ML20246K362

Responds to Responding to Appeal of Denial of Fee Waivers for 890301 FOIA Requests.Justification for Fee Waiver Provided

ML20246K362
Person / Time
Site:	Comanche Peak
Issue date:	03/30/1989
From:	Colapinto D KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Grimsley D NRC OFFICE OF ADMINISTRATION (ADM)
References
FOIA-89-47, FOIA-89-52 NUDOCS 8909050446
Download: ML20246K362 (6)

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• I JL JN,KOHN & COLAPINTO,, .

ATTORNEYS ATLAW-526 U STREET, NW. . WASHINGTON, DC 20001

, 202 234 4663 OF COUNSEL:

. MICHAELD. KOHN * . . DANIEL I.OSHTRY ANNETTE R. KRONSTADT' STEPHEN M. KOHN * + March 30, 1989

. DAVID K COLAPINTO * *

• ADMnTED NPA

. . ADMITIIDINf4

+ AounTED m oc .

Donnie H.'Grimsley Director Division of Freedom of Information and. Publications Services Office U.S. Nuclear of Administration Regulatory Commission Washington, D.C. 20555 Re: ' Fee Waivers for FOIA-89-47 and 89-52

Dear Mr. Grimsley:

4' 1989 regarding the above-referenced Freedom of Your March 9, 1989 letter was in.

Act ("FOIA") requests.

reply to my appeal of the denial of fee waivers for these 1989.

requests._ dated March 1, As a threshold natter, my March 1, Although 1989 letter is the NRC's properly classified as a FOIA appeal. 1989 state that the fee notices dated' February 10 and 16, original FOIA requests for a waiver or reduction of fees do not " provide sufficient information...," on'two occasions I was instructed to " provide" you with such " sufficient information" by the NRC contact person assigned to theseI was informed b requests.

On February 3 and 28, Ann Reed to send an appeal to your office in order to clarify _the use of the information requested.

Moreover, all of the information aircady submitted on the record for these FOIA reguests are responsive to the eight categories of information 9.41. justifying a fee waiverFor your a pursuant to 10 C.F.R.

matter please consider the following:

(1) DESCRIBE THE PURPOSE FOR WHICH THE REQUES USE THE REQUESTED INFORMATION f>

The information requested in both FOIA requests will be used for the following purposes, all of which are public interest in nature and related to protection of the public health and safety as well as to provide an understanding of the operations of government: l 8909050446 090330 PDR FDIA PDR COLAP 3 NT 89-47

I-Donnie H. Grimsley

' March 30, 1989 Page Two (a)

For use by Mr. Macktal and his attorneys to support Mr. Macktal's grounds for intervention inlicen The denial of Mr.

Electric Macktal's Station ("CPSES").

intervention petition by theCourtNRCofisAppeals currently on appellate review before the U.S.See Macktal v. U.S.

L for the District Nuclear Regulatoryof Columbia.

Commission, et al., No.

89-1034 TDTD.Cir.).

(b) By Mr. Hasan and his attorneys in Mr. Hasan's Section currently210 nucicar pending whistleblower before case of the Secretary which is See Labor.

Texas Hasan v. NPSI, et al., Case No. 86-ERA-24.

Utilities ETEctric Co. ("TUEC") offered to settle Mr.

Hasan's settlementcase which,as part of the July 1988 Comanche Peakupor settlement of several whistleblower claims contingent upon dismissal of the Atomic Safety and Licensing Board

("ASLB") hearings regarding CPSES.

Section 210 of the Energy Reorganization Act is Mr.

predicated upon the litigation of "public rights."

r Hasan and his attorneys will review the requested information to determine the relationship between TUEC's dismissaloffer to CPSES of the settle Mr. Hasan'sproceedings.

licensing case and the Moreover, Mr. Hasan and his attorneys desire the requested information to review the NRC's involvement in these settlements and to prepare Mr. Hasan for testimony in the event he is called to testify before a i

newly instituted ASLB regarding CPSES.

(c)

Mr. Macktal and his attorneys will review the requested information to support Mr. Macktal's motion to set aside a secret, confidential settlement agreement between Mr. Macktal's former' attorneys andwhich Brown & Roet, Inc.

money to Mr. Macktal in order not to testify before,This motion is inter alia, the ASLB regarding CPSES.

pending before the SecretaryCaseofNo.

Labor in Macktal v. pursuant to 86-ERA-23, Brown & Root, et al._,

section 210 oT the Energy Reorganization Act.

(d)

The information regarding Hasan's revocation as confidentiality of Mr.

allegers Macktal's and Mr.

will be used by our clients and their attorneys to l

review the process utilized EF the NRC to accomplish this revocation.

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'Donnie H.'Grimsley

• March 30, 1989 Page Three (2)- EXPLAIN THE EXTENT TO WHICH THE REQUESTER WILL. EX AND ANALYZE THE~ SUBSTANTIVE: CONTENT- OF THE AGEN RECORD There are several hundred pages estimated Neitherbymthe NRC to Mr. Macktal, be' responsive to these FOIA requests.

Mr. Hasan nor their counsel ~ have had an opportunity to testimony and public hearings.

-The requesters and their attorneys will' utilize their-respective technical and legal ability to extract and analyze the.NRC's-role in the July 1988 CPSES settlement as well as the NRC's' revocations of-confidentiality. .Without.

further description of the documents which are releaseable pursutnt to.these FOIA requests we cannot provide further explanation.

If the agency desires further information regarding this category then. undersigned counsel must receive.an'index cf the' documents-to be released.

(3) DESCRIBE THE NATURE OF THE SPECIFIC ACTIVITY'OR RESEARCH IN WHICH THE AGENCY RECORDS WILL BE USE THE SPECIFIC QUALIFICATIONS FOR THE INTENDED THEUSE REQUESTER IN SUCH A WAYPOSSESS UTILIZE INFORMAT1CN L

' THAT IT WILL CONTRIBUTE TO PUBLIC UNDERSTANDING For the " nature of the specific activity or research in-which the agency records will be used" you are referredToto the information provided pursuant to number 1, above.

the degree that the-agency records are technical in nature, Mr.

both Mr. Hasan and-Mr.~Macktal are highly trained.

Hasan is a former senior engineer at CPSES and hr.The Macktal NRC is is a former electrical foreman at that facilitysspecific qualifications and well aware of these individuals'

' expertise in technical matters.

Likewise, the NRC is very familiar with the qualifications and expertise of Mr. Hasan's and Mr.This information was p Machtal's attorneys. Your concern that counsel is now in letter of March 1. specific private practice is irrelevant when judging "ia.

qualifications" under this fee waiver criter

" Evaluating, writing, and disseminating" experience is cumulative, thus any expertise acquired by Mr. Stephen Kohn, Mr. Michael Kohn and undersigned counsel in the past must be accorded great weight by the NRC when making itsNotably, the determination on these fee waiver requests.above-referenced l

c .

Donnie H. Grimsley

. March 30, 1989 Page Four activity is ongoing through Mr. Macktal's and Mr. Hasan's above-referenced The litigation Labor as well Lawyer's Guide as To other TL projects.

'ights and Specifically -y Stephen M.

Responsibilities of Employee Whistleblowers,Kohn, was published after they e Kohn and Michael D.and are presently working on law review private practice, articles as well as disseminating information regarding CPSES and whistleblower issues to the media, academia and public forums. Neither Mr, Macktal, Mr. Hasan nor their attorneys recieve income from any of these activities --

rather, pursuit of these public interest activities has resulted in a not er;nomic loss for all involved.

(4) DESCRIBE THE LIKELY IMPACT ON THE PUBLIC'S UNDERSTANDING OF THE SUBJECT AS COMPARED TO THE LEVE OF UNDERSTANDING OF THE SUBJECT EXISTING PRIOR TO DISCLOSURE Although it is practically impossible to evaluate the we can provide public's understanding of any given subject, our knowledge of public exposure to the subjects at issue here. There has been very little journalistic reporting Aside from two or about the July 1988 CPSES settlements.

three articles in the Wall Street Journal and theall of the' publicity regarding

~

Washington, D.C. Legal ~yImes, 4

the CPSES settlements and their surrounding Mostcontroversy of this newshave been concentrated in the Texas media.

coverage took place between July and September 1988.

Given By no means has this news coverage been indepth.

the secrecy surrounding the CPSES settlements -- many of the agreements are believed to be strictly confidential -- even individuals offered money to settle litigation regarding CPSES (e.a. Mr. Hasan) do not fully understand the interrelationships between agreements and their exactMoreover, vir conditions.

NRC's participation in the formulation and approval of these agreements, aside from the fact that Mr. Victor StelloNot only is but it signed one of the CPSES settlement agreements.this S issue tro adversely affects the public health and safety.

dismissal of the ASLB -- a reported condition of the CPSES settlements -- there has been no public accountability regarding these settlements.

In July 1988, many public interest and citizens groups Citizens for Fair Utility Regulation in Texas, ~e.a.Public Citizen of Texas and as

("CFUR"), thewell Greater Dallas-as interested Fort Worth Chapter of the Sierra Club, individuals requested that all CPSES settlements be made i

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D Donnie H. Grimsley

• March 30, 1989 4

Page Five public.

Moreover, CFUR, along with Mr. Macktal, has also requested that new ASLB hearings on CPSES be held, specifically on issues regarding the CPSES settlements.

As a result of the sole courage of Mr. Macktal, the public now knows that the CPSES companies have offered at least one whistleblower money in exchange not to testify about safety concerns before the ASLB and any judicial or administrative proceeding regarding CPSES. This information was disseminated by Mr. Macktal and his attorneys in Ironically, Mr. Macktal has been the September 1988. contributing source to most of the public's understanding regarding the CPSES settlement process since he was once signatory to a highly restrictive " hush money" deal which effectively suppressed information regarding safety problems at CPSES. The public's understanding will only be enhanced if Mr. Macktal, Mr. Hasan and their attorneys receive a fee waiver for the requested material on this subject.

Finally, there has been no coverage or public understanding of the revocation of confidentiality fcr whistleblowers by the NRC. As stated in previous correspondence, little is known about governmental operations or policy in this area outside of NRCSince there is no public un regulations.the issue, likely impact on the public's understanding on this issue is sure to be enhanced if Mr. Macktal, Mr. Hasan and their attorneys are granted a fee waiver for this information.

(5) DESCRIBE THE SIZE AND NATURE OF THE PUBLIC TO WHOSE UNDERSTANDING A CONTRIBUTION WILL BE MADE The public at large, the citizens of Texas, environmental, public interest and citizens groups, Wall Street / financial investors, legal scholars, and any person or interest group concerned about nuclear power issues will derive an understanding from the information requested.

This is significantly large After enough to meet the public all, if information benefit test under FOIA.

pertaining to multi-nillion dollar secret deals to speed the I licensing of an ate ic energy, plant is not of interest to  !

the public at large then nothing is.

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• Donnie H. Grimsicy March 30, 1989 Page Six (6) DESCRIBE THE INTENDED MEANS OF DISSEMINATION TO THE GENERAL PUBLIC The information released will be disseminated to the general public through press releases, court papers, pub attorneys.

(7) INDICATE IF PUBLIC ACCESS TO INFORMATION WILL BE PROVIDED FREE OF CHARGE OR PROVIDED FOR AN ACCESS OR PUBLCIATION FEE Information disseminated by press release, publication in journals, nagazines or newspapers, court papers and through public forums will be provided free of charge.

(8) DESCRIBE ANY COMMERCI AL OR PRIVATE INTEREST THE REQUESTER OR ANY OTHER PARTY HAS IN THE AGENCY RE SOUGHT None.

On behalf of Mr. Macktal and Mr. advise Please Hasan,me I look forward of my appeal to your prompt determination. in rights in the event you deny this fee waiver request, Judicial review of a full or in part.

be sought in the event a waiver is denied.

Respectfully,

[' .

f... ,

pp Y ~. ~/)

u David K.'Colapinto l

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