ML20211P289
| ML20211P289 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/16/1986 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Carr A DUKE POWER CO. |
| Shared Package | |
| ML20211P292 | List: |
| References | |
| FOIA-85-584, FOIA-86-A-67 EA-84-093, EA-84-93, NUDOCS 8607230081 | |
| Download: ML20211P289 (6) | |
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NUCLEAR REGULATORY COMMISSION
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i Albert V. Carr, Jr.
Assistant General Counsel Duke Power Company IN RESPONSE REFER Legal Department JUL 16 @
TO F01A-86-A-67 P. O. Box 33189 Charollot, NC 28242 AND (F01A-85-584)
Dear Mr. Carr:
This is in reply to your letter dated April 25, 1986, in which you appealed Mr. Donnie H. Grimsley's letter dated March 26, 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.
This response will address the denied documents listed on Appendices AA and BB with the exception of the handwritten portion of document AA-14.
Mr. Chilk will respond separately concerning the handwritten portion of document AA-14 and document CC-1.
Acting on your appeal, I have carefully reviewed the record in this case and have determined, for the reasons stated below, that most of the previously withheld documents will continue to be withheld from public disclosure pursuant to Exemptions (5) and (7)(D) of the F0IA (5 U.S.C. 552(b)(5) and (7)(D)) and 10 CFR 9.5(a)(5) and (7)(iv) of the Commission's regulations.
Therefore, your appeal is partially granted and partially denied.
A portion of document AA-4 is a transmittal of a draft document and is now being made publicly available and is enclosed.
Document BB-2 is now being made publicly available and is enclosed.
The remaining portion of document AA-4 and documents AA-3, AA-5, AA-12, AA-13, and the typed portions of AA-14 are draft documents which are clearly predecisional because they were prepared prior to and in the ccurse of reaching final agency decisions.
These documents describe prelininary staff thinking and, therefore, contain preliminary advice, opinions, and recommendations which ware subsequently changed during the preparations of the final agency decisions. As such, these drafts do not reflect final agency l
positions.
Exemption (5) was intended to permit the agency's withholding of such documents to preserve the free and candid internal dialogue necessary for the careful formulation of agency decisions.
(See Jordan v. Decartment of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) and Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
Segregation and disclosure of the factual information contained in these documents would reveal the staff's evaluations of which facts were important and thereby expose to public scrutiny their thought processes.
Thus, the entire docucents may be withheld (See Russell v. Department of the Air Force, 6S2 F.2d 1048 (D.C. Cir 1982)).
Consequently, I have determined that the release of these documents would adversely affect the agency's deliberative process.
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Mr. Carr Documents AA-2, AA-6, AA-7 and AA-10 are internal documents which contain advice and opiaions which were predecisional to the issuing of the enforcement action and the Director's 2.206 Decision in the matter of Duke Power Company.
It is that publicly available Director's Decision which is the NRC's " working law" document and not these preliminary and predecisional documents.
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 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 Corp. of California
- v. Train, 491 F.2d 63 (D.C. Cir. 1974)).
In Jordan, Judge Wilkey 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)).
Consequently, I have determined that the release of these documents would adversely affect the agency's deliberative process.
Exemption (7)(D) of the F0IA protects from disclosure " investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would...(D) disclose the identity of a confidential source..."
Exemption (7) includes both civil and criminal enforcement proceedings.
(See H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966) and Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73 (D.C. Cir. 1974)).
Tne Commission meets the threshold requirements for the use of Exemption (7) based on the Atomic Energy Act of 1954, as amended.
Mr. Carr Document AA-1 is a handwritten memorandum from an individual who was granted confidentiality.
Since this document is written in the individual's own-handwriting, to release any portion of the document would reveal the identity-of the individual. The previously withheld. portions of document BB-1 contain the names, position titles, and dates of interviews of two individuals who were granted confidentiality. Consequently, I have determined that release of the previously withheld information would reveal the identities of confidential sources.
(
For your information, document AA-8 is the same as the first part of document c
U-4; AA-9 is the same as the "b" portion of U-4; and AA-11 is the same as m.
U-5.
These three documents were addressed in my letter to you dated May 5, 1986.
As you requested, for those items where it i: possible, a mo're detailed description of the document has been included"en the enclosed appendices.
This is a final agency action. Assetforthinth'e"F01AJSU.S.C.552(a)(4)(B)),
judicial review of this decision is available in a distr 1ct court of the United States in the district in which you reside, have your principal place of business, or in the District of Columbia.
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4 Sincerely,
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l VTctor Stello, Jr.
Executive Director for Operations 1
Enclosures:
As stated i
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o F01A-86-A-67 APPENDIX AA F0IA Exemption 1.
02/18/83 Handwritten Memo from Alleger to Resident 7D Inspector (2 pages) 2.
07/13/84 Enforcement Panel Meeting Minutes (1 page) 5 3.
09/05/84 Draft Letter from O'Reilly to Tucker, Re: Notice 5
of Violation Involving Illegal Protected Activity Discrimination (5 pages) w/ enclosed Draft Notice of Violation (3 pages) 4.
09/06/84 Memo from Puckett to Lewis, Re: Escalated 5
Enforcement Action Required - Catawba, Beau RossCase(#84E039)(1page)(RELEASED) w/ enclosed 9/6/84 Draft Letter from O'Reilly to Tucker (5 pages) and 9/6/84 Draft Notice of Violation (2pages) 5.
09/10/84 Draft Letter from O'Reilly to Tucker, Re. Notice 5
of Violation Involving Illegal Protected Activity Discrimination (5 pages) w/ enclosed Draft Notice of Violation (2 pages) 6.
09/20/84 Case No. 84E039 - Catawba - Summary of Comments 5
and action taken on 9/6/84 Draft Enforcement Letter (3pages) 7.
09/12/86 Memo from Puckett to Axelrad, Re: Severity Level 5
III Violation - Duke Power Company (1 page) 8.
12/13/84 Memo from O'Reilly to Taylor Re: Proposed Catawba 5
Enforcement Action w/o enclosures (2 pages) 9.
12/13/84 Memo from Region II Enforcement Panel on Catawba 5
Partial Initial Decision to O'Reilly Re: Proposed Civil Penalty (3 pages) 10.
04/23/85 Handwritten Notes re: proposed action 84-39 (1 page) 5 11.
04/26/85 Memo from Grace to Taylor Re: Proposed Enforcement 5
Action and 2.206 Response on Harassment at Catawba (2 pages) 2 o.,
F01A-86-A67 APPENDIX AA F0IA Exemption
- 12. Undated Draft Letter to Tucker from O'Reilly Re:
5 Notice of Violation Involving Illegal Protected Activity Discrimination (5 pages) w/ enclosed Draft Notice of Violation (2 pages)
- 13. Undated Draft Memo from Puckett to Axelrad Re: Severity 5
Level III Violation - Duke Power Company (2 pages) w/ enclosed Draft letter to Tucker from O'Reilly (5 pages) and Draft Notice of Violation (2 pages) and Draft Inspection Report (13pages)
- 14. Undated Draft Letter to Tucker, Duke Power Company, from 5
0'Reilly with handwritten notations (3 pages) with attachment:
A.
Undated Draft Notice of Violation and 5
Proposed Imposition of Civil Penalty with handwritten notations (3 pages) 9 h
F01A-86-A-67 APPENDIX BB EXEMPTION 1.
09/29/83 Memo from VanDoorn to Todd,
Subject:
Information 7(D)
Relative to QC Welding Inspector Concerns (Case No.2G022)(2pages) 2.
11/27/84 Memo from VanDoorn to Jones Re: Description of Actions Taken Relative to Atomic Safety and Licensing Board Partial Initial Decision Requirements for Catawba Nuclear Station (2pages)(RELEASED) i l
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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 seventh partial response to your letter dated August 19, 1984, in which you requested, pursuant to the Freedom of Information 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 enclosed Appendix Y are being placed in the l
Public Document Room (PDR) in Washington, DC, and the NRC Local Public Document Room (LPDR) in South Carolina. You may obtain access to these records by referring to the folder F01A-85-584 under your name.
The records identified on the enclosed Appendix Z are already available for public inspection and copying at the NRC PDR,1717 H Street, Washington, DC 20555. The PDR accession numbers are identified beside the record l
descriptions.
The records identified on Appendix AA are being denied in their entirety. The records identified on Appendices BB and CC are being withheld in part.
The nonexempt portions of the records identified on Appendices BB and CC are being placed in the PDR and LPDR. The applicable FOIA exemptions are noted on the Appendices.
The records withheld pursuant to Exemption (5) contain predecisional infor-mation consi~ sting of advice, opinions, and recommendations of the staff.
Release of the records would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. This predecisional information is being withheld 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. There are no reasonably segregable factual portions of the records identified on Appendix AA.
Information being withheld pursuant to Exemption (7)(D) consists of names of individuals and personal identifiers. Because this information consists of the identities of confidential sources, it is being withheld from public disclosure pursuant to Exemption (7)(D) of the F0IA (5 U.S.C. 552(b)(7)(D))
and 10 CFR 9.5(a)(7)(iv) of the Commisdon's regulations.
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Pursuant to.10 CFR 9.9 and 9.15 of the Commission's regulations, it has been detennined 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 the denial of documents one through thirteen and certain portions of document fourteen identified on Apendix AA and portions of the records withheld on Appendix BB are the undersigned and Mr. J. Nelson Grace, Regional Administrator, Region II. The person respon-sible for the denial of the handwritten portions of document fourteen identi-fied on Appendix AA is Mr. Guy H. Cunningham, Executive Legal Director. The person responsible for the denial of a portion of the record identified on Appendix CC is Mr. Gary J. Edles, Acting Director, Office of Inspector and Auditor.
The denial by Mr. Grace and n:yself may be appealed to the Executive Director for Operations within 30 days from the receipt of this letter. 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." The denials by Messrs. Cunningham and Edles may be appealed within 30 days to the Secretary of the Commission and should be addressed to the Secretary of the Commission.
The staff has informed us upon further review of the records that the vote sheets denied in Mr. Grimsley's letter dated December 26, 1985, identified at Appendix J, document eleven, are outside the scope of this request.
We will communicate with you further regarding additional records subject to your F0IA request.
Sincerely, wY Donnie H. Grimsley, Director t
Division of Rules and Records l
Office of Administration
Enclosures:
As stated l
l
I F01A-85-584 (Seventh Partial)
APPENDIX Y Records Being Placed in PDR & LPDR 1.
06/30/85 Memo to Herzel Plaine from Samuel Chilk Re: Staff Requirements Affirmation / Discussion and Vote (2 pages) 2.
08/30/83 Evaluation of Violations Involving Escalated Enforcement Action from James O'Reilly (3 pages) 3.
09/21/83 Meno to Richard DeYoung from Stephen Burns Re: Request for Action Under 10 CFR 2.206 Concerning Catawba Units 1 and 2 w/ enclosures Draft Petition and draft letter to Billie Garde (5 pages) 4.
09/10/84 Routing Slip to V. Brownlee from G. Nejfelt Re: Catawba (1page) 5.
09/11/84 Control Sheet - Note to Betty and Reviewer from Jane Axelrad (2 pages) 6.
09/11/84 Control Sheet - Note to Betty and Reviewer from Jane Axelrad (2 pages) 7.
11/07/84 Handwritten note to Gene from Steve Burns Re: Welder B (1 page) 8.
11/28/84 Memo to Darrell Eisenhut from John 01shinski Re: Status of Atomic Safety and Licensing Board Partial Initial Decision Requirements for Catawba Nuclear Station (1 page) 9.
02/25/85 NRC Staff Response Brief in Opposition to the Appeal of Palemetto Alliance and Carolina Environmental Study Group from Partial Initial Decisions authorizing Full-Power Operation of Catawba Nuclear Station (83 pages)
- 10. 05/08/85 Memo to James Taylor from James Lieberman Re: Status Report on Petitions Under 10 CFR 2.206 w/ enclosure Status Report (2 pages) 4
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F01A-85-584 (Seventh Partial)
APPENDIX Y (CONTINUED)
Records Being Placed in PDR & LPDR
- 11. 08/16/85 Routing Request to J. Taylor from B. Hayes (1 page) 12.
11/07 Handwritten Note to Jane Axelrad from Steve Burns Re:
Welder B Issue (1 page) 13.
12/07 Handwritten Note to Jane Axelrad from Steve Burns Re:
Catawba (1 page)
e F01A-85-584 (Seventh Partial)
APPENDIX Z' Records Already Available in PDR 1.
Undated ASLBP #81-463-060 before Administrative Judge on 6/22/84 Licensing of Catawba Unit 1 (284 pages) - PDR #8407030223 2.
10/01/84 Letter to H. Tucker from Hugh Dance Re: Report Nos.
50-413/84-82 and 50-414/84-36 w/ enclosure Inspection Report (3 pages) - PDR #8411140135 3.
10/26/84 NRC Staff's Proposed Findings of Fact and Conclusions of Law on Foreman Override in the Form of a Supplemental Partial Initial Decision (34 pages) - PDR #8411010342 AD0CK/50-413G
i FOIA-85-584 (Seventh Partial)
APPENDIX AA Records Denied in Entirety F0IA Exemption 1.
02/18/83 Handwritten Memo from Alleger to Resident 7D Inspector (2 pages) 2.
07/13/84 Enforcement Panel Meeting Minutes (1 page) 5 3.
09/05/84 Draft Letter from O'Reilly to Tucker, Re: Notice 5
of Violation Involving Illegal Protected Activity Discrimination (8 pages) 4.
09/06/84 Memo from Puckett to Lewis, Re: Escalated 5
Enforcement Action Required - Catawba, Beau Ross Case (#84E0 39) (8 pages) 5.
09/10/84 Draft l'etter from O'Reilly to Tucker, Re: Notice 5
of Violation Involving Illegal Protected Activity Discrimination (7 pages) 6.
09/10/84 Case No. 84E039 - Catawba - Summary of Comments 5
and action taken on Enforcement Draft Letter (3 pages) 7.
09/12/84 Memo from Puckett to Axelrad, Re: Severity Level 5
III Violation - Duke Power Company (1 page) 8.
12/13/84 Memo from O'Reilly to Taylor Re: Proposed Catawba 5
Enforcement Action (2 pages) 9.
?/13/84 Memo from Region II Enforcement Panel on Catawba 5
Partial Initial Decision to 0'Reilly Re: Proposed Civil Penalty (3 pages) 10.
04/23/85 Handwritten Notes (1 page) 5
- 11. 04/26/85 Memo from Grace to Taylor Re: Proposed Enforce-5 ment Action and 2.206 Response on Harassment at Catawba (2 pages)
F0IA-85-584 (Seventh Partial)
APPENDIX AA (CONTINUED)
Records Denied in Entirety FOIA Exemption
- 12. Undated Draft Letter to Tucker from O'Reilly Re:
5 Notice of Violation Involving Ille Activity Discrimination (7 pages) gal Protected
- 13. Undated Draft Memo from Puckett to Axelrad Re: Severity 5
Level III Violation - Duke Power Company (22 pages)
- 14. Undated Draft Letter to Tucker, Duke Power Company, from 5
0'Reilly with handwritten notations (3 pages) with attachment:
A. Undated Draft Notice of Violation and Proposed 5
Imposition of Civil Penalty with handwritten notation (3 pages) l l
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APPENDIX BB Portions of Records Denied EXEMPTION 1.
09/29/83 Memo from VanDoorn to Todd,
Subject:
Information 7(D)
Relative to QC Welding Inspector Concerns (Case No. 2G022) 2.
11/27/84 Memo from Van Doorn to Jones Re: Description 5
of Actions Taken Relative to Atomic Safety and Licensing Board Partial Initial Decision Requirements for Catawba Nuclear Station (2 pages) f r
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APPENDIX CC Portion of Record Denied Exemption 5 1.
04/29/83 Memo to Chairman and Comissioners from James Cumings Re: Catawba Nuclear Power Station; Review of NRC Handling of Allegations (1 page)
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August 19, 1985
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FREGDOM OF N M ACT REQUEST fo.TA -/3-SJ{
J. M. Felton, Director ggg MdY7 Division of Rules and Records Office of Administration U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re:
Freedom of Information Act Request Regarding Enforcement Action EA 84-93
Dear Mr. Felton:
Pursuant to the Freedom of Information Act (5 USC S552) and the NRC's implementing regulations thereunder (10 CFR S9.3 et seq.) I hereby request on behalf of Duke Power Company all documents related to and ur.derlying 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 Headquarters relating to the enforcement action and the events surrounding Mr.
Gary E.
" Beau" Rass, but also to all such documents within NRC Region II including any such documents reflecting any communications between Region II and NRC Headquarters.
This request includes, but is not limited to, all documents reflecting, underlying, or otherwise relevant to:
1.
Any communicatfors 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/ar 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 z.iternative 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.
Deliberatic9s regarding whether the record developed before the Atomic l
Safety and Licensing Board was adequate to support a finding of l
discrimination within the meaning of 42 USC S5851 and/or 10 CFR S50.7. This request also extends to any documents reflecting deliberations whether the t
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J. M. Felton, Director U. S. Nuclear Regulatory Commission August 19, 1985 Page two l
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was adequate record developed before the Atomic Safety and Licensing Board to support the Board's finding of discrimination.
5.
Deliberations regarding the appropriate severity level to be assigned t
the alleged violation.
i 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 DD-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 Notice 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 notify me as i
soon as possible, and tell me when you will be able to respond.
Sincerely, Albert V arr, Jr.
c: James N. Taylor Jane A. Axelrad i