ML20136A730

Responds to 961112 Appeal for Denial of Documents.App I Records Being Released in Entirety.App II Records Being Withheld in Part (Ref Exemption 4)

ML20136A730
Person / Time
Issue date:	02/28/1997
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP.
Shared Package
ML20136A735	List: ML20136A730 ML20136A766 ML20136A824 ML20138F044
References
FOIA-96-336, FOIA-96-A-14 SECY-96-124-C, NUDOCS 9703100037
Download: ML20136A730 (6)

Text

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1. 1. 4 UNITED STATES p" t NUCLEAR REGULATORY COMMISSION

< WASHINGTON, D.C. 2055!KX)01

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%, g February 28, 1997

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CHAIRMAN Ms. Diane Curran Harmon, Curran & Spielberg 2001 S Street, N.W.

Suite 430 Washington, D.C. 20009-1125 RE: FOIA Appeal 96-0014A (FOIA-96-336)

Dear Ms. Curran:

This letter responds to your November 12, 1996 appeal of the decision to withhold in part the documents identified on Appendix B (items "B-1" and "B-2") and to withhold in the entirety the documents identified on Appendix C (items "C-1" through "C-5") of the agency's October 10, 1996 response to your Freedom of Information Act (FOIA) request 96-336. Denial of item B-2 is within the purview of the Executive Director of Operations (EDO).

Thus, an EDO reply to that portion of your appeal is being provided under separate cover.

The withheld items concern the subject of financial assurance for General Atomics (GA) Facilities. The decision to withhold any material not disclosed in response to FOIA 96-336 under Appendixes B and C was based on the deliberative process privilege, covered by exemption 5 of the FOIA (5 U.S .C.

5552 (b) (5) ) , or because it reflected proprietary information, under exemption 4 of the FOIA (5 U.S.C. SS52 (b) (4)) . In response to your appeal, the withheld material again was reviewed. I have carefully considered the material withheld from this record under policy guidance issued by the President and the Attorney General.

As a matter of discretion, I have determined that some of this material may be made publicly available. Therefore, I have decided to grant your appeal in part and deny it in part.

Item B-1 is a Commission paper on the subject of GA financial assurance (SECY-96-124), enclosing a letter from GA with two

" annexes." Item C-1 is a memo / vote by the Chairman. Item C-2 is a memo from the Chairman to the EDO, with a handwritten note to the Chairman from a Nuclear Regulatory Commission (NRC) Office of General Counsel (OGC) attorney. Item C-3 is background information on the subject, also prepared by an OGC attorney.

Item C-4 is a note to the Chairman from another OGC attorney, with handwritten notes from a different OGC attorney. Item C-5 is a memo about SECY-96-124 to a Commissioner from his Legal Assistant.

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9703100037 970228 spEplMIElHR

PDR FOIA CURRAN 96-A-14 PDR

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( Reasonably segregable portions of item B-1 may be made publicly I available. Items C-1 and C-2 are released in the entirety, along l with portions of items C-3 through C-5; those materials are l enclosed. I hereby grant this segment of your appeal. Upon j

review, I affirm the determination to withhold the remaining portions of items B-1 and C-3 through c-5. I have determined that this material is protected either by the deliberative process, attorney work-product, or attorney-client privileges, ,

under exemption 5 of the FOIA. Some of the material also  !

continues to be withheld under exemption 4, which protects

" commercial and financial information obtained from a person and privileged or confidential." I hereby deny this segment of your l appeal.

Item C-3 is a summary prepared by an OGC attorney to brief the I l

Chairman on pertinent background material about the issue of GA 1 financial assurance. All but the confidential proprietary l information contained in that document is now being released.

Items B-1, C-4 and C-5 also contain certain confidential details i of proprietary information incorporated into a Commission paper  ;

or notes from legal advisors to the Chairman or to a l Commissioner, with confidential opinions and recommendations.

These records were generated as part of the continuing process of l agency decisionmaking. They contain qualified, professional

( judgments consisting of subjective interpretations and were l generated as part of agency recommendations in the decisionmaking

! process. They do not reflect a final agency decision but

! constitute confidential advice to that authority.

1 Exemption 5 authorizas the agency to withhold inter-agency or l i

intra-agency memorandums which would not be available by law to a party in litigation with the agency. In this case, the agency asserts that the material is protected by privileges of deliberative process, attorney work-product and attorney-client. )

Any factual material contained therein is covered by the same privileges. Green v. IRS, 556 F. Supp. 79 (N.D. Ind. 1982), i aff'd 734 F. 2d 18 (7th Cir. 1984); Schlefer v. U.S., 1 702 F. 2d 233 (D.C. Cir. 1983).

Portions of the foregoing items were compiled in anticipation of litigation, contain characterizations, opinions, recommendations and advice, prepared by NRC attorneys in contemplation of l litigation, and constitute analysis and discussion of the legal j theories involved, including defenses, and assessment of the i government's position in potential litigation. They outline legal concerns and discuss litigative risks in candid and specific terms. Proceedings on this matter currently are ongoing and disclosure of the material may be prejudicial to the government's position. The contents of these items are deemed United States v. Weber privileged under exemption 5 of the FOIA.

Aircraft Corn., 465 U.S. 792 (1984); FTC v. Grolier Inc.,

462 U.S. 19 ~(1983).

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The deliberative process' privilege also applies to this material to the extent it reflects the agency's consultative process, as both predecisional and deliberative, and contains analysis,

opinions and recommendations. Disclosure of this information

would permit indirect inquiry into the deliberative process, which this exemption seeks to protect, and could undermine the government's decisionmaking process by inhibiting the candor of advice. This material is properly within the protective scope of exemption 5. NLRB v. Sears, Roebuck & Co.., 421 U.S. 132 (1975);

Russell v. Deoartment of the Air Force, 682 F. 2d 1045 (D. C. Cir. 1982).

1 To the extent these documents contain characterizations, opinions, recommendations and advice, the contents are deemed privileged under Exemption 5 of the FOIA. NLRB v. Sears, Roebuck 3

& Co., suora. Exemption 5 authorizes the agency to withhold intra-agency memorandums not available by law to a party in litigation with the agency. The deliberative process privilege applies to the extent this material reflects the agency's consultative process, as both predecisional and deliberative, j containing analysis, opinions and recommendations. Releasing the 1 advice in these documents would reveal what was adopted and rejected from among the recommendations and divulge the essence of what was considered significant in the decisionmaking process.

Disclosure of this information would permit indirect inquiry into

the deliberative process, which this exemption seeks to protect, 3 and would undermine the agency's decisionmaking process by j inhibiting the candor of advice. Macother v. Deoartment of I Justice, 3 F. 3d 1533 (D.C. Cir. 1993), l l

Your appeal specifically urges. disclosure of the withheld {

records, notwithstanding the applicability of an exemption, as a j discretionary exercise of authority under the Attorney-General's i policy, to " cure the unmistakable and disturbing appearance that the NRC, in collusion with a licensee, is making secret law affecting the health and safety of the public." However, while existing policy indeed encourages discretionary disclosures by agencies, it continues to support withholding on the basis of any applicable exemptions when release would result in a foreseeable harm.

Furthermore, the Commission has engaged in no activity, collusive or otherwise, to create " secret law." On the contrary, it has been as forthcoming as possible to keep the public apprised of its actions in this matter, within legal limits and its public information responsibilities. The discretionary release of material otherwise susceptible to lawful withholding under the  ;

i statutory criteria is undertaken in direct response to your appeal, in order to further dispel any perception of collusion or creation of secret law. Nevertheless, upon review, it has been ,

determined that disclosure of certain of this material would  !

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4 cause demonstrable harm to the integrity of the agency's

, + deliberative process. Release of this information would chill the provision of candid recommendations in the future, exceedingly detrimental to the deliberative process itself. This is precisely the type of deleterious effect sought to be prevented by Exemption 5. NLRB v. Sears, Roebuck & Co., supra.

Thus, this material will continue to be withheld.

This is a final agency decision on your appeal. As set forth in the FOIA, 5 U.S.C. 5552 (a) (4) (B) , judicial review of this decision may be obtained in the United States District Court in the district in which you reside or have your principal place of 1 business or in the District of Columbia. I i

Sincerely, 1

/ ,

John C. Hoyle Secretary of the Commission l

9 4

s Re: FOIA Appeal 96-0014A (FOIA-96-336)

APPENDIX I RECORDS BEING RELEASED IN THEIR ENTIRETY HQ2 DATE DESCRIPTION /(PAGE COUNT) 1 06/28/96 Memo / Vote - Financial Assurance for General Atomic Facilities (1 page) 2 07/01/96 Memo from Chairman Jackson to James Taylor, Financial Assurance for Facilities with handwritten note (1 page) l J

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1 Re: FOIA Appeal 96-0014A (FOIA 96-336) 1 APPENDIX II

RECORDS BEING WITHHELD IN PART 1

HQ1 DATE DESCRIPTION / (PAGE COUNT) / EXEMPTIONS 1 06/10/96 SECY-96-124 For the Commissioners from James a

Taylor,

Subject:

Financial Assurance for General Atomics Facilities (6 pages) Exs. 4 and 5 enclosing 05/20/96 letter to NRC from Keith Asmussen with annexes (13 pages) Ex. 4

) 2 06/28/96 Background Information on Financial Assurance (SECY-96-124) (2 pages) Ex. 4 3 06/17/96 Note to Chairman Jackson from Roger Davis,

j SECY-96-124 with handwritten notes (4 pages) j Exs. 4 and 5 i

4 06/12/96 Note to Commissioner Kenneth Rogers from i

Myron Karman regarding SECY 96-124 (2 pages) 3 Exs. 4 and 5 I

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inEEPsONE f Novenher 13, 1996 mms.m l sex l John c. Boyle, saaretary '

l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

! BY FAX: 301/415-1672

SUBJECT:

Ar ~ 1 From fnitial FnIA naalsion l Dear Mr. Hoylea t

! on behalf of Native Americans for a clean Environment ("NACE"),

j and pursuant to NRC regulations at 10 c.F.R. $ 9.29, I hereby appeal the Nuclear segulatory Commission 8s ("NRC8s") October 10, 5

j 1996, denial decision in FOIA-96-336. That decision denies in l

part my request for copies of all documents in the Npc's posses-

sion which the commission considered or reviewed in connection j with its preparation of a Staff Requirements Namorandum ("SRM"),

i 85CY-96-124, re: Financial Assurance for General Atomice Facilities (.7uly 3, 1996).1 The decision document in FOIA-96-336

{ withholds parte of two documents and the entire contents of five other documents on the grounds that they constitute confidential j

business (proprietary) information and/or predeoisional informa-tion. The released documents contain only the barest information i

l 4 about the secret agreement. Virtually all substantive informa-tion has been blacked out or withheld.

As discussed below, the decision document fails to demonstrate that the requested documents are in fact exempt under Exemptions 4 and/or 5. Moreover, whether the documents satisfy the require-a i mante for exemption from disclosure, the commission nevertheless should exercise its discretion to order their disclosure, in

erder to cure the unmistakabis and disturbing appearance that the i NRc, in collusion with a licensee, is making secret law affecting the health and safety of the public.

Decoription of Emova Information About Withheld Document WAcE, along with the Cherokee Nation, is an intervanor in an enforcement proceeding before the Atomic Safety and Licensing .

1 You released the SRM itself on September 23, 1996, in I v==rense te my myyee1 et septenkMur 5, ness.

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! John C. Hoyle j November 12, 1996 j

Page 2 1

l Board, in which General Atomics ("GA") and Sequoyah Fuels Corpo-j ration ("SFC") have contested a 1993 NRC enforcement order l against them. The order requires GA and SFC to guarantee suffi-

cient funding for the cleanup of the severely contaminated site i of SFC's uranium processing operation. SFC and the NRC staff j settled in 1995, and the Lacensing Board approved the settlement.

After about a year of negotiations, GA and the NRC staff sub-

mitted a proposed settlement agreement in July of 1996. The l settlement recently was approved by two members of the Licensing i j Board, with a dissenting opinion by Judge Bollwerk. Ang LBP l 24, Memorandum and order (Approval of Settlement Agreement and

! Dismissal of case) (November 5, 1996).

During the course of the litigation over the enforcement order, GA and the NRC staff repeatedly requested stays of discovery to provide them with more time to conduct settlement negotiations.

Several of their motions for stays of discovery referred to the need to consider the impact of any proposed settlement between GA and the staff on the availability of decommissioning funds for GA's facilities in San Diego, California. For instance, in a May 6, 1996, joint motion for extension of the discovery stay, cA and the staff stated that:

As has been discussed in earlier proceedings before the Board, the resolution of this litigation may have a spillover effect on matters which are outside the scope of this proceeding and which are outside the jurisdic-tion of this Board. To reiterate, GA holds WRC licenses for a number of facilities in San Diego, Cali-fornia, including two TRIGA reactors, and hot cell and fuel fabrication facilities, for which GA has uncontested decommissioning liabilities. Any commit-ment of funds by GA to the Gore facility in settlement of this proceeding may impact GA's responsibilities for its San Diego facilities. Any such impact must be weighed and considered by Staff not involved in the instant litigation, including Staff in the office of Nuclear Reactor Regulation, as well as the Office of Nuclear Material Safety and Safeguards. Ensuring that the agency as a whole is aware of the larger pict6re '

1 involving GA has required, and continues to require, a i significant amount of resources, and consequently, time. Thus, in addition to devotina enerales to draft-ina settlamant docu= ants and nanotiating final noints, the Staff has hamn involved in focusina the aaency_as a l

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s. L i HARMON, CURRAN & SPIELBERG i

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, John C. Hoyle l November 12, 1996

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! whole on tha various broader issues that the aaency

! faces by reason of a settiament on the samuovah Puels litiaation. In marticular, the amanev must decide what j may be annennriata courmas of action if GA's voluntarv i contrihadlon of ramouroam to mattia this litiaation j reduces its ability to_ca=_niv fully with the regula-i tions on financial assurance reaardina the San Dinao

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facility.

i l NRC Staff's and General Atomics' Joint Motion for Extension of l Etay of Discovery Through June 14, 1996 at 2-3 (May 6, 1996) i (emphasis added). In a subsequent discovery stay motion, GA and i the staff represented-that "the commission has been provided a i description of, and has until June 24, 1996, to object to the Staff's proposed course of action regarding the San Diego facilities." NRC Staff's and General Atomics' Joint Motion for Extension of Stay of Discovery Through July 1, 1996 at 2 (June j 14, 1996).

d

! GA and the staff asserted that although the issues raised in the

! staff's correspondence with the commission are "outside the l scope" of the enforcement proceeding, they "must be resolved" before the proposed settlement between GA and the staff could be executed. Id. at 3. They also contended that "[b)y presenting to the commission issues relating to the San Diego facilities, the Staff is not seeking any prejudgment of any matter currently in litigation, including any potent:,al settlement that may'be offered concerning the Sequoyah Puels Gore facility." Id. at 2, note 3.

on July 11, 1996, GA and the NRC staff presented a joint motion for approval of a settlement in the contested enforcement pro-ceeding. NRC Staff's and General Atomics' Joint Motion for Approval of Settlement Agreement. The motion asserted, inter Alig, that "because GA holds NRC licenses for facilities in San Diego, California, and thus has regulatory financial obligations with respect to those facilities, consideration had to be given to any impact a settlement in this proceeding might have on GA's responsibilities with respect to the california facilities." Id.

at 2. GA and the staff also continued to assert "that' matters involving the california facilities are outside the scope of this proceeding and the jurisdiction of this Board." Id., note 3.

In their comments on the proposed settlement agreement, NACE and the Cherokee Nation argued for disclosure of what appears to be a

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HARMON, CURRAN & SParBFRG I

I John C. Hoyle 1 November 12, 1996 j _Page 4 1

global settlement wnich establishes the amount of decommissioning l i funding that GA will allocate to each of its several facilities. l

Intervenors' Opposition to Joint Motion for Approval of Settle-

ment Agreement Between NRC Staff and General Atomics (August 9, 1996). As NACE and the Cherokee Nation pointed out, if factual l assertions regarding GA's liability for its San Diego facilities i and GA's ability to pay those costs have had Any effect on the

! amount of the settlement regarding the SFC site, the accuracy and

! reliability of those assertions is directly relevant to the

validity of the GA-NRC settlement agreement, and must be subject i to evaluation by the Board and parties. Id. The Licensing Board j rejected NACE's and the Cherokee Nation's arguments, however, l finding that the NRC staff's consideration of GA's " license j responsibilities" at its San Diego and other facilities was not i within the Board's jurisdiction. LBP-96-24, slip op. at 16-17.

NACE also tried to obtain documents related to the NRC's secret  !

global settlement with CA through the FOIA. On July 12, 1996,

NACE filed a request for disclosure of the SRM. Although dis-

! . closure was initially refused, on appeal the document was ,

j released as a matter of agency discretion. Letter from John C.

Hoyle, Secretary of the Commission, to Diana Curran, attorney for NACE (September 23, 1996).

i on August 22, 1996, NACE filed a request for all documents which i the Commission considered or reviewed in connection with its preparation of the SRN. The request was denied on October 10,

1996. It is not clear whethkr, in denying the August 22 request, 4 the NRC FOIA office was aware of your September 23 decision to y release the SRN.

I Argument

In partially denying NACE's FOIA request, the NRC has failed to demonstrate that the withheld documents are exempt from dis-

, closure under Exemptions 4 and 5. The denial decision is defi-cient in the following respects and must be reversed:

4

1) It is well-established that Exemption 5 does not protect 1 instructions by high-level agency officials to their sfaffs.

Schiefer v. United States, 702 F.2d 233 (D.C. Cir. 1983) (holding

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that authoritative opinnens by agency's chief counsel, which

! affected agency's relationship with public and were binding on j agency staff, were not exempt.) Here, the SRM conveys the Com-4 mission's approval of a staff proposal to implement SECY-96-124.

HARMON, CURBAN & SPEELRERG l John C. Hoyle i November 12, 1996

Page 5 1

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[ Thus, in effect, the SRM condtitutes the Commission's instruc-i tions to the staff to carry out a certain plan regarding the dis-i tribution of GA's resources for decommissioning funding. How-

. ever, although the SRM has' been released, the document itself l contains no instructions. Instead, it refers the reader to SECY-

!96-124. Thus, the contents of SECY-96-124 must be disclosed in

, order to reveal the nature of the Commission's instructions to l its staff, and the basis for those instructions.

2) The decision documents states that documents withheld or partially withheld under Exemption 5 are exempt from disclosure

because "[d)isclosure of predecisional information would tend to inhibit the open and frank exchange of ideas essential to the j deliberative process." However, by adopting SECY-96-334, the 4 commission turned it into a decision. That decision relaxes i decommissioning funding requirements for GA's San Diego

facilities.

! The FOIA does not countenance the making of " secret law," as the j commission appears to have enacted here. schiefer v. United

! States, 702 F.2d at 244. GA, like all other nuclear facilities,

, is subject to the NRC's decommissioning funding regulations.

- Until now, licensee compliance with those requirements has been an important matter of public disclosure and accountability. In this case, the limited information released under FOIA-96-124

{ indicates that GA is being excused from full regulatory com-pliance without any public accountability.

1

! Although some documents have been withheld altogether and others

! are largely blacked out, the disclosed portions contain enough

information to reveal that the NRC has agreed to a cap on GA's i liability for the decommissioning of its San Diego facilities, f regardless of what the cleanup may actually cost, and regardless l of what GA's resources might be. This effectively constitutes a 4 waiver of the decommissioning funding requirements, for which the

! NRC gave the public no notice or opportunity to request a hear-

! ing, s

! Under FOIA, the Commission may not keep a separate set of secret j books for GA while publicly it claims to enforce the rdgulations '

fully. In compliance with FOIA, the Commission must disclose the t details of the deal it made with GA to relax its decommissioning funding regulations. Moreover, Section 189a of the Atomic Energy j Act and the Administrative procedure Act require the Commission

to publish public notice of the decision and the basis for the 1 .

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HARMON, CURRAN & SPrms.amstG l

1 John C. Hoyle

] November 12, 1996 Page 6 l

decision. The Commission must also provide the public with an opportunity for a pring hearing before the decision is imple-

mented.

3) To the extent that the NRC's denial decision was based on the rationale that documents related to the SRM are l

predecisional to the outcome of the SFC-GA enforcement proceed-ing, that rationale is inconsistent with LBP-96-24. As the 1 Licensing Board has ruled, decommissioning funding issues related i to GA's San Diego facilities are outside the " jurisdictional

! boundary" of the Licensing Board. LBP-96-24, slip op. at 16-17.

i In addition, in proposing the settlement, the staff and GA l l explicitly stated that they did not seek Commission " prejudgment" )

of the SFC-GA enforcement proceeding. NRc' Staff's and General )

4 Atomics' Joint Motion for Extension of Stay of Discovery Through July 1, 1996 at 2. Thus, if the Licensing Board, GA, and the

staff are correct, the SRM-related documents bear no relation to j the outcome of the SFC-GA enforcement proceeding.

j 4) NACE believes that in fact, the disposition of decommis-sioning funding for the GA San Diego facilities la directly

relevant to the GA-NRC staff settlement. Moreover, by secretly j briefing the commission on the total decommissioning funding

" package" for GA's San Diego and SFC facilities, the' staff engaged in illegal ax parte contacts which could influence the Commission's ultimate review of the SFC settlement. These unlaw- I ful and prejudicial contacts must be remedied by full disclosure 1

of the documents presented to the Commission by the staff.

i j Although much of the documents have been blacked out, it is clear 1 that the NRC staff and the Commission view the San Diego and SFC i settlements an related. gag letter from Seymour H. Weiss, NRC, i to Keith E. Asmussen, GA at 2 (July 9, 1996) (staff apparently I agrees to forbear from enforcement of decommissioning funding j requirements against GA San Diego facilities, "provided" that GA 4

enters into a settlement with respect to SFC site.) (A partially l blacked out copy of this letter is included as Document 2 in i Appendix B to FOIA-96-336.) Nhile the Weiss letter appears to

condition the San Diego settlement on GA's commitment to settle j with the staff over SFC decommissioning costs, it is crhar from

GA's and the staff's delay in submitting the SFC settlement

agreement that GA was unwilling to enter the SFC settlement until

] the Commission had approved the settlement regarding the GA l facilities. AAA NRC Staff's and General Atomics' Joint Motion 1

for Extension of Stay of Discovery Through June 14, 1996 at 2-3, i

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! John C. Hoyle j November 12, 1996

Page 7 l

1 j cited above at pages 2-3. Thus, the two settlements are j inextricably related.

l As the ultimate judges in this proceeding, the Commission may not l' make secret decisions about issues material to the outcome of the i pending enforcement proceeding, based on secret information con- <

! voyed by the staff and GA in illegal gg ggrig contacts. As the l U.S. Court of Appeals for the D.C. Circuit has observed, such ax i marte contacte are-l offensive in two fundamental respects: (1) They vio- 1 i late the basic fairness of a hearing which ostensibly i l assures the public a right to participate in agency l l

decisionmaking (footnote omitted), and (2) they fore-

! close effective judicial review of the agency's final i decision. (footnote omitted).

l National a==11 shin ==nts. Etc. v. ICC, 590 F.2d 345, 351 (D.C.

i cir. 1978). The agency must " inquire into the nature and source

! of all ex garig communications had in this controversy and to l assure that any material so communicated is subjected to adver-sarial review at the hearing." Id. Accord, State pf North Caro-

! lina. Envircr- ntal Policy Institute v. EPA, 881 F.2d 1250, 1258 i

(4th Cir. 1989), quotina United States Lines. Inc. v. Federal Maritime ca==imanon, 584 F.2d 519, 540, 542 (D.C. Cir. 1978)

J ("only through dnsclosure of AM BAEta communications may we pro-i tact the public's 'right to participate meaningfully in the deci-i sionmaking process' and 'the critical role of adversarial comment

in ensuring proper functioning of agency decisionmaking and i effective judicial review.'")

To remedy the fundamental taint to the fairness of the proceeding l caused by such gg aggts contacts, you must disclose all documents related to the SRM that were submitted to the Commissioners, and all documents that were generated by the commission as a result of those unlawful contacts. gag 10 C.F.R. 5 2.781(f).

S) The NRC cites Exemption 4 as grounds for withholding a great deal of material,. apparently related to the actuaJ costs of decommissioning each fatt11ty, GA's resources, and the process and schedule for paying N commissioning costs. According to the  ;

i NRC's boilerplate form, uJ.s information constitutes "confiden-

! tial business (proprietary) information." However, the decision document gives no indication why the NRC hks decided in this

instance that all of this information -- which has traditionally i

i i~ HARMON, CURRAN & SPIELBERG e

John C. Hoyle November 12, 1996 l Page 8 l

been available to tae public, and which is highly important to

! public safety -- is now being withheld.

In fact, there appears to be little or no reason for withholding j information about GA's decommissioning costs or its plan of pay-

! ment. The SFC facility is now shut down, and thus the cost of j decommissioning it can have no competitive significance for GA.

l Moreover, the San Diego facilities are due to close in 2 and 4

! years, according to one of the disclosed documents. Thus, if CA l ever had a competitive interest in hiding the cost of cleaning up j those facilities, that interest is quickly waning if not gone.

6) In releasing.the SRM, you cited the Justice Department's j policy of maximizing openness and disclosure in government deci-l sionmaking. That policy cries out for disclosure of the secret decommissioning funding deal the NRC made with GA. Whether or not the 33 garig briefing of the commission that is reflected in FOIA-96-336 ultimately influences the Commission's review of LBP-4 96-24, the entire adjudicatory process has been tainted by the

appearance that the Commission has prejudged the case in a secret i deal with GA. That secret arrangement affects not only the neighbors of the SFC facility, but the neighbors of GA's San i Diego facility. It also generally undermines public confidence that the NRC is committed to fully enforcing the regulations, or 4

to notifying the public when it intends to waive them. GA's

' unsubstantiated claim to a proprietary interest in keeping its decommissioning funding information a secret is heavily counter-

,' balanced by the public's far greater and longer-term health and safety interest in knowing what the costs are of decommissioning l CA's facilities, and how GA plans to pay those costs. Finally, the public, which has heavily subsidised GA's operations over the years (the exact amount of the subsidy is blacked out of SECY 124) deserves to know whether it must Alag Pay CA's cleanup costs, as a result of the NRC's secret agreement to forbear from fully enforcing decommissioning funding requirements.

conclusion I Accordingly, we ask that you exercise your discretion to order the release of all documents identified in FOIA-96-124."

l Because it may bear on the pending enforcement proceeding, which

] NACE and the Cherokee Nation intend to appeal to the Commission,

I have also mailed copies to the parties to that proceeding, as well as the Commissioners.

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HARMON, CURRAN & SPIELBERG John C. Hoyle November 12, 1996 Page 9 I look forward to receiving your response within twenty working ten days, as required by the FOIA.

Sincerely, D' (

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. Diano Curran cca Lance Hughes, Director, NACE..

Service list, ASLB anforcmont proceeding a

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g RESPONSE TYPE t RESPON. TO FREEDOM OF wt I l e^ati^'

INFORMATION ACT (FOIA) REQUEST FATE l eees. 100T 101998 DOCKET NUMBE R(S)(/f applicable /

REQUESTE R Diane Curran PART 1,-AGENCY RECORDS RELEASED OR NOT LOCATED (See checked boxes / 1 i

N a agency records subject to the request have been located. )

l No additional agency records subject to the request have been located.

Requested records are availab's through another public distribution program. See Comments section. l Agency records subject to the request that are identified in Appendix (es) are already available for public inspection and copying at the NRC Public Document Room,2120 L Street, N.W., Washington, DC. j Agency records subject to the request that are identified in Appendix (es) A are being made available for public inspection and copying

)(

t.t the NRC Public Document Room,2120 L Street, N.W., Washington, DC, in a folder under this FOI A number. l The nonproprietary version of the proposal (s) that you agreed to accept in a telephone conversation with a member of my staff is now being made available for public inspection and copying at the N RC Public Document Room,2120 L Street, N.W., Washington, DC, in a folder under this Fot A number.

Agency records subject to the request that are identified in Appendix (es) may be inspected and copied at the NRC Local Public Document Room identified in the Comments section.

Enclosed is information on how you may obtain access to and the charges for copying records located at the NRC Pubile Document Room,2120 L Street, N.W., Washington. DC.

)( Agency records subject to the request are enclosed.

• Records subject to the request have been refe"*1 to another Federal agency (ies) for review and direct response to you.

X p,.,NONE You will be billed by the NRC for fees totaling $

You will receive a refund from the NRC in the amount of 5 i l

l In view of N RC's response to this request, no further action is being taken on appeal letter dated , No. l PART 11. A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE l

(' min information in the requested records is being withheld from public disclosure pursuant to the exemptions described in and for the reasons stated l Is. . ort it, B, C, and D. Any released portions of the documents for which only part of the record is being withheld are being made available for public

)( lospection and copying in the NRC Public Document Room,2120 L Street, N.W., Washington, DC in a folder under this Fot A number.

CQMMENTS

' Copies of the records identified on Appendix A and the releasable portions of the records identified on Appendix B are enclosed, m 4

'5tett E. DIRECT R tVISION OF REED INFORMATION AND PUBLICATIONS SERVICES N

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RESPONSE TO FP DOM OF INFORMATION ACT ( I A) REQUEST FOIA - 6-336 100T 1019;s (CONTINUATION) l PART li.B- APPLICABLE EXEMPTIONS .

l Records subject to the request that are described in the enclosed Appendix (es) are being withheld in their entirety or in part under the Exemption No.(s) and for the reason (s) given below pursuant to 5 U.S.C. 552(b) and 10 CF R 9.17(a) of N RC regulations.  ;

i

1. The withheld mformation is properly classified pursuant to Executive Order. (Exemption 1)

. The withheld informaten relates solely to the miernal personnel rules and procedures of NRC. (Exemption 2) l l3. The withheld mformation is specifically enempted from public disclosure by s'atute indicated. (Exemption 3)

Sections 141145 of the Atomic Energy Act, which prohibits the disclosure of Restricted Data or Formerly Restricted Data (42 U.S.C. 21612165).

Section 147 of the Atomic Energy Act, which prohibits the disclosure of Unclassified Safeguards information (42 U.S.C. 2167).

4. The withheld information as a trade secret or commercial or fmancial mformation that es being withheld for the reason (s) indicated. (Exemption 4)

X The mformation is considered to be confidential busmess loropnetaryl mformation The mformation is considered to be propnetary mformation pursuant to 10 CFR 2.790idH1L The information was submitted and received m confidence pursuant to 10 CFR 2 790 ldh 2)

9. The withheld mformation consents of mteragency or mtraagency records that are not available through discovery during htigation (Exemption 6). Apphcable Privilege:

Deliberative Process: Disclosure of predecisional information would tend to inhitnt t'he open and frank enchange of ideas essential to the deliberative process y Where records are withheld m their entirety, tt f acts are snentricably intertwined with the predecisionalinformation There also are no i.tasonably segregable f actual portions because the release of the facts would permit an mdirect inquiry nto the predecisional process of the agency At*orney work product pnvilege (Documents prepared by an attornes in contemplation or litigation I

] Attorney chent privilege. (Confidential communications between an attorney and his/her client.)

6. The withheld mformation is exempted from public disclosure because ets disclosure would result m a clearly unwarranted ersvasion of personal privacy (Exemption 6)

7. The mthheld mformation consists of records compiled for law enforcement purposes and is being withheld for the reason (s) mdicated (Exernption 7)

Disclosure could reasonably be expected to interfere with an enforcement proceedmg because it could reveal the scope, direction, and focus of enforcement afforts, and thus could possibly allow recipients to take action to shield potential wrongdomg or a violation of NRC requirements from mvestigators. (E nemption 7 ( All Disclosure would constitute an unwarranted mvas on of personal privacy. (Exemption 7(C))

The mformation consests of names of individuais and other it'f armation the disclosure of which could reasonably be emoected to reveal identities of confidential sources. (Exemption 7 (D))

OTHEH l PART N. C-DENYING OFFICIALS Pursuent to 10 CFR 9 25(b) and/or 9 25tc) of the U.S. Nuclear Regulatory Commission regulati)ns. it has been determined that the information withheld is exempt from pro.

duction or disclosure, and that its production or disclosure is contrary to the pubbe mterest. The oersons responsible for the dernial are those officiais identified below as deny.ng officials and the Director, Division of Freedom of informat.on and Pubhcations Services. Office of Adm nistration, for any denials that may be appealed to the Executwe Director for Operations (EDOI TITLE / OFFICE RECORDS DENIED APPELLATE OFFICIAL l DENYING OFFICIAL Director, Office of Duclear rm surm o I

IFrank J. Miraglia Reactor Requlation App B-2 X l

Executive Assistant, Office of lSandyJoosten the Secretary of the Commission App B-1, Cl-5 X I

1 PART H. D- APPEAL RIGHTS The donial by w:h denymg official identified m Part II.C may be appealed to the Appellate Official identSed there. Any such appeal must be made in writing within 30 days of receipt of this response. Appeals must be addressed. as appropnate, to the Executive Director for Operations to the Secretary of the Commission, or to the inspector General, U.S. Nuclear Replatory Com nession, Washmgton, DC 20555, and should clearly state on the envelope and m the letter tr at it is an " Appeal from an Initial FOIA Decisior.

NRC FORM 464 (Part 2) (191) U.S. NUCLEAR REGULATORY COMMISSION

1 I*

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l i F01A-96-336 l t

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APPENDIX A (RECORDS RELEASED)  !

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! 1. 6/13/96 Letter to Keith Asmussen, General Atomics from Elizabeth l

Ten Eyck (2 pages)

2. 6/28/96 Commissioner Rogers' Vote on SECY-96-124 (1 page) i t

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F01A-96-336 APPENDIX B (RECORDS WITHHELD IN PART)

1. 6/10/96 SECY-96-124 For the Commissioners from James Taylor,

Subject:

Financial Assurance for General Atomics Facilities (6 pages) EX. 4 and 5 enclosing 5/20/96 letter to NRC from Keith Asmussen with enclosures (13 pages) EX 4 NOTE: Non-proprietary version of 5/20/96 letter and enclosures are already available at the PDR, Accession No. 9605300115

2. 7/9/96 Letter to Dr. Keith Asmussen from Seymour Weis (2 pages)

EX. 4

F01A-96-336 APPENDIX C (RECORDS WITHHELD IN THEIR ENTIRETY)

1. 6/28/96 Memo / Vote - Financial Assurance for General Atomic Facilities (1 page) EX. 5

2. 7/1/96 Memo from Chairman Jackson to James Taylor, Financial Assurance for Facilities with handwritten note (1 page)

EX. 5

3. 6/28/96 Background Information on Financial Assurance (SECY-96-124)

(2 pages) EX. 5

4. 6/17/96 Note to Chairman Jackson"from Roger Davis, SECY-96-124 with handwritten notes (4 page:) EX. 4 and 5

5. 6/12/96 Memo to Commissioner Kenneth Rogers from Myron Karman regarding SECY-96-124 (2 pages) EX. 4 and 5

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• Wi J FREEDOM 0F INFORMATION ACT REQUEST HARMON, CURRAN & SPIRIRRRG h f A - 96 ,3 3 6 2001 S STREET, N.W. g /g g, y ,7g l SUITE 430 WASHINGTON, D.C. 20009 1125 )

1. TEUDPHONE (202) 528 5500 FAI (202) 528 4918 August 22, 1996 Russel Powell, Chief FOIA-LPDR Branch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 BY FAX: 301/415-5130 l

SUBJECT:

Freedom of Information Act Recuest

Dear Mr. Powell:

1 On behalf of Native Americans for a Clean Environment, and pur- l suant to the Freedom of Information Act, 5 U.S.C. S 552 et. seq.,

I hereby request that you provide NACE with a copy of all docu-ments in the NRC's possession which the Commission considered or reviewed in connection with its preparation of a Staff Require-ments Memorandum ("SRM"), SECY-96-124, re: Financial Assurance for General Atomics Facilities (July 8, 1996). This request ,

includes but is not limited to any correspondence from the NRC l staff seeking the issuance of the SRM or other guidance from the Commission on decommissioning funding for the General Atomics facilities. This request does not include any docketed decisions by the Licensing Board or filings by any party to the Sequoyah Fuels decommissioning case, Docket No. 40-8027-EA.

This request covers written correspondence, memoranda, or reports, and also includes records of any oral or e-mail or other electronic communications.

I look forward to receiving your response within ten days, as required by the FOIA.

Sincerely,

( wl Diane Curran l

cc: Lance Hughes, Director, NACE J 'J0 v