ML20153H182

Responds to 880505 Appeal of Denial of Documents & Portions of Documents Identified on Encl Apps E & F in 880425 Response to FOIA 87-444.Documents or Portions of Documents Continue to Be Withheld (Ref FOIA Exemption 5)

ML20153H182
Person / Time
Site:	Diablo Canyon
Issue date:	08/12/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Hamlin J SHAW, PITTMAN, POTTS & TROWBRIDGE
Shared Package
ML20153H186	List: ML20153H182 ML20153H205 ML20153H216 ML20153H243 ML20153H254 ML20153H264 ML20153H284
References
FOIA-87-444, FOIA-88-A-29 NUDOCS 8809090111
Download: ML20153H182 (11)

Text

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an mag UNITED STATES i' 'o,1.,

NUCLEAR REGULATORY COMMISSION 3

{, W ASHIN G T ON,0.C. 205SS

's, . . . . . p OFF6CE OF THE August 12, 1988 SE C R E T AR Y James B. Hamlin, Esquire SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 RE: FOIA Appeal 88-A-29C

Dear Mr. Hamlin:

This letter responds to your May 5,1588 appeal of this Agency's denial of documents and portions of documents identified on Appendices E and F in our April 25, 1988 response to FOIA 87-444.

In response to your appeal, the withheld material was again reviewed. As a result of this review, it has been determined t>ist the documents identified on Appendix E numbered 6, 12, 16, 17, 18, 31, 39, 41, 42, 43 and 44 are already in the Public Document Room. For your convenience, copies of these documents have been enclosed with this letter. It has also been determined that the documents identified on Appendix E numbered 21, 33, 49, 52 and 61 should be released in their entirety. They are also enclosed with this letter.

With regard to the balance of denied documents or portions of documents.

I affinn the Agency's decision in this matter.

The documents or portions of documents that continue to be withheld pursuant to Exemption 5 of the F0!A all consist of inter-office memoranda. Appendix E documents numbered 1, 2, 7, 11, 19, 35, bl and 59 and Appendix F documents nurtered 6, 8, and 9 are menoranda from the Comissioners to various agency office directors. The memoranda reflect the Comissioners' solicitation of advice and contain directives regarding various aspects of the Diablo Canyon licensing proceedings, including the propriety of courses of action proposed by subordinate agency personnel.

Appendix E documents numbered 3, 4, 5, 10, 13, 15, 22, 23, 24, 25, 26, 27, 28, 29, 53, 54, 56, 57, and 58 consist of memoranda from one (or more)

Comissioner to the other Cocnissioners. These memoranda contain discussions regarding the propriety of proposed courses of action in licensing Diablo Canyon, including the views and suggestions of the Comissioners.

Appendix E documents nuntered 8, 9, 14, 20, 30, 36, 45, 48, 55, 60, 62, 63 and Appendix F document numbered 7 consist of memoranda from one (or 8809090111 000012 PDR FOIA HAMLIN00-A-29 PDR

James B. Hamlin 2 more) Comissioner to the General Counsel. By these memoranda, the Comissioners solicited the legal advice of counsel regarding the legality of proposed courses of action and interpretation of agency regulations.

Appendix E documents numbered 32, 34, 37, 38, 40, 46, 47, 50 arm Appendix F documents numbered 1, 2, 3, 4, and 5 consist of memoranda from the Comission's Chainnan to the other Comissioners. These memoranda contain the Chainnan's views and suggestions regarding proposed agency action, licensing issues, and draft responses to Congressional inquiries.

These memoranda also reflect the Chainnan's views of the opinions and suggestions of the other Comissioners on Diablo Canyon licensing issues.

All of the above memoranda are predecisional in that they relate to then pending licensing ace. ion or proposed courses of action. The fact that some of the doeurnents are dated after the last of the NRC's Diablo Canyon licensing decisions is not dispositive, for the Agency is continually engaged in a nrocess of policy evaluation and examination. See, e.g.,

NLRB v. Sears Roebuck & Co. , 421 U.S.132,151 n.8 (1975). The fact that some of the documents do not ficw from a subordinate to a superior agency official is also not dispositive, there is no requirement unoer the F0!A that documents must flow from subordinate to superior in order to qualify for Exemption 5 protection.

The memoranda are also deliberative in that they contain candid discussions regarding licensing policy and procedure, and reflect the give and take exchange of ideas between the Comissioners themselves and between the Comission and subordinate agency officials. The memoranda from the Cocinissioners to the General Counsel are protected by the attorney-client privilege.

Release of any of these documents would be likely to stifle tenest and frank comunication within the agency and compromise the integrity of the deliberative process. All reasonable segregable factual infonnation has been provided.

This letter represents final agency actire, on your May 5,1988 F0!A appeal. Judicial review of the denial of documents is available in Federal district court in the district in which you reside, or have your principal place of business, or in the District of Columbia.

Sincerely l f

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Secrettiry pf the Cocinission

Enclosures:

As Stated

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Re: F01A 87 444 APPENDIX E DOCUMENTS BEING WITHHELD IN THEIR ENTIRETY PURSUAAT TO EXEMPTION 5 -

The following records are located in fonner Comissioner Bradford's files:

1. 10/29/81 Memo to Dircks from Bradford, subject: Diablo Canyon safety injection pump failing (PNO-V 81-60). (1 page)

2. 10/26/81 Memo to Remick from Bradford, subject: Diablo Canyon seismic. (1 page)

3. 11/10/81 Memo to Crirs from Bradford, subject: Thoughts regarding the reassessment of the seismic issue at Diablo Canyon.

(1page) 4, 9/21/81 Memo to Cars from Bradford, subject: Suggest the Attached modifications to the Diablo Canyon Order. (5 pages)

5. 9/21/81 Memo to Cars from Bradford Diablo Canyon fire protection

, provisions. (1 page) 6, 9/15/81 Bradford's coments'to Chilk on Fleischaker letter subject: Response to motion of 9/11 requesting the disclosure of any discussions bi. tween J. Tourtelotte and Crirs Roberts or other members of his staff regarding the Diablo Canyon Itcensing proceedings. (1 page)

7. 9/15/81 Memo to Chilk from Bradford, subject: $ECY 81 508 review of ALAB-644 (In the Matter of Pacific Gas & Electric Company).

(1page)

8. 6/4/81 Memo to Bickwit from Bradford, subject: Diablo Can low power operating licensing proceeding. (1 page) yon

9. 3/31/81 Memo to Bickwit from Bradford, subject: Request for opinion on any rules of justification for the exclusion of Ms. Sandra Silver from the Diablo Canyon facility. (1 page) 10, 3/4/80 Memo to Cmrs from Bradford, subject: SECY-80-17 Request that the Comission institute proceedings to detetuine whether Comissioner Kennedy and Hendrie should be disqualified from further participation in the Diablo Canyon operating license proceedings. (1 page)

Re: f0!A-87 444 ,

APPENDIX E (continued) )

DOCUMENTS BEING WITHHELD IN THEIR ENTIRETY PURSUANT TO EXEMPTION 5 The following records are located in former Comissioner Gilinsky's files:

11. 4/11/84 Memo to W. Dircks from Gilinsky, subject: Diablo Canyon lossofECCS.(1page) i

12. 3/28/84 Memo to Cars from Gilinsky, subject: Diablo Canyon low power license. (1 page) ,

1

13. 3/23/84 Memo to Cars from Gilinsky, subj: Diablo Canyon seismic design. (1 page) 14, 2/28/84 Memo from W. Manning to H. E. Plaine, subject: Ex Parte review of Diablo Canyon draft reports 50-275/83 37 and 50323/83-25.(1page) 15, 2/27/84 Memo to Cars from Gilinsky, subject: Diablo Canyon allegationranagement.(1page)

. 16. 12/23/83 Memo to Cars from Gilingky, subject: Coppercial licensed operating)experienceofDiabloCanyonlicensedoperators.

(94pages 17, 9/28/83 Memo from Gilinsky to J. J. Ray ACPS subject: 9/8 requestforopiniononTaueffectreDiabloCanyon.(1page) l 18, 7/8/83 Memo to J. Ray from pilinaky ACR$ subject: ' TAU Effect' l

re Daibio Canyon'.

l l 19. 6/3/83 Memo from W. Manning to Chilk subj: Memo to T. Moore re treatment of information' contained in ALAB-653 (Diablo Canyon physical security). (1 page)

20. 5/4/83 Memo for Leonard Bickwit from Gilinsky, subject: Purgin ,

of Diablo Canyon Physical security Decision. (2 pages) g

21. 3/26/82 Note to Bill of National Journal from Gilinsky, subject:

Diablo Canyon and breeder study. (1 page)

22. 12/18/81 Memo to Cnrs from Gilinsky, subject: Review of ALAl 644-Diablo Canyon seismic (SECY-87-508). (1 page) 23, 12/11/81 Memo to Cers from Gilinsky, subject: Review of

$ ALA8-644--Diablo Canyon seismic decision (SECY-81-508).

(1page)

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s Re: F0!A-87 444 APPENDIX E (Continued)

DOCUMENTS BEING WITHHELD IN THEIR ENTIRETY PURSUANT TO EXEMPTION 5 The following records are located in former Coenissioner Gilinsky's files:

24. 11/27/81 Memo to Cars from Gilinsky subject: Cornission review of Diablo Canyon Seismic issue. (1 page) 25, 11/9/81 Memo to Car from Gilinsky, subject: DiabloCanyon.(1 page) 26, 10/19/81 Memo to Cars from Gilinsky subject: Diablo Canyon seismic analysis and resolution of design problems.

27, 9/23/81 Memo to Cars from Gilinsky, sub; ect: Comission review of DiabloCanyonseismicdecisionLALAS.644).(1page) 28, 9/8/81 Diablo Memo Canyonto N. Palladino low-power from(1Gilinsky),

decision. page subject:

29. 9/4/81 Memo to Chairman Palladino from Gilinsky, subject: Diablo Canyonlowpowerdecision.(1page) 30, 6/3/81 Memo to Bickwit from Gilinsky, subject: Diablo Canyon low power license proceeding. (1 page)

The following records are located in former Chtirman Palladino's files:

31, 11/10/81 Memorandum to Cars from Palladino, subject: Diablo Canyon. (1 page)

32. 11/18/81 Note to Gilinsky from Palladino, subject: TNR Proposal forDiabloCanyonOrder.(2pages) 33, 11/7/83 Memo'to Cars from Palladino, subject: Diablo Canyon order.(10pages)

34. 12/27/83 Memo to Cars from Palladino, subject: Proposed Re?ponse to Congress Diablo Canyon Markey case study. re (CR-87-173)

NRC handling (1 of Working Papage) per for 7

35. 1/13/84 Memo to Zerbe frca Palladino, subject: Comercial Licensed Operators.(1page Operating) Experience of Diablo Canyon Licensed 4

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Re: F0!A-87-444 4

APPENDIX E (Continued) .

DOCUMENTS BE!NG WITHHELD IN THEIR ENTIRETY PURSUANT TO EXEMPTION 5 The following records are located in former Chairman Palladino's files:

36, 1/23/84 Memo to N. E. Plaine from Palladino, subject: Diablo '

Canyon. (1 page)

37. 1/3C/84 Memo to Asselstine from Palladino, subject: Diablo (

Canyon. (1 page) 38, 4/3/84 Memo to Gilinsky from Palladino, subject:

COMVG-87 4-Diablo Canyon Low Power License. (1 page) i

39. 4/4/84 Memo to J. Ebersole from Palladino, subject: ACRS Review l l of Diablo Canyon 1ssues. (1 page) j 1 40. 4/13/84 Memo to Cars from Palladino, subject: Draft Drder on Diablo Canyon. (6 pages) 41, 4/13/84 Memo to J. Ebersole from Palladino, subject: ACRS Review l of Diablo Canyon 1ssues. ($ paget) l i

42. 6/13/84 Memo to Cars froru Palladino, subject: Revised Response to f Congressman Panetta (CR-84-43 Diablo Canyon) (3 pages)

43. 6/19/84 MemotoDircksfromPalladino,sub(ect: Response to 2/8 l 3 Ltr re Diablo Canyon. (4 pages) l

! 44, 6/29/84 Here from Palladino to W. J. Dircks, subject: ACRS Review 2

of Diablo Canyon SSER. (1 page)  !

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! 45, 8/24/84 Memo to Plaine from Palladino, subject: DiabloCanyon.(2 l l

Pages)  !

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{ 46. 10/9/84 Memo to J. K. Asselstine from Palladino, sub,4ect: Concur j

with F. Sernthal's suggestion re 9/1/84 Itr from Richard .

! Parks re Diablo Canyon. (1 page) i i 47, 10/9/84 Memo to J. K. Asselstine from Palladino, subject: Diabic I Canyon. (1 page) l 48, 10/11/84 Memo to Plaine from Palladin'o, subject: Review of Transcripts of Meetings on Diablo Canyon. (1 page) ,

49. 11/2/84 Memo to Briggs from Palladino subject: NRC Brief in (

! Diablo Canyon Case. (2 pages) l 1 L

50. 11/8/85 Memo to Cars from Palladino, subject: Ressense to Rep Markey's Ltr re Earthquake and Emergency Planning at [

! DiableCanyon(CR-8574A). l 1

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Re: F0!A-87-444 (

APPENDIX E (Continued)

DOCUMENTS 5EING WITHHELD IN THEIR ENTIRETY PUR$UANT TO EXEMPTION 5 l j  !

The following records are located in former Comissioner Ahearne's files: l l 51. 6/5/80 Memo to SECY from Ahearne, subject: $ECY A 80 57AL Diablo l

! Canyon - Release of Physical Security Plan to Intervenors. l (1page) l I

52, 3/9/81 Memo to the Chaiman and Comissioners from Ahearne, l subject: SECY-81-115A - Diablo Canyon Prehearing i i Conference Order. (3 pages)  !

t 53, 3/24/81 Memo to Chairman and Comissioners from Ahearne, subject-  !

RevisedDiabloCanyonOrder(SECY81-115A).(2pages)  !

54, 3/30/81 Memo from V. Harding to Comissioners' Assistants i subject: Revised Diablo Canyon Order - March 28, dGC j Version (SeeSECY-81-115A).(2pages) ,

4  :

j 55, 8/6/81 Memo from Ahearne to OGC, subject: Diablo Canyon low l j power contentions. .(2 g ges) '

1 56, 9/1/81 Memo from Ahearne to Comission, subject: Contentions net i j abitted in Diablo Canyon low power proceeding (CONVG-81-6).  !

(10pages) L

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57, 9/4/81 Memo from Ahearne to Chairman Palladino, subject: Diablo

! Canyon low power decision. (1 page) l 58. Memo from Ahearne to OPE, subject: Seismic consultant for i 9/14/81  ;

DiabloCanyon.(1page) ,

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59, 11/12/81 Memo from Ahearne to OPE, subject: Diablo Canyon i l proceeding.(1page) j l 60. 12/23/81 Memo from V. Harding to T. Rothschild, subject: Newmark $

issue in Diablo Canyon. (1 page)

I

61. 2/8/82 Memo from Ahearne to Comission, subject: Diablo Canyon l

noticeofviolation.(4pages)

62. 4/30/82 Ahearne's coments on a/22/82 meno from Sickwit to j Comission, subject: Diablo Canyon physical security. 3 (2pages)

! 63. 7/13/82 Memo from Ahearne to Comission, subject: Diablo Canyon i i Phase!!.(1page)  !

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Re: F0!A-87 444  :

APPENDIX F DOCUMENTS 8EING WITHHELD IN PART

1. 8/27/81 Memo from Gilinsky to Comission, subject: Diablo Canyon power decision (3 pages). Exemption G, entirety, with i attachments: SECY.81-115, dated 2/23/81, portions withheld, Exemption 5; SECY-81-115A, dated 3/6/81, i Exemption 5 entirety; SECY-81-329, dated 5/27/81 Exemption 5, with attachment: Order CL181-5, released.

2. 10/19/83 Memo from Gilinsky to Comissioners, subject: Diablo Canyon "TAU-Effect". (3 pages) Exemption 5; with attachments: ,

Letters to Byron Georotou and Lawrence Lanpher with views  ;

of individual Comiss'oners re: decisico of Comission review of ALAB 644 (in PDR Accession Nos. 8203230111, and 8203230121). ,

3. 11/13/81 Memo to Comissioners from Palindino, subject: Diabic Canyon (1 page) release; with at+ ached Approach for the IndependentReverificationoftheQiabloCanyonDesign(1 page) withheld, Exemption 5. i 1

4, 7/31/84 Memo from Palladino' to Comission, subject: Diablo Canyon [

(1 page) withheld, Exemption 5; with attachmen*,: Letter i from Representatives Patterron and Panetta. Released.

5. 10/5/84 Memo from Palladino to Comission, subject:

Telecon-Congressman Markey (2 pages), withheld Exemption i 5, with attachment: 9/17/84 letter from Rep. Markey and 9/21/84 response (2 pages) Released.

6. 11/12/81 Memo from Palladino to Remick, subject: OPE Analysis of i Diablo Canyon Seismic Issues (1 pige) release, handwritten notes of P. Bradford's being withield, Ermeptica 5.

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7. 1/28/81 Memo from Ahearne to L. Bickwit, subject: Diablo Canyon  !

Scheduling Estimates (1 page), withhelti Examption 5, with attachment: 1/23/81memofromDententoAhearne.(3 pages), released. ,

8. 2/19/81 Meme from Ahearne to Chilk, subject: SECY 81-76: Otablo i Canyon (1pagt) released,attacheddraftadditionalviews being withheld, Exemption 5. (1 page) {

9. 4/20/82 Memo from Ahearne to SECY, subject: Diablo Canyon Physical additional Security views 1 (Order (1 page) page) witblield, released, Exemption 5. attached draft ;

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NUCLEAR RIQULATC2Y COMMIESION f%g c ~s ,. . .. m  ;

s N /p ' september 15, 1981 oc P15 Ml >

' @*...*# IA (mw of nog ggg David 3. Fleischaker, Esq.

P. O. Box 1178 4,Ij g

oklahoma City, Oklahoma 73102 -

Dear Mr. Fielschaker:

Your motion of saptember 11, 1981, requested tha' disclosure of any discussions between James Tourte11otte and commissioner Thomas Roberts or other members of his staff .1garding the Diablo Canyon licensing proceedings. This is to inform you that there have been no such discussions whatsoever. Commis-sioner Roberts, Mr. Tourte11otte, and other memberu of the commissioner's staff are fully aware of the restrictions 4 placed on inter-office discussion of Diablo Canyon by Mr. Tourtellotte's these proceedings. previous experience as a staff attorney in To ensure compliance with these restric-tions, Mr. Tourte11otte is not participating in thA Cocnission review of any aspect of the Diabic Canyon proceedings.

S cerely, '

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opess op Tus comm enonen March 28, 1984 MEMORANDUM FOR THE COMMISSIONERS

SUBJECT:

DIABLO CANYON LOW POWER LICENSE In light of the delay in licensing the Diablo Canyon plant while the NRC staff and ACRS further review the piping support issues, I believe that the Commission should move forward on the following items:

1. The Commission should ask the ACRS to comment in the next few weeks on the seismic study license endition at Diablo Canyon.

2. The ACRS should also review the testimony before the Comission on the recently received paper which recharacterized the Hosgri fau:t, and provide their views to the Commission.

O 2. A gromes meetine shou 1d se schedu1ed with ouadrex to discuss the NSC audit.

4. Since we have agreed that the standard to be applied for advi.cr testing at Diablo Canyon should be comparable to the plant-specif10 portion of the NRC SRO exam, the issue on advisor testing is reduced to.who administers the examination. The increased time frame will now allow the NRC to prepare and administer license level axams to the advisors. This wocld guarantee objectivity. License exams were given at Diablo Canyon a few wec.ks ago so examiners must be up to speed. If the staff moved forward on administering the exams in the next couple of weeks, there would be ample time available to review the resu3tn.

I SECY please track responses. r

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OFricE OF THE conesissionen Decenber 23, 1903.

}!EHORANDUM FOR THE COMMISSIONERS

SUBJECT:

COMiERCIAL LICENSED OPERATING EXPERIENCE OF DIABLO CANYON LICENSED OPERATORS l .

I have attached a compendlun. prepared at my request, on the experience of personnel at Diablo Canyon. I was l particularly interested in the commercial licensed i experienco of the operating crews.

Sadly, it appears thnt only three of the licensed operators on shift are represented as having any prior licensed cor:nercial experience, and that was at PG&E's Humbolt Bay power plant, a 65 MWe boiling water reactor which has been f shut down for some yet.rs. None of this experience is more p' recent than 10 yearc ago and one of these operators had only about a year and a half's experience as a control operator.

I would not describe any of this as relevant commercial licensed experience. This, in effect, puts Diablo Canyon in the same category as Shoreham and Grand Gulf. This is an unsatisfactory state of affairs.

At a bare minimum, the Commission should require that any ascension to power be a good deal more gradual than usual, and subject to formal evaluations at each stage by the Company and the Commission. ,

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%q% UNITED STATES NUCLEAR REGULATORY COMMISSION 3 W ASHIN GTON, D.C. 20665 OPPICE OP THE comeiss 0NER September 28, 1983 .

MEMORANDUM FOR DR. J. RAY, CllAIRMAN ADVISORY COMMITTEE ON REACTOR SAFEGUARDS 1

SUBJECT:

TAU EFFECT On September 8, I asked the ACRS for its opinion on whether it was appropriate to use the "tau effect" at Diablo Canyon.

Because there seems to be some residual uncertainty about what this question means, let me be more explicit:

I would like the Committee's evalu'ation of the application of the tau effect to reduce the response spectrum for the earthquakes used in the Diablo Canyon analysis. In particular, I would like to know whether the Committee believes the specific quantitative reductions applied to the Diablo Canyon spectrum are justified on the basis of scientific or engineering analysis. And if so, can the Committee provide me with such an analysis leading to the result empicyed at Diablo Canyon.

I realize that the Committee may want to supplement its discussion of the tau effect with a discussion of the overall selsmic standard applied to the plant. However, I would like the tau effect ar.alysis to be independent of any other factors that bear on the overa.1 adequacy of the design.

s ,A c Victor Gilinsky cc Chairman Palladino

. Cetnmissioner Aoberts commissioner Asselstine /

Commissioner Bernthal l SFAY

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• * * " " July 8, 1983 MEMORANDUM FOR JERDiIAH RAY, CliAIRMAN, ACRS '

- i I regret that we did not ha've an opportunity to discuss the, quantification of seismic design margins during our meeting this afternoon. I am particularly interested in the validity of the reductions in a seismic spectrum which fall under the rubric of "tau effect", especially because the Appeal Board's opinien in Diablo 'anyon, and the Commission's decision not to take review of that opinion, would seem to endorse the application of this technique in other cases. In its July 14, 1978 letter to the Commission, the ACRS did not appear to specifically endorse this technique but commented favorably on certain off-setting factors for this already completed plant.

I would like to know whether the tau effect has a sufficiently sound scientific er engineering basis to justify its use to reduce seismic design standards that apply to nuclear power plants. Should NRC do further research on this question? I would be grateful if the Committee could provide a response within two months.

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Commissioner i

N cc Chairman Palladino Commissioner Roberts Commissioner Asselstine SECY OPE OGC j

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MEMORANDUM FOR: Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne Commissioner Roberts FROM: Nunzio J. Palladino I j .

SUBJECT:

DIABLO CANYON I have read Commissioner Gilinsky's November j memo suggesting a brief meeting to discuss Diablo Canyon reverification.

I strongly believe that we must find a credible solution to the reverification problem. While it is probably not practical to affect aspects of the reverification work already completed at this time, I do think that for any subsequent arrangement where NRC would exercise its right to approve a reverification activity, we should give due considerat' ion'to the points raised by Governor Brown and others. I think we must not lose sight of the fact that we have to convince not only Governor Brown, but many others who have written to us, as well as ourselves, that the reverifi-cation effort undertaken at Diablo Canyon will be truly credible.

To give us some time to get our thoughts in order before we meet, I would suggest that the Commission adjust next week's schadule to meet on Monday afternoon to consider my views, as well as those of the other Commissioners. Further, immediately after this meeting, I think we should hear from the staff on the Diablo Canyon enforcement ma tter.

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