ML20069N621

FOIA Request for Records Re Investigation of Transport, Distribution & Disposal of Nuclear Coatings & Related Matl by Texas Utils

ML20069N621
Person / Time
Site:	Comanche Peak
Issue date:	06/26/1990
From:	Condit R, Harrison M GOVERNMENT ACCOUNTABILITY PROJECT
To:	Grimsley D NRC OFFICE OF ADMINISTRATION (ADM)
References
FOIA-90-294 NUDOCS 9101070149
Download: ML20069N621 (6)

Text

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, Project InnsMus June 26, 1990 Mr. D. Grimsley, Director FREEDOM 0F liif0RMATON Division of Rules and Records.

Office of Administrative and Resource Management ACT REQUESI 1 United States Nuclear Regulatory Commission Washington, D.C. 20555

[CM g y BY FIRST CLASS MAIL wd 6'J 7-7c FREEDOM OF INFORMATION ACT REQUEST

Dear Mr. Grimsley:

We would appreciate your prompt personal handling of this request, as it involves documents on critical issues relating to I the investigation of the transport, distribution and disposal of nuclear coatings and related mata 3als by Texas Utilities.

Pursuant to the Freedom of Infore ion Act, 5 U.S.C. S552, as amended, the Government Accountabliity Project.hereby requests the following records (as the term " records" is defined in Appendix A;:

(1) All records generated in connection with the inquiry, review, investigation, inventory, and inspection of the use, storage, disposal, sale, handling, salvaging, and surplussing of Texas Utilities' nuclear coatings and related materials between January 1, 1987 and the present. This information saould

' include, but not be limited to, any violations of industry standards or of regulations issued by the NRC'or other agencies.

(2) All records regarding all on site inspections of the Comancho Peak Steam Electric System plant betwoon August 1,-1987 and December 31, 1987.

(3) All records regarding the= technical specifications for nuclear coatings and related materials used at Comancho Peak between January 1, 1987 and-the present, including all records =

regarding mixing and application procedures and safety and handling precautions.

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(4) All records regarding hazards-involved when nuclear 1

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coatings and related materials have exceeded their shelf life and regarding which, if any, materials have in fact exceeded their chelf life while stored at Comancho Peak.

(5) All records regarding circumstances under which the NRC M will approve of the extension of the shelf life of nuclear coatings and related materials.

(6) All records of any communications between Texas Utilities, its agents or contractors and the NRC regarding nuclear coatings and related materials between January 1, 1987 g( and the present.

N (7) 6/AP/UfLinda Porter.All records regarding former Comanche Peak employeo M e.d A * ~ '

gtQf This request is continuing, and is intended to cover all _

records generated on or after the date of this request until the date it has been completely fulfilled by NRC. This request includes all commission records responsive to this request which have ever been within the commission's custody or control, whether such records currently exist in commission, contractor, or subcontractor " working," investigative, special, retired, or-other files or at any location, including "Do Not File" files, and documents located in the offices, desks and homes of NRC investigators and their staffs. We request that all relevant records be produced with the administrative or filing pages and information intact, and to be supplied copies of any and all "see reference" cards, abstracts, search slips, including-search slips used to process this request, and file covers.

If any records covered by this request have been destroyed and/or removed, or are destroyed and/or removed after receipt of this request, please provide all surrounding records, including but not limited to a list of all records which have been destroyed and/or removed, a description of the actions taken, relevant dates, and individual, office and/or department-wide policies and/or justifications for the action (s).

Should you or your advisors doom any part of this request to cover exempt materials, we also request that you review all sections of the document for any segregable parts, as required under Eounding_Qhufch QL_S_gJsnt_pJocy v. BoJl, 603 F. 2d 94 5, 950-951 (D.C. Cir. 1979). Please " black out" excised portions rather than " white out" or " cut out" such portions.

For any documents or portions of documents that you might deny due to specific FOIA exemption (s), please provide a yau9hD index itemizing and describing the documents or portions of documents withheld. The index should provide a detailed justification of your grounds for claiming such an exemption, in explaining why each exemption is relevant to the document or 2

portion of document withhold. Esp, gigt, yaughn v. Rosen, 484 F.2d 820, (D.C. Cir. 1973), ppIta denied, 415 U.S. 977 (1974).

The Government Accountability Project (GAP) requests that you waive any fees associated with this request because waiver "is in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. S552 (a) (4) (A) . Disclosure of the above-requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government. Finally, disclosure of the above-requested information is in no way connected with any commercial interest of the requesters. GAP is a non-profit, non-partisan public interect organization concerned with honest and open gov nment. GAP has no commercial interests. We are requesting the above information as part of an investigation of whether or not environ ental and transportation laws have been violated by Texas Utilities, its contractors or agents. We are also inquiring into the status of the investigation by appropriate government agencies.

The Government Accountability Project is designated as a 501(c) (3) tax-exempt organization under the IRS code, and is a group dedicated to assuring open accountable government and protecting the rights of public and private employee whistleblowers. Since the information obtained will be disseminated to the public by GAP through the media or state and federal agencies, we request that all copying and search fees be waived.

To aid you in your analysis of our requested fee waiver, we provide the following additional information --

(i) the use proposed for the documents and whether we will derive income or other benefit form such use; GAP proposes to use the documents to inform Congress and the l press about the underlying facts, and those facts may be l published in a special report. The information will also be used I

in reports to Congress, the media, Texas officials and to any and all interested parties. GAP will not derive profit income or 9ther_sommercial benefit from such use. Such profit or benefit is not permitted under our charter. All such reports receive wide circulation at minimal charge, in order to cover the costs of reproduction, staffing and mailing.

l (ii) a statement of how the public will benefit from such I

use and from the release of the requested documents; 1

l The public will benefit from use of the requested documents because it has a vested interest in seeing public officials comply with the law. In order for the public to make an educated 3

and informed decision about whether the government is proceeding to protect their best interests in its continuing oversight of environmental protection and transportation safety issues, the public needs information such as would be provided by the requested records.

(iii) if the specialized use of the documents or information is contemplated; GAP would like to inform you that no specialized use of these documents is contemplated.

(iv) a statement indicating how you plan to disseminate the documents or information to the public; The information will be disseminated to the public in the form of information provided to Congressional committees, the news media, various other government officials and possibly via distribution of a special report to interested public interest groups and individuals.

(v) any additional information you deem relevant to your request for a fee waiver.

GAP is clearly entitled to a fee waiver under the amended FOIA fee waiver standard. The fee waiver standard calls for a vaiver "if the disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. 5552 (a) (4) (iii) . The legislative history defining this standard is scant because there were no hearings or committee reports created during the legislative process.

However, in the absence of Congressional hearings or reports, floor statements by key legislators provide a basis for legislative interpretations. Senators Leahy and Hatch negotiated a floor amendment to the FOIA that included a provision revising the fee waiver standard. Representatives English and Kindness made several changes to the Senate-passed FOIA amendments on behalf of the House, which the Senate accepted with minor revisions. Reps. English and Kindness indicated the fee waiver standard would be met if "the information disclosed is new; supports public oversight of agency operations, including the quality of agency activities and the effect of agency policy or regulations on public health or safety; or otherwise confirms or clarifies data on past or present operations of the government."

132 Cong. Rec. H9464 (October 8, 1986) (Statements of Reps.

English and Kindness). This interpretation was accepted by Senator Leahy and has been adopted by at least one court. Ege, tLcale Llan_Ec o l ogic a l S c o p a go S i tu a t i o n (MESS) v. Carlucci, 835 F.2d 1282, 1284-86 (9th Cir. 1987).

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. 1 The-information GAP has requested meets-all of the criteria outlined in1 the legislators': statements noted above. The '

information requested pertains to_the. exercise of authority by-DOT, EPA, NRC,-and OSHA over hazardous materials distribution,  !.

disposal and transportation laws -- areas that need proper 1 accountability. This information would be "new" to the-public'_  !

domain,.as the discovery of events taking place near the Comanche -

Peak Steam Electric-Station has been a recent' occurrence. ~In addition, the~ requested information would " support'public  ;

oversight" and allow the public to assess the nature,-structure and performance of various governmental agencies relating;to the Comanche Peak /TU inquiry. Therefore, ourcree-waiver request squarely falls within the amended FOIA1 fee waiver provision, 5 U.S.C. S 552 (a).(4) (iii) , and within the legislative history that supports the provision.

We'look forward to a responce within ten working days of the-receiptlof this letter. Please call us if we may.be helpful to you during your processing of our request.- All correspondence should be sent-to the Government Accountability-Project at the address provided.

S ncerely Richard Condit, Esq.

'/ h f( '  % Sn

-Mick Harrison cc: (via First Class Mail)

Ms. Juanita Ellis CASE 1426 South Polk Avenue Dallas, Texas 75224 5

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APPENDIX The term " record" as used in this Freedom offInformation Act request means the originalsor a copy of the original and any i nonidentical copy, including-copies with marks, comments or  :

marginal' notations,_regardless of-original location, of.any recorded, written,-printed, typed or other-graphic material of -

any kind, variety, character or type,. including by way of example but not limited to,.the=following:. agendas; reports;-

recommendations;. transcripts; minutes; charters; books; records; contracts; subcontracts;-requests for-proposals;-proposals;; bids; G2Dperce Business n Dady' and f.pderal -Rectister notices; contract.

y" modifications; deliverables;: drafts; final products; questions; comments; suggestions; agreements; invoices;l orders; bills; certificates; deeds;-. bills offsale; certificates of title; financing statements;1 instruments;Eexpense accounts;? receipts; disbursement journals;; tax returns;-financial-statements; check.

stubs;. promissory notes; resumes; address, books; appointment books;. telephone logs;:worksheets;. pictures; income: statements; profit and loss statements;? deposit slips; credit card receipts; records or notations of telephone or personal' conversations; conferences; intraoffico communications; postcards; letters;;

telex; partnership agreements; catalog price lists; sound, tape and video. records;-memoranda (including written memoranda'of-telephone conversations,1other conversations,-discussions, agreements, acts and activities); manuals;ndiaries; _ calendars or desk pads; scrapbooks;-notebooks; correspondence;-bulletins; circulars; policies; forms; pamphlets; noticos; statements; journals; postcards; letters; telegrams;:. reports;. interoffice communications;-photostats;: microfilm; microfiche;fmaps;-

deposition transcripts; drawings; blueprints;Lphotographs;-

, negatives; and any other data, information or statistics' ' 3 contained within any data storage: modules, discs, or any other '

memory devices-(including IBM or similar cards:for information,.

data, and programs)'or-any other information retrievable on storage systems, including computer-generated reportsiand--print-outs.

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