ML20154M542

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Partially Withheld SECY-85-174 Discussing FOIA Appeal 85-A-18C Re Documents Concerning Aamodt Motion for Investigation of Radioactive Releases During Facility Accident & Ctr for Disease Control Review of Motion
ML20154M542
Person / Time
Site: Three Mile Island, 05000000
Issue date: 05/20/1985
From: Fitzgerald J
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20151K691 List:
References
FOIA-85-409, TASK-PINV, TASK-SE SECY-85-174, NUDOCS 8603140326
Download: ML20154M542 (21)
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May 20, 1985 SECY-85-174 (Notation Vote)

For: The Commissioners From: James A. Fitzgerald Assistant General Counsel

Subject:

FOIA Appeal 85-A-18C -- Documents Related to Aamodt Motion for Investi-gation of Radioactive Releases During the TMI-2 Accident and the Center for Disease Control (CDC) Review of that Motion (Initial Request FOIA-85-8)

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.5s ,f ames A. Fitzgerald Assistant General Counsel Attachments:

1. Draft Response Letter
2. Documents for Release (2)
3. Withheld Documents (13)
4. FOIA Appeal (85-A-18C) undated
5. March 27, 1985 NF.C Denial Letter Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, June 4, 1985. ,

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Tuesday, May 28, 1985, with an infor-mation copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

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ADJUDICAkbRY ISSUE August 13, 1984 g SECY-84-322 COMMISSION LEVEL DISTRIBUTION ONLY For: The Commissioners From: Martin G. Malsch, Deputy General Counsel

Subject:

AAMODT MOTION FOR INVESTIGATION OF RADIOACTIVE RELEASES DURING THE TMI-2 ACCIDENT Discussion: On June 21, 1984 the Aamodts filed a motion with the Commission asking it to investigate

. immediately the circumstances surrounding alleged falsification of radioactive emission information in the early days of the TMI-2 accident and during the subsequent investigation -

of the accident. The Aamodts requested that the Commission postpone any decision on TMI-1 restart until their concerns have been fully resolved. Attached is a self-explanatory order which would deny the Motion. OGC prepared this order after consulting with OPE.

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  • Martin G. Malach Deputy General Counsel

Enclosures:

1. Draft order
2. Aamodt Motion
3. NRC staff response
4. Licensee response

Contact:

Trip Rothschild, OGC, 41465 -

Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Monday, August 27, 1984.

DIS'IRIBUTION :

Commissionersr ,

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OPE SECY

  • UNITED STATES

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7 NUOLEAR REGULATORY COMMISSION wasnincrow.o.c.nosss i

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s l August l'7, 1984 c.

l MEMORANDUM FOR:

Samuel J. ChilkSecretary of the Commission -

FROM:

Martin G. MalschActing General FOR Counsel RELEASES

SUBJECT:

SECY-84-322 DURING THE TMI-2 ACCIDENT

-- AAMODT MOT L

ion not of act Auguston 15SECY-84-322 on TMI-lstated at that

$ th OGC requests that the Commiss d in g

time. During the oral presentationsthe il NRC staff and the, rastart, After wewith provide the Commission receive a that mater a ,r and submit a revised the near future.may We wish to withdraw this papewill keep you to the Aamodt motion.

position.

cc: Chairman Palladino -

Commissioner Commissioner Bernthal RobertsCommissioner Asselstin Commissioner Zech OPE i

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Contact:

Trip Rothschild, OGC, 41465 .

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  • 200 North Church Street, Oak 203 Parkesburg, Pennsylvania 19365 L ,e APPEAL OF INITIAL FOLA DECtsiO Secretary of the Commission U. S. Nuclear Regulatory Commission ideshington, D.C. 20555 f07kM-k- lh( &~O 1 1 ned.,4/30/65

Dear Secretary:

By letter of March 27, 1985 from J.M. Felton, Director Division of Rule!f and Records, Office of Administration, Nuclear Regulatory Commission i

(letter attached), our Freedom of Information Act request of December 20, 1984

has been denied in part. The Felton letter lists fourteen documents in two appendices (D and E) which fall into one of the categories of documents requested but to which the Nuclear Regulatory Commissisi has denied us access.

ide appeal the agency's decision to withhold the documents, supra.

The February 10, 1984 ruling of the, United States Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers. Inc. v. NRC (No. 83-1698) is effective in our case, not those cites, relied upon by the agencv in the Felton letter. The court has upheld the public's interest in and i access to the deliberations of the Commissioners concerning Three Mile Island Unit 1 interim decisions in meetings that were closed to the public.

The agency's denial is flying in the face of this clear and relevant ruling.  !

Very truly yours, Ai&m g' - -

Mar e M. Aamodt/

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. . .e cc: James A. Fitzgerald, Assistant General Counsel John C. Hoyle, Assistant Secretary to the Commission J.M. Felton, Director, Division of Rules and Records, Office of Administration l

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Oe u"s R. D. 5, Box 428

. Coatesville, PA 19320 December 20, 1984

/ / FREEDOM OF INFORMATION J . fe, fkyp, birgck .-- ffCs / kho 5 ACT REQUEST Nuclear Regulatory Commission h1 ggy Washington, D. C. 20555 Q s'di-3-25

Dear Sir:

On the basis of our interest in the TMI Restart Proceeding (Docket 50-289) and the Freedom of Information Act, I am requesting the following information:

(1) All communications, written and verbal, between the NRC Staff and the Commission or any of the Commissioners concerning the Aamodt Motion of June 21, 1984 and the Center for Disease Control review of that motion.

(2) All communications, written or verbal, between the Ccamonwealth of Pennsylvania or any of its agents, including Or. George Tokohata, concerning the Aamodt Motion of June. 21, 1984 and the Center for Disease Control review of that motion.

(3) The transcripts of the Commission meetings of August 15, 1984, September 7, 1984 and December 13, 1984.

Respectfully submitted, t u r. lWA Marjori/! M. Aamodt l

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MAR 17 GB6 Mrs. Marjorie M. Aamodt R. D. 5, Box 428 IN RESPONSE REFER Coatesville, PA 19320 TO F01A-85-8

Dear Mrs. Aamodt:

This is in further response to your letter dated December 20, 1984, in which you requested, pursuant to the Freedom of Information Act (F0TA), three categories of documents related to the Aamodt June 21, 1984 Motion and the Center for Disease Control review of that motion.

The documents identified on enclosed Appendix C are being placed in the NRC Public Document Room (PDR) located at 1717 H Street, NW, Washington, DC 20555, in file folder FOIA-85-8 in your name.

The documents identified on enclosed Appendix D contain the predecisional .

legal analyses, opinions and recommendations of the Office of the General Counsel (OGC) for the Commissioners' consideration of the Aamodt motion for investigation of radioactive releases during the Three Mile Island Unit 2 accident. Documents one and three were prepared for the Commission to decide an issue in an adjudicatory proceeding and represent confidential communications prepared as part of the attorney-client relationship and are.

therefore, protected by the attorney-client privilege. Furthermore, the documents on Appendix D reflect the predecisional process between OGC and the Commissioners, and are exempt from mandatory disclosure pursuant to '

Exemption 5 of the FOIA, 5 U.S.C. 5552(b)(5), and the Connission's regulations, 10 CFR 59.5(a)(5). Release of the documents would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. There are no reasonably segregable factual portions of these documents that are not already in the public record. Further, releasing the factual portions of these documents would reveal a predecisional evaluation of which facts are important. (See Russell v. Department of the Air Force, 2 GDS 981,123 (D.D.C. 1981), aff'd., 682 F.2d 1045 TD.C. Cir.1982)). Such " selective" facts are, therefore, entitled to the

  • same protection as that afforded to purely deliberative materials as their release would " permit indirect inquiry into the mental processes,"

Williams v. Department of Justice, 556 F. Supp. 63, 65 (D.D.C.1982), .

Montrose Chemical Corp.

and so " 491

v. Train, expose" predecisional F.2d 63 agency)

(D.C. Cir 1974 . The deliberations.

documents are being withheld .'

in their entirety.

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The documents identified on enclosed Appendix E contain the pred'ecisional analyses, opinions and recommendations of the Connissioners, and between the Commissioners and their staffs on the Aamodt motion for investigation of radioactive releases during the Three Mile Island Unit 2 accident. Because the documents reflect the predecisional process among the Commissioners, and between the Comnissioners and their staffs, the documents are exempt from mandatory disclosure pursuant to Exemption 5 of the FOIA, 5 U.S.C. 5552(b)(5),

and the Commission's regulations, 10 CFR 19.5(a)(5). Release of the documents would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. The documents do not contain any reasonably segregable factual portions. The documents are being withheld in their entirety.

Pursuant to 10 CFR 9.15 of the Commission's regulations, it has been determined that the information withheld in exempt from production or disclosure and that its production or disclosure is contrary to the public interest. The person responsible for the denials in Appendix D is James A.

Fitzgerald, Assistant General Counsel. The person responsible for the

. denials in Appendix E is John C. Hoyle, Assistant Secretary to the Commission.

These denials may be appealed to the Commission within 30 days from the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FO!A Decision."

. This completes NRC action on your reouest.

Si erely,

/

' . . Felton, Director Division of Rules and Records Office of Administration

Enclosures:

As stated I

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Re: F0!A-85-8 APPENDIX C tocuments Being Placed in the PDR ' .-

1. Undated Additional Views of Cosmissioner Asselstine (1 page)
2. 07/05/84 Letter from George Tokuhata to Phillip Grant subject:

Epidemiologic Surveillance in Pennsylvania: A Case of Nuclear Power Plants. (10pages)

3. 08/27/84 Memo from S.J. Chilk to W.J. Dircks, subject, Staff Requirements Oral Presentations By Parties on TMI-1 Restart (2 pages)
4. 08/29/84 Letter from George Tokuhata to Charles Hinson, subject: The Aamodt Cancer Report. (5 pages)
5. 09/07/84 Memo from W.J. Dircks to the Commission,

Subject:

Staff Actions From the August 15, 1984 Commission Meeting on MI-1. (16 pages)

6. 09/10/84 Letter from John Cobb to Nunzio Palladino, subject: Submittal of Curriculum Vitae (9 pag s) [ Note: This document is Enclosure 2 to SECY-84-322A
7. 10/23/84 Commissioner Asselstine's Response Sheet for SECY-84-322A, "Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident." (1 page)
8. 11/12/84 Letter from Winston Richards The Pennsylvania State University, to Nunzio Palladino (5 pages)
9. 12/18/84 Memo from S.J. Chilk to H. Plaine, subject: Staff Requirements-Affirmation / Discussion and vote. (1 page)

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Re: F0!A-85-8 APPENDIX D ,

4 . i Documents Being Withheld in their Entirety '

1. 08/13/84 Meme (SECV-84-322) from M. Malsen Deputy General Counsel to  ;

the Commissioners, subject: Aamodt Motion for Investigation '

of Radioactive Releases During the TMI-2 Accident (1 page);

enclosure 1, draft order. (4 pages)

2. 08/17/84 Memo from M. Malsch to S. Chilk, subject: SECY-84-322-Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1page)
3. 10/05/84 Memo (SECY-84-322A) from M. Malsch, Deputy General Counsel, and J. Zerbe, Director, Office of Policy Evaluation, to the Comissioners, subject: Aamodt Motion for Investigation of Radioactive Releases During TMI-2 Accident. (4 pages)
4. Undated Draft memorandum from S. Chilk, Secretary, to W. Dircks, EDO, re: Health effects resulting from TMI-2 accident. (2 pages)

] [ Note: This document is Enclosure 3 to SECY-84-322A) t 4

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Re: F0fA-85-8 APPENDIX E Documents Being Withheld in Their Entirety

1. Undated Draft Commission Crder with handwritten notes of Car.

Asselstine. (5 pages)

2. 08/80/84 Vote Sheet of Car. Zech on SECY'-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
3. 08/28/84 Vote sheet of Car. Roberts on SECY-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)

, 4. 10/21/84 Vote Sheet of Chm. Palladino on SECY-84-332A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1page)

5. 10/23/84 Vote sheet of Car. Roberts on SECY-84-332A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1page)
6. 10/24/84 Vote sheet of Car. Zech on SECY-84-322A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
7. 10/30/84 Yote sheet of Car. Bernthal on SECY-84-322A - Aamodt Motion for l

Investigation of Radioactive Releases During the TMI-2 Accident. (2 pages)

, 8. 11/14/84 Memo from Cmr. Bernthal to Cars.. "Aamodt Motion and Commission

' Order (SECY-84-322). (1 page)

9. 11/26/84 Memo from Chm. Palladino to Car. Bernthal . "SECY-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
10. 12/13/84 Affirmation Memo with attached draft Order from S.J. Chilk.

"SECY-84-322/322A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident." (8pages) l

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3AR g 71985 Mrs. Marjorie M. Aamodt ,

R. D. 5, Box 428 IN RESPONSE REFER Coatesville, PA 19320 TO FOIA-85-8

Dear Mrs. Aamodt:

This is in further response to your letter dated December 20, 1984, in which you requested, pursuant to the Freedom of Inforination Act (F0IA), three categories of documents related to the Aamodt June 21, 1984, Motion and the Center for Disease Control review of that motion.

Tim documents identified on enclosed Appendix C are being placed in the NRC -

Public Document Room (PDR) located at 1717 H Street, NW, Washington, DC 20555, in file folder FOIA-85-8 in your name.

The documents identified on enclosed Appendix D contain the predecisional legal analyses, opinions and reconnendations of the Office of the General

  • Counsel (0GC) for the Connissioners' consideration of the Aamodt motion for investigation of radioactive releases during the Three Mile Island Unit 2 accident. Documents one and three were prepared for the Connission to decide an issue in an adjudicatory proceeding and represent confidential connunications prepared as part of the attorney-client relationship and are, therefore, protected by the attorney-client privilege. Furtherinore, the documents on Appendix D reflect the predecisional process between OGC and the Connissioners, and are exempt from mandatory disclosure pursuant to Exemption 5 of the FOIA, 5 U.S.C.1552(b)(5), and the Comission's regulations,10CFR69.5(a)(5). Release of the documents would tend to .

inhibit the open and frank exchange of ideas essential to the deliberative process. There are no reasonably segregable factual port'ons of these documents that are not already in the public record. Further, releasing the factual portions of these documents would reveal a predecisional evaluation of which facts are important. (See Russell v. Department of the Air Force 2 GDS 681,123 (D.D.C. 1981), aff'd., 682 F.2d 1045 (D.C. Cir. 1982)). Such " selective" facts are, therefore, entitled to the same protection as that afforded to purely deliberative materials as their release would " permit indirect inquiry into the mental processes,"

Williams v. Department of Justice, 556 F. Supp. 63, 65 (D.D.C. 1982),

and so " expose" predecisional agency deliberations. Montrose Chemical Corp. '

v. Train, 491 F.2d 63 (D.C. Cir 1974). The documents are being withheld in their entirety.

The documents identified on enclosed Appendix E contain the predecisional analyses, opinions and recomendations of the Comissioners, qnd.between the Commissioners and their staffs on the Aamodt motion for investigation of radioactive releases during the Three Mile Island Unit 2 accident. Bacause the documents reflect the predecisional process among the Comissioners, and between the Commissioners and their staffs, the documents are exempt from mandatory disclosure pursuant to Exemption 5 of the FOIA, 5 U.S.C. 5552(b)(5),

and the Comission's regulations,10 CFR 59.5(a)(5). Release of the i documents would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. The documents do not contain any reasonably segregable factual portions. The documents are being withheld in their entirety.

Pursuant to 10 CFR 9.15 of the Comission's regulations, it has been determined that the information withheld in exempt from production or disclosure and that its production or disclosure is contrary to the public interest. The person responsible for the denials in Appendix D is James A.

Fitzgerald, Assistant General Counsel. The person responsible for the denials in Appendix E is John C. Hoyle, Assistant Secretary to the Comission.

These denials may be appealed to the Commission within 30 days frns the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision."

, This completes NRC action on your request.

I

. Sincerely, "51.w. 75 J. M. Felton, Director Division of Rules and Records Office of Administration

Enclosures:

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. Re: FOIA-85-8 APPENDIX C Docunents Being Placed in the PDR , ,

1. Undated Additional Views of Commissioner Asselstine (1 page)
2. 07/05/84 Letter from George Tokuhata to Phillip Grant subject:

Epidemiologic Surveillance in Pennsylvania: A Case of Nuclear Power Plants. (10 pages)

3. 08/27/84 Memo from S.J. Chilk to W.J. Dircks, subject, Staff Requirements Oral Presentations By Parties on TMI-1 Restart'(2 pages)
4. 08/29/84 Letter from George Tokuhata to Charles Hinson, subject: The Aamodt Cancer Report. (5 pages)
5. 09/07/84 Memo from W.J. Dircks to the Commission,

Subject:

Staff Actions From the August 15, 1984 Commission Meeting on MI-1. (16 pages)

6. 09/10/84 Letter from John Cobb to Nunzio Palladino, subject: Submittal of Curriculum Vitae (9pages)[ Note: This document is Enclosure 2 to SECY-84-322A]

, ;j. 7. 10/23/84 Commissioner Asselstine's Response Sheet for SECY-84-322A, "Aamodt Motion for Investigation of Radioactive Releases During theTMI-2 Accident."(1page)

8. 11/12/84 Letter from Winston Richards, The Pennsylvania State University, to Nunzio Palladino (5 pages) 12/18/84 Memo from S.J. Chilk to H. Plaine, subject: Staff 9.

Requirements-Affirmation / Discussion and vote. (1 page) 4 O

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Re: FOIA-85-8 APPENDIX D Documents Being Withheld in their Entirety ' -

1. 08/13/84 Memo (SECY-84-322) from M. Malsch, Deputy General Counsel to the Commissioners, subject: Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident (1 page);

enclosure 1, draft order. (4 pages)

2. 08/17/84 Memo from M. Malsch to S. Chilk, subject: SECY-84-322-Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
3. 10/05/84 Memo (SECY-84-322A) from M. Malsch, Deputy General Counsel, and J. Zerbe, Director, Office of Policy Evaluation, to the Commissioners, subject: Aamodt Motion for Investigation of Radioactive Releases During TMI-2 Accident. (4 pages)
4. Undated Draft memorandum from S. Chilk, Secretary, to W. Dircks, EDO, re: Health effects resulting from THI-2 accident. (2 pages)

[ Note: This document is Enclosure 3 to SECY-84-322A]

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f Re: F0,IA-85-8 APPENDIX E Documents 8eing Withheld in Their Entirety

1. Undated Draft Commission Order with handwritten notes of Cmr.

Asselstine. (5 pages)

2. 08/20/84 Vote Sheet of Cmr. Zech on SECY-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
3. 08/28/84 Vote sheet of Cmr. Roberts on SECY-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
4. 10/21/84 Vote Sheet of Chm. Palladino on SECY-84-332A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1page)
5. 10/23/84 Vote sheet of Cmr. Roberts on SECY-84-332A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1page)
6. 10/24/84 Vnte sheet of Cmr. Zech on SECY-84-322A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (1 page)
7. 10/30/84 Vote sheet of Cmr. Bernthal on SECY-84-322A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident. (2 pages)
8. 11/14/84 Memo from Cmr. Bernthal to Cmrs., "Aamodt Motion and Commission Order {SECY-84-322). (1 page)
9. 11/26/84 Memo from Chm. Palladino to Cmr. Bernthal, "SECY-84-322 - Aamodt Motion for Investigation of Radioactive Releases During the THI-2 Accident. (1 page)
10. 12/13/84 Affirmation Memo with attached draft Order from S.J. Chilk, "SECY-84-322/322A - Aamodt Motion for Investigation of Radioactive Releases During the TMI-2 Accident." (8 pages) '

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