ML20062K278

Requests Advice Re Citizens Concerned About Nuclear Power, Inc Discovery Requests for Names of Inspectors & Employees Involved in Harassment,Stello Closed Door Statement & Investigator Identified Items.Views Needed by 801201

ML20062K278
Person / Time
Site:	South Texas
Issue date:	11/25/1980
From:	Christenbury E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Stello V NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
References
NUDOCS 8012080005
Download: ML20062K278 (4)

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November 25, 1980 x

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c.i MEMORANDUM FOR: '*1ctor Stello, Jr., Director, Office of Inspection

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Edward S. Christenbury, Director and Chief Counsel,#

Hearing Division, Office of the Executive Legal Director i

SUBJECT:

Comission Memorandum and Order (CLI 40-32) Issued in South Texas and Discovery Requests in Related ASLB Proceeding

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Reference is made to Howard K. Shapar's note of September 29, 1980, addressed to you (and Harold R. Denton) concerning the above subject Comission Order and the related ASLB (pre-OL) proceeding on show cause related contentions.

In connection with the pending ASLB proceeding, we have received two discovery requests from one of the Intervenors (CCANP). They have asked for:

1.

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• the names. of those inspectors who supplied infomation about harassment at the South Texas Nuclear Project and the names of those employees who harassed and intimidated them,"

and, for 2.

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• a copy of the closed door statement made by Victor Stello following the NRC inyt:stigation which led to the Show Cause Order;" and "* *

• items I

identified by NRC investigators in this investigation

_l which were not included in the Show Cause Order."

We would like your advice on how to respond to these requests considering the

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matters set out below. As general background, I have set forth below the provisions of 10 C.F.R. 92.790 which appear to be pertinent to the subject?

discovery requests. See particularly 10 C.F.R. 52.790(a)(5) & (7).

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set forth below a portion of the Comission's decision in CLI-80-32 (slip '-

opinion at pp. 13-14).. This latter portion of the Comission's decision is helpful in detemining the type of information the Comission expects the

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NRC FORM 318 (9-76) NRCM O240 NU.S. GOVERNMENT PRINTING OFFsCE: 19,89-233 363 p

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i Staff to provide to Intervenors regarding the show cause related contentions which will be heard by the ASLB. The Licensing Board indicated at a pre-hearing conference on November 19, 1980, that it expected the Intervenors te produce some of the employees who alleged to have been harassed for testimony at the hearing. It further indicated that it might consider requiring the Staff to supply the names of these employees to the Intervenor under a protective order which protects them from harassment of the public or retribution.

The names sought by request number 1 appear to relate to HL&P and/or Brown and Root employees.

I understand that many of the names are already included in an FBI report, I&E reports prepared before 1980, and other documents which are already publicly available.

If names are publicly available there would not appear to be any reasonable basis to deny providing them to the Intervenors in the ASLB proceeding. Further although those claimed to have been harassed

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may be subject to claims of confidentiality under 10 C.F.R. !i2.790(a), the names, of those who allegedly harassed them would not be entitled to the same claims of privilege.

It_is.not precisely 21 ear _atto what. infomation~ is sought in the second of the above-noted requests. However, it is my understanding that there was a closed Commission meeting prior to issuance of the Show Cause Order issued by you to the South Texas Applicant. Intervenor may be seeking the transcript of that meeting. If the purpose of the meeting with the Comission was for purposes of your briefing them as to your previously made decision to issue the Show Cause Order, there would appear to be no basis for refusing to supply the transcript. If on the other hand the meeting was held so that the Staff could submit infomation to the Commissioners for the purpose of the Comission reaching a decision, then there may be a basis for withholding the transcript.

With respect to the second part of request 2, it appears that Intervenors may

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be referring to certain signed statements taken by NRC investigators which were later " sanitized" in a report which has been released to the public.

Please give me your views as to whether the requested information and/or documents should be made available to Intervenors. In order for this office to timely respond to Intervenors' requests, we need these views by noon, December 1, 1980. In the interim, and to expedite matters, Edwin J. Reis and Bernard M. Bordenick of this office are available to discuss this matter with you and/or your staff.

Dist NRC Central Shapar/Engelhardt Christenbury/Scinto Edward S. Christenbury Reis Director and Chief Counsel Bordenick Hearing Division Chron(2)

Office of the Executive Legal FF(2)

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AVAILABILITY OF OFFICIAL RECORDS 52.790 Public inspections,' exemptions, requests for withholding.

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• final flRC records and documents,IOfincluding but not limited to correspondence to and from the NRC regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, ravocation, or violation of a license, permit, or order, or regarding a rule making proceeding subject to this part shall not, in the absence of a corapelling reasca for nondisclosure after a balancing of the interests of the person or asency f

urging nondisclosure and the public interest in dis-closure, be exempt from disclosure and will be made u

available for inspection and copying in the I;RC Public Ncument Room, except for matters that are:

(1)(i) Specifically authorized undar crit'eria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (ii) are in fact properly classified pursuant to such Executive order; (2) Related solely to the internal pcrsonnei rules and practices of the Commission; (3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b), provided that such statute (i) requires that the matters be withhald from the public in such a manner as to leave no discretion on the issue,

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or (ii) establishes particular critaria for withholding or refers to particular types or catters to be withheld.

(4) Trade secrets and commercial or financial information obtained from a person and privilegad or confidential; (5) Interagency or intraagency memorandums or letters which would not be available by law to a party other than I

an agency in litigation with the Commission; (6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; N uch records and documents do not include handwritten S

notes and drafts.

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Investigatory records compiled for 1::u aniciccacnt purposes, but only to the extent that the production of such records would (i) intdrfere with enforcement pro-ceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) cc.astitut.c an wr.orranted invasion of personal privacy, (iv) disclose the identity of a confidential source ud, in the c..se of in the course of a criminal investigation, or by an a record compiled by a criminal law anforcxnt auNeity agency conducting a lawful national secupity intelligence investigation, confidantial inforcation is.r..<.hed aly by the confidential scurce, (v) disclose i..,r.s tipii te

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te.hniques and procedures, or (vi) erdanger the life or physical safety of law enforcement parscnnol; 2.

licuston Li_gh, ting & Po: er Co. (So.:th Tns Prefer:t, t* nits 1 & 2), CLI-80-32, slip opinion, pp.13-14:

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Citizens has offered a nuabar of reas Lns.hy a hc.s ing

[cn the enforcement ordar] should be granted as a traiter of discretion.

It claius that a hearing would require the !!RC Staff to call as witnesses several persons who have not yet been identified, but whose interviews support t'ie Director's order. This, in turn, would allow Citizens to learn the icentities of those persons and to further question them. However, as Houston suggests, Citizens can file either interrogatories with the staff or a l

Freedom of Infonnation rcquest with the Co...nission in erder to learn the identities of perscos with knowledge

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about the incidents covered by the Director's order.

These possibilities are a far cry from Citizens' fears that failure to have a h.uring on the enforcement order v.Ould be tantamount to danying to it the " evidentiary basis for the NRC.* actions in the Order to Show Cause."

(CLI-80-32 at pp.13-14 of slip opinion.)

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