ML20133F010

Memorandum & Order Granting Confidential Treatment of Names & Otherwise Identifying Info Re Prospective Witnesses on Bl Rorem QA Contention.Served on 851007

ML20133F010
Person / Time
Site:	Braidwood
Issue date:	10/04/1985
From:	Grossman H Atomic Safety and Licensing Board Panel
To:	ROREM, B.
References
CON-#485-692 79-410-03-OL, 79-410-3-OL, OL, NUDOCS 8510100091
Download: ML20133F010 (9)

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Nf' UNITED STATES OF AMERICA '85 007 -7 g10:32 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD OhgFfE hg Before Administrative Judges:

Herbert Grossman,' Chairman

"' Dr. A. Dixon Callihan

> Dr." Richard F. Cole SERVED 007 -71985 In the Matter of Docket Nos. 50-456-0L

, 50-457-0L COMMONWEALTH EDISON COMPANY

) ASLBP No. 79-410-03 OL

)

(Braidwood Nuclear Power Station, )

Units 1 and 2) ) October 4, 1985 \

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MEMORANDUM AND ORDER (Granting Protective Order)

MEM0RANDUM 1

I. INTRODUCTION Intervenors Bridget Little Rorem, et al., have moved for an order providing for confidential treatment of the names and otherwise iden-tifying infomation regarding prospective witnesses on Intervenors' Quality Assurance contention. Intervenors seek the entry of a protec-tive order limiting the disclosure of such identifying information

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8510100091 851004 hDR ADOCK 05000456 PDR D S o Z _.

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during the course of this litigation. The order sought would confer confidentiality protections only during the present discovery phase of these proceedings (although the protections afforded would continue thereafter), but no request is now made for a ruling on i_n camera evi-dentiary hearings that might follow, which Intervenors submit (Inter-venors' Motion at 7-8) would be premature and speculative at this time and may well not ultimately be required.

Intervenors seek confidential treatment at this time for eleven present and former L. K. Comstock quality control inspectors and, as necessary, for other prospective witnesses to be identified by Inter-venors at a later date. The protective order would provide for limi-ted disclosure of names and identifying infonnation strictly on a "need to know" basis as required for participation by a party in the proceeding. Disclosure of such protected information would be limited to persons who have executed affidavits of nondisclosure to be filed with the Board and available to the parties. Although Intervenors appended to their motion a copy of a form of protective order and affidavit of nondisclosure that was approved by the Commission with i regard to a security plan in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-24, 11 NRC 775 l

(1980), Intervenors submit that a less elaborate order and affidavit I would effectively meet the needs for confidential treatment here.

Intervenors would undertake to negotiate the contents of such an order and affidavit with the other parties if this motion is granted.

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'i Applicant and-NRC Staff oppose the motion.

We grant the motion and authorize Intervenors to negotiate the contents of the order and affidavit with the other parties, to be submitted to the Board for approval. If an agreement is not forth-coming, Intervenors shall submit a proposed order and affidavit to the Board.

II. FACTUAL BASIS FOR INTERVENORS' MOTION Intervenors sumarize the factual claims of harassment and fear of reprisal in their motion and rely upon an unexecuted affidavit of one Comstock QC inspector, that was appended to Intervenors' prior motion, of July 12, 1985, concerning the protective order. The unexe-cuted affidavit indicates that the affiant QC inspector has personal knowledge of widespread intimidation, harassment and retaliation at Comstock; has had extensive discussions with at least 30 other Com-stock QC inspectors, who have knowledge of harassment and intimidation by Comstock management and who, he believes, would cooperate with the Licensing Board; and has spoken to at least ten Comstock QC inspec-tors, who were eager to present such testimony and provide documenta-tion, but had expressed fear of retaliation based upon harassment which they have already experienced. According to Intervenors, how-ever, the affiant has become fearful of being fired by Comstock man-agement if he takes any further voluntary affirmative steps in this

proceeding such as executing the affidavit, and has consequently not signed it. As part of their factual basis for the motion, Intervenors also refer to the finding of a U.S. Department of Labor area director sustaining an employee's complaint of unlawful discrimination by Comstock in violation of the employee protection provisions of the Energy Reorganization Act of 1974, 42 USC 6 5851, and to a March 29, 1985 complaint to the NRC by 24 Comstock QC inspectors of harassment and technical concerns, including threats of physical violence by a Comstock supervisor. Intervenors further state that, as directed by the Board, after the July 23, 1985 prehearing conference they comuni-cated further with each of previously identified 16 Comstock QC in-spectors and that 11 of the 16 expressed fear of reprisal or discrim-ination, requested confidential treatment of their names, and asked Intervenors to seek a protective order providing for the maximum pro-tection available even where absolute confidentiality could not be secured.

III. DISCUSSION i

In opposing Intervenors' motion for protective order Applicant and Staff rely heavily upon Kansas Gas and Electric Co. (Wolf Creek  !

Nuclear Generatirg Station, Unit 1), ALAB-327, 3 NRC 408 (1976), as establishing the standards for granting a protective order for with-holding information from the public. According to Applicant (Appli-cant's Response at 3)' and Staff (Staff's Response at 2), the Appeal

Board adopted a four-part analysis requiring that a party seeking to protect information from public disclosure must demonstrate: (1)that the information is of a type customarily held in confidence; (2) that the information has in fact been kept confidential by its originator; (3) that the information is not available from public sources; and, (4)that there is a rational basis for holding the information confidential.

We do not find the Wolf Creek standards, which involve the pro-tection of proprietary information, to be of much assistance in deter-mining whether the public interest would be served by the issuance of an order to protect the confidentiality of prospective witnesses.

Nevertheless, Intervenors' showing appears to satisfy the four re-quirements: (1) We take official notice of the fact that the NRC Staff and Atomic Safety and Licensing Boards (whether or not in pub-lished orders) have customarily granted confidential treatment to quality control inspectors who would otherwise refuse to come forward with information concerning harassment and intimidation for fear of reprisal by the company. (2) The names of the prospective witnesses have been kept confidential, to the extent of being disclosed only to a more limited class than under the proposed protective order.

(3) The infonnation is not currently available to those who would not receive it under the protective order. And, (4) there is a rational basis for treating the information confidentially, i f we are to believe the representations by Intervenors that the prospective

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witnesses would be fearful of coming forward with their. information without confidentiality because of past incidences of harassment and intimidation, including the three instances of- individual reprisal enumeratedinIntervenors' motion (at3-5).

The situation here stands in stark contrast to that of Houston Power Lighting and Power Co.-(Allens Creek Nuclear Generating Station,

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Unit 1), ALA8-535, 9 NRC 377 (1979), upon which Applicant and Staff rely so heavily to deny the request for confidentiality. In Allens Creek, the Appeal Board denied " standing" to an intervenor organiza- ,

tion that . sought to base its representational standing on the resi-dence of a member in close proximity to the facility site, whose name the organization would not disclose to the parties or the Board. The ,

organization proposed submitting an affidavit by its attorney attest-ing to the proper standing. In rejecting this approach, the Appeal Board noted that such a procedure would deny the Board and the other parties the right "to determine for themselves, by independent inquiry

. if thought warranted, whether a basis existed for a formal challenge to the truthfulness of the assertions" of intervenor. 9 NRC at 393 (emphasisinoriginal).

Here, the names of the protected witnesses would be disclosed to the other parties and the Board, and the parties would have every

. right to depose these witnesses. . All of the assertions made in s

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Intervenors' motion and in the unexecuted affidavit attached to Inter-venors' prior motion could be tested by the other parties.

The Board does not favor conferring confidentiality on witnesses or- information. The main detriment is not to the ability of the parties to marshal their known witnesses and information to counter unfavorable confidential testimony. The parties, after all, will have whatever information is disclosed during the confidential discovery, on a'"need to know" basis. Rather, the price that will be paid is in

~not having the confidential information disclosed to the public so c

that further information, unknown to the parties at this time, might

.- become available to them and the Board. In that respect, we can only

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surmise that .Intervenors' case would be harmed more than that of the other parties by having the information disclosed to the parties dur-ing discovery kept confidential from the public, because of Interve .

nors' more limited access to direct information about practices on the

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site. But, be that as it may, we do not see any great harm in grant-ing this limited confidentiality at this dis overy stage, considering that, while information gleaned through discovery is legally access- l

, .ible to members of the public, it is rarely disseminated to them.

On the other hand, if confider,tiality is not offered at this point, we risk losing the testimony of a number of witnesses who might make a valuable contribution to the hearing record according to the prima facie showing made by Intervenors. l 1

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We are further persuaded from Intervenors' motion that Interve-nors have made some effort at informing the prospective witnesses of the limited nature of the confidentiality that would be bestowed by the protective order and the risks attendant upon maintaining their secrecy, as opposed to public disclosure and the full protections that might be afforded them under the Energy Reorganization Act of 1974, 42 USC 9 5851. We are not convinced that their choice of limited con-fidentiality, rather than full public disclosure, is in their best interest. However, we are not fully knowledgeable about their working conditions. It is possible that any perceived threats to their em-ployment security might emanate more from fellow employees and low-level supervisors who might not become privy to the confidential dis-covery, than from higher-level employees who would receive that infor-mation on a "need to know" basis.

We make no determination that the prospective witnesses should be in fear of reprisal for testifying or that they have wisely chosen to seek confidentiality. We simply weigh the benefit of encouraging their testimony, upon the prima facie showing made by Intervenors of its significance to this proceeding and the witnesses' reluctance to testify otherwise for supportable reasons, against the detriment of inhibiting public access to the infomation and the cumbersome proce-dures that a protective order necessitates, and find the balance in favoring of issuing the protective order.

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0RDER For all the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 4th day of October,1985 ORDERED (1) That Intervenors' motion for a protective order is granted; (2) That Intervenors' counsel is directed to negotiate the form and substance of the protective order and accompanying affidavit of nondisclosure; and (3) Tnat Intervenor.; are directed to submit a proposed protective order and affidavit subsequent to their negotiation with the other parties, with or without agreement.

FOR THE ATOMIC SAFETY

, AND LICENSING BOARD

, a-: =

,\ Herbert Grossman, Chairman ADMINISTRATIVE JUDGE

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October 4, 1985 Bethesda,-Maryland l

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