ML20203P858

Motion for Clarification & Reconsideration of 860429 Memorandum Confirming Order Denying Access to Protected Matls & to Direct Intervenor to Furnish Matls Subj to Terms of 851206 Protective Order.Certificate of Svc Encl

ML20203P858
Person / Time
Site:	Braidwood
Issue date:	05/02/1986
From:	Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-084, CON-#286-84 OL, NUDOCS 8605080255
Download: ML20203P858 (10)

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UNITED STATES OF Ar.' ERICA C #

MUCLEAR REGULATOPY COMMISSION [;;1 g gh [

spr.c _F BEFORE TilR ATOMIC SAFETY AND LICENSING p WOARIrg W5 :g' j'{l' In the Matter of ) f7p[9 ^

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COMMOFl?EALTII EDISON COMPANY ) Docket Mos. 50-456 /

) 50-457 L (Braidwood Station, Units 1 and 2) )

NRC STAFF RECHEST FOR CLARIFICATION AND RECONSIDERATION OF MEP!ORANDUM (CONFIRMING ORDER ISSill:D DURING CONFERENCE CALL OF 4/25/86)

I. INTRODUCTION On April 29, 1986, the Licensing Board lasued a fJemorandum Order in which it confirmed certcIn rulings made during an April 25, 1986 telephone conference with the parties. Among the actions taken by the Board in that conference was the granting of a protective order entered into by Applicant and Intervenors "to protect the confidentiality of the source of certain information that had been supplied to Intervenors on the harassment and intimidation issue." Memorandum Order at 1-2.

According to the Board's Order, the Staff was not made a party to the protective order (and thus not authorized by that order to obtain from Intervenors copics of the protected information) because, inter alia ,

"the NRC Staff was already cognizant of the substance of that informa-tion [ . ]" M. at 2. The Board's order mischaracterizes the Staff's position in this regard.

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II. DISCUSSION While it is true that the Staff has been made aware of certain allega-tions of harassment and intimidation of L.K. Comstock quality control inspectors, see e.g. , Inspection Repert Nos. 50-456/84034; 50-457/84032, 50-456/85000; 50-457/85009; 50-45G/85021; 50-457/85022, the Staff is not aware of anything which suggests that the information covered by the protective order is already known to the Staff. Obviously , the Staff has not had an opportunity to examine these materials covered by the protective order and thus is in no position to confirm the representa-tion made in the April 25, 1986 telephone conference of Counsel for Intervenors that the protected materials do not contain any informa-tion not already known to the Staff. Thus, it la incorrect to state, as does the Doard's Memorandum Order, that "the NRC Staff [is] already cognizant of the substance of the [ protected] information." ,I d, . at 2.

The Staff requests the Board to clarify its Order to remove this misimpression.

The Staff also requests the Board to reconsider its ruling granting access to the protected information only to those parties entering into the protective order approved by the Board on April 25, 1986. The Staff declined to become a party to that protective order because the provi-sions of that order unduly limited disclosure of the protected informa-tion f o Ftaff counsel. As was noted during the April 25, 1986 conference ,

the NRC Staff is different from the other parties in that it is charged by statute with the re ,,onsibility of investigating matters affecting public health and safety. Because the protected information may bear on the safety or health of the public, it is unreasonabic to forbid Staff L

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counsel from sharing that information with Staff members responsible for the matters to which it relates. This is particularly true in view of the fact that the Staff is already a party to a protective order issued in this case which limits disclosure of certain in formation received from Intervenors to those Staff members with e "nced to know." See Protective Order 14 (December 6,1985). (copy attached). In the Staff's view , the December 6, 1985 protective order adequately protects Inter-venors' interest in preserving the confidentiality of its sources without unduly hampering the Staff's rvulatory efforts. Further, the Staff does not believe the Board intended to rule that Intervenors could not rnake available to the Staff any documents which have safety significance. In fact, the Commission encouraged Intervenors to make such documents avail-able to the Staff. Memorandum and Order, CLI-86-08, slip op. at 11, n.1

( April 24, 1986). For these reasons, the Board should order the discle-sure of the materials in question to the Staff subject to the terms of the December 6,1985 Protective Order.

III. CONCLUSION For the reasons stated herein , the Board should clarify its April 29, 1986 Memorandum Order denying the Staff access to the protected materials and direct Intervenors to furnish those materials to the Staff subject to the terms of the December 6, 1985 Protective Order.

_4 In addition , the Board shovid clarify the April 29, 1986 Memorandum l Order to reflect that the Staff may not be cognizant of the substance of the protected materials.

Respect, fully submitted,

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. Stuart A. Treby Assistant Chief Ilearirk Counsel Dated at Bethesda, Maryland this 2nd day of May,1986 f

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1-2 UNITED STATES OF AMERICA

[ NUCLEAR REGULATORY COMMISSION 1

l ATOMIC SAFETY AND LICENSING 8OARD 8efore Administrative Judges:

Herbert Grossman, Chairman Richard F. Cole A. Dixon Callihan 861361

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In the Matter of )) Docket Nos. 50-456 y 50-457 COMMONWEALTH EDISON COMPANY

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(Braidwood Station, )

Unit Nos. I and 2) ) December 6, 1985

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PROTECTIVE ORDER i

In accordance with the Licensing Board's October 4 1985, Memorandum and Order (Granting Protective Order),

it is hereby ordered thdt ) confidential treatment will be

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afforded information be disclosed by 1

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Applicant and the NRC Staff in accordance with the following l conditions:

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1. Confidential treatment will be afforded by this protec-tive order to " confidential information," meaning the c, l '/ 'l Isti

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names and otherwise identifying information regarding

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certain prospective witnesses on Intervenors' Quality Assurance contention (unless such information was i

obtained from a source other than Intervenors or their counsel). Such protection applies to the eleven present and former L. K. Comstock QC inspectors who sought such protection in Intervenors' Motion for Confidential. Treatment of Eleven QC Inspector Names i filed on August 2, 1984. and, as necessary, to their prospective witnesses to be identified by intervenors at a later date.

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2. Such confidential information shall not be disclosed to any person except as permitted by the provisions of this order.

1 j 3. Persons who receive confidential information subject to this Protective Order shall use it solely for the pur- ('

fI pose of preparing for and participa ti ngfin this pro-cee, ding. 4 Y

4. Confidentiaf information shall be disclosed strictly on 1

a "need to know" basis as required for participation by l a party in the proceeding. Each person (except as exempted by this paragraph) .to whom confidential 1 .

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.~w 2- information is to be disclosed shall execute the

! Affidavit of Nondisclosure attached hereto acknowledging his or her obligation to be bound by this Protective Order. These Affidavits shall be filed with the Licensing Board and served on Intervenors by the party on whose behalf the disclosure is to be made.

Members of the NRC Staff who are (1) assigned to the Office of Executive Legal Director (ELD), or (2) are non-ELD officials acting as reviewers when receiving I

the information and having no contact with Applicant's employees, need not file affidavits. They shall, nevertheless, be bound by the other terms of this Protective Order and are otherwise prohibited from r

making unauthorized disclosures of protected informa-tion under 10 C.F.R. Part O. Subpart C and NRC Manual Appendix 2101.

, 5. Prior to the disclosure of confidential information to J

f any person (othef than disclosure by NRC personnel to I

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2 other NRC personnel necessary to the review or regula-tory function), Applicant or the NRC Staff shall notify l Intervenors' counsel of its intention to make such disclosure and of the identity of the person to whom such disclosure is to.be made. Intervenors shall have I

the opportunity to object to such disclosure provided l

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! '- such objection is made as quickly as possible, but in no event later than 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after receipt of such notice.

6. Any person (even if not required to sign the af fidavit) who has reason to believe that documents including con-fidential information have been lost or misplaced or

a. any person who has reason to believe that the terms and conditions of this Protective Order have been violated shall notify the Board.

FOR THE ATOMIC SAFETY AND LICENSING BOARD herbert Grossman, Chairman ADMINISTRATIVE JUDGE Dated this 6th day of December, 1985, f I ~$ h 1  ! 3 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

f L ATOMIC SAFETY AND LICENSING 80ARD 8efore Administrative Judges:

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Herbert Grossman, Chairman Richard F. Cole A. Dixon Callihan In the Matter of Docket Nos. 50-456 50-457 COMMONWEALTH EDISON COMPANY (Braidwood Station, Unit Mos. I and 2)

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AFFIDAVIT OF NONDISCLOSURE I, , being duly sworn, state that I have read and understand the attached Protec- f h

.44 tive Order entered (by the Atomic Safety A d Licensing Board L l f

in the above-captioned proceeding. o I ackn'wledge receipt of J-a copy of that Protective Order, and I agree to be bound by all of the terms and conditions of the Protective Order.

I further understand that employees of Applicant and its contractors at 'the Braidwood Station are protected by 9

law from any 'and all discrimination in the terms ~ and condi-tions of.their employment because of their participation in

,- this licensing. proceeding., ..Such . participation includes cooperation with Intervenors or the presentations of testi-many as witnesses. The United States Department of Labor and the United States Nuclear Regulatory Commission are authorized to investigate alleged violations of this law.

42 U.S.C. 5.5851. 10 C.F.R. 5 50.7.

Signed and sworn to before me this

. day of .

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Notary Public My commission expires .

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UNITED STATES OF ALIERICA NUCLEAR REGULATORY COMMISSION ,

BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In' the Matter of )

)

. COMMONWEALTil EDISON COMPANY ) Docket Nos. 50-456

) 50-457 (Draidwood Station, Units 1 and 2 )

'O CERTIFICATE OF SERVICE I hereby certify that copies 'of NRC STAFF REQUEST FOR ' CLARIFICATION AND RECONSIDERATION OF MEMORANDUM (CONFIRMING ORDER ISSUED DURING CONFERENCE CALL OF 4/25/'36)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 2nd day of May,1986:

Herbert Grossman, Esq., Chairman

• Commonwealth Edison Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Commission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr.- A. Dixon Callihan Region III Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection a Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen . Ellyn, IL 60137 Dr. Richard F. Cole Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 1100 U.S. Nuclear Regulatory Commission 1150 Connecticut Avenue, N.W.

Washington, DC 20555 Washington, DC 20036' Michael I. Miller, Esq.

Elena Z. Kezelis, Esq.

Isham, ~ Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602

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Douglass W. Cassel, Jr. , Esq. Atomic Safety and Licensing Beard Timothy 1"right, Esq. Panel

• Robert Guild, Esq. U.S. Nuhlear Regulatory Commission 109 North

Dearborn Street Washington,

DC s?0555 Suite 1300 <

Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jones. Director Board Panel

• Illinois Emergency Services U.S. Nuclear Regulatory Commission and Disaster . Agency Washington, DC 20555 110 East Adams i Springfield, IL 62705 Docketing and Service Section*

. N Office' of the Secretary Lorraine Creek , \ U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 Manteno, II 60950 g ,

Ms. Bridget Little Rorem H. Joseph Flynn, Esq. ' 117 North Linden Street Associate General Counsel ' Essex, IL 60935 FEMA 500 C Street, S.W., Suite 480 \ , George L. Edgar, Esq.

Washington, DC 20472 .

Newman a Holtzinger, P.C.

' 1615 L Street, N.W.

Suite 1000 Washington, DC 20036

\ d9a f // /x 1 Stuart A. Treby Assistant Chief Hearing C unsel

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