ML20100B025

Response to Joint Intervenors Protective Order to Shield Identity of Several Individuals Having Executed Affidavits in Support of Concurrent Motion to Reopen Record.Motion Must Be Denied

ML20100B025
Person / Time
Site:	Waterford
Issue date:	11/30/1984
From:	Churchill B LOUISIANA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20100B028	List: ML20100B025 ML20100B048
References
CON-#484-399 OL, NUDOCS 8412040166
Download: ML20100B025 (6)

Text

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k November 30, 1984 CD'KETEc UMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensing AppeafI$$5td{G 4 SEf<vlO ANCH In the Matter of )

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LOUISIANA PCWER & LIGHT COMPANY ) Docket No. 50-382.OL

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(Waterford Steam Electric Station, )

Unit 3) )

APPLICANT'S RESPONSE TO MOTION FOR PROTECTIVE ORDER Joint Intervenors have moved for a protective order to shield the identity of several individuals who have executed affidavits in support of Joint Intervenors' concurrent motion to reopen the record. As will be discussed below, Joint Intervenors have failed to show good cause for the issuance of a protective order and the motion must be denied.

I. BACKGROUND On November 8, 1984, Joint Intervenors filed a motion to reopen the record in this proceeding to admit three new contentions. As part of the basis for one of the proposed contentions related to quality assurance, Joint Intervenors submitted three affidavits from former employees who 1

had worked at the Waterford plant._/ Joint Intervenors simultaneously moved for a protective ceder to shield the identities of the sffiants.

4 JJ Exhibits 8, 12 and 27 to Joint Intervenors Motion to Reopen, hereinafter -

referred to as "JI Exhibit ."

O O G

e 9

The names and certain other portions of the affidavits submitted to

. App l icant have been edited to conceal tile identity of affiants. Joint Intervenors have represented that the Appeal Board has received unedited copies of the affidavits, and that none of the three affidavits have been supplied to the NRC staff. !

II. JOINT INTERVENORS HAVE FAILED TO DEMONSTRATE GOOD CAUSE FOR THE ISSUANCE OF A PROTECTIVE ORDER The Licensing Board for the South Texas Project proceedings has held that a proponent for a protective order must " outline the factual basis for its view that a protective order is warranted." Houston Lighting and Power Company (South Texas Proj ect , Units 1 and 2), LBP-80-11, 11 NRC 477,.480 (1980). Joint Intervenors have failed to even minimally meet this requirement.

To support their request, Joint Intervenors simply assert, through hearsay affidavit of a third party, that the affiants wish to protect their privacy, and that they have concerns about " retaliation from (LP&L]

management" in the form of " harassment, invasion of privacy and in one case termin: tion". See Motion for Protective Order at 3; Affidavic of Thomas M. Devine, November Sch, 1984, at 14. These statements are patently absurd. The Joint Intervenors clearly state that the affiants are all former employees. Motion for Protective Order at 1. In addition, two of the affiants have expressly confirmed that they no longer work at the site. JI Exhibic 8 at 1; JI Exhibit 12 at 3. Clearly any contention that the affiants fear reprisals from LP&L management by job 2/ Motion for Protective Order at 2.

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harassment or termination deserves little consideration.

Similarly, the mere assertion that affiants fear an invasion of privacy

- is insufficient to warrant.a protective order._3/ No factual b.2 sis whatsoever is presented f or _.this concern. Applicant appreciates affiants'. privacy interests, but every citizen has a duty to come forward with information to aid the judicial process when he is in possession of that information, notwithstanding his privacy interests.

The only other " fact" put forward by the Joint Intervenors in support of their motion is a confusing mention of a Department of Justice Investigation.

Joint Intervenors state, without any citation of support, that the NRC's Office of Investigation has referred over "five cases" to the Department of Justice. It is not clear from the argument that these five cases involve Waterford, nor is it clear that these cases involve harassment. In any event, Joint Intervenors draw no connection between the amorphous investigation and any basis for inferring that the anonymous ex-employees should be in fear of reprisals.

In sum, Joint Intervenors bare assertion that the affiants fear reprisal cannot furnish good cause for a protective order. Joint Intervenors have failed to " outline the factual basis for its view that a protective order is 3_/ Even 10 C.F.R. $2.740(c), which deals with protective orders for discovery purposes, does not specify " invasion of privacy" as a consideration requiring protection.

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. warranted." . Houston Lighting and Power Co., supra. Their motion must be-denied.

III. A PROTECTIVE ORDER IS INAPPROPRIATE FOR THE AFFIDAVITS SOUGHT TO BE PROTECTED Beyond the fact ' that. Joint - Intervenors have . f ailed to meet - the minimal threshold requirement for a protective order, it -is far from clear that a protective order is germane to the' instant situation. The Diablo Canyon Appeal Board, in denying 'a motion to reopen the record, noted that new evidence supporting a motion must be relevant, material and reliable." Pacific Cas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1367 (1984). .The Appeal Board went on to say that:

embodied in the reliability requirement of 10 C.F.R. 2.743(c) is the notion that evidence presented in affidavit form must be given by competent individuals with knowledge of the facts or experts in the disciplines appropriate to the issues raised.

Because the competence (or even the existence) of unidentified individuals is impossible to determine, statements of anonymous persons - so-called anonymous affidavits - cannot be considered as evidence to support a motion. (emphasis added).

I_d.

d at 1367, n. 18 Unless the unedited versions of the affidavits are made available, Applicants will be unable to determine if the af fiants; had first-hand knowledge of the facts alleged, if the affiant was competent, or whether and affiant's particular allegations had in fact been investi 6 ated and resolved earlier. In short, it is very difficult to investigate the reliability and substance of the broad allegations raised by the affiants -

without the unedited version.

A striking example of the need to probe the reliability of an anonymous affidavit is the allegation by Affiant B at pages 2-3 of JI Exhibit 12 that he is a "QA Engineer" who was " terminated by LP&L because r-

-of [his} long standing frustrations in dealing with LP&L's management and support personnel." This was used as the basis for Item A(1)(g) of Joint Intervenors motion to reopen in which Joint Intervenors alleged that "LP&L took retaliatory action against QA personnel who persisted in adhering strictly to QA rules and procedures." Motion to Reopen at 5. The affidavit in the laundered form given Applicant says nothing about "retallation," or that the affiant was terminated for " adhering strictly to QA rules and procedures." Because of the affiant's anonymity, Applicant is at a loss to investigate and respond to the allegation. The best Applicant can do, as stated in its response to Item A(1)(g) in the affidavit attached to Applicant's Answer to the Motion to Reopen, is to state that only five QA engineers associated with the Waterford 3 project were terminated, and that the reasons were failure to pass the required background / security check, excessive absenteeism, failure to pass the physical examination, inability to report to work, and disability. This clearly raises a question of the reliability of the anonymous affidavit, a reliability which Applicant cannot probe.

Another example occurs at paragraph 6 of JI Exhibit 27, where Affiant C admitted to having trouble with " sugaring" in the test booth when he attempted welds on small (k") instrumentation lines. Because the welds performed in the test booth are for the purpose of qualifying the welder to perform these welds in the field, a fair reading of this paragraph might be that the Affiant C failed to pass his certification tests and was not allowed to weld in the field. See Applicant's response to JI Exhibit 27 Paragraph 6, in the Affidavit attached to Applicant's Answer to the Motion to Reopen. This r-

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situation, if true, would certainly undermine the reliability of the anonymous affidavit, but Applicant has no way to test it.

In a third typical example, Affiant C alleges that he knows of a problem with Hilti bolts. See Affidavit C, JI Exhibit 27, at 514-16. There is no indication of where or when the alleged problem occurred. However, if_an unedited version of the affidavit was available, Applicant might be able to narrow its investigation to the particular instances cited by the anonymous affiant. This- would facilitate- the evaluation of the substance and reliability of the broad allegations.

Revealing the names of the affiants to the Appeal Board does not cure this defect, for the Board is neither expected nor equipped to investigate the reliability of the affidavit. Nor would a protective order be of use in this situation. Investigation of the technical allegations in the three anonymous affidavits would require revealing the protected information to ar.y number of LP&L personnel, the very people from whom the ex-employees fear some kind of undefined reprisals.

IV. CONCLUSION Applicant submits that for all of the foregoing reasons, the Motion for Protective Order must be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Wa i , ton DC.203k f ,'

s By: - 1%d Bruca W. Chufsh4-11, P.C.

Dean D. Aulick, P.C.

Alan D. Wasserman Counsel for Louisiana Power & Light Dated: November 30, 1984 (202) 822-1051 h