers.
In response to a water dousing incident, William H. Dickhoner, President of the Company, stated in a memorandum to all construction workers, inter alia:
The Company cannot and will not condone such acts.
The Company is vigorously investigating this incident and severe disciplinary action will be taken against any person found responsible for this incident or any other harassment of inspectors.
Not only does such conduct disrupt construction of the
- plant, it also subjects individuals to severe federal criminal prosecution.
To emphasize the Company's concern and commitment to quality construction, I
am requiring each of you to sign an acknowledgment that you are aware of and understand cha significance of this matter.
/
Investication Report 50-358/81-13 at p.
137
(::avember 24, 1981).
_/
See Notice of Violation, Item B at pp. 3-4 (Nci
- car 24, 1981).
See cenerally 10 C.F.R. Part 50, ?c; 7 uc n..
3, Criterion I.
l
- la _
In the Acknowledgment, each construction employee at Zimmer was required to agree as a condition-of continued employment at Zimmer not to engage in any harassment activity. -
- Finally, the possibility of any such reprisals is additionally reduced by recent statutory and rule changes providing job protection for nuclear employees who provide information to the Commission.
Recent amendments to the NRC regulations implement Section 210 of the Energy Reorganization Act of
- 1974, 42 U.S.C.
- S5851, regarding employee protection and provide specific reference to the Department of Labor's related program under 29 C.F.R.
Part 24.
In
- general, the new amendments extend additional protection to workers by prohibiting unlawful discrimination against employees providing information concerning radiological health protection matters and other matters that could affect the public health and safety.
Moreover, a violation of the employee protection guaranteed under 10 C.F.R.
S50.7 for contractors or subcontractors of a Commission licensee or applicant might also be grounds for possible enforcement actions.
Given the availability of alternative remedies and the threat of severe sanctions for any improper employer actions against QA/QC personnel, there is no need for the additional
_/
Copies of the memorandum from Mr.
Dickhoner and the accompanying Acknowledgment are attached.
_/
See 47 Fed. Reg. 30452 (July 14, 1982).
=..
l protection -sought by MVPP by way of. restrictions upon disclosure of its witnesses' identities.
Conclusion For the reasons discussed more fully
- above, the Licensing Board should deny MVPP's motion for a-protective order.
Respectfully' submitted, CONNER & WETTERHAHN, P.C.
k Tro
-. Conner, Jr.
Mark J. Wetterhahn Robert M.
Rader
{
Counsel for the Applicants July 22, 1982
)
i I
t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
The Cincinnati Gas & Electric )
Docket No. 50-358 Company, et al.
)
)
(Wm.
H.
Zimmer Nuclear Power
)
Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer to Motion by Miami Valley Power Project for a Protective Order," dated July 22, 1982 in the captioned matter have been served upo.. the following by deposit in the United States mail this 22th day of July, 1982:
Alan S.
Rosenthal, Chairman Dr. Frank F.
Hooper Atomic Safety and Licensing Sierra Nevada Aquatic Appeal Board Research Laboratory U.S.
Nuclear Regulatory Route 1 Commission Box 198 Washington, D.C.
20555 Mammoth Lakes, CA 93546 Stephen F.
Eilperin Dr.
M.
Stanley Livingston Atomic Safety and Administrative Judge Licensing Appeal Board 1005 Calle Largo U.S. Nuclear Regulatory Sante Fe, NM 87501 Commission Washington, D.C.
20555 Chairman, Atomic Safety and Licensing Appeal Howard A. Wilber Board Panel U.S.
' :cric Safety and Nuclear Regulatory Licensing Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission
.::shington, D.C.
20555 Chairman,' Atomic Safety and Licensing Board Judge John H.
Frye, III Panel U.S. Nuclear Chairman, Atomic Safety and Regulatory
- .icensing Board Commission U.S.
.iuclear Regulatory Washington, D.C.
20555 Ccr=ission
- a r c.i ng ton,
D.C.
20555
Charles A.
Barth, Esq.
Brian Cassidy, Esq.
Counsel for the NRC Staff Regional Counsel Office of the Executive Federal Emergency Legal Director Management Agency.
U.S.
Nuclear Regulatory Region I Commission John W. McCormick POCH Washington, D.C.
20555 Boston, MA 02109 Deborah Faber Webb, Esq.
David K. Martin, Esq.
7967 Alexandria Pike Assistant Attorney General Alexandria, Kentucky 41001 Acting Director Division of Andrew B.
Dennison, Esq.
Environmental Law Attorney at Law Office of Attorney General 200 Main Street 209 St. Clair Street Batavia, Ohio 45103 Frankfort, Kentucky 40601 Lynne Bernabei, Esq.
George E.
Pattison, Esq.
Government Accountability Prosecuting Attorney of Project /IPS Clermont County, Ohio 1901 Q Street, N.W.
462 Main Street Washington, D.C.
20009 Batavia, Ohio 45103 John D. Woliver, Esq.
William J. Moran, Esq.
Clermont County Vice President and Community Council General Counsel Box 181 The Cincinnati Gas &
Batavia, Ohio 45103 Electric Company P.O.
Box 960 George Jett, Esq.
Cincinnati, Ohio 45201 General Counsel Federal Emergency Docketing and Service Management Agency Branch Office of the 500 C Street, S.W.
Secretary U.S. Nuclear Washington, D.C.
20742 Regulatory Commission Washington, D.C.
20555 i
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Robert M.
Rader
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violation of the. provisions referenced herein, will result in mv immediate dismissal bv. mv emolo.ver at the Zimmer site.
Signature of Employee
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Dated:
Em.olo. vee Num er c