ML20247L912

Responds to FOIA Request for Records Re Sept 1989 Onsite Exercise at Plant.App a & B Records Available in Pdr.App C Records Withheld in Entirety (Ref FOIA Exemption 4).App C Records Will Be Made Publicly Available Following Exercise

ML20247L912
Person / Time
Site:	Seabrook
Issue date:	09/20/1989
From:	Grimsley D NRC OFFICE OF ADMINISTRATION (ADM)
To:	Brock M MASSACHUSETTS, COMMONWEALTH OF
Shared Package
ML20247L917	List: IA-89-326, Advises That Proposed Objectives for 1989 Annual Exercise of Radiological Emergency Plan Acceptable for Intended Purpose ML20247L912 ML20247L941 ML20247L961
References
FOIA-89-326, FOIA-89-A-27 NUDOCS 8909250088
Download: ML20247L912 (6)

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[%, UNITED STATES y&p 9, NUCLEAR REGULATORY COMMISSION 5 WASHINGTON. D. C. 20555 ]

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%>*****# 1 L feG ._ j Matthew Brock, Assistant Attorney General Nuclear Safety Unit 1 The Commonwealth of Massachusetts IN RESPONSE REFER (

Department of the Attarney General TO F01A-89-326 l John W. McCormack State Office Building AND F01A-89-A-27 One Ashburton Place Boston, MA 02106-1698

Dear Mr. Brock:

This is in response to your letter dated July 31, 1989, in which you requested, pursuant to the Freedom of Information Act (F0IA), records regarding the September 1989 on-site exercise for the Seabrook Nuclear Station.

The records identified on enclosed Appendix A are already available in the NRC Public Document Room (PDR) located at 2120 L Street, NW, Washington, DC 20555. ,

We have 1dentified the PDR acce aion number beside each document description.

The rec';rd identified on enclosed Appendix B is being placed in the PDR in file folder F01A-89-326. Copies of the records identified on Appendices A and B are enclosed.

The records identified on enclosed Appendix C are being withheld in their entirety under F0IA Exemption 4. However, they will be made publicly available '

in the PDR upon completion of the exercise. This withholding is based on the third prong of National Parks and Conservation Association v. Morton, 498 F.2d 770 (D.C. Cir. 1974), which provides for the protection from public disclosure l information the release of which would harm the effectiveness of a governmental interest and is also based on the " confidential report" privilege, in accordance with recent caselaw and Congressional intent expressed in the legislative history of the F0IA. Please be advised that detailed review of the records in Appendix C for release of segregable information under the statute will not result in release of any meaningful information. Therefore, these records are withheld in full.

l The records being withheld comprise the detailed scenario of the 1989 Annual Exercise of the Seabrook Station Radiological? Emergency Plan, which consists of a confidential script for the drill, and a related cover letter. While the exercise date has been made public, specific details about the exercise scenario have not been divulged in order to adequately test licensee's conduct of the emergency plan.

The success of the exercise depends upon it being spontaneous to the participants.

Advance publication of even general aspects of the exercise scenario could l significantly compromise its effectiveness. Hence, the value of the exercise hinges, to a large extent, upon the confidentiality of the scenario. The exercise scenario is considered a confidential document of the licensee, which protects it from disclosure to its own employees involved in the exercise.

I 89092500B8 890920 PDR FOIA PDR BRDCKB9-A-27

Matthew Brock, Esquire The agency's need to hold such records in confidence has a direct impact on NRC's performance of its primary mission: assuring the protection of the public health and safety, in this instance by monitoring the operation of the Seabrook Nuclear Station including the implementation of the emergency plan. Premature disclosure not only could frustrate the station's ability to conduct a meaningful test of the capability of licensee's staff to carry out the emergency plan, it could impede the NRC from evaluating the effectiveness of this aspect of the Plan's implementation.

There is ample Federal caselaw to support the agency's position in this matter.

First, it is clear that where public disclosure of information will harm identifiable private or governmental interests, Exemption 4 protects that information. In 9 to 5 Organization for Women Office Workers v. Board of Governors of the Federal Reserve System, 721 F.2d 1 (1st Cir.1983), the court agreed that governmental interest, outside of the ability to obtain similar information in the future, could provide a separate foundation for protecting information from public disclosure. Program effectiveness was such an example, and a demonstration that disclosure would harm a specific private or governmental interest would be sufficient to invoke Exemption 4. Ibid. In Critical Mass Energy Project v. Nuclear Regulatory Commission, 830 F.FniT278 (D.C. Cir. 1987), the D.C. Circuit recognized that if disclosure would harm the effective performance of regulatory responsibilities mandated by Congress, Exemption 4 could properly protect that information. It is clear that premature disclosure of the detailed exercise scenario of the 1989 Annual Exercise could compromise the results of exercise test. Employees at the Station could have advance knowledge of the scenarios to be tested and thus be able to specifically prepare for them. That would undermine the very purpose for conducting the test which is to test station employees' performance during an unanticipated emergency.

Second, it is clear that the exercise scenario is protected by the

" confidential report" privilege of Exemption 4. This privilege protects commercial information which the government possesses which is held in strict confidence by the organization providing it to the government.

Washington Post Co. v. HHS, 690 F.Supp. 235, (D.D.C.1985), (rev'd on procedural grounds at 795 F.2nd 205). In Washington Post Co., the privilege was extended to records that encompass confidential information, the exchange of which promotes free, frank and open discussion between the government and the other party, and thus promotes the efficiency of government operations. In the case of the exercise scenario, both the utility and the NRC have restricted the individuals who have access to the scenario and have held it in strict confidence,

Matthew Brock, Esquire The agency's duty to protect confidential information from unauthorized disclosure is the very cornerstone of F0IA Exemption 4. The agency is convinced that disclosure at this time would limit the NRC's ability to evaluate the effectiveness of the emergency plan and that the confidentiality of the exercise scenario must be maintained. The information is being withheld from public disclosure pursuant to Exemption (4) of the FOIA (5 U.S.C. 552(b)(4))

and 10 CFR 9.17(a)(4) of the Commission's regulations.

1 Pursuant to 10 CFR 9.25(b) 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 William T. Russell, Regional Administrator, Region I.

This denial may be appealed to the NRC's Executive Director for Operations within 30 days from the receipt of this letter. As provided in 10 CFR 9.29(a), any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Connission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision."

In light of this response, we are taking no further action on your letter dated August 18, 1989, appealing our lack of response to your request.

Sincerely, M

Donnie H. Grimsley, Dire or Division of Freedom of Information and Publications Services Office of Administration

Enclosures:

As stated

Re: F0lA-89-326 APPENDIX A RECORDS ALREADY AVAILABLE IN THE PDR

1. 4/3/86 Inspection Report 50-443/86-10. Accession No. 8604080259

2. 7/16/86 Inspection Report 50-443/86-30. Accession No. 8607220406

3. 8/1/86 Inspection Report 50-443/86-30, Addendum. Accession No.

8608080258

4. 3/23/87 Inspection Report 50-443/87-08. Accession No. 8703310457

5. 4/1/87 Inspection Report 50-443/87-12. Accession No. 8704070301

6. 12/30/87 Inspection Report 50-443/87-25. Accession No. 8801050441

7. 4/4/88 Inspection Report 50-443/88-03. Accession No. 8804120237

8. 7/7/88 Inspection Report 50-443/88-08. Accession No. 8807200321

9. 7/7/88 Inspection Report 50-443/88-09. Accession No. 8807210208 l

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Re: F01A-89-326 APPENDIX B 00CtMENT BEINs'7EXCED IN THE PDR

1. 7/18/89 Letter from W. Lazarus to T. Feigentsaum. '(1 page)

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Re: FOIA-89-326 APPENDIX C-DOCUMENTS BEING WTTRHELD IN THEIR ENTIRETY

1. 6/30/89 Letter from Ted C. Feigenbaum, New Hampshire Yankee, to William J. Lazarus, NRC, enclosing the 1989 Annual Exercise of the Seabrook Station Radiological Emergency Plan and scenario related material. (351 pages)