ML20070S808

Appeals Denial of FOIA Request for SECY-82-377 & SECY-82-377A, Hearing Requests on Extension of Const Completion Dates for WPPSS 1 & 2 & Minor Revs to SECY-82-377, Respectively

ML20070S808
Person / Time
Site:	Columbia, Washington Public Power Supply System
Issue date:	11/09/1982
From:	Newman K DEBEVOISE & LIBERMAN
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FOIA-82-484, FOIA-82-A-23 NUDOCS 8302080024
Download: ML20070S808 (2)

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$ & ,.s LAW OFFICES OF DEBEVOISE & LIBERMAN 1200 S CVC NT[ENTH STRECT,N.W.

WAS HINGTON. O. C. 2 OO3 6 Tctcewowc (aor) esr-esoO November 9, 1982 Mr. Samuel J. Chilk APPEAL OF INITIAL FO!A DECISION Secretary U.S. N'u clear Regulatory b - d=3 ( ( pg gy)3 j Commission Washington, D.C. 20555 kd //-/ l -gh Re: Appeal from Initial FOIA Dec,ision

>. FOIA Request 82-484 EE

Dear Mr. Chilk:

d' In accordance with Mr. J.M. Felton's letter of November 2, E 1982, we hereby appeal your initial denial of our Freedom of 3m Information Act Request described below.

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OP7 on October 12,"1982, we requested copies of Secy 82-377,

[@ " Hearing Requests on Extension of Construction, Completion -

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Dates for Washington Public Power Supply System Nuclear Pro-

,g jects Nos. 1 and 2," and'Secy 82-377A, " Minor Revisions to gw Secy 82-377." This request for documents was specifically gg intended to aid in interpretation of the extensive Commission ge c:

guidance contained in CLI-82-29. On November 2, 1982, Mr.

g Felton informed us that he was withholding both documents E* from public disclosure because these materials are protected gg by Exemption 5 of the Freedom of Information Act, 5 U.S.C.

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5552 (b) (5) and 10 CFR S9.5 (a) (5) of the NRC's regulations.

Sg We believe that it is inappropriate for the NRC to with -

o> hold these documents on the basis of Exemption 5. This exemp-8e tion does.not permit an agency to withhold predispocitional o .. documents when those documents ultimately serve as the basis M$ '

for the final document issued. 1/ In this case, the finaf W; " document is the Commission's Order of October 8, 1982, CLI <

($ 29. We believe that it is our right to review' documents which ps have a far-reaching effect on interpreting the Commission's guidance and which provide an explanation and precedent as to Commission limitations on public requests for hearings on_ con-struction permit amendments. We therefore feel that these documents do not fall within the scope of. Exemption 5.

-1/ Coastal States Gas Corp. v. Department of Encray, 617 F.2d 854, 866 (D.C. Cir. 1980).

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NEWMAN82-A-23 PDR t

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We would appreciate.your prompt response to this_ appeal

• and in no event later'than the 20 working days afforded by 10 CFR Part 9.

Sincerely, s

• WW Kimberly-Armstrong Newman

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.]l WA5m NG T ON. D. C. 20555 November 2,1982 -

Kimberly Armstrong Newman, Esquire Debevoise & Liberman 1200 Seventeenth Street, N.W. IN RESPONSE REFER Washington, DC 20036 TO F0lA-82-484

Dear Ms. Newman:

This is in response to your letter dated October 12, 1982, in which you requested, pursuant to the Freedom of Information Act, copies of SECY-82-377 and SECY-82-377A.

The requested SECY-82-377, " Hearing Requests Concerning Extension of Construction Completion Dates for Washington Public Power Supply System Nuclear Project Nos.1 & 2", dated September 14, 1982, is a two-page document from the General Counsel to the Commission concerning disposition of an intervenor hearing request regarding the extension of the construction completion date for Washington Public Power Supply System Nuclear Projects Nos. 1 and 2. This document has two attachments. The first attachment,

" Expeditious Conduct of Requested License Amendment Hearings", dated January 6,1982, is a three-page memorandum from the General Counsel to the Commission. The second attachment is an eighteen-page proposed draft Commission order concerning the hearing requests which are the subject of SECY-82-377.

The requested SECY-82-377A, " Revision to Order in SECY-82-377", dated September 30, 1982, is a two-page document from the Deputy General Counsel to the Commission concerning proposed revisions of the draft order attached to SECY-82-377. Attached to SECY-82-377A are four pages of the draft order indicating the proposed revisions discussed in the SECY paper.

The requested SECY papers, the second attachment to SECY-82-377 and the attachment to SECY-82-377A contain the advice, opinions and recommendations of the NRC Office of General Counsel in an on-going deliberation, i.e.,

the treatment to be given the hearing requests. The first attachment to SECY-82-377 contains the General Counsel's legal analysis of options for conducting license amendment hearings and was prepared as part of the Commission's deliberations in response to Sholly v. NRC, 651 F.2d 780 (D.C. Cir.1980), and subsequent actions in that case. It was also prepared in reasonable anticipation of litigation con'cerning responses to requests for construction permit extensions. None of these documents contain any reasonably segregable factual . portions not already in the public record of this proceeding. Therefore, the requested SECY. papers and attachments are being withheld from public disclosure as predecisional documents pursuant to Exemption (5) of the Freedom of Infonnation Act (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5). The first attachment to SECY-82-377 is also being withheld as attorney work-product under Exemption (5) and 10 CFR 9.5(a)(5).

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d Kimberly Armstrong Newman .

4 Pursuant to 10 CFR 9.15 of the Commission's regulations, it has been ~

determined that the information withheld is exempt from production or disclosure. Its production or disclosure is contrary to the public interest because it would impede free and frank discussions within the agency and would impede the future flow of legal advice from the General Counsel to the~ Commission. .The person responsible for this denial is Leonard Bickwit, General Counsel.

This denial may be appealed to the Commission within 30 days from the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state- on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision".

Sin erely, I/

- / 9 e#6. M. Felton, Director i

' Division of Rules and Records Office of Administration f

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. 3 g , O LAW OFFICES OF DEBEVOISE & LlDERMAN 8200 $CVENTC[ NTH $TREET,N.W.

WASHINGTON, D. C. 2OO36 TELEPHONE (202) 857- 9800 October 12, 1982 EREEDOW OF INFORMATION ACI REQUESI FO.rA-t2.~ 4y Mr. J. M. Felton, Director h'd to -I3 L.

Division of Rules and Records Office of Administration U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Felton:

Pursuant to the Freedom of Information Act, Debevoise & Liberman requests copies of SECY 82-377, entitled: " Hearing Requests on Extension of Construction Completion Dates for Washington Public Power Supply Systems Nuclear Project Nos. 1 and 2" and SECY 82-377 (A) entitled: " Minor Revisions to SECY 82-377."

We request that the documents.be provided with all possible speed and in no event later than the 10 working.

days provided by 10 CFR 98.

Sincerely, Kimberly Armstrong Newman KAN:mh

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