ML20196A185

Responds to Appeal of Denial of FOIA Request for Documents. Forwards Portions of Elsasser 880505 Memo.Marcus 871222 Memo Withheld (Ref FOIA Exemption 5)

ML20196A185
Person / Time
Site:	Peach Bottom
Issue date:	11/30/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Rhodes J PENNSYLVANIA, COMMONWEALTH OF
Shared Package
ML20196A190	List: IA-88-478, Trip Rept of Commissioner Carr & T Elsasser 871215 Site Visit to Util & 871216 Attendance at Region I Periodic Regional Resident Counterpart Meeting ML20196A185 ML20196A216
References
FOIA-88-478, FOIA-88-A-47 NUDOCS 8812050283
Download: ML20196A185 (2)

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OFFCE OF TH: November 30, 1988 i stentramy l

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Jeseph Rhodes, Jr.  !

Comissioner Pennsylvania Public Utility ,

Commission i Harrisburg, Pennsylvania  ;

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Re: F0!A-88-478(88A-47-C) l t

Dear Mr. Rhodes:

This is in response to your October 24, 1988 appeal of the Nuclear Regulatory Comission's decision to withhold all or portions of two documents responsive i to F0!A 88-478.

1 The documents were re-reviewed in response to your appeal. Based on that l l

review, I have determined that portions of the January 5, 1988 Elsasser i

memorandun may now be released. The document is enclosed. The excised  !

portions of the document do not fall within the scope of your request. (

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The Comission is continuing to withhold the Decenber 22, 1987 Marcus  !

memorandum. The memorandum was withheld under Exemption 5 of the Freedom of (

Infomation Act (FO!A), 5 U.S.C. I 552(b)(5) and 10 C.F.R. 9.5(a)(5) of the  !'

Comission's regulations. The document is a menorandum to a Comissioner from a member of his personal staff. It contains the analysis, opinions and l recornendations of the staff member and is part of the agency's predecisional ,

l deliberative process. It is exempt from mandatory disclosure under Exemption  !

l 5 because it "would not be available by law to a party other than an agency in l l litigation with the agency." 5 U.S.C. I 552(b)(5); 10 C.F.R. I 9.17(b)(5).

The purpose of the deliberative process privilege is to "prevent injury to the [

quality of agency decisions." NLRB v. Sears, Roebuck & Company, 421 U.S. 132, t 151 (1975). Disclosure of these predecisional documents would be likely to  !

"stifle honest and frank comunication within the agency." Coastal States j Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980). L l

Your appeal questions the validity of characterizing the document as [-

'predecisional" when it does not involve "an adjudication, a ruling or other decision of the Comission." The deliberative process privilege is more expansive than you suggest. The Supreme Court stated in NLRB v. Sears, f 421 U.S. at 151 n.18, that:

Our emphasis on the reed to protect pre-decisional I documents does not rean that the existence of the privilege I turns on the ability of an agency to identify a specific l decision in connection with which a menorandum is prepared.  !

Mencies are, and properly should be, engaged in a i

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• l continuing process of examining their policies; this process will generate memoranda containing recomendations l which do not ripen into agency decisions; and the lower l l courts should be wary of interfering with this process. t I (Emphasis in the original) i l t This letter represents final agency action on your administrative appeal of I l October 24, 1988. Judicial review of the denial of the documents or portions l of documents withheld is available in the Federal District Court in the t district in which you reside or have your principal place of business, or in !

the Federal District Court of the District of Columbia.  ;

Sincerely, i l

JW ..\ '

(GSainue17.

Secretary o the Comissio l

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Enclosure

• As stated  !

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%,.....J OCT 41888 The Honorable Joseph Rhodes, Jr.

Pennsylvania Public Utility Comission Commonwealth of Pennsylvania IN RESPONSE REFER P.O. Box 3265 TO F0!A-88-478 i

Harrisburg, PA 17120 f

Dear Comissioner Rhodes:

1988, in which you This is in response requested, pursuant to to your letter dated the Freedom September of Information Act13,(FOIA), copies of l records between certain named employees of the Philadelphia Electric Comp (any),

(PECO) and certain named employees of the Nuclear Regulatory Comission NRC j

and copies of records which were discussed during meetings and telephone l conversations between certain named employees of PECO and certain named NRC j

', employees.

l The records which are identified on Appendix A are responsive to your request and are enclosed.

1 The records identified on Appendix B contain the predecisional advice, opinions and reccerendations of Comissioner assistants to the Comissioners. Because the documents reflect the predecisional process between the Comissioners J

and their staff, the records are exempt from randatory disclosure pursuant to

- Exemption 5 of the FO!A (5 U.S.C. 552(b)(5)) and 10 CFR 9.17(a)(5) of the j ComissN)'s regulations.

Pursuant to 10 CFR 9.25(b) of the NRC's regulations, it has been detennined l

that the information withheld is exempt from production or disclosure, and

that its production or disclosure is contrary to the public interest. The i

person responsible for this denial is John C. Hoyle, Assistant Secretary of i the Comission.

This denial may be appealed to the Secretary of the Comission 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 Secretary of the Comission.

i U. S. Nuclear Regulatory Comission, h'ashington, DC, 20555, and should clearly state on the envelope and in the letter that it is an ' Appeal from an Initial

/ FOIA Decision."

Sincerely, Ad Mp

! Donnie H. Grimsley, Director I Division of Freedce of Infomation and Publications Services Office of Administration and

! Resources Management I

Enclosures:

As stated l

O O Re: F0!A-88-478 APPENDIX A DOCUMENTS BEING RELEASED

1. Undated Memorandum to William F. Kane from J. C. Linville, with enclosure, re: Peach Bottom Atomic Power Station Status Report for the Period February 4 - February 24, 1988.

(5pages)

2. Undated Letter to John S. Kemper from William F. Kane, with enclosure, re: Combined Inspection 20 277/88-01 and 50 278/88 01.

(38pages)

3. 12/11/87 Letter to J. H. Austin, Jr. from Victor Stello, Jr. (2pages) 4 12/15/87 Notice of Licensee Meeting with Philadelphia Electric Company (2pages) at Peach Bottom Atomic Power Station.

5. 12/15/87 Viewgraphs Given to Comissioner Carr While Visiting the Peach d Bottom Station.

1

6. 12/21/87 Memorandum to William F. Kane from J. C. Linville, with enclosure, re: Peach Bottom Atomic Power Station Status Report for the Period December 4,1987 - December 17, 1987 (6 pages)

7. 12/22/87 Transcript of Enforcement Conference Concerning Peach Bottom Atomic Power Station,

8. 1/22/88 Notice of Licensee Meeting with Philadelphia Electric Company (2pages) at Peach Bottom Atomic Power Station (PSAPS).

9, 1/25/88 Letter to J. S. Gallagher from William F. Kane, with enclosure, re: Combined Inspection 50-277/87-29 and 50-278/87-29.

(33pages)

10. 1/28/BR Letter to William T. Russell from John S. Kemper. (1page) 11, 2/9/88 Memorandum to William F. Kane from J. C. Linville, with enclosure, re: Peach Bottom Atomic Power Station Status Report for the Period J0nuary 21 - February 4,1988.

(4pages)

12. 2/18/88 Notice of Management Meeting with Philadelphia Electric Company at Region ! Administrator's Otilce, King of Prussia, PA.

(2pages) letter to W. T. Rus', ell from John 5. Kemper. (1page)

13. 2/26/88 14 3/10/88 Notice of Licensee Meeting with Peach Bottom Co-owners at NRC Region I, DRP Conference Room, King of Prussia, PA.

(2pages) 15, 3/15/88 Letter to Corbin A. McNeill from W. F. Kane, re: Meeting

% W Arv. (2 Dacts)

Re: F0!A 88-478 r

i APPEN0!X A DOCUMENTS BEING RELEASED 16, 3/17/88 Memorandum to William F. Kane from J. C. Linville, with enclosure, re: Peach Bottom Atomic Power Station Status Report for the Period February 24 - March 14, 1988.

(5pages)

17. 3/24/88 Notice of Licensee Meeting with Philadelphia Electric Company at Peach Bcttom Atomic Power Station Presidents Conference Center. (2pages) 18, Agenda of NRC Panel /PE Discussion meeting. (1page) 3/31/88

19. 4/4/88 Letter to J. S. Kemser, Sr. from William F. Kane, with enclosure, re: Com>ined Inspection 50-277/88-02 and 50-278/88-02. (38pages) 20, 4/7/88 Memorandum to W1111am F. Kane from J. C. Linville, with enclosure, re: Peach Bottem Atomic Power Station Status Report for the Period March 14 - March 31, 1988. (4pages)

21. 4/8/88 Letter to William T. Russell from J. F. Paquette, Jr., with enclosure (10 pages), re:

1. Letter from J. F. Paquette, Jr., to W. T. Russell dated March 18, 1988,

2. Letter from J. H. Austin, Jr., to W. T. Russel! dated November 25, 1987.

3. Letter from J. H. Austin, Jr., to W. T. Russell, dated February 12, 1988,

22. 4/11/88 Letter to Corbin A. McNeill from W. F. Kane, with en-losure, re: Meeting Sumary. (3 pages)

23. 4/14/88 Memorandum to File from Victor Stello, Jr. (1page) 24, May 1988 Pertinent Portion of Comissioner Roberts' Appointment Schedule for May 1988.

25. 5/3/88 Tom Elsasser's Notes from Meeting with PECO Officials.

26. 5/5/88 Letter to William T. Russell from C. A. McNeill, Jr., with enclosure, re: Letter from J. F. Paquette, Jr., to W. T. Russell dated April 8, 1988. (12pages)

27. 5/9/88 Letter to Corbin A. McNeill from William T. Russell, with enclosure, re: Meeting Sumary. (3pages) 28, 5/13/88 Memorandum to Walter R. Butler from Robert E. Martin, re: Forthcoming Meeting with Philadelphia Electric Co.

(3 caces)

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Re: F0!A 88 478 l APPENDIX A

,D,OCUMENTS BEING RELEASED

29. 5/13/88 Memorandum for Comissioner Carr from Tom Elasser. ,

re: Telephone Conversation with Corbin McNeill of PECO. [

30. 5/18/88 Letter to C. A. McNeill from William F. Kane, with enclosure. [

re: Conbined Inspection 50-277/88-10 and 50-278/88-10.

(43pages) ,

31, 6/2/88 Letter to William T. Russell from C. A. McNeill. Jr.. with ,

enclosure, re: Letter from J. F. Paquette. Jr. to l W. T. Russell dated April 8, 1988. (13 pages)

32. 6/7/88 Memorandum to William F. Kane from J. C. Linville, with .

i enclosure, re Peach Bottom Atomic Power Station Status Report for the Period May 18 June 3. 1988. (4pages) i r

33. 6/13/88 Letter to C. A. McNeill from William F. Kane, with enclosure.

re: Combined Inspection 50-277/88-13 and 50-278/88-13. ,

l (39pages) 34, 7/5/08 Letter to William T. Russell from C. A. McNeill, Jr., with (

enclosure, re: Letter from J. F. Paquette. Jr., to 1 W. T. Russell dated April 8. 1988. (12pages) j 35, 7/8/88 Letter to Joseph Paquette from Victor Stello, Jr. (2pages)

36. 7/11/88 Memorandum to William F. Kane from J. C. Linville, with enclosure, re: Peach Bottom Atomic Power Station Status i Report for the Period June 20 - July 8, 1988. (4pages) l 37, 7/26/88 Notice of Licensee Meeting with Philadelphia Electric Company l at Peach Bottom Atomic Power Station Presidents Conference Center. (2pages) I

38. 7/28/88 Letter to C. A. McNeill from William F. Kane, with enclosure, re: Combined Inspection 50 277/88-18 and 50 278/88 18.

(37pages) 39, 7/28/88 Sumary of Meeting on May 19, 1988 to Discuss the Plan for Restart, re Peach Bottom Atomic Power Station Units 1 and 2. ,

(26pages)

40. 8/3/88 Letter to William T. Russell from C. A. Mcheill. Jr., with  ;

enclosure, re: Letter from J. F. Paquette. Jr. to 1

W. T. Russell dated April 8. 1988. (12pages) ,

41, 9/12/88 letter to William T. Russell from C. A. McNeill Jr.. with enclosure, re Letter from W. T. Russell dated April 8. J.

1988. F. Paq(uette.

13pages)Jr. to

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Ret F0!A-88 478 l APPENDIX 8 l

DOCUMENTS _BEING WITHHELD IN WHOLE OR IN PART PUR$UANT 70 EXEMPTION 5

1. 12/22/87 Memorandum from Gail H. Marcus to Comissioner Rogers, re: "CR 87 210-Response to Senator Mikulski on Peach Bottom' (1page) Withheld in entirety.

2. 1/5/88 Mercrandum to File from Tom Elsasser, re Cosnissioner Carr's Visit to the Peach Bottom Site and Speech to the Region !

Resi6nts at King of Prussia' (3 pages) Withheld in part, f

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4 TME00M 0F INf 0RMATIO September 13, 1988 g M@T l EcM -//-V7/

Director, Office of Administration / h ["/d U.S. Nuclear Regulatory Commission .

Washington D.C. 20555 ,

Ret FREEDOM OF INFORMATION ACT REQUESTS Peach Bottom Units 2 and 3 NRC Docket Nos. 050-277 and 050-278 Restart Investigation and Mismanagement Investigation Deer Sir l

)

As a Commissioner of the Pennsylvania Public Utility Commission, I have a statutory responsibility for the public health and safety in regards to the operation of electricMy generating stations operating within the Commonwealth.

specific concerns about the future operation of the Peach Bottom Nuclear Generating Facility in York County run deep.

1

' I have serious questions concerning the relationship between the announcement of the proposed fines for mismanagement at Peach bottom and the schedule for restart of Peach Bottom Units 2 and

3. Accordingly, I am hereby requesting disclosure of the i

following records pursuant to the Freedom of Information Act:  ;

1. The dates and topics of discussion of all meetings and telephone calls from November 25, 1987 to September 13, 1988 l 3

between or among NRC Chairman Lando W. Eech, Jr.,  :

Comriissioner Thomas Roberts, Commissioner Kenneth Carr or l Commissioner Kenneth Rogers, and PECO Chairman and CEO, Joseph F. Paquette, Mr. Corbin McNeill (PECO Senior Vice- l 1

President, Nuclear Operations), Mr. Dickinson Smith (Vice-  !

President, Peach Botton), cr Mr. James Watkins (Member, PECO  !

Board of Directors) concerning the issues of the restart schedule for the reach Bottom Noclear Generating Facility or r the imposition of fines for mismanagement at the Peach Bottom Huclear Generating Facility.

2 All documents, including, but not limited to notes, agendas, '

minutes, correspondence and memoranda, that were reviewed, j

exchanged, produced, or discussed during any meeting or  :

telephone call from November 25, 1987 toEech, September Jr.,

13, 1988,  !

between or among NRC Chairman Lando W.

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Commissioner Thomas Roberts, Commissioner Kenneth Carr, or Commissioner Kenneth Rogers, PECO Chairman and CEO Joseph F.

Paquette, Mr. Corbin McNeil (PECO Senior Vico-President, Nuclear Operations), Mr. Dickinson Smith (Vico-President, i

Peach Bottom) or Mr. James Watkins (Member, PECO Board of Directors) concerning either the issues of the restart l schedule for Peach Bottom Nuclear Generating Facility or the I imposition of finos for mismanagement at the Peach Bottom Nuclear Gonorating Facility.

3. The dates and topics of discussion of all meetings and telophone calls from November 25, 1987 to September 13, 1938 betwoon or among JoLoph F. Paquotte (PECO Chairman and CEO),

i Mr. Corbin McNeill (PECO Senior Vice-President, Nuclear Operations), Mr. Dickinson Smith (Vico-Fresident, Peach Bottom), Mr. James Watkins (Member, PECO Board of Directors) l or other senior Philadelphia Electric Company executivos and

! Nuclear Regulatory Commission senior management, including William T. Russell, William Kane, James Linville, or Jay Gutierrez, concerning either the ingues of the restart schedule or the imposition of fines for mismanagement at the Poach Bottom Nuclear Generating Facility.

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4. All documents, including, but not limited to notes, agendas, minutos, correspondence, and memoranda, that were reviewed,

' exchanged, produced or discussed during any mooting or i

telephone call from November 25, 1987 to September 13, 1988 i

betwoon or among Joseph P. Paquette (PECO Cnairman and CEO),

i Mr. Corbin McNeill (PECO Senior Vico-President, Nuclear Operations), Mr. Dickinson Smith (Vico-President, Peach Bottom), Mr. James Watkins (Member, PECO Board of Directors) l or other senior Philadelphia Electric Company executivos and Nuclear Regulato g Commission senior management, including J

William T. Russell, William Kane, James Linville, or Jay Gutierror, concerning either the issues of the restart l schedule or the imposition of finos for mismanagement at the i

Peach Bottom Nuclear Gonorating Facility.

5

5. The dates and topics of all meetings and tele phone calls j

from November 25, 1987 to September 13, 1988 betwoon or l among .,amos Everett (formor Chairman and CEO of PECO). John *

! Austia (former President of PECO), or John S. Kompor gformer PECO Sonior Vico-President, Nuclear Operations) (nd NRC Chairman Lando W. Zoch, Jr., Commissioner Thomas Roberts, I

Commissioner Konaoth Carr or Commissioner Kenneth Rogers l

concerning issues of the restart schedule for Peach Bottom Nuclear 00norating Facility or fines for mismanagement at i

' the Peach Bottom Nuclear Generating Facility.

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6. All documents, including, but not limited to notes, agendas, minutes, correspondence, and memoranda, that were reviewed, exchanged, produced, or discussed during any meeting or teiaphone call frem November 25, 1987 to September 13, 1988 between or among James Everett (former Chairman and CEO of PECO), John Austin (former President of PECO), or John S.

Kemper (former PECO Senior Vice President, Nuclear Operations) and NRC Chairman Lando W. Zech, Jr.,

Commissioner Thomas Roberts, Commissioner Kenneth Carr or Commissioner Kenneth Rogers concerning issues od e restart schedule for Peach Bottom Nuclear Generating Fat' tity or fines for mismanagement at the Peach Bottom Nuclear Generating Facility.

7. The dates and topics of all meetings and telephone calls from November 25, 1987 to September 13, 1988 between or among James Everett (former Chairman and CEO of PECO), John Austin (former President of PECO), or John S. Kemper (former PEDO Senior Vice-President, Nuclear Operations) and Bill Kane, NRC Director, Reactor Projects, Region I; Bruce Bogar, NRC Assistant Director, Nuclear Reactor Regulation; Robert Martin, NRC Project Manager, Nuclear Reactor Regulation; William T. Russell, NRC Administrator, Region I; Thomas Murley, NRC Director, Nuclear Reactor Regulation; or Victor Stelle, Jr., NRC Executive Director of Operations concerning the issues of the restart schedule for Peach Bottom Nuclear Generating Facility or the imposition of fines for mismanagement at the Feach Bottom Nuclear Generating Facility.

8. All documents, including but not limited to notes, agendas, minutes, correspondence, and memoranda, that were reviewed, exchanged, produced, or discussed during any meeting or telephone call from November 25, 1987 to September 13, 1988 between or among James Everett (former PECO Chairman and CEO); John Austin (former PECO President); or John S. Komper (former PECO Senior Vice President, Nuclear Operations) and Bill Kane, NRC Director, Reactor Projects, Region I; Bruce Bogar, NRC Assistant Director, Nuclehr Reactor Regulation; Robert Martin, NRC Project Manager, Nuclear Reactcr Regulation; William T. Russell, NRC Administrator, Region I;

' Thomas Marley, NRC Director, Nuclear Reactor Regulations; or Victor Stello, Jr., NRC Executive Director of Operations, concerning the issues of the restart schedule for Peach Bottom Nuclear Generating Facility or the imposition of fines for mismanagerent at the Peach Bottom Nuclear Generating Facility.

1 You are hereby advised that whatever cost is involved in disclosing those records is acceptable.

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Public disclosure of this information will go a long way )

towards restoring and assurfng public confidence in the NRC's I oversight role vis-a-vis Peach Bottom and PECO. I respectfully  !

await your reply.

Sincerely, Joseph Rhodes, Jr.

Commissioner Pa. Public Utility Commission cca Joseph F. Paquette, Philadelphia Electric Company Daniel P. Delaney, Chief Counsel i

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