ML20134H196

Comments on Board 850805 Request for NRC Views Re Impairment of NRC Ability to Obtain Safety Info If Eddleman 850619 FOIA Request Granted.Certificate of Svc Encl

ML20134H196
Person / Time
Site:	Harris
Issue date:	08/23/1985
From:	Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
CON-#385-331 OL, NUDOCS 8508280312
Download: ML20134H196 (8)

Text

i 33l 00CKETED USNRC August 23, 1985

'85 As 26 P12:07 UNITED STATES OF AMERICA CFFICE OF SECadIA9" NUCLEAR REGULATORY COMMISSION Occgg.7lng 4 3ggg7' BRANCH BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' COMMENTS ON THE BOARD'S REQUEST FOR NRC STAFF VIEWS ON EDDLEMAN FOIA REOUEST On August 5, 1985, the Board requested the NRC Staff's views on the impairment of the NRC Staff's ability to obtain safety information in the future if Intervenor Wells Eddleman's June 19, 1985 request for certain documents under the Freedom of'Information Act ("FOIA") were granted. The Board also in-vited Applicants to comment on the Board's four cuestions addressed to the Staff.

Applicants' position on the FOIA reauest is set forth in detail in " Applicants' Response to Intervenor Nells Eddleman's Petition for Production of Certain Documents Py Making Them Part of a Public Record cr, in the Alternative, Pursuant to the Freedom of Information Act," dated July 9, 1995 (" Applicants' 0

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Response"). Attached to Applicants' Response are the affida-vits of Dr. Thomas S. Elleman ("Elleman Affidavit") and Harold R. Banks (" Banks Affidavit"). Applicants take this opportunity to draw the Board's attention to statements in the two affida-vits which provide, in part, a record basis for answers to the Tour questions posed to the NRC Staff.1!

1. Are the documents in question here, and those of the type it represents, an important means by which the NRC obtains or might obtain safety information about nuclear facilities?

Yes. The Review Panel Report summarizes the concerns raised by QA/QC and Construction inspectors and the resolution of those concerns. Elleman Affidavit at Y 6. Quality Check Reports provide the results of investigations of allegations made in confidence by Applicants' employees. Banks Affidavit at 1 3. While the documents in question were not submitted to the NRC Staff for review, they are available (as a result of Applicants' voluntary openness with NRC I&E) for on-site review by the resident inspector and I&E inspectors. Applicants' Re-sponse at 15 n.3. The NRC resident inspectors were briefed on 4

1/ Applicants reaffirm their position regarding Mr.

Eddleman's FOIA request that (1) pursuant to 10 C.F.R. 5 2.790(b)(5), Applicants have an absolute right to the return of documents found by the Commission to be irrele-vant or unnecessary to the performance of its function; (2) the documents are not an " agency record" subject to production pursuant to FOIA; (3) a party may not obtain production of documents pursuant to FOIA, where production has been denied pursuant to the Commissinn's discovery f rom production rules; and (4) the documents are exempt pursuant to FOIA since they contain confidential commer-cial information and privileged self-critical analyses.

See Applicants' Response at 5-20.

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the results of the QA/QC-Construction Inspector Review Panel investigations. The information available in these critical self-appraisals are an important source of safety information about the efficacy of the QA/QC program at the Harris Plant.

2. Is the substance of such documents already reauired to be compiled and reported to NRC under an existing ren-ulation or under quality assurance plans for particular facilities? Could compilation and disclosure of such information be required under a new regulation?

Neither the Review Panel efforts nor the Quality Check Program are mandated by NRC regulations. See Elleman Affidavit at 1 8. There is no requirement for such inform 6 tion to be re-ported to the NRC. Nor are we aware of any proposal by the Commission to require a licensee or applicant to undertake such a critical self-appraisal and disclose the results to the NRC. ,

3. Is an enforceable pledge of confidentiality from the licensee to its employees, such that resulting reports are exempt from disclosure under the Freeden of Information Act, an essential element in having licensees generate useful documents of the kind in ouestion?

Confidentiality of the individuals and the information obtained is a sine cua non of an effective program to investi-gate employee concerns. QA/QC and Constructi'en inspectors in-terviewed by the Review Panel were assured that the information obtained would be held confidential. Elleman Affidavit at 5 3.

Information provided to the Quality Check group is strictly maintained confidential. Banks Affidavit at c 5. Disclosure of an individual's name and/or circumstances cf his allegations could cause him embarrassment or adversely affact his future employment. Id. Furthermore, candid appraisals of the results

e-S of investigations by the Review Panel and Quality Check oroup are essential to management for the effectiveness of the pro-gram. Id. at 5 6. If the reports of such investigations were to be made public, candid and critical analysis might give way to careful editing for possible disclosure. Id. Any such re-port would be considerably less useful to management and to the NRC. Elleman Affidavit at 5 9.

4. Taking into account the answers to the foregoing questions, and any other relevant factors, would an unrestricted grant of the pending Freedom of Information Act request be likely to impair the NRC's ability to ob-tain safety information in the future? If so, should the request be granted under a protective order?

An unrestricted grant of the FOIA request would likely im-pair the NRC's ability to obtain similar safety information on a voluntary basis from Applicants in the future and, we sus-pect, from other licensees as well. As noted by Dr. Elleman:

If such reports were subject to public dis-closure, given the litigious nature of op-ponents of public utilities -- especially those with nuclear construction projects -- it would significantly reduce the incentive of utility management is embark on such a critical, self-appraisal.

Even if management were to determine that the benefits of such cricital, self-appraisals outweigh the risk of dis-closure of the information, any report pro-duced as the result of such reviews would likely be considerably less candid in its criticism of existing practices and, there-fore, less useful to management.

E11eman Affidavit at ! 9. Disclosure of the information to in-tervenors under a protective order would not in any way miti-gate this concern, por is it clear that disclosure of documents 1 .

o pursuant-to a FOIA request could be constrained by a protective order.

fesp ctful y submitted,,

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/ Thdpas A. Baxter '

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i Joh6 H. O'Neill, Jr. [

Shaw, Pittman, Potts & Tfpwbridge

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N ' J18 0 M Street, N.W.

Washington, D.C. 20036 (202) 822-1148 Richard E. Jones Dale E. Hollar Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Dated: August 23', 1985

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00LKETED USNRC August 23, 1985 85 AUG 26 P12:07 0FFICE OF SECRtIAF '

UNITED STATES OF AMERICA 00CKETING & SERVICf.

BRANCH NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of. )

)

CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing

" Applicants' Comments on the Board's Recuest for NRC Staff Views on Eddleman FOIA Recuest" were served by deposit in the United States mail, first class, postace prepaid, this 23rd day of August, 1985, to all those on the attached Service List.

/

1 V W-JohnjH. O'!ieill, Jr. /}/

1 Dated: August 23, 1985

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

'In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Dccket No. 50-400 OL and NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of-U.S. Nuclear Regulatory Commission North Carolina Washington, D.C. 20555 307 Granville Road Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright M. Travis Payne, Erguire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission P.O. Fox 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D.C. 20555 Charles A. Barth, Esquire Mr. Wells Eddleman Janice E. Moore, Esquire 718-A Iredell Street Office of Executive Legal Director Durham, North Carolina 27705 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Richard E. Jones, Esquire Office of the Secretary Vice President and Senior Counsel U.S. Nuclear Regulatory Commission Carolina Power & Licht Company Washington, D.C. 20555 P.O. Dax 1551 Raleich, North Carolina 27602 Mr. Daniel F. Pead, President Dr. Iirda M. I.i t t le CHANGF Governor's Waste Manacement Beard P.O. Box 2151 513 Aihemarle Building Raleich, North Carolina 27602 325 North Salisbury Street Raleigh, North Carolina 27611

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s Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street

' Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC

.P.O. Box 991 Raleigh, North Carolina 27602 Administrative Judge Harry Foreman Box 395 Mayo University of Minnesota Minneapolis, Minnesota 55455 Steven F. Bryant Assistant Attorney General Post Office Box-629 Raleigh, North Carolina 27602 9

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