ML20092B703

Reply to Joint Intervenors 840611 Motion for Protective Order for Exhibits 3,4 7 & 10 Submitted in Support of Reply to Util & Staff Response to Motion to Reopen.Exhibits Should Be Released.W/Certificate of Svc.Related Correspondence

ML20092B703
Person / Time
Site:	Diablo Canyon
Issue date:	06/18/1984
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
OL, NUDOCS 8406200338
Download: ML20092B703 (15)

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g UNITED STATES OF AMER'ICA ,r[N 19 pp g i

NUCLEAR REGULATORY COMMISSION 2

l 3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4

5

)

In the Matter of )

0

) Docket Nos. 50-275 0.L.

l 7 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.

)

, (Diablo Canyon Nuclear Power ) -

Plant, Units 1 and 2) )

9 I 10 APPLICANT'S REPLY TO JOINT INTERVENORS' g MOTION FOR PROTECTIVE ORDER '

12 The Joint Intervenors, by motion dated June 11, 13 1984, have sought a protective order for Exhibits 3, 4, 7, 14 and 10 which were submitted in support of their reply to 15 PGandt and Staff responses to the Joint Intervenors' latest 16 motion to reopen.

17 Neither the Staff nor PGandE were served copies of 18 those exhibits, and the Joint Intervenors by their motion 19 have requested that access to the substance of the exhibits 20 be denied to the Staf f and PGandt (JI motion pp. 5-6) . It 21 is PGandE's understanding that this Board has received such 22 exhibits but in an edited form with the names of affiants 23 and other identifying material removed. On receipt of the 24 motion for a protective order, this Board issued an order 25 26

requesting response to the motion and certain questions by June 19, 1984.1 2

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Joint Intervenors' motion for a protective order 5

18 predicated on two points. The first is that the informa-6 ti n given in each subject exhibit is conditioned by the 7

affiant that it not be released to the Staff or the Appli-8 cant. The second is that the withholding of the substance 9 f the exhibits is necessary to protect the anonymity of the 10 affiants.2 l 11 12 1 The order requested Staff and PGandE to answer the

' " "98 13 14 (1) What documents were served on the applicant and the staff as joint intervenors' reply?

15 (2) If the same documents, in the same form, as those 16 served on the Appeal Board were received by the applicant and t'1e staff, is there any need for a g protective order?

18 (3) Is the Commission's policy statement of August 5, 1983, 48 Fed. Reg. 36,358, applicable to joint intervenors' request for a protective order? If so, with what 19 result?

20 (4) If the Commission's policy statement is not applicable, is the protective order sought by joint intervenors 21 appropriate in the circumstances presented?

22 (5) If the protective order sought by joint intervanors is g not appropriate, is a less encompassing order suitable?

2 Although Joint Intervenors claim the informers 24 privilege, this Board has previously acknowledged that the 25 privilege may be claimed only by the govotnment. Houston (Footnote continued) 26 2-

3 Joint Intervonors sock to reopen the record based 2 in part on now affidavits, the substance of which they scok 3

L koop from Applicant. Fundamental to the acceptance of 4 such affidavits as evidence upon which this Board may rely 5 is the underlying truthfulness and voracity of the affiants 6 and the factual bania for establishing that the affiants 7 possess the necessary exportino to offor opinion tontimony.

l 8 By the requested terms of their motion.for a protectivo 9 ordor, Joint Intervonora attempt to rostrict thin Board in i

go its function by not allowing the substance of the affidavits 11 fr m sooing the light of day. Such a procons, if allowed, 12 w uld be extremoly prejudicial to Applicant and approachos a 13 trial g abnontia.3 14 15 (Footnoto Continued)

Lighting and Power Company (South Texas Project Unita 1 and 16 2), ALAD-639, 13 NRC 469, (1981), footnoto 26 at 478. Soo Roviaro v. United Staton, 353 U.S. 53, 59 (1957). In thin 37 caso, rather than advancing the intoront of the government in its investigation of the truth, Joint Intervonors seek to 18 uno the privilogo to thwart such investigation.

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19 With this unexamined evidence, Joint Intervonors claim that a " cloud" hangs over the adequacy of the safoty-related 20 donign and construction at Diablo Canyon citing Commonwealth Edison Company (Byron Nuclear Power Station Unita 1 and 2) 21 ALAB 770. That caso in distinguishable from tho instant proconding. First, the " cloud" there was not 22 unsubstantiated claims which had not avon boon examined, but rather the Licensing Board's findings made after hearing and 23 Staff datorminations over a period of years. In this case, Joint Intervonors sock to manufacture a " cloud" with 24 anonymous aff1hvits which they refuse to expose to Applicant or Staff. The uncertainty that existed in Hyron 25 was that which wan the result of findings, not merely (Footnote Continued) 26 e

3 As to the first point, ovary citizen has an 2

bligation to provido evidence, when necessary, to furthur 3

the nystem of justico. Consumorn Pownr company (Midland 4 Plant, Units 1 and 2) ALAN 764, Slip Opinion March 30, 1984.

5 11 unton Lighting and Power Company (South Texan Project,

, Units 1 aod 2) AtAn 63,, 13 unc 4ee, 473 (1981). weighe v.

7 Joop Corp., 547 P.Supp. 871, 875 (1:.D. Mich. 1982). Soo 8 Branzburg v. Ilayon, 408 U.S. 665, 688 (1972), Hoviaro v.

9 United Jtaten, 353 U.S. 53, 59 (1957). Since ovary citizon i

10 han such a duty which arinos from his citizenship, ho gg cannot, on his own, condition his civic obligation. Thus, 12 affiants cann t toll this nonrd that they will give it 13 int rmati n nly if the Board agroon, contrary to 14 i 15 l

l 16 17 (Pootnoto Continued) unsubstantiated allegations in support of a motion to l

re pen. Second, thin in not a case whorn thoro has not yet 18 boon a hearing on the Applicant'n verification program an was the caso in Byron. lloro, an extensive hearing on Donign l

39 Quality Assuranco and the adoquacy of the verification 20 program which was entablished pursuant to Comminnion ordor, han already been hold. In Byron, Applicant argued that a 21 hearing was not noconnary even while the verification program was not completo. Tho Appeal Doard romanded the 22 case to take evidence on the completed verification program.

lloro the verification program has boon completed and has 23 been already subjected to hearing. Finally, in Byron, the Appeal Board found a hearing was noconnary because one of 24 the principio deficiencies that existed was the established abnonce of adequato cortification proceduren for quality 25 control personnel. Such fundamental abnonce of proper cortification in not pronont hero.

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requirements of law, not to relay it to a party whose rights 2

r duties are being litigated.4 f As t the second point, Joint Intervenors claim l 3 ,

4 that because of inadequate editing of prior affidavits by [

5 the NRC Staff, Applicant was able to identify three of the anonym us allegers. As t these three allegers, they claim 6

7 in an unsupported allegation that, "Since February 16, all 8 three individuals have been laid off or suffered harassment

, on-site" (6/7/84 Devine Aff. at 3). Curiously, the docu-10 ments executed by the anonymous allagers which disclosed 11 identifying material were not released to Applicant until j April 26, 1904. No person was laid off or harassed as a [

12 result his allegations (Exhibit 1, attached). As a part [

13 of normal reductions of force, two of the three were laid 14 [

15 ff earlier this year, but each was rehired by April'9, I 16 1984e Prior to the date of release of the affidavits to f Applicant. All three are currently employed at the site, 37 t

le and there have been no reports of harassment by any of these individuals from any source whatsoever. Consequently the 3, f 20 21 4 While CAP and Joint Intervenors ma consider 22 themselves as chartered to ensure that t e NBC satisfies its  !

statutory duties, they cannot a sponte substitute i

23 themselven for the governmenta y wMeh Congress charged l with the duty to regulate, investigate, and license nuclear 24 Power plants. Consequently, the investigative arm of the commission, its staff, cannot be deprived of the substantive information contained in Exhibits 4, 5, 7, and 10 or the 25 names of the informers.

l 24 I

I g pivotal grounds for the request for the protective order are 2

based, at best, a misleading affidavit.$

As acknowledged by this Board in the case of 3

4 Consumers Power Company (Midland Units 1 and 2) ALAM-764, 5

supra., the informer protection extends only to the identity 6 f the informer and not to the substance of the information 7

provided.' See moviaro v. United States, supra. at 60.

g Applicant has no other means of access to the

, allegations which are contained in Exhibits 3, 4, 7, and 10.

10 It is the substance of those allegations and not the identi-11 ty f the allegers which is of importance to Applicant, Sta f, and this board.

12 13 14 15 5 This pivotal allegation should give the Board cause to question the veracity and forthrightness of Joint 16 Intervenors' allegatlons. While the allegation in the 17 affidavit is that the three individuals were either laid off or suffered harassment since February 16, 1904, it is clear that the layoffs were not related to their affidavits and 18 that the individuals involved were even reemployed prior to l' the release of their affidavits. It is also clear that there is an absence of harassment as a result of their allegations. Given such inclination to stretch the facts, 20 this Board must scrutinise all wlaims of Joint Intervenors.

21 6 As in the consumers Power case ALAB 764 u ., there is no issue of privilege involved here. Any c n . ntiality 22 that may have esisted between Yhomas Devine, affiant, and 23 the anonymous allegers was clearly breached when disclosure was made to Joint intervenors and their counsel. While Thomas Devine has acted, in other matters, on behalf of 24 Mothers for Peace, one of the Joiht Intervenors, he is not 25 counsel of record on behalf of all Joint Intervenors in this action. ,

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_. - .__ - _ - - _ . - - _ _ _ _ - _ _ _ - _ - _ _ _ - ---___________---___--__-____-____-__.w

Accordingly, should the Board be ablo to dotormino 3

qualifi ation of the affidavita, the Board should roleano 2

3 Exhibits 3, 4, 7, and 10 in the form they have without a protectivo order.

4 5

II. RESPONSE To noARD CERTIFIED OUEST!oNS 6

A. As indicated above, PGandt did not roccivo l 7 Exhibits 3, 4, 7, and 10 with Joint Intervonors' reply. If, in act, it in the caso that this Donrd rocoived tho exhib-8 9

its without the namos or other identifying matorial as 10 odited by anonymous allogorn, it would appear that consin-gg tont with protwetion of informers' intoront, thin Doard 12 e uld roloano the substanco of the exhibits to the Staff and 13 Applicant, and no protectivo ordor would bo noconnary.

D. Applicant doon not non that the Comminnion 14 g policy statomont of Augunt 5, 1983 (40 rod. Hog. 36358) ,

16 applion ninco the subject information in not in the pon-g nonnion of er originated by tho Staff in its ongoing inven-g tigation or innpoetion.

9 C. The protectivo order sought by Joint 20 Intervonorn far exconds what is required to protect the 21 intoront of the anonymoun informants and if granted as roquestod would prejudico Applicant and Staf f and intorforo 23 g mattorn placed before it.

g E. As acknowledgnd by tho floard in consumar_

power en. (Hidland Unita 1 and 2) Af,Afl 764 nupra., n l

i g protective order which provides for deletion of nanos and 2 other identifying material is appropriate for protection of l 3 informers' interests.

4 Applicant would suggest, however, that the Board should be presented with unedited versions of the Exhibits 6 l""camera so that it can ascertain that the affidavits are, l 7 in fact, of persons other than those who have previously l

g provided affidavits. Thoreaf ter, upon . qualification of the

, affidavits, the Board should <!stermine if the edited version 10 protects the informers identity or whether, on weighing of l 11 the interests of the parties, a further modification should 12 be made prior to release to staff and the Applicant.7 g3 Alternatively, if the Board determines that the affidavits 14 cannot be accepted, then they should be rejected outright.

15 Applicant Would like to point out that while Joint 16 Intervenors are seeking extraordinary relief from this 37 Board, they do not approach the Board with altogether " clean 18 hands." The allegations they submit, beyond being repeti-

19 ti us, have been tortiously dragged through the licensing l 20 21 7

22 1f Exhibits 4, 5, 7, and 10 contain new materials, obviously Applicant should be afforded the opportunity to 23 respond since they constitute a new motion and net '. reply to Applicant's prior responne to Joint Intervenora Motion to Meopen. Applicant is in the process of responding, nter_

24 Lia, to the new material contained in the June 11, mygg, 25 Teily" of Joint Intervenors and will submit its responsen to the Moard by June 29, 1984.

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l process over in excess of six months time. Affiant 1

2 Thomas Devine has stated under oath that "for the previous seven months," he has "been conducting an investigation of l 3

4 alleged illegal or improper practices at the Diablo Canyon nuclear powerplant" (6/7/84 Devine Af f. at 1) . It is not l 6 inconceivable that Joint Intervenors and their associated 7

representatives would continue this pattern of conduct over i g the next several months even though they have been inves- '

, tigating the matter for over at least six months. Applicant >

10 would submit, therefore, that if Joint Intervenors seek gg equity, they must do equity. That should certainly extend to providing the substance of their claims.

12 13 III. CONC W TON ,

14 Applicant submits that consistent with due process 15 and in the interest of fair play and justice, it is vitally 16 necessary that it have access to the substance Exhibita 3, 4, 7, and 10. Applicant requests that Exhibits 3, 4, 7, and 17 18 19 20 21 22 23 24 l

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. l y 10 be released to Staff and Applicant, or alternatively be 2 re e ted by the Board if they fail to meet minimal requirements for affidavits.

3 4 Respectfully submitted, 5 ROBERT OHLBACH '

PHILIP A. CRANE, JR.

0 RICHARD F. LOCKE DAN G. LUBBOCK 7 Pacific Gas and Electric Company P. O. Box 7442 8 San Francisco, CA 94120 (415) 781-4211 9

ARTHUR C. GEHR 10 8"*1* ' "II"*#

3100 Valley Bank Center 11 Phoenix, AZ 85073 (602) 257-7288 12 BRUCE NORTON 13 Norton, Burke, Berry & French, P.C.

P. O. Box 10569 14 Phoenix, AZ 85064 (602) 955-2446 15 Attorneys for 6 Pacific Gas and Electric Company 17 .

10 j(N N Dated: June 18, 1984 By \

19 #" * # "

20 21 22 23 24 25 26

UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

) Docket Nos. 50-275 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323

)

(Diablo Canyon Nuclear Power ) (Construction Quality Assurance)

Plant, Units 1 and 2) ) ..

)

AFFIDAVIT OF D.A. Rockwell STATE OF CALIFORNIA )

) ss CITY & COUNTY OF SAN FRANCISCO )

The above, baing duly sworn, deposes and says:

I, D.A. Rockwell, am Special Projects Engineer for the Pacific Gas and Electric Company at the Diablo Canyon Nuclear Power Plant. In such capacity, I work directly with management of Pullman Power Products and the H.P. Foley Company who are contractors on site at the Diablo Canyon Nuclear Project. In such capacity I am informed of personnel shifts and force changes of each organization. I have caused that the employment files be reviewed of the three individuals who were identified in the May 17, 1984 submittal of i

PGandE: Mr. J. McDemott, Mr. T. O'Neal, and Mr. J. Phillips. I have also -

' investigated the possibility of the existence of any claims of harassment made i by any of these three individuals as a result of the affidavits. Contrary to the representation of Thomas Devine, no harassment or reprisal by PGandE or its contractors against any of the three individuals has resulted from their R anonymous allegations.

! EXHIBIT 1

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Mr. J. McDennott was hired by Pullman on May 13, 1983. In a scheduled force reduction on January 13, 1984, Mr. McDennott was let go by Pullman. He was rehired by Pullman on April 9,1984. He currently works for Pullman.

Mr. J. Phillips was originally hired by PTGC on March 31,1983 and, as part of a scheduled force reduction, was let go on March 23, 1984. His ranking in March 1984 was 143 out of 147. Subsequent to his layoff by PTGC he was hired by Pullman on April 9,1984. He current 1y' works for Pullman.

Mr. T. O'Neal was hired by Pullman as a QC inspector on July 5,1983 and currently is working for Pullman in that capacity.

The twc individuals who were laid off were let go as a result of legitimate reduction of force, and not as the result of any allegation or affidavit they may have signed. Both were let go prior to April 26,1984, the date when NRC first released the affidavits to PGandE.

Investigation has revealed no reports of harassment by any of these three individuals as a result of their allegations. There have been no reports to their supervisors. There have been no hot-line reports, and there have been no reports by union representatives regarding these individuals.

Mr. T. O'Neal did for the first time come to sqy office on June 12, 1984, the day after the Joint Intervenors motion was filed, to speak to me about his alleged quality concerns. He demanded sqy written response to his concerns.

He did not infom me of any physical threats, social harassment or reprisals of any kind resulting from his allegations.

Dated: June 19,1984 D.A. Rockwell Subscribed and sworn to '

before me this 19th day of June,1984 Nancy J. Lemaster, Notary Public in and for the City and County of San Franciso State of California.

My commission expires April 14,1986.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CKETED Ushit In the Matter of ) .g4 yy jg g7 7g

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275

) Docket No/iS0-323. :

Diablo Canyon Nuclear Power Plant, ) 0 2 U g [' -

Units 1 and 2 )

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (hnve) been served today on the following by deposit in the United States mail, properly stamped and addressed: .

Judge John F. Wolf "

Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington DC 20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O. Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq.

Washington DC 20555 Joel Reynolds, Esq.

Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Blvd. - Suite 300 Atomic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.

P. O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.

Scn Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Janice E. Kerr, Esq. Phoenix AZ 85073 Public Utilities Commission State of California Bruce Norton, Esq.

5246 State Building Norton, Burke, Berry & French, P.C.

350 McAllister Street P. O. Box 10569 i

Sen Francisco CA 94102 Phoenix AZ 85064 Mrc. Raye Fleming Chairman 1920 Mattie Road Atomic Safety and Licensing Shall Beach CA 93449 Board Panel US Nuclear Regulatory Commission Mr. Frederick Eissler Washington DC 20555 -

Scanic Shoreline Preservation [

Conference, Inc.

[ 4623 More Mesa Drive l Stnta Barbara CA 93105 l

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Chairman

• Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Wcshington DC 20555 US Nuclear Regulatory Commission Washington DC 20555 Sncretary US Nuclear Regulatory Commission

• Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555

• Lrwrence J. Chandler, Esq.

• Judge John H. Buck Henry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal B,oard Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard Commissioner Nunzio J. Palladino MHB Technical Associates Chairman 1723 Hamilton Avenue Suite K US Nuclear Regulatory Commission San Jcse CA 95125 1717 H Street NW Washington DC 20555 Mr. Carl Neiberger Telegram Tribune Commissioner Frederick M. Bernthal P. O. Box 112 US Nuclear Regulatory Commission Scn Luis Obispo CA 93402 1717 H Street NW Washington DC 20555 Michael J. Strumwasser, Esq. +

Susan L. Durbin, Esq. Commissioner Victor Gilinsky Peter H. Kaufman, Esq. US Nuclear Regulatory Commission 3580 Wilshire Blvd. Suite 800 1717 H Street NW Los Angeles CA 90010 Washington DC 20555 Maurice Axelrad, Esq. Commissioner James K. Asselstine Lowenstein, Newman, Reis, and US Nuclear Regulatory Commission Axelrad, P.C. 1717 H Street NW 1025 Connecticut Ave. NW Washington DC 20555 Washington DC 20036 Commissioner Thomas M. Roberts US Nuclear Regulatory Commission 1717 H Street NW

. :. Washington DC 20555 i

Date: June 18, 1984 A

! / DAN G. 'LtIBBOCK i l *Via Sky Courier Network l l

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