ML19350C799

Request for Order Compelling NRC to Provide Identities & Sworn Statements of Inspectors Who Supplied Info Used in Show Cause Order.Alternatively,Question Should Be Certified to Commission.Certificate of Svc Encl

ML19350C799
Person / Time
Site:	South Texas
Issue date:	03/16/1981
From:	Buchorn P, Sinkin L Citizens Concerned About Nuclear Power, INC., CITIZENS FOR EQUITABLE UTILITIES
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8104060715
Download: ML19350C799 (6)

Text

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/' -ez.m UNITED STATES OF MiERICA

" s NUCLEAR RESULATORY COAHI53 ION -

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7. e-EEFORE THE ATOMIC 3AFETY AND LICENSINO EOand / . .. g'.ts f In the Matter of ) /o to

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HOUSTON LIGHTING AND POWER ) Docket Nos. 50-493 Gr COMPAHY, _E_r AL. ) 5 0 -4 9','_. PL

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(SOUTH TEXA3 PROJECT, UNITS I F' N #

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CCANP MOTION TO COdPEL I4RC STAFF "**

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' Pursuant to 10 C.F.R. ) 2 744 (c) . Citizens Concerned About Nuclear Power (CCANP) request the Atomic Safety and Licensing Board to compel the Iiuclear Regulatory Ccmmission to produce the identities and sworn statements of those inspectors uho supplied information which formed the basis of the Order to Show Cause.

I. Introduction l

On October 28, 1980, CCANP filed " CCANP REQUEST FOR ILFORM.c TION - FROM NRC ' STAFF" which asked for s "the names of-those inspectors who supplied

, .information about harrassment at the South Texas Nuclear Project and the names of those employees who harrassed and intimidated them. i' On November 17, 1980, Hr. Bernard bordenick, Counsel for NRC Staff, sent the "NRC STAFF RESPONSE TO CCASP 'hEQUESTS FOR INFORMATION' AND HOTION FOR ADDITIONAL TIDE." This response stated that the=CCANP October 28 request was being forwarded to the Executive Director for'Operaticins (EDO) for a reply.

On December 8,1980, Ar. dordenick sent the second "NRC STAFF RESPONSE TO CCAliP ' REQUEST FOR INFORMATI0ii F30d iiRC STAFF' . "

Mr. Bordenick informed CCANP that the EDO, pursuant to 10 C.F.R.

') 2 744 (b), ' declined to provide the names requested.

CCANP originally sought these identities and sworn statements ~

in the context of a request on behalf of both Intervenors to the ,

Nuclear Regulatory Commission for a public hearing on the Order to Show Cause of April 30,.1980. (Letter from Ianny sinkin to victor 8164 080 7 lf h So l -

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Stello dated May 28, 1980) In that request, CCANP stated on Page six, Item six:

Not havinr the oublic hearine will adverselv affect the

'; ability of tne e s ta to evaluate tnis oroject and tne acil-ity of Intervenors to succort their contentions before tne ASES. As CCA..P and CEU understand tne puclic nearing, y the ERC would produce the actual witnesses and sworn state-ments which formed the basis for the Order to Show Cause.

Such evidence is invaluable not only as contrasted to para-phrased statements of unidentified individuals but also as offering Intervencrs an. opportunity to gather addition-al testimony from said witnesses. Io deny the recuest for a oublic'hearin: would be to deny existine evidence and Datential evidence to tne Intervenors and bv so doine denv such evidence lo the A3L . (emphasis in original)

Cn September 22, 1980, the Nuclear Regulatory Commission -

issued a Memorandum and Order denying the request for a public hearing but affording alternate relief to the Intervenors. This document states at Page thirteen:

Citizens has offered a namber of reasons why a hearing should be granted as a catter of discretion. It claims that a hearing would require the 3RC staff to call as wit-nesces several persons who have not yet been identified, but whose interviews support the Director's order. This, in turn, would allow Citizens to learn the identities of those persons and to further question them. However, as Houston Applicants] su?5ests, Citizens can file either interoga{ tories with the staff or a Freedom of Information request with the Commission in order to learn the identi-ties of persons with knowledge about the incidents covered by the Director's crder. "

These possibilities are a far cry from Citizens' fears that failure to have a hearing on the enforcement order would be tantamount to denying tc it . the ' evidentiary basis for the NRC actions in the

-Order to Show Cause'."

The October 28 request from CCARP followed the suggestion of the Commission. (The youth and inexperience of the CCAh?

representative filing the October ~28 request' produced a request more. limited in scope than the original CCALP request, i.e. not thefsuorn statements and only harrassment rather than the entire Order to 5hou Cause basis. CCAUP-asks that this dotion to Com-pel include all .the . items covered by the first paragraph of this notion. Such a chan;e would not alter the issues or real sub-E

-stance of the decision on the motion.)

The-denial of.this information conveyed in the December 8

. 1980, URC response:

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(1) denies Intervenors relief expressly provided for by the Commission.. Part of the basis for deaying. tte request for 4

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j[ 'J2i a public hearing on the Order to Show Cause was the Co= mission's view noted above that Intervenors could get the identities and 7,;,@,'t' ,.9M?$ ~

sworn statements'through interrogatories filed with the Staff.

jf "' When Intervenors filed just such an interrogatory with the Staff, 41

J the Staff refused to answer. . Intervenors are thus left in the position of either going back to the Commission to again request f the public hearing or having this 3. card grant relief.

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, 14 (2) adversely affect Intervenor interests by denying Inter-3'5 venor access to personnel identities and sworn statements that i

are clearly relevant to the Issues and Contentions Intervenors

] are to argue before this Board.

1 Intervenors are sensitive to the-difficult. policy issues V. raised by this request. The dRC Office of Inspection and Enforce-ment ob'iously has a strong desire to protect those who provide 1 . information to NRC investigators. Intervenors feel a similar

concern for witnesses who bring information to the Intervenors.

j Uhile the idea that persons cooperating in exposing probleas at 1 a nuclear power plant face harassnent.or loss of job is abhorent,'

I the history of this plant indicates such a concern is unfortunate-3 ly narranted.

At the same time, the finding of the Order,to Show Cause

• are in some instances identical to the contentions of Intervenors.

The evidence behind the Order is therefore invaluable to Inter-venors and the withholdin; of that evidence detrimental to Inter-venor interests. To adequately represent our interests, Inter-venors are compelled to file this motion.

There is one category of witnesses and statements for whom the. rational of denial is not so clear. Persons who are no long-er in the employ of Houston Lighting and Power or Erown and Root ,

may no. longer be reluctant to be identified. The Office of In-spection and Enforcement can locate and approach these indivi-duals about permitting their identification to Intervenors and the release of their sworn statements.

For the current employees of either Houston Lighting and Power or Erown and Root, the confidentiality problem still exists.

, ',Je offer an alternative to the granting of the motion to compel.

This alternative aly well require futher definition and may be inpractical. t.evertheless, we offer the alternative in an ef-fort to accomodate the competing interests involved in this ques-tion.

~Ihe guiding principle in any approach. to tak' nq the evidence of these uitnesses must be the protectial of the witnesses. To

. achieve such protection may well require extraordinary and unusu-al measures.

, .We could be satisfied if the doard journeyed to the Eay City area.to interview witnesses produced by the_ Office of Inspection and Enforcement. These interviews would be conducted based.on

., .the Board's own questions and on questions subcitted by all par-4

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4 rt ties to the proceeding. Only the Scard, c:HC counsel, and

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yNge 'V Cffice of Inspection and Enforcement personnel would be present

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y.) To assure anonymity for the uitnesses may require the 71?j[.

> Eoard to go to larger town than, bay City or to travel under Up assumed names to prevent the small town network from noti-SC fying l!auston Lighting and Fouer or Brown and Root of their JF presence. If Lay City is chosen, reservations should be made in such a uay that notice is not given of the arrival of a large number of people from Washington, D.C. W;tnesses with evidence of non-compliance snould be called first and witness-es against whom allegations are made second as the latter are most likely to inform Houston Lighting and Power or Brown and Root of the Board's presence. Each witness called should be cautioned not to reveal they have been called. Interviews should be conducted only at such times and on such days as the witnesses would not be required to request time off from their employers. Uitnesses should also bc given a copy of 42 U.S.C.

) 5651 regarding their remedies should there be any subsequent harrassment.

In effect, we'are suggesting the Eoard preside over and take the depostions of these witnesses in such a canner that their testimony will be admissible. While at the same time their id Antities will be protected. A prior stipulation by all parties would probably be necessary uith objections limit-ed-to mat"'eriality and relevancy. The stipulaton on admissi-bility should include deletien of names uhere necessary to protect individuals, including nac.es of the witnecses them-selves. -Additionally, the transcript should not contain in-

-forcation sufficient to identify persons whose protection is ,

sought. THe F3I release to Intervenors and Applicants might serve as a model.

We have not been able tode te to develop a better suggestion

- but certainly we are open to discussion on this matter.

If no alternative can be developed, however, we are com-pelled to-press our motion as stated.

If the. motion is denied, we request the Board to certify to the Commission the following questiais:

1. In light of-the Nuclear Regulatory Commission Memorandum and Crder of 3eptember 22, 1980, CLI-80-32, 12 .;RC , and specifically in licht of the part of the Hemorandum'and Order uhich states:

~" Citizens-has offered a number of recsons-

.why~a hearing should be. granted as a mat-ter of. discretion. -It claims that a' hear-

- ing would require'the ERC staff to call as-witnesses several persons who- have ' not yet

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.,fIgCg7 been identified, but whose interviews support the Direc tor's order. This, in

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.W:?e e turn would c.llot. Citizens to learn the

f. ' ' - identities of those persons and to further pf question them. IIowever, as Houston suggests, I Citizens can file either interrogatories y

y with the staff or a Freedom of Information request with the Ccamission in order to

, lecrn the identities of persons with knonledge about the incident covered by the Director's order. These possibilities are a far cry from Citizens' fears that a failure to have a hearing on the enforcement order uould be tantacount to denying to it

'the evidentis:ry basis for the ERC actions in the Order to .5how Cause "

did the Connission inton<1 to e:: press agreenent that these identities interrogatories trould be and Freedom of released Information if such request uere filed'?

2. If the ans;cr to e,uesti"- 1 is "yns , " does the Cosa19sion have specific advice on how thesc identities may h rel:aacd to Intervenors?

As the release or identities in response to an Intervenor raction is not to grant ;iven by the Corainsion as a reason the Intervonor request for a public hearing, Intervenors relief afforded vicu to the lenial of by Intervenors thisthe release as a denial Cocaission in lieu ofof a hearins.

11espectfully submitted, j ftan> ,

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Citizcb',u c. oncerned in Peg M///.~tc.: ora Ecout i:uclear Feuer Citize2.s for Equita' ole Utilitics March 3 6, 1931 e

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'5f. Y Certificat of Service

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We hereby certify that the foregoing document has 6 "pYa;i. OT been served on the following individuals and entities by

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k prepaid on this /6fL day of March, 1981.

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{yeggy Buchorn LannpSinkin Charles Bechhoefer, Esquire

• Mr. Jack Newman

• Chairman Lowenstein, Newman, Reis, Atomic Safety and Licensing Board Axelrad, & Toll U.S. Nuclear Regulatory Ccmmission 1025 Connecticut Avenue, NW Washington, D.C. 20555 Washington, D.C. 20036 Dr. James C. Lamb

• Docketing and Service Section (7 313 Woodhaven Road Office of the Secretary Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Commissi.

Washington, D.C. 20555 Mr. Ernest E. Hill

• Lawrence Livermore Laboratory Atomic Safety and Licensing University of California Board Panel .

P,0. Box 809, L-123 .

U.S. Nuclear Regulatory Commissi Livermore, Ca. 94550 Washington, D.C. 20555 Edwin J. Rois

• Atomic Safety and Licensing

' Office of the Executive Appeal Panel (5)

Legal Director U.S. Nuclear Regulatory Commissi U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 ,

, Brian E. Berwick

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' Assistant Attorney General for @ gh the State of Texas < \

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