ML20135A090

Motion for Confidential Treatment of Prospective QA Witnesses to Encourage Individuals W/Knowledge of safety- Related Deficiencies to Put Info Before Commission,Per ALAB-714.Certificate of Svc Encl.Related Correspondence

ML20135A090
Person / Time
Site:	Braidwood
Issue date:	09/04/1985
From:	Guild R GUILD, R., ROREM, B.
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-445 ALAB-714, OL, NUDOCS 8509090353
Download: ML20135A090 (8)

Text

. . - . . - -.- -- _- - _ _ - _ - - -

NW 5

! pyg cenaswohne'- l l

j September 4,  !

1985cockfE0 U-u i

UNITED STATES 0F AMERICA *g3 I

SEP -p NUCLEAR REGULATORY COMMISSION pfg g j l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD "C'!!.T nr. y~er. ,;- r?

r

. . , f: 5 l In the Matter of: )

)

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456 0' l'

) 50-457 OL '

(Braidwood Nuclear Station, )

Units 1 and 2) )

i INTERVENORS' MOTION FOR CONFIDENTIAL TREATMENT OF PROSPECTIVE QUALITY ASSURANCE WITNESSES i

l Intervenors Bridget Little Rorem, et al., by their under-1 l signed counsel, hereby move as directed by the Board at the July 23, 1985, prehearing conference for an order providing for the confidential treatment of identifying information regarding r prospective witnesses on Intervenors' Ouality Assurance conten-t tion and for the entry of a protective order limiting the dis-i closure of such identifying information during the course of this t

litigation. Such orders are sought on the grounds that such protection is needed "to encourage those with knowledge of pos-j sible safety-related deficiencies in facility construction or operation to put their information before the Commission." Texas Generating Company, et al., (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714,17 NRC 86 at 92 (1983).

Although the parties, by agreement, have recently sought deferral of the close of discovery and the identification of witnesses by a period of about 30 days to account for delays in 8509090353 850904 1 PDR ADOCK 05000456 G PDR

Applicant's and S ta f f's responses to Intervenors' discovery requests, Intervenors present this motion for confidential treat-ment of prospective witnesses at this time in order that a timely resolution of this matter may permit discovery and hearing pre-paration to proceed subject to such confidentiality protections.

It is understood by the parties that Intervenors seek such confidential treatment at this time for the eleven (11) present and former L.K. Comstock Quality Control inspectors who sought such protection in Intervenors' Motion for Confidential Treatraent of Eleven QC Inspector Names filed August 2, 1985; but that such protectica, if granted, be available as may be necessary for other prospective witnesses to be identified by Intervenors at a later date as provided in the parties' proposed revised schedule.

In addition, Intervenors have filed this date a Motion To Compel Discovery From Applicant and the NRC Staff which seeks, inter alia, acceess to prospective witnesses employed by Applicant or Braidwood site contractors, Motion, pp. 9-15 Intervenors' abil-ity to communicate with these prospective witnesses has been hampered by Applicant's refusal to provide the home addresses and telephone numbers of these persons and Applicant's insistence that Intervenors' contact be channeled through the company's i

Braidwood site address and telephone number. Intervenors antici-pate that an order compelling free access to site employees will permit the identification of further prospective witnesses who may seek confidential treatment.

Intervenors have previously filed a number of pleadings which provide, in part, the factual and legal basis for the l

2

relief sought. In their May 24, 1985, Motion To Admit Amended Quality Assurance Contention, Intervenors initially raised claims of harassment and intimidation of Braidwood site employees for expression of safety and quality concerns in violation of 10 CFR 950.7. Motion, pp. 22-24. On July 12, 1985, Intervenors filed their Motion To Admit Claims of Intimidation and Harassment of Comstock Quality Control (QC) Inspectors and Motion For Protec-tive Order. On July 15, 1985, Intervenors supplemented their July 12 filing with the newly-discovered NRC Region III memoranda refleeting harassment and intimidation complaints to the NRC by some 24 Comstock QC inspectors. Then, as directed by the Board at the July 23, 1985, prehearing conference, Tr. 261, and upon the request of eleven specified present or former Comstock QC inspectors, Intervenors filed their August 2, 1985, Motion For Confidential Treatment of Eleven QC Inspector Names. Finally, on 6 August 16, 1985, Intervenors filed their Response to Applicant's interrogatories and Motion For Protective Order which requested I

confidential treatment for the identitles of the eleven Comstock QC inspectors sought by Applicant in discovery.

In the interests of brevity Intervenors only summarize, here, the factual claims of harassment and fear of reprisal which form the basis for the confidentiality protection sought.

1. Comstock QC Inspector John D. Seeders complained of harassment by Comstock management by letter of August 17, 1984, to the NRC, Edison and Comstock. More than 25 Comstock QC inspectors joined Seeders in September 1984 in complaints of widespread harassment by Co natock management. In re a11ation for 3

.= . .. . . _ _ ._ _ ____

such complaints to the NRC, Seeders was threatened with termina-tion and involuntarily transferred to a less sensitive Engineer-ing Clerk position. In communications with Intervenors' counsel, Seeders agreed to provide a sworn statement reflecting his discussions with at least 10 other Comstock inspector.s_who had knowledge of harassment and intimidation and were willing to testify to such knowledge if they were provided protection from feared retaliation. Seeders affirmed the statements contained in the unsigned Affidavit of John D. Seeders, Exhibit A to Intervenors' July 12, 1985, Motion. Subsequently, Mr. Seeders himself has become fearful that he will be fired by Comstock management or at the direction of Commonwealth Edison Company if he takes any further voluntarily affirmative steps in this proceeding, including executing the affidavit he previously authorized and approved verbatim. Notwithstanding advice that any such discriminatior. against a person who participates or gives evidence in an NRC proceeding is prohibited by federal statute and NRC regulations, Mr. Seeders persists in his fear that his cooperation will be met with reprisal. As recently as August 31, 1985, Mr. Seeders informed counsel for Intervenors that he was af raid that he would be fired if he signed the unexecuted Affidavit prepared for him and previously filed. At the same time, Mr. Seeders again confirmed the truthfulness of the Affidavit and his willingness to tell the truth if compelled l

to testify by subpoena. He stated his firm belief, however, that he would be fired and would never work in the nuclear industry again if he voluntarily participated further in this proceeding.

4

See, July 12, 1985, Motion.

2. Former Level III Comstock QC Inspector Worley O. Puckett was harassed and discriminated against by Comstock management for his expression of safety and quality concerns including numerous instances of improper construction procedures, improper qualifi-cation of welders, and material traceability deficiencies. M r.

Puckett had been hired explicitly to review the Comstock QA program. He ultimately recommended a complete stop work order for all welding activity because of widespread deficiencies. Mr.

Puckett was terminated by senior Comstock management in retalia-tion for his expression of quality and safety concerns. On November 6, 1984, the U.S. Department of Labor Area Director sustained Mr. Puckett's complaint of unlawful discrimination by Comstock in violation of the employee protection provisions of the Energy Reorganisation Act, 42 USC 55851. See, July 12, 1985, Motion.

3 On March 29, 1985, a total of 24 Comstock QC inspectors complained to the NRC of numerous instances of harassment and technical concerns including threats of physical violence by a Comstock supervisor and serious programmatic concerns that qual-ity was sacrificed to quantity under the Comstock QA program.

One inspector stated that he had been retaliated against for talking to the NRC, another apparent act of discrimination in violation of 42 USC 55851. See, July 15, 1985, supplement.

4 As directed by the Board, after the July 23, 1985, prehearing conference counsel for Intervenors communicated with 5

l each of the 16 Comstock QC inspectors identified in the April 5 NRC Memorandum attached to the July 15 filing. Counsel provided each inspector with an explanation of the nature of the proceed-ings, the circumstances under which their names became known to Intervenors, the Board's decision on Applicant's request for i

disclosure of their nar.es, and the availability and significance of various measures to limit the disclosure of their identities under a protective order which Intervenors could seek. We also discussed with them the likely extent of disclosure already occurring and the protections flowing from public identification r as participants in this NRC proceeding. Eleven of the sixteen inspectors requested confidential treatment of their names and

. have asked Intervenors to seek a protective order providing for the maximum protection available even where absolute confidential-ity could not be secured. Each expressed fear of reprisal or discrimination ranging from termination or blacklisting from future nuclear industry employment to unfavorable work assign-ments and harassment.

The record already available reflecting complaints of harassment, discrimination and fear of reprisal among Comstock QC inspectors amply supports the grant of a protective order providing for confidential treatment of identifying information.

Houston Lighting and Power Company, et al., (Smith Texas Project, Units 1 and 2), LBP-80-11, 11 NRC 477 (1980); Houston Lighting and Power Company, (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).

1

~

6

The protective order to be issued by the Board should pro-3 vide for limited disclosure of names and identifying information strictly on a "need to know" basis as required for participation by a party in the proceeding. Disclosure of such protected

information should be limited to persons who have executed Affidavits of Non-Disclosure which Affidavits would be filed with the Board and available to the parties. A comparatively elaborate form of protective order and affidavit of non-disclosure was approved by the Commission with regard to security plan informa-tion in the Diablo Canyon proceeding. Pacific Gas and Electric Company, (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-24, 11 NRC 775 (1980). A copy of the Diablo Canyon Protective Order and Affidavit of Non-Disclosure are attached hereto.

Intervenors submit that a less elaborate order and affidavit which include the principal elements of protection would effec-tively meet the needs for confidential treatment here.

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

Finally, intervenors note that the confidentiality protec-tions sought at this time concern only the treatment of such

! information during the present discovery phase of these proceed-

ings. For example, decision on the possible necessity (if any) l for in camera evidentiary hearings is premature and speculative at this time. Confidentiality in any form during the evidentiary phase may well not be required, depending on, for example, which l prospective witnessen are in fact called to testify, what stipu-l 7

lations if any have been agreed upon, the then current needs of potential witnesses, and other circumstances then prevailing.

There is no present need to speculate about such future circum-stances in order to provide for confidential treatment during the present discovery phase.

WHEREFORE, Intervenors respectfully move for an order providing for the confidential treatment of prospective witnesses and a protective order limiting disclosure of identifying infor-mation as herein described.

DATED: September 4, 1985 Respectfuly submitted, o hk Robert Guild V 5 [k ( owc )

One of the Attorneys for Intervenors Rorem, et al.

Douglass W. Cassel, Jr. . . . _

Robert Guild Timothy W. Wright, III 109 North Dearborn Suite 1300 Chicago, Illinois 60602 (312) 641-5570 8

UNITED STATES OF RMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSItiG APPEAL BOARD Richard S. Sal man, Chairman Dr. W. Reed Johnson Thomas S. Moore .

)

In the Matter of )

)

PACIFIC GAS AllD ELECTRIC COMPA!!Y ) Docket Nos. 50-275 OL

) 50-323 OL l (Diablo Canyon Nuclear Power Plant,)

Units 1 and 2) )

)

PROTECTIVE ORDER ON SECURITY PLAN INFORMATION Counsel and witnesses for Intervenor San Luis Obispo Mothers for Peace (Intervenor) who have executed an Affidavit of tion-Disclosure, in the form attached, shall be permitted'

• /

access to " protected information"~~ upon the following condi- ,

tions:

1. Only Intervenor's counsel and Intervenor's experts who have been qualified in accordance with the requirements i l

of our decision in Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-410, 5 NRC 1398 (1977),and our Order of February 25, 1980 in this pro-cceding, may have access to protected information on a "need to know" basis.

~~

• / As used in this order, " protected information" has the same meaning as used in the Affidavit of tion-Disclosure, annexed hereto.

, ,J n m d f */ ">

n Y _ _ _ _ _ - _ _ _ _ _ - _ - - _ _ _ _

^

1 l

i l

I l

l l l

2. Counsel and experts who receive any protected infor-

! mation (including transcripts of in camera hearings, filed l 1  ;

testimony or any other document that reveals protected infor- l l mation) shall maintain its confidentiality as required by the i

)

annexed Affidavit of Non-Disclosure, the terms of which are ,

1 i hereby incorporated into this protective order.

3. Counsel and experts who receive any protective infor-l mation shall use it solely for the purpose of participation 1

in matters directly pertaining to this security plan hearing , ;

j and any further proceedings in this caso directly involving i

security matters, and for no other purposes.

s l 4. Counsel and experts shall keep a record of all pro--

l tocted information in their possession and shall account for i

i anddeliverthatinformationtotheCommissionofkicialdesig-

nated by this Board in accordance with the Af fidavit of Non-l Disclosure that they have executed.

4 5. In addition to the requirements specified in the i

Affidavit of Non-Disclosure, all papers filed in this pro-  ;

ceeding (including testimony) that contain any protected information shall be segregated and:

I (a) served on lead counsel and the members of this ,

j  !

j Board only; [

l (b) served in a heavy, opaque inner envelope bearing I

the name of the addressee and the statement " PRIVATE.

l 1

l

r .

TO BE OPENED BY ADDRESSEE ONLY." Addressees shall take all necessary precautions to en-sure that they alone will open envelopes so marked. .

6. Counsel, experts or any other individual who has rea-son to suspect that documents containing protected information may havo been lost or misplaced (for example, because an ex-pected paper has not been received) or that protected informa-tion has otherwise become available to unauthorized persons shall notify this Board promptly of those suspicions and the reasons for them.

It is so ORDERED.

FOR Tile APPEAL DOARD U l* rpgl hicharg/S!/ Salzman} Chairman V

Done at San Luis Obispo, California, this 3rd day of April, 1900.

o 8

( e UKITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION I

ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of ) ,

l -

l )

PACIFIC GAS AND ELECTRIC C0ttPANY ) Docket Nos. 50-275 OL 50-323 OL

{f i (Diablo Canyon Nuc' lear Power Flant.)

)

Units 1 and 2) ) e

)

i

)

4 i

AFFIDAVIT OF NON- D I S CL O S U R E

! I, , being duly sworn, state:

1. As used in this Affidavit of Non-Disclosure, (a) " Protected information" is (1)'any form of the physical security

' plan for the licensee's Diablo canyon Nuclear Power Plant, Units 1 and 2; or (2) any information dealing with or describing details of i

that plan.

[

1 (b) An " authorized person" is (1) an eciployee of the Nuclear Regula-tory Co=:sission entitled to access to protected information; (2) a person who, at the invitation of the Atomic Safety and Licensing i Appeal Board (" Appeal Board"), has executed a copy of this affidavit; i or (3) a person employed by Pacific Gas and Electric Company, the licensee, and authorized by it in accordance with Commission regula-i tions to have access to protected information.

! 2. I shall not disclose protected information to anyone except an i authorized person, unless that information has previously been disclosed

{  ;

l I in the public record of this proceeding. I will safeguard protected i

I 1

I i

. ~3-(

information in written forn (including any portions of transcripts of in camera hearings, filed testimony or any other documents that contain such information), so that it remains at all times under the control of an authorized person and is not discioned to anyone else.

3. I will not reproduce any protected information bx any means without the Appeal Board's express approval or direction. So long as 1 possess protected information, I shall continue to take these precautions until f urther order of the Appeal Board.

4. I shall similarly cafeguard and hold in confidence any data, notes, or copies of protected information and all other papers which contain any protected information by means of the followingt (a) my use of the protected information will be made at a facility in San Francisco to be made available by Pacific Cas and Electric Company.

(b) I will keep and safeguard all cuch material in a safe to be ob'tained by intervenors at Pacific Cas and Electric Company's expense, af ter consultation with Pacific Cas and Elcetric Company and to be located at all times at the above designated location.

(c) Any secretarial work performed at my request or under my supervision will be performed at the above location by one secretary of intervenor's designation. Intervonors shall furnish Pacific Cas and Electric Company, the Board and Staf f an appropriate resume of the secretary's background and experience.

(d) liccessary typing and reproduction equipment will be furnished by Pacific Gas and E1cetric Company.

(e) All intervenor mailings involving protected information shall be made from the facility furnished by Pacific Cas and Electric Co.

m

l ,

I ,

! ( If I prepare papers containing protected information in order

5. ,

f to participate in further proceedings in this case, I will assure that any i secretary or other individual who must receive protected information in l

j order to help me prepare those papers has executed an affidavit like a

this one and has agreed to abide by its terms. Copies of any such l

af fidavit will be filed with the Appeal Board before I reveal any protected information to any such person.  ;

4 i 6. I shall use protected information only for the purpose of preparation for this proceeding or any further proceedings in this 1

i case dealing with security plan issues, and for no other purpose.

I 1

j 7. I shall keep a record of all protected information in my possession, l including any copies of that information made by or for me. At the conclusion of this proceeding I shall account to the Appeal Board i i

1 or to a Commission employee designated by that Board for all the papers 1

i or other materials containing protected information in my possession

[

l and deliver them as provided herein. k' hen.1 have finished using the I

' protected information they contain, but in no event later than the f conclus ton of this proceeding, I shall deliver those papers and materials i

I to the Appeal Board (or to a Commission employee designated by the i

! Board), together with all notes and data which contain protected information  ;

~

for safekeeping during the lifetime of the plant.

t i 8. I make this agreement with the following understandings:

l t

! (a) I do not waive any objections that any otNer person may have to i

l executing an affidavit such as this one; (b) I will not publicly discuss i

or disclose any protected information that I receive by any means whatever. (

{ ,

i

\ [ *

i. l i

i I  !

i

-o . .

(i Subscribed and sworn to before me this day of April, 1980 t

6 4

0 e

4 e

e e

l O

e i-i s p-+,

e

~ .

9/4/85 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

COMMONWEALTH EDISON COMPANY ) Docket No. 50-456

) 50-457 (Braidwood Nuclear Power )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that I have served copies of Intervenors' Motion For Confidential Treatment of Prospective Quality Assurance Witnesses on all parties to this proceeding listed on the attached Service List, by having said copies placed in envelopes, properly addressed and postaged (first class), and deposited in the U.S. mail at 109 North

Dearborn,

Chicago, Illinois, on this 4th day of September, 1985; except that Administrative Judge Grossman was served via Federal Express "Z AP" mail (same day delivery); Administrative Judges Brenner, Cole, and Callihan, and NRC Staff Counsel Elaine Chan were served via Federal Express (overnight delivery); and Edison counsel Michael Miller was served personally, also on September 4, 1985.

b r

BRAIDWOOD SERVICE LIST 50-456/50-457 OL i l

l Lawrence Brenner, Esq. Elaine Chan, Esq.

Chairman and Administrative Judge NRC Staff Counsel ,

Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington D.C. 20555 7335 Old Georgetown Road Bethesda, MD 20014 Dr. A. Dixon Callihan Administrative Judge Joseph Gallo, Esq.

102 Oak Lane Isham, Lincoln & Beale Oak Ridge, TN 37830 Suite 840 1120 Connecticut Avenue N.W.

Dr. Richard F. Cole Washington D.C. 20036 Administrative Judge Atomic Safety and Licensing Board Docketing & Service Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington D.C. 20555 U.S. Nuclear Regulatory Commission Rebecca J. Lauer, Esq. Washington D.C. 20555 Isham, Lincoln & Beale Three First National Plaza Atomic Safety and Licensing Chicago , IL 60602 Board Panel U.S. Nuclear Regulatory Sb. Bridget Little Rorem Commission 117 North Linden Street Washington D.C. 20555 Essex, IL 60935 Atomic Safety and Licensing C. Allen Bock, Esq. Appeal Board Panel P.O. Box 342 U.S. Nuclear Regulatory Urbana, IL 61801 Commission Washington D.C. 20555 Thomas J . Go rdon , E s q .

Waller, Evans & Gordon Michael I. Miller, Esq .

2503 South Neil Isham, Lincoln & Beale Champaign, IL 61820 Three First National Plaza Chicago, IL 60602 Torraine Creek 1.aute 1, Box 182 Herbert Grossman Manteno, IL 60950 Chairman and Administrative Judge Region III U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commis sion Office of Inspection & Enforcement Washington D.C. 20555 799 Roosevelt Road Glen Ellyn, IL 60137

. . ~