ML20197G597
| ML20197G597 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/11/1984 |
| From: | Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON |
| To: | |
| Shared Package | |
| ML20197G601 | List: |
| References | |
| OL, NUDOCS 8406150337 | |
| Download: ML20197G597 (6) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION EN ?S NJ,no BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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l PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
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Plant, Units 1 and 2)
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JOINT INTERVENORS' MOTION FOR PROTECTIVE ORDER I.
INTRODUCTION By this motion, the Joint Intervenors seek an order a
confining disclosure of certain of the affidavits -- Exhibits 3, 4, 7, and 10 -- submitted in support of their Reply to PGandE and NRC Staff Responses to Motions Regarding Design Quality Assurance, Construction Quality Assurance, and Licensee Character and Competence, filed concurrently herewith, to the members of this Appeal Board.
The Commission has recognized that such a protective order is appropriate to prevent harassment of or reprisals against informants providing safety-related information, particularly where, as here, they are current or former employees of the licensee.
On at least two separate occasions in this proceeding, submission of similar affidavits to M 8406150337 840611 73 PDR ADOCK 05000275 v
C PDR
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s the NRC Staff has resulted in disclosure of the affiants' names to PGandE, followed by harassment of such individuals.
Conse-quently, the requested order is necessary to prevent the reoccurrence of such disclosure of the identities of the instant affiants, who agreed to provide the information contained in their affidavits only upon express assurances that their identities would not be divulged to PGandE.
II.
A PROTECTIVE ORDER MUST BE GRANTED TO PREVENT RISK OF REPRISAL AGAINST OR HARASSMENT OF WITNESSES.
The decisions of the Commission expressly recognize that a protective order is the appropriate mechanism to protect witnesses who fear reprisals or harassment by an applicant utility.
In Houston Lighting and Power Company, et al. (South
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Texas Project, Units 1 and 2), LBP-80-ll, 11 NRC 477 (1980),
intervenor Citizens for Equitable Utilities, Inc. ("CEU") failed to answer interrogatories propounded to it by applicants and the NRC Staff on the ground that its witnesses, current and former employees at the plant site, feared harassment should their names j
be divulged.
The Licensing Board held that a protective order l
should appropriately issue in such a situation:
l where revealing the name of an informant or other proposed witness or member, in response to discovery or other NRC requirements, would occasion harm or reprisal against such person, a licensing board can and should take steps to protect l
that person.
the Board may well limit disclosure to an extent necessary to avoid the anticipated harm or reprisal.
l l
l __.. _.
I Id.,
11 NRC at 479-80; see also Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-535, 9 NRC 377, 399-400 (1979) (protective order appropriate where disclosure of identities of me,mbers of intervenor organization might lead to harassment by utilities t
and government agencies, threatening rights of association); 10 C.F.R. S 2.740 (c) (authorizing, on showing of good cause, issuance of "any order which justice requires to protect a party or person from annoyance, embarrassment, [or] oppression"); Fed.
R. Civ. P.26 (c) (same).
Issuance of such a protective order furthers important interests.
First, this Commission has acknowledged in analogous situations the need to protect confidential informants due to the dangers that such informants would be subjected to retaliatory discharge, " financial and social penalties," and even physical abuse, should their identities be revealed.
See Houston Lighting and Power Company (South Texas Project, Units 1 l
and 2), ALAB-639, 13 NRC 469, 474-75 (1981) (upholding NRC Staff's assertion of " informer's privilege").
Second, and j
equally importantly, disclosure of the identities of such witnesses would reduce the chance that informants would come forward with safety-related information in future cases.
Id.,
13 NRC at 475, 477.
Thus, such protective orders are crucial both to preserve the integrity of the Commission's hearing process and to ensure the effective implementation by the Commission of its regulatory duties.
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s III. GOOD CAUSE EXISTS FOR ISSUANCE OF A PROTECTIVE ORDER IN THE INSTANT PROCEEDING.
In Houston Lighting and Power Company, et al., supra, 11 NRC at 480, the Board specified the proper procedure to be followed in requesting a protective order:
the party seeking such an order must outline the factual basis for its view that such an order is required and should delineate the degree of protection deemed to be needed to avoid the feared harassment --
e.g., the particular individuals to whom disclosure is sought to be restricted.
In the instant proceeding, recent incidents of inadvertent or knowing disclosure of the identities of confi-dential informants by the Commission Staff to the licensee, and subsequent harassment or discharge of those individuals, dictate that the instant motion be granted.
l As described in the attached Affidavit of Thomas Devine ("Devine Af fidavit"), legal director of the Government Accountability Project
(" GAP "), the affidavits at issue in this motion were executed and provided to the Joint Intervenors and this Board only upon the condition that the affiants' names not l
be disclosed to any of the other parties or counsel in this l
proceeding, including the NRC Staff and PGandE management and counsel.
(Devine Affidavit, 1 10.)
The record in this proceeding makes clear, further, that the witness' fears of retaliation in the form of discharge, industry-wide black-listing, or physical reprisals are far from idle or speculative.
On at least two occasions, NRC Staff has deliberately or j
inadvertently disclosed the identities of confidential i
i 1 l
6 informants to PGandE, despite specific objections by GAP that such disclosure was inappropriate and would violate assurances made to those informants.
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Thus, NRC Staff counsel informed Mr. Devine that the Staff intended to turn over affidavits and exhibits to PGandE through which confidential affiants could be identified.
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l (Devine Affidavit, 11 3-4.)
Similarly, the Staff effectively disclosed the identity of a confidential witness by identifying I
him in a published Supplemental Safety Evaluation Report as the author of a specific quality assurance report.
Ggi., 1 7.)
As a result of these unauthorized disclosures, PGandE was able to identify three witnesses as the source of various allegations.
GO!., 1 6.)
Not only were those individuals concerned about this violation of their right to privacy, for which they held NRC Staff responsible, id., 1 8, but "all three individuals have been laid off or suffered harassment on-site" since the occurrence of this unauthorized disclosure.
(Id., 1 9, emphasis l
added.)
The factual basis for the instant motion, then, could not be more clear-cut:
a pattern of unauthorized disclosure of l
the identity of confidential witnesses by NRC Staff to PGandE, with subsequent dismissal or other harassment of such employees at the job site.
To avoid similar occurrences in connection j
with the anonymous affidavits submitted in support of Joint Intervenors' Reply, filed concurrently herewith, Joint Intervenors therefore request that such affidavits --
Exhibits 3, 4, 7, and 10 -- not be disclosed to the parties to I
i
s this proceeding and that such affidavits be made available for review solely by the members of this Appeal Board.
IV.
CONCLUSION For the reasons and upon the authorities cited above, this motion for protective order should be granted.
r Dated:
June 11, 1984 Respectfully submitted, JOEL R. REYNOLDS, ESQ.
ETHAN P. SCHULMAN, ESQ.
ERIC R. HAVIAN, ESQ.
JOHN R. PHILLIPS, ESO.
Center for Law in the i
Public Interest 10951 W. Pico Boulevard Los Angeles, CA 90064 l
(213)470-3000 r
DAVID S. FLEISCHAKER, ESQ.
P. O. Box 1178 Oklahoma City, OK 73101 i
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By pEL RT RF849QGDS Attorneys for Joint Intervenors i
SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APPELBERG JOHN J. FORSTER l l
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