ML20129H343

Request for Immediate Order Directing Staff to Preserve Documents Due to Destruction of Documents Re Gap 850516 FOIA Request for Memoranda Generated or Received by W Stello

ML20129H343
Person / Time
Site:	Comanche Peak
Issue date:	05/31/1985
From:	Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20129H322	List: ML20129H317 ML20129H343
References
OL-2, NUDOCS 8506070551
Download: ML20129H343 (7)

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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS LPfILITIES GENERATING ) Docket Nos. 50-445/2 and COMPANY, et al. ) 50-446/2 00CHETE SNRC

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) ) '85 JUN -4 REQUEST FOR IMMEDIATE ORDER i[ E E F HCR DIRECTING STAFF TO PRESERVE DOCUMENTS hfC On May 16, 1985 a Freedom of Information Act request was filed with the Nuclear Regulatory Commission by Billie Garde of the Government Accountability Project seeking, inter alia, memoranda generated and received by Mr. Victor Stello, Assistant to the Director of Operations, relevant to Comanche Peak steam Electric Station. (A copy of the request is attachment A of this l memo.) ,

On May 29, 1985 Ms. Garde was advised by a representative of the FOIA office that the documents responsive to the request had l

been disce.rded or destroyed by Mr. Stello. This was confirmed by l

a second call on May 30, 1985. No indication was provided l

1 whether this destruction occurred before or after the FOIA request or whether it represented Mr. Stello's standard procedures with documents generated or received by him in the normal course of his employment. (Attachment B is Ms. Garde's l'

affividavit.)

Mr. Stello's involvement in the Comanche Peak decision i making process is unclear, but also undeniable. In recent weeks Mr. Stello has travelled to the Comanche Peak plant for a tour 8506070551 850531 PDR ADOCK 05000445' O PDR

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and participated in a public press briefing-on the status of the T

, plant.

It is our understanding that he has also been directly It involved in communications with tne contention 5 panel.

would appear that Mr. Stello has been playing a role in the development $f the staf f position in this case and as such or at least

. memoranda generated or received by him are relevant, likely to lead to information which is relevant, to the issues in this case. .

As early as March 29, 1985 we advised the staf f of our intent to probe the underlying bases for the positions developed Roisman,

.by the staff (letter to Stuart Treby from Anthony Z.

March 29, 1985). It is now apparent that Mr. Stello is a part of

'that process. This Board in its March 12, 1985 memorandum (Case Motion For Evidentiary Standard) recognized that the parties may

- want to challenge staff documents by " cross-examination or contrary proof". Id. slip op p.2. Identifying Mr Stello's influence or attempted influence on the staff position, and the rational or. basis for his position is vital to such cross-examination.

No one in the staff should find it surprising that to the exter. . Mr. Stello influenced or sought to inf.luence the positions taken by the staff, documents prepared or received by him would be relevant and would be sought in this proceedings. What is surprising is that neither Mr. Stello on his own or as a result of the advice of counsel took care to preserve documents which coulc'have a bearing on the issues in this contested proceedings.

We are assuming that the document destruction was not done

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' intentionally to avoid discovery.*/

As ' staff documents surface Case will begin the discovery f

process (we attempted to do that with our March 29 letter but Mr.

Treby has never responded) and will learn in fact the extent to I

which Mr. Stello.was involved in Comanche Peak. At that time i

. appropriate document production requests will be filed. But this t

request will be futile if Mr. Stello--and perhaps other staff employees--are allowed to destroy any documents potentially i related to Comanche Peak.- For this reason we request that the

' Board issue an order to the NRC staff directing that no documents received or generated by any staff employee which are potentially related to Comanche Peak be destroyed including all drafts, notes, tapes, discs and the like. Only by such an order can the integrity of the record for this case be preserved.

Inasmuch as the staff apparently assumes that document destruction is not objectionable and in light of the possibility that this Motion may itself encourage a wave of document destruction either by Mr. Stello or others, including other i: members of the Executive Director's staff we urge this Board to 4

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• / The NRC rules make document construction the principal source of discovery from the staff since the staff is allowed sub-standard (but not unfettered) control over the production of witnesses for depositions. This destruction of documents relevant to a licensing proceeding is particularly damaging to the search for the truth.

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' . issue an order immediately in the nature of a temporary restraining order directing the staf f to preserve documents. The immediate order would be re-evaluated upon the receipt,of responsive papers from the parties.

Sincerely, Anthony Z. Roisman Executive Director 6

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. ATThrHMENT A

,' GOVERNMENT ACCOUNTABluTY PROJECT 1555 Connecncut Amw. N.W Suite 202 Washington, D.C. 20006 (202)2324550 May 13, 1985 WN AGI REQUESI, FREEDOM OF INFORMATION ACT REQUEST {gg g Director office of Administration W' l(o h5 Nuclear Regulatcry Commission Washington, D.C. 20535 To Whom It May concern:

Parsusn to the Freedom of Information Act ("FOIA"), 5 U.S.C. 9552, the Government Accountability Pro]ect (" GAP")

requests copies Of any and all agency records and information, including but not limited to notes, letters, memoranda, drafts,

.Inutes, diaries, logs, calendars, tapes, transcripts, summaries, interview reports, procedures, instructions, engineering analyses, drawings, flies, graphs, charts, maps, photographs, agreements, handwritten notes, studies, data sheets, notebooks, books, telephone messages, computations, voice recordings, compater runoffs, any other data compilations, interim and/or final repcrts, status reports, and any and all other records relevant to and,or generated in connection with all communications generated or received by Victor St&llo regarding j :ne Comanche Peak nuclear power plant, including internal correspondence.

This request includes all agency records as defined in 10 C.F.R. 99.3ato) and the NRC Manual, Appendix 0211, Parts 1.A.2 and A.3 (approved October 8, 1980) whether they currently exist in the NRC official, " working", investigative or other files, or at any other location, including private residences.

If any records as defined in 10 C.F.R. 99.3a(b) and the NRC Manual, supra, and covered by this request have been destroyed

.a and/or removed after this request, please provide all surrounding records, including but not limited to a list of all records which have been or are destroyed and/or removed, a description of the action (s) taken relevant to, generated in connection with, and/or

lasued in order to implement the action (s).

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I V GAP requests that fees be waived, because " finding the information can be considered as primarily benefitting the general public," 5 U.S.C. 9552(a)(4)(a). GAP is a non-profit, non-partisan public interest organization concerned with honest and open government. Through public outreach, the Project promotes whistleblowers as agents of government accountability.

Through its Citizens Clinic, GAP offers assistance to local public interest and citizens groups seeking to ensure the health and safety of their communities. The Citizens Clinic is currently assisting several citizens groups, local governments and intervenors in the central Texas area concerning the construction of the Comanche Peak nuclear power plant.

We are requesting the above information as part of an ongoing monitoring project on the adequacy of the NRC's efforts to protect public safety and health at nuclear power plants.

For any documents or portions that you deny due to a specific FOIA exemption, please provide an index itemizing and describing the documents or portions of documents withheld. The index should provide a detailed Justification of your grounds for claiming each exemption, explaining why each exemption is relevant to the document or portion of the document withheld.

This index is required under Vaughn v. Rosen (I), 464 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

We look forward to your response to this request within ten days.

Sincerely, ,

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.Y \ k & C-Billie Pirner Garde Director, Citizens Clinic l

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d Attachment B AFFIDAVIT I, Billie Pirner Garde, do hereby swear and depose that on May 29 I was informed by a member of the Freedom of Information Office Staff that Mr. Victor Stello had informed the FOIA staff in response to my May 16, 1985 request that he now had no documents responsive to my request and that he had discarded or destroyed all the documents that may have been responsive to my request because he was not in the decision making chain of command on Comanche Peak. I was told that the only documents in M r. Ste11o's possession which may be responsive were some telephone logs which would be reviewed to determine if they were in fact responsive. That information was confirmed to me on May 30, 1985.

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Bill'io Pirner Garfe Subscribed and sworn to me this 5 day of May, 1985.

in Washington, D.C.

My Commission expires on EFOmiiinnlon uptsItme 14,1985 A. "

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