ML20209F093

From kanterella
Jump to navigation Jump to search
Responds to Appeal Re Denial of FOIA Request for App E & F Documents.Forwards Partially Withheld Document 4 on App F (Ref FOIA Exemption 5)
ML20209F093
Person / Time
Issue date: 09/05/1986
From: Chilk S
NRC OFFICE OF THE SECRETARY (SECY)
To: Hiatt S
OHIO CITIZENS FOR RESPONSIBLE ENERGY
References
FOIA-86-297, FOIA-86-A-152 NUDOCS 8609120049
Download: ML20209F093 (2)
v • d • e


Text

<

[*

y'

'o UNITED STATES NUCLEAR REGULATORY COMMISSION

WASHIN GTON, D.C. 20555

\...../

omcE ,r TnE September 5, 1986 SECRETARY Ms. Susan Hiatt OCRE Representative 8275 Munson Road IN RESPONSE REFER Mentor, Ohio 44060 TO 86-A-152(86-297)

Dear Ms. Hiatt:

This letter responds to your August 26, 1986 appeal of the denial of portions of two documents listed on Appendix E and fifteen documents listed on Appendix F of the Commission's August 8, 1986 response to F0IA 86-297.

The agency inadvertently mislabelled and withheld document 4 on Appendix F of the Commission's August 8,1986 response letter. That document is a four-page

- April 8,1986 Atomic Safety and Licensing Appeal Board memorandum and order.

A member of the Office of General Counsel notified your attorney by telephone of this error on September 2,1986. For your convenience, I have attached a copy of the document.

Specifically, in your appeal letter, you maintain that the NRC has not met its burden of justifying the denial of documents under the deliberative process privilege of Exemption (5) of the F0IA, 5 U.S.C. 5552(b)(5), citing three legal arguments.

An agency may invoke the deliberative process privilege if the documents meet two fundamental requirements. First, the communication must be predecisional,

, or " antecedent to the adoption of an agency policy." Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978). Second, the communication must be deliberative, f.e., "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters."

Vaughn v. Rosen, 523 F.2d 1136,1143-44 (D.C. Cir.1975).

For the following reasons, the agency has met these requirements as to the withheld documents at issue. The withheld portions of the documents on Appendix E contain predecisional legal analyses, opinions, and recommendations of the Office of General Counsel regarding the operating license for the Perry nuclear power plant. Also, those portions reflect the deliberative process within the Office of General Counsel in its effort to advise the Commission on this issue. Documents 1-3 and 5-15 of Appendix F, consist of various notes, memoranda, draft papers, and vote sheets maintained by the Commission and the Office of General Counsel. They contain preliminary advice, opinions, and recommendations concerning the Perry nuclear power plant. Thus, the withheld portions of the Appendix E documents and documents 1-3 and 5-15 of Appendix F are part of the Commission's deliberative process, the disclosure of which would likely " stifle honest and frank communication within the agency."

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.

1980).

8609120049 860905 PDR FOIA HIATT86-A-152 PDR

i .

. k.

2 Although the agency has met the requirements for withholding the documents under Exemption 5, we shall address your three legal arguments. First, you argue that the NRC has not demonstrated that the documents have not been disclosed to parties outside the agency, thereby waiving any claim to Exemption 5. The agency is not required by the F0IA, Commission regulations, or by the case you cite to demonstrate non-waiver of exemptions at the administrative level .

Second, you maintain that the agency has not demonstrated that the withheld documents have not lost their predecisional character by adoption or incorpo-ration by reference in the final order. None of the documents withheld, including inter alia predecisional memoranda and draft papers, were either expressly adopted or incorporated by reference in the Commission's publicly issued final decision of April 18, 1986, such that access to those documents is necessary to ascertain the Commission's rationale. See NLRB v. Sears, Roebuck & Co. , 421 U.S.132,161 (1975). Thus, the withheld documents retain their predecisional character.

Finally you cite ITT World Communications, Inc. v. FCC, 699 F.2d 1219,1237-38 (D.C. Cir.1983), rev'd on other grounds, 466 U.S. 436 (1984), for the

" suggestion" that otherwise exempt predecisional documents may be released in order to explain actual agency positions. In the present case, the agency's rationale, including the legal precedents on which it relied, were fully discussed in the Commission's order of April 18, 1986. Thus there is no basis for arguing that release of the documents is necessary in order to understand the basis of the agency's decision.

Based on the foregoing, I affirm the agency's initial action with respect to all documents, except document 4 of Appendix F.

This letter represents final agency action on your August 26, 1986, F0IA 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.

Syncere f ,

mu> J. bl Secretary pf the Commission

Attachment:

ASLAB Memo & Order, 4/8/86

f .. ...

1 l

g,ft*"%ey?g UNITED STATES yg g NUCLEAR REGULATORY COMMISSION  ;

7; , WASHINGTON, D. C. 20555

[

  • g 8 IN Ms. Susan L. Hiatt OCRE Representative 8275 Munson Road IN RESPONSE REFER Mentor, OH 44060 TO F01A-86-297

Dear Ms. Hiatt:

This is in final response to your letter dated April 18, 1986, in which you requested, pursuant to the Freedom of Information Act (F0IA), copies of records since January 1986 regarding the licensing of the Perry nuclear power plant and records pertaining to the Commission's April 17, 1986, decision to vacate the Appeal Board's March 20, 1986, Memorandum and Order regarding OCRE's motion to reopen the hearing regarding the January 31, 1986, earthquake.

The six records identified on the enclosed Appendix C are already available for public inspection and copying at the NRC Public Document Room (PDR) under the PDR assession numbers identified at the descriptions of the records.

The 18 records identified on the enclosed Appendix D are now available for public inspection and copying at the PDR in file F01A-86-297 under your name.

Copies of these 18 records are also enclosed.

The two records identified on the enclosed Appendix E are withheld in part pursuant to Exemption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations. These two records are from the files of the

> Office of the General Counsel regarding the operating license for the Perry nuclear power plant. These records contain predecisional legal analyses, opinions, and recommendations of the Office of the General Counsel and reflect the deliberative process within the Office of the General Counsel in its effort to advise the Commission on this issue. The release of the withheld portions of these records would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. The released portions of these two records are enclosed and are now available for public inspection and copying at the PDR in file F01A-86-297 under your name.

You will be billed separately by our Division of Accounting and Finance in the amount of $3.30 for the enclosed 66 pages.

The 15 records identified on the enclosed Appendix F are withheld in their entirety pursuant to Exemption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations. These records are various memoranda and notes maintained by the Commission and the Office of the General Counsel which contain predecisional advice, opinions, and recommendations regarding the Perry nuclear power plant. These documents contain no reasonably segregable factual portions.

~ -

4 y sv,.

  • , d'

,. , q .. 2 Ms. Hiatt Pursuant to 10 CFR 9.15 of the Commission's regulations, it has been determined that the information withheld is exempt from production or disclosure and that its pr'oduction or disclosure is contrary to the public interest. The person responsible for the denial of portions of documents 1 and 2 on Appendix E and document 15 on Appendix F is Mr. James A. Fitzgerald, Assistant General Counsel for Adjudications and Opinions. The person responsible for the denial of documents 1 through 14 on Appendix F is Mr. John C. Hoyle, Assistant Secretary of 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 F0IA Decision."

This completes NRC's action on your F0IA request.

Sincerely, 14 < A 4>ys Donnie H. Grimsley, Director Division of Rules and Records Office of Administration

Enclosures:

As stated -

I

Re: F01A-86-297 APPENDIX C Records Subject to F01A-86-297 Already in PDR

1. 02/03/86 Motion to Reopen the Record and to Submit a New Contention in the Matter of the Cleveland Electric Illuminating Co. et al (Perry Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-440 OL, 50-441 OL, by intervenor Ohio Citizens for Responsive Energy (Acc. No. 8602100442) (7 pages)

2. 03/20/86 Attachment 1 to Secy 86-109: ALAB Memorandum and Order, Docket Nos. 50-440 OL and 50-441 OL (Acc. No. 8603210141) (20pages)
3. 03/27/86 ALAB Order (Acc. No. 8603310171) (1 page)
4. 04/10/86 Transcript Page 19 of Public Meeting, (1page) subject: Periodic Briefing on NT0L's (A. No. 8604180040)
5. 04/18/86 Memorandum and Order CLI-86-07

( Acc. No. 8604210259) ~- (9 pages)

6. 04/25/86 Memorandum for Herzel H.E. Plaine from Samuel J. Chilk re: Staff Requirements-Affirmation / Discussion and Vote, 5:00 p.m.,

Thursday, April 17, 1986, (Acc. No. 8605020384) (1 page)

Re: F01A-86-297 l

APPENDIX D Records in PDR File F0IA-86-297

1. Undated Perry Power Plant Organization Chart (1 page)
2. Undated CEI Staffing - Perry Power Plant Slides Used During Comissioner Bernthal's Site Visit (6 pages)
3. 01/29/86 Memorandum from James Meyer from T.A. Rehm re:

Background Information in Perry 1 Nuclear Power Plant for Comissioner Bernthal (10 pages)

4. 01/30/86 Agenda for Commissioner Bernthal's Visit to Perry Nuclear Power Plan (1 page)
5. 01/30/86 Agenda for Comissioner Bernthal's Tour of Perry Nuclear Power Plant (2 pages)
6. 01/30/86 Agenda for Comissioner Bernthal's Site Visit (1 page)
7. 02/18/86 Letter to Chairman Palladino from Connie Piteo re:

January 31, 1986 earthquake i.n Ohio (1 page)

8. 02/20/86 Memorandum for Carl Kamerer from Nunzio J. Palladino re:

Follow-up to Markey letter (1 page)

9. 02/25/86 Letter to Congressional Affairs from Senator John Glenn enclosing letter to Nunzio Palladino from Robert E. Hagan (2 pages)
10. 02/28/86 Letter to Robert Bernero from Anne L. Forristall re:

Perry Nuclear Plant's Loading of Fuel an the Issuance of a Low-Power Operation License to Cleveland Electric Illuminating Company (1 page)

Letter to Nunzio Palladino from John F. Seiberling re:

11. 02/28/86 February 6,1986, meeting (1 page)
12. 03/11/86 Letter to Nunzio Palladino from Morris K. Udall re:

Hearings concerning the January 31, 1986 earthquake (2 pages)

I

13. 03/11/86 Memorandum for the Commission from Carlton Kamerer re:

l Comission Level Documents Related to Perry Earthquake (4 pages)

14. 03/14/86 Memorandum for J. Del Medico from Walter Magee re:

Comission Level Documents Related to Perry Earthquake

(1 page)
15. 04/16/86 Affirmation Response Sheet (1 page)
16. 04/18/86 Affirmation Response Sheet (1 page) l 17. 04/18/86 Memorandum for Andy Bates from Pat Davis re: JKA Views on Perry Order (5 pages)
18. 03/13/86 Memorandum for the Commission from Victor Stello re:

Planned Low Power Licensing of Perry, Unit 1 (23 pages) e

t . ,

\

d Re: F0IA-86-297 .

Appendix E Records Subject to F01A-86-297 Withheld in Part

1. 01/28/86 Monitoring Report re: Perry OL (withheld: 2 pa of first and second page; released: 1 paragraph)ges, balance
2. 03/28/86 Monitoring Report re: Perry OL (withheld: 2 pages, balance of first page and second page; released: 1 paragraph) 4 L

em 4

4 i

l l

l i

i

T' .......

Re: F01A-86-297 APPENDIX F Records Subject to F0lA-86-297 Being Withheld in Entirety

1. Undated ' Draft Commission Memorandum and Order (3 pages)
2. Undated Attachment to SECY 86-109A. Draft Commission Memorandum and Order (3 pages)
3. Undated Attachment 3 to SECY 86-109, Draft Commission Memorandum and Order (4 pages)
4. 04/08/86 Attachment 2 to SECY 86-109, Draft Memorandum and Order (4 pages)
5. 04/15/86 SECY-86-109, subject: Perry Appeal Board Decision to Hold an Exploratory Hearing on Safety Significance Issues Raised in Intervenor's Motion to Reopen (7 pages)
6. 04/15/86 Note to F. Bernthal, "SECY on Perry Appeal Board Cecision to Hold an Exploratory Hearing on Safety Significance of Issues Raised in Intervenor's Motion to Reopen" (2 pages)
7. 04/15/86 Vote sheet of T. M. Roberts on 3ECY-86-109, " Perry Appeal Board Decision to Hold an Exploratory Hearing on Safety Significance of Issues Raised in Intervenor's Motion to Reopen" (2 pages) -
8. 04/15/86 Vote sheet of F. Bernthal on SECY-86-109 (1 page)
9. 04/16/86 SECY-86-109A, subject: Perry Appeal Board Decision to Hold an Exploratory Hearing on Safety Significance of Issues Raised in Intervenor's Motion to Reopen (2 pages)
10. 04/16/86 Vote sheet of N. J. Palladino on SECY-86-109 (5 pages)
11. 04/16/86 Vote sheet of L. W. Zech on SECY-86-109 (2 pages)
12. 04/16/86 Memo for Affirmation signed by A. Bates, SECY, SECY-86-109, " Perry Appeal Board Decision to Hold an Exploratory Hearing on Safety Significance of Issues Raised in Intervenor's Motion to Reopen," (1 page with attached 4-page draft Memorandum and Order regarding Perry)
13. 04/17/86 Vote sheet of F. Bernthal on SECY-86-109A (1 page)
14. 04/22/86 Memo from A. Bates to Commissioners, Staff Requirements Memorandum, (1 page with attached 1-page draf t memo from S. J. Chilk to Commissioners, " Staff Requirements -

Affirmation / Discussion and Vote," 5:00 p.m. , Thursday, April 17, 1986

15. 05/15/86 Memorandum for N. J. Palladino from J. Fitzgerald re:

" Circulation of a paper on DD-4, Perry" (1 page)

{ .. ..

e Aprsi 18, 1986 Mr. J.M. Felton, Director Diviston of Rules and Records Offsce or Administratton U.5, Nuclear Regulatory Commission FREEDOM OFINEWasA m Washington. 0.C. 20555 ACT REQUEST FREEDOM OF INFORMATION ACT REQUEST F ZA 4b"N f 7

Dear Mr. Felton:

Q j .[h Pursuont to the Freedom or Information Act, 5 USC 552, as amended, and the provistons of 10 CFR Port 9, the understgnea hereby requests the following:

1. ony communications or correspondence (memos, letters, notes, etc.) to the Commission or any member thereof regarding the licensing of the Perry Nuclear Power Plant received from any person or party (including but not limited to members of Congress, employees enereof, or other elected or oppointed officials of federol, state, or local governments, NRC employees, the Cleveland Electric Illuminating Co., its partners or agents, the Department of Energy, tne Prestdent or persons acting on his beholf, building trades unions or their members, or members of the public) sznce January 1966) 2, any memos. letters, repores, posttson Popers, or other documents concerning the Commission's April 17, 1986 decisson to vocate the Appeal Board's March 20, 1986 Memorandum and Order regarding OCRE's motton to reopen the Perry nearing record en the January 31, 1986 earthquake.

I ogree to occept the chorges for these items, and I Would oppreciate o prompt response to this FOIA request.

Sincerely,

~

suson L. H i o t't /

OCRE Representative '

cc' >

[h? '/[> f 9275 Hunson Ra. .

nentor. 0H 440o0 (216) 255-3158 _

l L

[

  • L UNITED STATES OF AMERICA NUCLEAR REGULATOPY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman April 8, 1986 Dr. W. Reed Johnson Howard A. Wilber

)

In the Matter of )

)

CLEVELAND ELECTRIC ILLUMINATING *

) Docket Nos. 50-440 OL COMPANY, _ET _AL. ) 50-441 OL (Perry Nuclear Power Plant, ) ,

Units 1 and 2) )

)

MEMORANDUM AND ORDER Before this Board is the February 3, 1986 motion of intervenor Ohio Citizens for Responsible Energy (OCRE) seeking a reopening of the record in this operating license

? proceeding to allow OCRE to litigate the adequacy of the Perry facility's seismic design.1 On April 3, we conducted a telephone conference with the parties in preparation for .

the forthcoming exploratory hearing to be held in aid of our determination respecting whether the new issue raised by the OCRE motion has true safety signficance.2 On the basis of 1

The motion was prompted by a January 31, 1986 earthquake in the vicinity of the facility.

2 See our March 20, 1986 order (unpublished), as modified in our March 27 order. In addition to OCRE's representative, counsel for the applicants and the NRC staff participated in the conference. For reasons set forth in an

- (Footnote Continued)

~~

Me . -

M. Om

~

2 the discussion during the conference, we have made these determinations:

1. The applicants' request that the hearing be conducted in the Washington, D.C., area is denied. It is the general policy of this agency to hold its evidentiary hearings in licensing proceedings at a location in the vicinity of the facility invo,1ved.

Appeal boards customarily observe that policy in the absence of the agreement of all participating parties that there is good reason to' hold the hearing in a different location (e . g . ,

the NRC Public Hearing Room in Bethesda, Maryland). In this instance, OCRE objected to the applicants' request and, thus, such agreement was not obtained.

2. It now appears that the hearing will commence on Monday, May 12, 1986, in the Council Chambers of the Mentor Municipal Center, 8500 Civic Center Boulevard, Mentor, Ohio.

The specific hour will be announced at a later time and may -

(Footnote Continued)

April 3 letter to its counsel, intervenor Sunflower Alliance was not permitted to take part in the conference. That letter went on to indicate, however, that Sunflower is free to move for leave to participate in the exploratory hearing.

Any such motion must, however, be accompanied by a specific concrete showing of an ability to contribute to the development of a record on the question to be considered at that hearing.

~

i 3

' hinge upon whether the Board undertakes a site visit that morning.3

3. With the exception of that of Drs. Hinze and Alexander, all prepared testimony of the witnesses for the applicants and the NRC staff shall be received by us and the counsel or representative for the other party participants by 5:00 p.m. on April 28. If;Drs. Hinze and Alexander are available to serve as witnesses for the applicants, their testimony must be received by all concerned no later than 5:00 p.m. on May 5.
4. OCRE does not intend to offer any witnesses of its own but, instead, will present its case at the exploratory hearing through the cross-examination of the witnesses for other parties. In that circumstance, the applicants' witnesses will be examined first, followed by the staff's witnesses.

3 During the telephone conversation, the Board noted that it wished, if possible, to examine the seismic i instrumentation on the facility site (as well as, in l connection with one of the issues raised on the pending appeals from the Licensing Board's September 3, 1985 initial decision, elements of the facility's hydrogen control system). The applicants' counsel noted that the facility may have achieved criticality by then and, if so, it was possible that a site visit would not serve our objective.

If the site visit is feasible, it will likely be held on the morning of May 12, with the evidentiary hearing commencing early in the afternoon. Otherwise, the hearing will likely start in the morning.

4 4

5. Although the Council Chambers will be available for our use through Friday, May 16, it is our current expectation that, given its limited purpose and scope, the exploratory hearing will be completed within two to three days, i.e., by Wednesday, May 14.
6. The remaining details respecting the exploratory hearing (such as its starting time on May 12) and the site visit (if one is to be scheduled) will be covered in a subsequent order, to be issued as soon as practicable.

It is so ORDERED.

FOR THE APPEAL BOARD 0 0--hY_- - h C. q an Shoemaker Secrdtary to the

Appeal Board e
Retrieved from "https://kanterella.com/w/index.php?title=ML20209F093&oldid=3317315"