ML20210S109
| ML20210S109 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/13/1986 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Carr A DUKE POWER CO. |
| References | |
| FOIA-85-584, FOIA-86-A-14 EA-84-093, EA-84-93, NUDOCS 8605200437 | |
| Download: ML20210S109 (3) | |
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UNITED STATES 8
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NAY 131986
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Albert V. Carr, Jr., Esquire Duke Power Company Legal Department IN RESPONSE REFER P.O. Box 33189 TO F01A-86-A-14 Charlotte, NC 28242 (F0IA-85-584)
Dear Mr. Carr:
This is in response to your letter dated February 28, 1986, in which you appealed Mr. D. H. Grimsley's letter dated January 24, 1986, which denied-in-part your Freedom of Information Act (F0IA) request for documents regarding Enforcement Action No. EA-84-93 concerning the Catawba Nuclear Station.
Acting on your appeal, I have carefully reviewed the record in this case and have determined, for the reasons stated below, that some of the previously withheld information will continue to be withheld from public disclosure 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. Therefore, your appeal is partially granted and partially denied.
Portions of document X-2 are now being made publicly available and are enclosed.
Tha initially withheld portions of document X-1, including the annotations on Attachment A to document X-1, and the remaining portions of document X-2 are internal agency advice and opinions which were predecisional to the issuance of the Director's 2.206 Decision in the matter of Duke Power Company.
Exemption (5) shields from mandatory disclosure records generated in the deliberative process that precedes most decisions of government agencies.
(See Jordan v.
Department of Justice, 591 F.2d 753 (D.C. Cir. 1978)).
Thus, the exemption i
protects not only communications which are themselves deliberative in nature, but all communications which, if revealed, would expose to public view the deliberative process of an agency.
(See Montrose Chemical Cor). of California
- v. Train, 491 F.2d 63 (D.C. Cir. 1974)).
In Jordan, Judge Wil(ey articulates the policies behind the Exemption (5) protection of the deliberative process.
He states:
There are essentially three policy bases for this privilege.
First, it protects creative debate and candid consideration of alternatives within an agency, and thereby, improves the quality of agency policy decisions.
Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that " officials should be judged by what they decided [,] not for matters they considered before making up their minds." (591 F.2d at 772-3 (footnote omitted)).
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8605200437 e60513 PDR FOIA CARR86-A-14 PDR
Mr. Carr Consequently, I have determined that the release of these documents and annotations would adversely affect the agency's deliberative process.
This is a final agency action. As set forth in the FOIA (5 U.S.C.
552(a)(4)(B)), judicial review of this decision is available in a district-court of the United States in either the district in which you reside, have your principal place of business, or in the District of Columbia.
Sincerely,
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ictor Stello,dr.
Executive Director for Operations
Enclosures:
As stated 4
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APPENDIX X Date Document Description 1.
Undated Synopsis of Duke's April 22, 1985, letter re: Catawba 2.206 (1 page)
Attachment A - Excerpt - Duke Power Company's Response to GAP's 9/27/84 Enforcement Action Request (25 pages) NOTE:
The handwritten notations on the excerpt are being denied.
Attachment B - Undated Memorandum from Shapar to Commissioners,
Subject:
Protection of Informants - Response to Commission Questions regarding Section 7 of S.2584 - In PDR See F01A-83-425 - Newman Attachment C - 9/21/78 SECY-78-308A, "Section 7 of S.2584 - Protection of Informants" - In PDR See F01A-83-426 - Newman Attachment D - 4/22/85 letter from Owen, Duke Power Co. to Taylor, IE - In PDR See 8504250152 2.
Undated IE:ES Notes on ERA Section 210 Cases and ASLB 6/22/84 PID re: Duke Power Co. (4 pages) (Portions a
released)
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~q UNITED STATES 8
NUCLEAR REGULATORY COMMISSION o
,1 WASHINGTON, D. C. 20555 T.,...../
3AN 2 4 l986 4
Docket No. 50-413/50-414 Mr. Albert V. Carr, Jr.
Duke Power Company Legal Department P.O. Box 33189 IN RESPONSE REFER Charlotte, NC 28242 TO F01A-85-584
Dear Mr. Carr:
This is the sixth partial response to your letter dated August 19, 1985, in which you requested, pursuant to the Freedom of Infonnation Act (F0IA), copies of all records related to and underlying Enforcement Action No. EA-84-93 regarding the Catawba Nuclear Station.
The records identified on the encJosed Appendix V and certain records identified on the enclosed Appendix X are available for public inspection and copying at the NRC Public Document Room (PDR),1717 H Street, NW, Washington, DC 20555. The PDR accession numbers are identified beside each record description. Additional records related to your request have been identified in NRC's response to a previous F0IA request and are maintained in the PDR in folder F01A-83-426 under the name of Newman.
You may obtain. copies of these
/
records by referring to that F0IA folder.
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The records identified on the enclosed Appendix W and a portion of the record identified on Appendix X as Attachment A to number one are being placed in the POR in Washington, DC, and the NRC Local Public Document Room in South Carolina.
You may obtain access to these records by referring to the folder F01A-85-584 under your name.
The withheld portion of the record identified as Attachment A to document number one on Appendix X and the records denied in their entirety which are identified on Appendix X, document numbers one and two,,are being withheld from public disclosure because they contain predecisional information consisting of advice, opinions, and recommendations of the staff. Disclosure would inhibit the frank and candid exchange of communications in future deliberations and thus would not be in the public interest.
This predecisional information is being withheld pursuant to Exemption (5) of the FOIA (5 U.S.C.
552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations.
Pursuant to 10 CFR 9.9 of the NRC's regulations, it has been determined that the information withheld is exempt from production or disclosure and that its production or disclosure is contrary to the public interest.
The persons responsible for this denial are the undersigned and Mr. James M. Taylor, Director, Office of Inspection and Enforcement.
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Mr. Albert V._ Carr, Jr..
This denial may be appealed Jt6 the NRC's Executive Director for Operations within 30 days from the rdceipt of this letter. As provided in 10 CFR 9.11, any such appeal must be in ~ writing, addressed to the Executive Director for Operations, 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."
We will communicate with you further regarding additional records related to your FOIA request.
Sincerely, he wd<7 Donnie H. Grimsley, Directot Division of Rules and Records Office of Administration
Enclosures:
As stated a
e
Re: F01A-85-584 (Sixth Response)
APPENDIX V Records Available in PDR 1.
10/06/83 Letter to Chairman Nunzio Palladino irom Billie Pirner Garde re: Quality Assurance Breakdown at the Catawba Nuclear Power Station being built by Duke Power Csapany in South Carolina -
Accession No. 8311080044.
(2 pages) 2.
10/24/83 Letter to Billie Pirner Garde from Willian J. Dircks re:
Allegation of a Quality Assurance Breakdown at the Catawbe Facility in South Carolina - Accession No. 8311080041.
(2 pages) 3.
08/30/84 Letter to A. S. Rosenthal et. al. from G. E. Johnson re:
Hearing on Safety Issues in the Catawba Proceeding -
Accession No. 8409040463.
(1 page) 4.
07/06/84 Letter to H. B. Tucker from R. C. Lewis re: Report Nos.
50-413/84-49 and 50-414/84 Accession No. 8407180116 PDR ADOCK 05000413.
(1 page) 5.
06/22/84 Letter to J. P. O'Reilly from H. B. Tucker re: Violation No.
413/84-49-01,414/84-23-01 w/ attached Duke Power Company Response to Cause of Violation - Accession No. 8407180155 PDR ADOCK 05000413.
(2 pages) 6.
05/24/84 Letter to H. B. Tucker from R. C. Lewis re: Report Nos.
50-413/84-49 and 50-414/84-23 w/o enclosed Notice of Violation and Inspection Reports - Accession No. 8407180159 PDR AD0CK 0500413.
(2 pages) 7.
05/24/84 Enclosure 1 - Notice of Violation - Duke Power Company -
Catawba - Accession No. 8407180163 PDR ADOCK 05000413.
(1 page) 8.
05/16/84 Duke Power Company Inspection on May 1 - 4, 1984 w/ attached Report Details - Accession No. 8407180165 PDR ADOCK 05000413.
(4 pages) 9.
12/04/84 Letter to J. L. Kelley et. al. from G. E. Johnson re: June 22, 1984, Partial Initial Decision w/ attached (1) Memo to G. Johnson, dated 11/30/84, (2) Memo to B. Jones, dated 11/27/84, (3) Memo to D. Eisenhut, dated 11/18/84,(4) Letter to H. B. Tucker enclosure Inspection Report Nos. 50-413/84-82, 50-414/84-36 and (5) Letter to H. B. Tucker enclosing Notice of Violation and Inspection Reports - Accession No. 8412070374.
(20 pages)
s ke: FOIA-85-584 (Sixth Response)
APPENDIX W Record's Being Placed in the PDR and LPDR 1.
09/09/83 Memo for File frdm Patrick McKenna, Jr., re: Catawba Nuclear Power Station: GAP Allegation Against George Maxwell, SRI.
(1 page) 2.
09/13/83 Telephone or Verbal Conversation Record from P. M. to B. Garde.
(1 page) 3.
09/21/83 Memo for R. C. DeYoung from S. G. Bu'rns re: Request for Action Under 10 CFR 2.206 Concerning Catawba Units 1 and 2.
(2 pages) 4.
09/22/83 Memo for Ben Hayes from J. J. Cummings re: Catawba Nuclear Power Station; Government Accountability Proiect (GAP)
Allegations.
(1 page) 1 5.
09/22/83 Note to Jim Cummings from Steve Burns re: Alleged Improper Conduct by Region II Personnel.
(1 page) 6.
10/17/83 Inside N.R.C., Page 5.
(1 page) 7.
11/29/83 Memo for George Messenger from Patrick McKenr.a. Jr., re:
Catawba Nuclear Power Station; Governinent Accountability Project (GAP) Allegations.
(2 pages) 8.
01/10/84 Report of' Interview by George A. Mulley, Jr., re: Allegations About Catawba Nuclear Power Station Units 1 and 2.
(2 pages) 9.
Undated Chart w/ attached Present WA Organizational Structure acd Organizational Structure - December 1981.
(3 pages)'
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9 Re: FOIA-85-584 (Sixth Response)
AFPENDIX X DATE DOCUMENT DESCRIPTION EXEMPTION PDR NUMBER 1.
Undated Synopsis of Duke's April 22,~
Withheld in 1985, letter re: Catawba 2.206.
entirety -
(1 page)
Exemption 5
Attachment:
A - Excerpt - Duke Portion Power Company's Response to GAP's 9/27/84 Enforcement Action Released -
Request.
(25 pages) NOTE:
complete The handwritten notations record already in the PDR on the excerpt are being denied 8504250162 Exemption 5
Attachment:
B - Undated Memorandum from Shapar to Commissioners,
Subject:
SECY-78-308 - Protection of Informants - Response to Commission Questions regarding Section 7 of 5.2584 - In PDR See F01A-83-426 - Newman
Attachment:
C - 9/21/78 SECY-78-308A, "Section 7 of S.2584 - Protection of Informants.
In PDR See F01A-83-426 -
Newman
Attachment:
0 - 4/22/85 letter from Owen Duke Power Co. to Taylor, IE.
8504250162 2.
Undated IE:ES Notes on ERA Section 210 Withheld in Cases and ASLB 6/22/84 PID re:
Entirety -
Duke Power Co. (4 pages)
Exemption 5 S
f.
- Denotes portion of record denied
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August 19, 1985 O'R" ti.;"'" '"
FREeDOW OF WWoem m
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ACT REQUEST
)QTA -f7-SJf J. M. Felton, Director g g / [,2 d Y I Division of Rules and Records
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Office of Administration U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re:
Freedom of Information Act Request
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Regarding Enforcement. Action EA 84-93
Dear Mr. Felton:
Pursuant to the Freedom of Information Act (5 USC 5552) and the NRC's implementing regulations thereunder (10 CFR $9.3 et seq.) I hereby request on behalf of Duke Power Company all documents related to and underlying Enforcement Action No. EA 84-93 being taken against Duke Power Company.
This enforcement action is reflected in the Notice of Violation and Proposed Imposition of Civil Penalty issued August 13, 1985.
This request extends not only to all relevant documents at NRC
^m Headquarters relating to the enforcement action and the events surrounding Mr.
Gary E.
" Beau" Ross, but also to all such documents within NRC Region II including any such documents reflecting any communications between Region 11 and NRC Headquarters. This request includes, but is not limited to, all documents reflecting, underlying, or otherwise relevant to:
1.
Any communications between NRC employees and/or representatives and members and/or representatives of Palmetto Alliance, the Government Accountability Project and/or any other outside group or individual concerning possible enforcement action based on the events surrounding Mr.
Ross and/or the concerns expressed by the welding inspectors at Catawba Nuclear Station, and/or alleged harassment and/or intimidation of any quality control / quality assurance inspector at the Catawba Nuclear Station.
2.
The June 4,1985 Director's Decision (DD-85-9), including alternative drafts or proposals, and including all documents reflecting any independent fact-finding investigation conducted by NRC in connection with the enforcement action or concerning Mr. Ross.
3.
Any decision to engage or not to engage in any independent fact-finding in connection with the enforcement action and Mr.
Ross.
4.
Deliberations ragarding whether the record developed before the Atomic Safety and Licensing Board was adequate to support a finding of discrimination-within the meaning of 42 USC 'S5851 and/or 10 CFR S50.7. This request also extends to any docurnents reflecting deliberations whether the
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4 J. M. Felton, Director U. S. Nuclear Regulatory Commission August 19, 1985 Page two record developed before the Atomic Safety and Licensing Board was adequate to support the Board's finding of discrimination.
5.
Deliberations regarding the appropriate severity level to be assigned the alleged violation.
6.
Any communications between representatives of the NRC and representatives of the Department of Labor relating to this enforcement action or the events surrounding Mr. Ross.
7.
The Commission's decision not to review 00-85-9, including documents underlying and reflecting the majority votes of Chairman Palladino and Commissioners Bernthal and Asselstine, and documents underlying and reflecting the dissenting views of Commissioners Roberts and Zech.
8.
The August 13, 1985 Noti.ce of Violation including alternative drafts or proposals.
9.
The August 13, 1985 Proposed Imposition of Civil Penalty, including alternative drafts or proposals.
I would appreciate your prompt response to this request within the ten working day period provided in 10 CFR 59.9.
Duke Power Company's deadline for responding to the Notice of Violation and Proposed Imposition of Civil Penalty.is September 12, 1985.
The documents I am requesting could well prove to be significant to that response.
Accordingly, I hope that this request will be met as expeditiously as possible.
If you cannot meet this request within the period set out in the regulations, please noti fy me as soon as possible, and tell me when you will be able to respond.
Sincerely, Albert V arr, Jr.
i c: James N. Taylor Jane A. Axelrad
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g ENERGY REORGANIZATION ACT (ERA) SECTION 210 CASES (Employee Discrimination for engaging in a protected activity)
Section 210 of the ERA prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities.
The ERA gives authority to the Secretary of Labor to seek remedies for employees who have been unlawfully discriminated against for engaging in protected activities. Under authority of the Atomic Energy Act of 1954, the Comission promulgated regulations (10 CFR 30.7, 40.7, 50.7. 60.9, 70.7, & 72.10) effective October 12, 1982 which adopt the protected activities set out in Section 210 and provide an enforcement means against licensees, permitees, and applicants who discriminate in violation of Section 210.
A plain reading of the statute and Corwission regulations indicate that an employee must have contact with governmental authority for an activity to qualify as protected by the statute.
The Secivtary of Labor, who is responsible for investigating employee compliants of discrimination, however, has consistently taken the position that reporting of defects or safety concerns by an employee to his employer is a protected activity under Section 210 of the ERA. The Fifth Circuit in Brown & Root v. Donovan (the "Atchison" case) on December 10, 1984 held that employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected under Section 210.
In its decision, the Fiftn Circuit specifically rejected the view of the Ninth Circuit in Mackowiak v. University, 735 F.2d 1159 which held that the filing of internal quality contF61 reports is protected by Section 210.
There are four cases in which the NRC is involved that concern Section 210.
7 They are sumarized below and a brief description of each case is attached.
REPORTING 00L COURT OF NRC NAME TO NRC INVESTIGATION APPEAL'S REVIEW ACTION Deford (TVA)
YES YES 6th Circuit NOV, No CP Affirmed (Predated 50.7) f A
Atchison NO YES Sth Circuit NOV, (SL III)
(TUGCO)
Vacated
$40,000 proposed (cited under App. B)
Wells (KG&E)
N0 YES 10th Circuit NOV, (SL II)
Pending
$64,000 proposed Ross M (Duke)
$64,000 not yet issued or proposed M
The NRC pending action in Ross is based on facts developed in an OLB licensing proceeding for Catawba.
The action depends on the broad reading of Section 210 used by the Secretary of Labor.
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Deford (TVA) 81 ERA 1 EA 83-54 Deford, the manager of the Quality Assurance Engineering Section for TVA at Sequoyah, expressed some concerns about management support and independence at a routine NRC inspection. He was subsequently transferred to a lesser position and subjected to humiliation.
The Secretary of Labor affirmed the ALJ's decision that Deford's transfer was a retaliation for cooperation with the NRC. The decision was upheld on an appeal to the Sixth Circuit.
A NOV was issued on September 20, 1983. No civil penalty was proposed since the violation occurred before the NRC regulations expressly addressed unlawful discrimination for the circumstances present in Deford.
Atchison (TUGCO) 82 ERA 9 EA 83-64 Atchison became a QA Auditor and Inspector at Comanche Peak. He filed two NCR's and was involved in an incident which raised questions with broad implications for the QC program. He was subsequently transferred and terminated.
The Secretary of Labor affirmed the ALJ's decision that Atchison was terminated for engaging in protected activities even though no reporting to the NRC occurred.
A NOV (SL III) was issued and a civil penalty of $40,000 was proposed on August 29, 1984. Imposition of the civil penalty was delayed pending the outcome of an appeal of the Secretary's decision taken in the Fifth Circuit.
On December 10, 1984 the Fifth Circuit vacated the Secretary's decision, holding that conduct that does not involve the employee's contact or involvement with a competent organ of government is not protected under the Energy Reorganization Act.
Wells 83 ERA 12 EA 84-87 (Kansas Gas & Electric)
Wells was a Quality Assurance Inspector at Wolf Creek who identified a number of safety problems to management as part of his job. He was subsequently i
put on probation and terminated. The Secretary of Labor affirmed the ALJ'T decision that Wells was terminated for engaging in a protected activity even though no reporting to the NRC occurred.
A NOV (SL II) was issued and a civil penalty of $64,000 was proposed on September 27, 1984. Kansas Gas & Electric has, appealed the Secretary's decision to the Tenth Circuit. The matter has also been brought before the U.S. District Court (Dist. of Kansas) by Wells who is seeking enforcement of the Secretary's order. NRC is evaluating Kansas Gas & Electric's request to suspend imposition of the civil penalty until completion of the pending judicial review.
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Ross (Duke Power Co.)
NoERAI EA 84-93 Ross, a QC Welding Inspector Foreman at Catawba, was given poor performance appraisals af ter he and his crew expressed safety concerns to management.
The ASLB in its Partial Initial Decision in the operating license proceeding for Catawba identified the discrimination and expressed the view that the action violated the spirit of Section 210 of the Energy Reorganization Act, but not its letter because Ross had not communicated his concerns to the NRC. Ross did not file a complaint with the Secretary of Labor and there has been no Department of Labor investigaticn.
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