ML20079S355
| ML20079S355 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/30/1984 |
| From: | Eddleman W EDDLEMAN, W. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20079S359 | List: |
| References | |
| 82-468-01-OL, 82-468-1-OL, ISSUANCES-OL, NUDOCS 8402030306 | |
| Download: ML20079S355 (10) | |
Text
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00LXETED tt%RC UNITED STATES OF AMERICA 1-30 84 NUCLEAR REGULATORY COMMISSION
'84 FEB -2 P12 :26 SFF;l CF SEC;it k DCO.iEI!NS & SEC/ii..
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD W NCH Glenn O. Bright Dr. James M. Carpenter James L. Kelley, Chairman In the Matter of'
)
Docket 50 400 OL CAROLINA POWER AND LIGHT CO. et al.
)
(Shearon Harris Nuclear Power Plant,
)
Units 1 and 2)
)
ASLFP No. 62-468-01
)
OL Wells Eddleman's Response to Auplicants' Motion for Protective Order
Background:
On 9/22 and /P31983 tha Romwd mada em oval rulings on Eddleman motions to comoel discovery "e 3ddleman 65 & 41.
At transcrint pags 729-30,9/23/83, of this conference call, the Board ordered disclosure of the name and last known address of former welde"s discharged for making defective welds at Harris.
The Board placed this information under protective order (Tr. 730).
Other than contacting such welders, Wells Eddlenan was not to make i
any other use of their names and addresses without nernission of the Board (ibid).
The Board also stated that Annlicants could I
address any nroblems "of a nrivacy nature" in the avea of disclosinF 1
8
. g'5 names and addresses "with any urotective motion that you wish to u-l tan make later on." (ibid).
The Board also ordered disclosure of sone t
. off names of Craft 66 (pipefitter) w&1ders at Harris to Wells Eddlenan, 00 without making a protective order on use of their namas and other f,
associated information nrovided.
l Until 2 December 1983, Applicants' attorney 3arter and Wells Eddleman negotiated a nossible agreement on a protective order re,
gh
i
. this additional information, i.e. resnonses to interrogatories 41-1(1) and 41-1(m).
Negotiations broke down 2 December 1983 Apulicants filed January 13, 1984, amotifkforprotective order, which states (p.4) "At the outset it should be clearly understood that the issue raised by this motion is not comuliance with the Board's order directing discovery, but rather the protection of that information from public disclosure."
Applicants then argue not only privacy interests of the welders, but comnercial interests of their prime contractor Daniel.
ARGUMENT First, there anpears to be sone reason to question the good faith of Applicants' and Daniel's responses in that my interrogatories to CP&L (Applicants) explicitly request prompt supplementation.
The Board ruled orally on 9/23/83 that CP&L was to suoply me with the names and last known addresses of persons discharged for making defective welds in Harris nine hangers, under a-protective order.
It took until 1A3/84 for cP&L to inform me that there were none.
I can see no rational reason for a 3t month delay here, nor is one suggested unless " waiting to receive information feon Daniel" is such a reason.
If it takes them 3 months to find this information with their personnel recorde in a separate roon auparently devoted to such information, one is tempted to wonder about their concetence to build a nuclear power plant.
Moreover, even if there had been names, these were already under a protective order by the Board (Tr. 729-730,9/23/83)and could have been revealed earlier if Applicants and Daniel had wished to be responsive.
I can imagine Ton Baxter including a reminder of the protective order to me with the information, but I have heard no reason advanced why I would not connly with this Board oral order.
In sum, at the outset I think there 's a question of Arnlicants ' gopd
r o
-3 It may be that Apolicants and Daniel simoly seek to delay discovery.
I point out here that the current skehedule cuts off discovery on contention 41 on March 15, and I'll have a lot of work to do by then to get in a second round on Eddleman kl.
CP&L may argue that I am nartly responsible for tbe delay (e.g. that it is caused by my
" failure" to agree w'ith them on all uoints), but even attributinF the whole delay until Decenber 2 to me (which does NOT apply to the discharged welder names cuestion discussed above), it took Applicants until January 13 to get out a draf t protective order to the Board and ne when they themselves say they sent ne a draft protective order on November ik,1983 It shouldn't take experienced and numerous attorneys that long to make a few minor changes in a draft and make fairly standard arguments in favor of a protective cdder.
I note that Attorney 9axter has stated hfs willirgness to work out with me informally, if possible, uroblems that may result fron further delays _in my getting the information requested in interrogatories 41-1(1) and (n) which were filed in spring 1983 l-and on which a motion to connel was filed h August 1983 It is not intended here to disuute his personal good faith, but Anplicants seem to have many other persons involved, as does Daniel.
If further delays are too great, I may have to seek schedule changes on discovery for contention kl.
Applicants have already said that they do not anticipate finishing the 100% reinstection of hanger welding and hangers at Harris until October 198k.
That is the tine of the safety hearing under the current schedule.
PRIVACY ISSUES I of course recognize the need for privacy of employees of large owganizations like CP&L and Daniel, particularly on sensitive issues like defective welding of nuclear nlants.
e
_g.
In addition to basic human rights, you have the problens of haressment and intinidation of workers who call attention to safety defects, e.g. at Callaway (Bill Smart), Zimmer, nossibly Catawba and elsewhere.
This pattern is so fixed in the nuclear industry that it is one of the things everybody knows, no matter how much the nuclear conpanies may deny it, in my opinion.
Therefore I certainly want to respect the privacy of any Harril welders whom I may contact.
After all, they would have not idea whether a voice on the phone savinF "This is Wells Eddleman" is really me, or whether a return address on a letter (Mine is 718-A Iredell, Durham NC 27705) signed " Wells Eddleman" is really mine.
The whole matter of contacting workers about nossible defective welds at Harris is very delicate.
Therefore, I will voluntarily agree to the following:
(1) I will not reveal publicly the name, address, or other idettifying information of any welder whose name is provided to me by CF&L, without the written permission of the welder involved, freely given beforehand.
I will instead use pseudonyms, e.g. Welder One, Welder Seventeen, and the order of numbering in my useudonyms will NOT be the same as the order of names given by CP&L to me and I will safeguard the name/
number identification to the maximum as will anyone working with me.
(2) I will not reveal to anyone who does not agree to the above condition under oath or affirmation, the name of any welder at all.
Such oath or affirmation would be in writing, notarized, with a copy to the Board in camera.
Naturally, I don't want to file any notarized agreements to abide by orotective orders on the record, since that would advertise not only to CP&L but to the whole nuclear industry who is helping me out.
The sexcerience of our security consultabt who had to withdraw in late 1982 because, though we inter-venors had told no one he was working with us, nuclear industry clients started calling and saying "if you work for daem, you don't work for us any more" or words to that effect:., is exarnle of the industry granevine.
a
-5 I need to know welders' names to contact then at all to pursue my contention 41.
CP&L and Daniel, etc., have no need to know who is helping ne'.
I don't want to be *n the positter of having to wait until soneone helping ne gets intimidated, threatened, burglarized, injured or worse to get protection over their identities.
Of course, anyone who is working with or for me on this issue who wants to be publicly identified, can identify thence1ves.
That's their choice.
But I want them'to have a choice.
C?&L advances no reason to need to know who is working with ne on this issue.
Affidavits filed in camera with the Board urovide the Board with the information needed to punish violators of such oaths or affirnations, should violations occur.
(3) the identities of welders or others who nrovide information to me, and information which night reveal their identities, e.g.
addresses, phone numbers, etc, will be held in strictest confidence by me or by any person working for or with ne who gets the information.
None of this information will be made public or referred to in documents made nublic without the written vermission ce the welder involved, free 17 C ven beforehand.
A nrovision to this e#fect will i
be in affidavit (s) on file with the Board in cane-a.
This also l
applies to any information about who told ne or anyone working with f
l me about any problem.
t-A tricky question is the one where only a few teople could have
-knowledge of a given problem.
Then, renorting you know about the l
problem greatly simplifies the tansk of figuring out who told you.
As an exanole, I understand that at the Catawba plant when weld inspectors complained, a plant official called in all weld inspectors two at a time for discussions that some of the inspectorc, at least, fel't were intended to ston them from talking freely to URC about welding problems at that plant.
I don't really kr.ow how to handle this.
_g_
prob 1cns in nucicar It is very-imoortant to get power plants fixed,. e.g. those in safety-related hangers.
On the other hand, nobody wants to talk if it's going to get then 'nto trouble.
I really doubt that welders at Harris will trust ne none if I8n tied in to C?hL and Daniel by their agreenents.
I therefore would renuest that I always be alloued time to file a notion for protective crder (e.g.15 days cf ter receint of.<-fornat*on) where I believe that revealing' that information to C"hL or Daniel or in any discovery resnonse or nublic document veuld be harnful (a) to the source of the infonnation (b) to my ability to nursue contention h1 effectively and/or develon a sound record fo* it (c) to other pe* sons who may be nrotected unde" 10 C'" P.7h0(c ),
even thotgh the infornation accuired nay technica317 be resnonsive to a stand'.ng inter =ogatory of Anplicants to ne.
If I cn unable to nrotect information and sources in this way (i.c. by Anulicati n o
to the Boa *d.for a nrotective order, not having to "eveal the info while I seek the nrotective order), I won't be cble to do nuch if anything.
Nobody is likely to want to talk to ne or tell ne anythinr if they think the information is going to C?hL or the nucient inductry with the source identifiable.
Therefore I must havc th'd sort of protection in order to nuxrsue discoverv.
I believe I. should be allowed to seek a nvotective order re sensitive information under exactly the sane te--e I nronose for Applicants to seek a nrotective order over denosit!cn infornation (see below).
This is fair to both narties (ne and Annlicants).
I should also, of cou*se, have the sane =ight to des' enate information in denositions of any of ny witnesses (if any are identified to be witnesses ) as confidential nending a not'< on for vrotective orden as Applicants do.
This is true whether ny "econnendation or Applicants ' at to confidentiality of demosition info is adcented, i.e. if they can nake things confidential by saying so, so can 7
7 IKNIEL's PP.0PRIETARY INTEREST I do not see that Daniel has any proprietary. interest that should keep any welder from revealing nublicly, or letting ne reveal (by. written nermission beforehand) his or her nane.
I believe that employees of Daniel who weld at the plant nost likely do tell other people where they work and what they do; they surely are free to.
I certainly have no interest in Daniel's list of welders for connercial purposes, and will therefore agree to (1) never publish or reveal publicly the entire list of welders provided to ne, nor to sell or give the entire list to anyone not workin,? for er with ne on this case, nor reveal Dublicly the name of any welder on the list who has not freely, in writing, authorized ne to do so beforehand; (2) to return to CPFL or destroy, at Daniel's oution, the list (s) so nrovided to ne at the conclusion of all anneals of this proceeding for which I have need to retain the list (s); (3) to hold the list (s) and any informatir.n fron which such list could be in whole or lorFe part (e.g. 3/h of it) reconstructed, in strictest confidence duving this proceeding; (h) to only reveal any nanes or addresses of welders on such lists to persons who by notarized written nemh oath or affirna-above tion agree to be bound by the a sane conditions that I an, which affidavits of oath or affirmation shall be filed in canera with the Board before such 'nformation is revealed to any such nerson.
DEVOSITIONS I object strenuously to any ability of CPb1 counsel to, at their option, designate a denosition confidential.
They could do it any time, with or without cause, and the burden would be on ne to undo it -- how could I even argue to the Board without using the information which was designated to be held in confidence?
The linits nroposed on the nunbers of persons attending, the recuired oaths and affidavits of court reporters, etc., also connlic ate this n=cnosal to the point where it would be very difficult for -e to deal with.
However, since I would probably be taking denositions by tape recording, any court renorters would be ennloyed by Auplicants.
4 Any court renorter nust be able to hold infornation in confidence.
Thus it nakes sense that, where CP&L's attorneys believe that information in a ddposition needs protection beyond that given to identities of welders and to Daniel's welder list (proprietary information) by the agreenents I volunteered above, they should simnly announce on the record their intention to nove for a protective o= dea, b*iefly describing what it would relate to.
The court renorter, I and any nerson(s) working with no, and any N70 Staff present, would have agreed to hold such information in confidence and not nake it public (though of course we night need to use it in our investigations) and protect it fron disclosure for 1p days for Applicants to nove sf Saca me h 4 6 mak for a protective order on it, and,fron then until the Boa-d rules on such notr/;n'\\ % be %dd b'] J aCh Vhf MS' on,4 subject to ne and folks working with or for ne being able to nake opposing argunents by in c anera submissions to the Board where use of the information Co&KL wants to protect seems to us necessary in arguing against a nrotective order.
CP&L's proposal is a prior-restraint gag rule.
It could be abused in nany ways since CP&L could designate the testinony as. confidential (and throw everyone not under CP&L's pronosed odder's restraints out) at their own option.
An outrageous such abuse night be fo" a C"hL person being deposed to simply ment'.cn a welder whenever I or ny counsel is getting to then on some other issue.
I believe thst the protection of welders ' privacy and Daniel's troprietary $nterest in its welder list offered by ny voluntary aFreenants above is sufficient to protect those interests.
Other interests, eg. CD&L's auc 6cfocherS fvt>Lces, n
possible desire not to g are not protectable under NRC rules.
I note that 10 CFR 2.74040p provides that denositions are not.nade part of the (public) record in uroceedings unless they, are introduced into evidence.
Thus they normally won't be_aublie mesercem-
g APPLICANTSd ARGUMENT Applicants rely mainly on ALAB-327, a case about information of comnercial value, e.g. a nuclear fuel sunuly contract.
They advance no real argument about the privacy interests of welders, nor does their motion indicate that in fact they have consulted any welders concerning the privacy aspect of this discovery for them.
(n.7)
Applicants claim harm could result by unuarranted invasion of employee privacy.
I think I have covered that by agreeing not in nublic' records or to the oublic to reveal any welder's name or information that would identify the g
welder, without orior written permission of the welder.
Arplicants appear to concede (n.10) that non-identifying information nade oublic with a nseudonym is OK.
They also clain possible connarcial harm to Daniel.
This
.nroblem is resolved by protection of the list of welder nanes and addresses.
I can't imagine that Daniel's connetition would want unqualified welders, so information about qualifications, nunbers and so on of welders nade with useudonyns would be OK there too.
I believe I have volunteered sufficidnt protection of Daniel's welder list to prevent raiding by their connetition.
Phere are countervailinE harns.
One is conprecising the public 's right to know what is going on in this case.
The reason the public is allowed to intervene and proceedings are public and under nrocedural safeguards is clearly to protect the nublic interest.
CP&L's proposed depzosition gag order, and a total orchibition against revealing welder information, would not serve this interest, but would harm it.
The other countervailing harn is the burden on ne to carry out the nrovisions of such an order.
I an an fndividual whose tine, peonle available to hklp me, money, and other resources of a material natu=e are very sna11 compared to CP&L's.
I recognize that dealing with
f welders on a nuclear power olant concerning defects in the platt is r4 very delicate business.
Fears of job loss or intinidati.on, and fears that the plant will shut down or construction be halted, are very real.
I have enough trouble dealing with all that without additional restrictions not reasonably related to the individuni privacy of welders and/or the connercial inte."est of Daniel in protecting its welder list.
10 CFR 2.7)O(c) mentions annoyance, oppression, undue burden or expense as some things protective orders should vrotect fron.
I subnit that there can be annoyance and onpression te ne and folks working with ne, and undue burden and expense to ne, fron connlying with C?lL's draft order as drawn.
I believe that my agreements and volunteered above, a procedure for CP&L to nove for protective order covering parts of denositions, sufficient 1v protect the true orivacy interest of individual welders consistent with ny ability to conduct discovery and investigations into the safety defects of Harris pipe hangers and OA on then, and nrotect Daniel's welder list adecuately frcn raiding competit6rs.
Therefore I resnectfully ask the Board (1) not to enter CP&L's pronosed protective order but to arnrove nv voluntarv connf tnents herein, and procedure for rea.uesting protective ordens on depositione,
- instead, or in the alternative, (2) to ecnvene a conference call to resolve these is sues, and (3) under no circunstantes require ne to nane persons working with or for ne on these issues to CP&L provided that such person (s) comply with the in canerg affidavit orocedures outlined above, and 'u-the" not to recuirem oaths of those who (like seve=al who nay assist ne, and nyself) have scruples against naking oaths, but allow affirmation insteni k
h[%nn~
Wells Eddleman
.