ML20063D579

Appeals Denial of FOIA Request for Document Re IE Insp Rept 50-358/81-13

ML20063D579
Person / Time
Site:	Zimmer
Issue date:	07/09/1982
From:	Devine T GOVERNMENT ACCOUNTABILITY PROJECT
To:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-82-206, FOIA-82-A-14 NUDOCS 8207050083
Download: ML20063D579 (1)

Text

• GOVERNMENT ACCOUNTABluTY PROJECT Institute for Policy Studies 1901 Que Street N.W., Woshington, D.C. 20009 (202)234 9382 July 9, 1982 ,

William J. Dircks APPEAL OF INITIAL FOIA DECISION Executive Director for Operations Nuclear Regulatory Commission N E @2vMjl Washington, D.C. 20555 y /g g_

Re: FOIA-82-206 To Whom It May Concern:

This letter is an appeal of certain documents withheld in part and one document withheld in whole pursuant to exemption ( 7) (A) of the Freedom of Information Act.

We believe that document 1 and portions of document 2 of Appendix B, withheld on the ground that disclos6re would interfere with ongoing enforcement proceedings, should be released at least insofar as portions of the documents do not refer, mention or name individuals or matters currently under investigation by the NRC Office of Investigation and Enforcement or the United States Attorney's Office.

We also believe that disclosure of the information withheld is in the public interest, and therefore search costs and copying fees should be waived.

Sincerely, M

omas Devine f(

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8207050083 l

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, ' . pcg fg UNITED STATES yg g NUCLEAR REGUL/ ~ORY COMMISSION

, q -l wa smucion, o. c. 20sss June 9, 1982 Docket No. 50-358 .

F Mr. Tom Devine Mr. Jay Rosenthal Government Accountability Project Institute for Policy Studies 1901 Que Street, N.W. IN RESPONSE REFER Washington, DC 20009 TO FOIA-82-206

Dear Messrs. Devine and Rosenthal:

This is in partial response to your letter dated April 20, 1982, in which you requested, pursuant to the Freedom of Information Act, documents concerning IE Report No. 50-358/81-13.

The documents listed on Appendix A have been placed in the NRC Public Document Room,1717 H Street,- N.W. , Washington, DC. You may obtain access to these documents by presenting a copy of this letter or by requesting folder F01A-82-206 in your name.

The documents listed on Appendix B are investigatory records compiled for law enforcement purposes. Document 1 and portions of document 2 of Appendix B are being withheld from public disclosure pursuant to exemption (7)(A) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(A)) and 10 CFR 9.5(a)(7)(i) of the Commission's regulations because disclosure of the information would interfere with an ongoing enforcement proceeding.

Portions of documents 3 through 9 and additional portions of document 2 are being withheld pursuant to exemption (7)(C) of the F0IA (5 U.S.C.

552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii) of the Commission's regulations because disclosure of the information would constitute an unwarranted l invasion of personal privacy. Portions of documents 10 through 14 and

! additional portions of documents 2, 3, 4, 5, 6, 8 and 9 are being withheld l pursuant to exemption (7)(D) of the FOIA (5 U.S.C. 552(b)(7)(D)) and 10 CFR 9.5(a)(7)(iv) of the Commission's regulations because disclosure of the information would reveal the identity of a confidential source. The non-exempt portions of documents 2 through 14 are being placed in the NRC PDR.

l Pursuant to 10 CFR 9.9 of the Commission's regulations, it has been l determined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest. The person responsible for the denial of document 7 of Appendix B is the undersigned. The persons responsible for the denial of documents 1 through 6 and 8 through 14 of Appendix B are the under-signed and Mr. James Keppler, Regional Administrator, Region III.

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1 Mr. Tom Devine Mr. Jay Rosenthal These denials may be appealed to the Commission's Executive Director for Operations within 30 days from the receipt of this letter. As provided ,

in 10 CFR 9.11, any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in thc letter that it is an " Appeal from an Initial FOIA Decision."

The search for and review of additional documents subject to your request has not yet been completed. As soon as the search and review are complete, we will advise you of our disclosure determination.

Sincerely,

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i 4. F lton, Director ivision of Rules and Records Office of Administration EnclostwAs stated l

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Re: F01A-82-206 Appendix A

1. 10/30/81 C. E. Norelius et. al. from James G. Kepp'ler re:

Zimmer - Reactor Construction Inspection Program ,

Evaluation

2. 1/12/81 Memo for Victor Stello, Jr. , from James G. Keppler.

re: Zimmer - Government Accountability Project Request for Investigation by Merit Systems Protection Board Concerning NRC's Handling of Applegate Allegations

3. 2/9/81 Memo for C. E. Norelius et. al. from A. Bert Davis re: Zimmer Investigation

4. 2/23/81 Memo for File from A. Bert Davis re: Telephone Call from Tom Applegate dated 2/19/81

5. 2/17/81 Memo for Paul Barrett et. al. from A. Bert Davis re:

Investigation at Zimmer Facility 6, 2/25/81 Memo for File from A. Bert Davis re: Telecon with Tom Applegate dated 2/23/81

7. 3/5/81 Memo for File from A. Bert Davis re: Telephone Converation '

with Ira Rosen, 60 Minutes

8. 3/9/81 Memo for R. F. Heishman from A. Bert Davis re: Comments

'on Applegate Allegation

9. 3/17/81 Memo for Victor Stello, Jr. , from James G. Keppler re:

Investigation of Applegate Allegations Related to Zimmer

10. 4/14/81 Note for'C. E. Norelius from James G. Keppler re: Recent Meeting with Cincinnati Gas & Electric Company - Performance of Paul Barrett

11. 4/22/81 Memo for Region III Files from G. Fiorelli re: Contact with the Division Administrator for Highways in the State of Ohio

12. 4/22/81 Memo for R. F. Warnick from F. Maura re: Results of Zimmer Investigations

13. 4/24/81 Note to A. B. Davis from R. F. Heishman re: Independent Verifications to Support Zimmer Investigation

14. 4/29/81 Memo for James H. Sniezek from James G. Keppler re:

Recommendation for Notification of Licensing Board -

William H. Zimmer Nuclear Power Plant

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• Re: F01A-82-206 Appendix A

15. 5/6/81 Meno for R. F. Heishman et. al. from James G. Keppler ,

re: Evaluation of Problems Identified, Zimmer Investigation

16. 5/12/81 Memo for R. F. Heishman et. al. from A. Bert Davis re:

Independent Verifications at Zimmer

17. 5/14/81 Memo for Zimmer File from A. Bert Davis re: Discussion with Tom Daniels, SRI, Zimmer

18. 5/28/81 Memo for R. F. Heishman et. al. from A. Bert Davis re:

j GAP Letter Requesting Work Stoppage at Zimmer

19. 6/12/81 Memo for R. C. DeYoung from James G. Keppler re: Status of Zimmer Investigation

20. 6/23/81 Memo for R. J. Strasma from A. Bert Davis re: Review of Zimmer Report

21. 7/6/81 Note to Bob from Pat Gwynn re: Allegations Concerning Traceability of Materials in the Diesel Generator Rooms at Zimmer NPS

22. 7/8/81 Memo for File from James G. Keppler re: Telephone Call from Thomas Applegate i

23. 7/14/81 Memo for J. G. Keppler et. al. from J. E. Foster re:

Status of Zimmer Investigation Report, Assignment of Tasks and Recommendations

24. 7/16/81 Memo for A. B. Davis from G. Fiorelli re: Review of Zimmer Inspection History

25. 7/24/81 Memo for C. E. Norelius et. al. from A. Bert Davis re:

Meeting to Discuss Zimmer Independent Verifications, 7/14/81

26. 7/28/81 Memo for Barrett et. al. from James E. Foster re:

Position on " Unapproved Vendors"

27. 8/18/81 Memo for Thomas Daniels from J. B. McCarten re: Copies of Nonconformance Reports

28. 8/20/81 Memo for James H. Sniezek from A. Bert Davis re: Limited Test Program at Zinmer

29. 8/21/81 Memo for James H. Sniczek from A. Bert Davis re: Limited i Test Program at Zimmer, Revision l

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Re: F01A-82-206 Appendix A

30. 8/28/81 Memo for P. A. Barrett et. al. from,A. Bert Davis re:

Extended Independent Verification Program at Zimmer '

31. 9/3/81 Memo for James G. Keppler from James E. Foster re: OIA Report " Adequacy of IE Investigation 50-358/80-09 at the William H. Zimmer Nuclear Power Station"

32. 9/4/81 Memo for R. F. Warnick from A. Bert Davis re: Zimmer Investigation, WELD CY-516

33. 9/8/81 Memo for James G. Keppler from G. A. Phillip re: Comments on 0IA Report on the Adequacy of IE Investigation Report No. 50-358/80-09 at the William H. Zimmer Nuclear Power Station

34. 9/10/81 Memo for Marthe H. Singh from James G. Keppler re: Zimmer Report

35. Undated Memo for Dudley Thompson from James G. Keppler re: Region III Review of OIA Special Inquiry Concerning Adequacy of IE Investigation 50-358/80-09 at William H. Zimmer Nuclear Power Station

36. 10/1 Routing and Transmittal Slip to Vic Stello from Bert Davis re: Sargent and Lundy Audit at Zimmer 37, 11/10/81 Memo for File from A. Bert Davis re: Zimmer Meeting with Danielson, Barrett, Streeter and Warnick

38. 12/11/81 Note for Victor Stello, Jr., from James G. Keppler re:

Briefing of Commissioner Gilinsky by Cincinnati Gas &

Electric Company Re Quality Assurance

39. 1/5/82 Memo for R. L. Spessard from James G. Keppler re: Zimmer -

Management Attitudes

40. 2/2/82 Memo for James B. McCarten from Robert F. Warnick re:

Zimmer Documents and Investigation Leads

41. 2/8/82 Memo for Reactor Projects Section 2B from D. H. Hunter re:

Inspection Procedure ?>rmbers for the Zimmer Project

42. 2/23/82 Memo for A. SchnahCen from Robert F. Warnick re: Forwarding of Zimmer Investigation Records

43. 2/25/82 Memo for Robert F. Warnick from J. B. McCarten re: Zimmer Document and Investigation Leads

7 Re: F0!A-82-206 Appendix A 44, 3/9/82 Memo for Region III Files from D. R. Hunter re: Zimmer ACRS Sub-Committee Meeting Held on 2/18/82 in Cincinnati, Ohio .

45. 3/15/82 Memo for Dave Gamble from Robert F. Warnick re: Records from 1981 Zimmer Investigation ,

46. 3/22/82 Memo for James J. Cummings from James G. Keppler re:

Coordination of Zimmer Report

47. 3/31/82 Memo for J. F. Streeter from D. R. Hunter re: Handling of NRs at Zimmer by the SRI /RI

48. 4/8/82 Memo for Dorwin R. Hunter from James E. Foster re: Material Procurement at the Zimmer Site

49. 1/22/82 Note to R. C. DeYoung from James G. Keppler re: Zimmer Briefing Paper

50. 10/27/81 Memo for E. B. Blackwood from James H. Sniezek re: Reactor Construction Inspection Program Evaluation

51. 11/9/81 Memo for J. G. Keppler from James H. Sniezek re: Reactor Construction Inspection Program Evaluation

52. 8/15/81 Draft Report re: William H. Zimmer Nuclear Power Station with comments by Barrett

53. 8/15/81 Draft Report re: William H. Zimmer Nuclear Power Station with comments by Foster l

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Re: F01A-82-206 A_ppendix B i

Memo to Region III Files from C. H. Weil re: Anonymous i

1. 9/14/81 '

Allegations Received by Region I concerning LACBWR (50-409); Perry (50-440; 50-441); Zimmer(50-358) '

w/ attachment

2. 4/30/81 Memo for J. Streeter from E. C. Gilbert re: Receipt of Additional Allegations Concerning the William H.

Zimmer Nuclear Power Station .

3. 9/ 8/81 Memo for J. B. McCarten from J. F. Streeter re: 1978 Electrical Allegations - Zimmer

4. 2 / 3/81 Memo for Files from G. A. Phillip re: Zimmer - Allegations Re: Lowering of Welding Requirements

5. 1 0/6/81 Memo for Files from J. F. Streeter re: Telephone Call with Tom Applegate

6. 1/16/81 Memo for Files from C. E. Norelius re: Allegation regarding the Zimmer Facility

7. 4/20/82 Note to W. Dircks from J. Keppler re: Transmittal of material to the Udall Committee

8. 11/23/81 Memo to J. G. Keppler from J. F. Streeter w/ attachment re: Investigator / Inspector Signatures on Final Zimmer Investigation Report 50-358/81-13 (Information deleted from Exhibits 1, 2, 3, 5, 6, 21, 22, 23, 25, 26, 32, 36, 37, 38, 39, 40, 41, 42, 44, 45)

9. Undated Exhibits 1 through 81 (Information deleted from exhibits 1, 35, 36, 38, 39, 54, 55, 56, 58, 60, 67, 71, 72, 73, 74, 75, 77, 79, 80. Exhibit 50 does not exist)

10. 4/2/82 Memo for R. F. Warnick from D. R. Hunter re: Allegations concerning Powell valves at the Zimmer Nuclear Plant

11. 11/10/81 Memo for R. F. Warnick from P. A. Barrett re: Allegations received 11/4/81, concerning activities at Zimmer

12. 8/4/81 Memo for J. F. Streeter, et. al. from J. E. Foster re:

Content of Zimmer Investigation Report

13. 5/21/81 Memo for Files from J. Streeter re: Allegations of Improper Welding Procedures, Voiding of NCR

14. Undated Computer printout regarding IE Report 50-358/81-13

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' GOVERNMENT ACCOUNTABluTY PROJECT Institute for Policy Studies 1901 Que Street. N.W., Washington. D.C. 20009 (202)234-9382  ;

April 20, 1982 F

. EREEDOM OF INFORMATICW Director . . . ACI REQUEST Office of Administration /

Nuclear Regulatory Commission washington, D.C. 20555

[OM-h O ff,'l f*N'lN To Whom It May Concern:

Pursuant to the Freedom of Information Act ("FOIA"), 5 USC H552, we request the investigative file, including all drafts, memoranda, statements, affidavits, computer printouts, notes, telephone logs, diaries, or any other information connected with NRC IE Report No.

50-358/81-13. The documents may be at Region III Nuclear Regulatory Commission ( "N RC " ) lleadquarters, the NRC Office of Inspector and Auditor ("OIA") headquarters, or retained in the personal or office files of IE and OIA investigators who worked on the Zimmer case.

Although the Zimmer investigation is ongoing , Report No. 80-358/81-13 is for all intents and purposes a finished agency product which .

should be open for public inspection, notwithstanding exemption #5 of the FOIA. A document that is pre-decisional at the time of prepar-ation may lose exempt status ~ if " adopted formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States v. Dept. of Energy 617 F. 2d. 854,866 (D.C. Cir. 1980). Report No. 80-f58/81-13 was used by l

the NRC as a basis for imposition of a $200,000 civil penalty against Cincinnati Gas & Electric ("CG&E"), as well as for'the agency's decision to delegate to CG&E the responsibility of conducting an in-house reinspection entitled "The Quality Confirmation Program."

If the NRC can use the report to make-this final agency policy commitment in its dealings with the public and the utility, then clearly the report must be post-decisional in nature.

On March 18, 1982, Mr. Bert Davis, Region III Deputy Director, told l me that priorities have yet to be established for Part II of the investigation. As a result, it is unfair to characterize the ongoing investigation as a mere continuation of work od the previous issues.

In order to comply with the provisions of the Privacy Act, we would consent to deleting the names of any parties whose names are mentioned in the appeals and whose right to privacy would be threatened through public disclosure.

We are requesting this information as part of a monitoring project on the adequacy of the Commission's efforts to protect puclic safety I

at nuclear power plants. As a result, we request that fees be waived because " furnishing the information can be considered as primarily benefitting the general public." SUSC 9 552 (a) (4) ( A) . .

Director, Of fice of Administration Nuclear Regulatory Commission April 20, 1982 Page TWo l 6

f.

1 For any documents or portions of documents that you deny due to -

a specific exemption, please provide any index itemizing The andshould index describ-ing documents or portions of documents withheld.

provide a detailed justification of your grounds for claiming such exemption, explaining why each exemption is relevant to the document or portion withheld. This index is required under Vaughn v. Rosen (I), 484 F.2d 820 '(D.C.Cir. 197 3) , cert. denied, 415 U.S. 977 (1974). ,

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We look forward to your reply within ten working days.

Sincer /,

Tom Devine Legal D*r

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Rosenthal Staff Associate TD/jr >

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