ML20045G969

PG&E Response to Licensing Board Questions Re INPO Documents.*

ML20045G969
Person / Time
Site:	Diablo Canyon
Issue date:	07/02/1993
From:	Repka D PACIFIC GAS & ELECTRIC CO., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20045G970	List: ML20045G969 ML20045G981
References
CON-#393-14086 OLA-2, NUDOCS 9307160200
Download: ML20045G969 (14)

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of: )

) Docket Nos. 50-275-OLA_ d.

Pacific Gas and Electric Company ) 50-323-OLA

) (Construction Period (Diablo Canyon Nuclear Power ) Recovery)

Plant, Units 1 and 2) )

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l PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO LICENSING BOARD i OUESTIONS RE: INPO DOCUMENTS i l

l I. INTRODUCTION In its Prehearing Conference Order (Late-Filed Contentions and Discovery), dated June 17, 1993 (" Order"), the Atomic Safety and Licensing Board (" Licensing Board") invited the parties to this proceeding to file additional information related l to the discovery of certain documents prepared by the Institute for Nuclear Power Operations ("INPO"). Order at 34. First, the Licensing Board invited the parties to submit, by affidavit, information of the type contemplated by 10 C.F.R.

SS 2.790(b) (4)-(6) , addressing the confidentiality of INPO documents. Second, the Licensing Board invited legal briefs "to discuss whether the provisions of 10 C.F.R. S 2.790(b) (6) require us to order release of the information subject to a protective order." Id. Pacific Gas and Electric Company ("PG&E") herein responds to both invitations.

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II. BACKGROUND The discovery dispute here at issue derives from Request 1

13 of the San Luis Obispo Mothers for Peace ("MFP") second set of interrogatories and requests for documents in this proceeding.I' MFP requested evaluations by INPO of the maintenance and surveillance program at the Diablo Canyon Nuclear Power Plant

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("DCPP"). PG&E objected to this discovery on the basis that INPO j evaluations are confidential, privileged, and subject to non-  !

disclosure for the policy reasons recognized in Critical Mass Enerav Proiect v. Nuclear Reaulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992), cert. denied., 61 U.S. Law Week 3647 (March 22, 1993) (" Critical Mass").2/ PG&E also pointed out at the Prehearing Conference that, in the face of this privilege and confidentiality, MFP has shown no need for the documents. Tr. 511; SS_q also Order at 33.

III. D_ISCUSSION INPO is a voluntary organization of nuclear licensees  ;

I whose goal is to promote excellence in nuclear plant operations.

Toward this end, periodic INPO evaluations are made of nuclear plants to measure performance against standards of excellence, l' "Intervenor San Luis Obispo Mothers for Peace Second Set of Written Interrogatories and Requests for Production of Documents to Pacific Gas and Electric Company," dated March 8, 1993."

2' " Pacific Gas and Electric Company's Response to Second Set of Written Interrogatories and Requests for the Production of Documents Filed by San Luis Obispo Mothers for Peace," dated April 12, 1993, at 14.

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beyond mere compliance with regulatory standards. Frank and candid exchanges of information are essential to the continued success of INPO. The attached Affidavit of John D. Townsend describes the INPO document responsive to Request 13 and here at issue, explains that INPO evaluations are held in confidence by INPO and nuclear licensees (and by the NRC when provided to the NRC), and demonstrates that disclosure to MFP or any other party in litigation would undermine the policy favoring non-disclosure of these important industry self-assessments. Also attached is a letter from Angelina S. Howard of INPO, explaining that INPO strongly disfavors any public disclosure of INPO assessments --

whether under the Freedom of Information Act ("FOIA") or through discovery in litigation. These attachments satisfy the requirements of 10 C.F.R. SS 2.790(b) (4)-(5) .

Section 2.790, a regulation which incorporates the provisions of FOIA into NRC's adjudicatory procedures, generally governs the " release" to the public by the NRC (and its licensing boards) of of ficial NRC " records and documents," i.e. , documents in the possession or under the control of the NRC (see 10 C.F.R.

S 2.4). As explained by Mr. Townsend in his Affidavit, the INPO document here at issue is not an NRC record. PG&E did not file the document with NRC and the NRC does not have a copy of the document within its possession or control. The issue in the present circumstances, therefore, is not one of " release" of a document to the public under FOIA, but one of whether the privately-held i

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document is discoverable by a party in an NRC adjudicatory proceeding. By analogy to the FOIA circumstances, Section 2.790(b) requires an assessment of whether the interest in " release" of the document outweighs the interest in non-disclosure.

Critical Mass was a FOIA case, important here because it recognized the strong public policy favoring the confidentiality of INPO evaluations. However, over and above this Commission-endorsed l public policy, protection of INPO documents in litigation derives auditionally from the common law privilege extended in litigation to self-critical internal reviews and evaluations. Sea Grancer v.

National R.R. Passencer Coro. ,116 F.R.D. 507 (E.D. Pa. 1987). The

.Grancer case recognized the privilege under circumstances similar to those at hand; that is, it involved a request in litigation for an internal company investigation. The Grancer court stated that the self-critical analysis privilege is based upon "the need to promote candid and forthright self-evaluation," and concluded that I "one of the [ primary] purposes of the doctrine is to prevent a

' chilling' ef fect on self-analysis and self-evaluation prepared for the purpose of protecting the public by instituting practices assuring safer operations." 116 F.R.D. at 509. See also Bredice

v. Doctors Hosoital. Inc. , 50 F.R.D. 249 (1970), aff. 479 F.2d 920 (1973); Webb v. Westinchouse Elec. Coro., 81 F.R.D. 431 (E.D. Pa.

1978); In re Crazy Eddie Securities Litication, 792 F.Supp. 197, 205-6 (E.D.N.Y. 1992); Wylie v. Mills, 478 A.2d 1273 (N.J. Super. L. 1984).

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Turning now directly to the Licensing Board's question, j in this context Section 2.790 (b) (6) does not recuire release of 4

confidential documents to a member of the public or to a party to i

a proceeding under a protective order or subject to a non-disclosure agreement. Rather, the Licensing Board must determine whether a protective order, or non-disclosure agreement, would adequately protect the privileged information, particularly in light of the requesting party's alleged need for the information.2/

The Licensing Board in this case has already recognized in its Order that MFP "was not able to demonstrate any particular need for the document beyond that set forth in its motion, other than curiosity (Tr. 511)." Order at 33. Where there is no demonstrated need for the information, as is the case here, the Licensing Board should not even reach the issue of whether a protective order is necessary or appropriate. The request for INPO documents should be denied outright based on the lack of a threshold showing of need.d' l' In the context of the self-critical privilege and in determining whether to allow disclosure, courts conduct a balancing test between the public interest protected by the privilege and the plaintiff's need for the material. Dowlina

v. American Hawaii Cruises. Inc., 133 F.R.D. 150 (D. Haw.

1990) (injured plaintiff's need to obtain minutes of employees' safety meetings does not outweigh public interest in such meetings); Crazy Eddie Securities, 792 F. Supp. 197 (plaintiffs failed to demonstrate need for discovery of accounting firm's internal review of audit).

$' ComDare Consumers Power Co. (Midland Plant, Units 1 and 2),  !

LBP-83-53, 18 NRC 282, 288 (1983), reconsideration denied, l LBP-83-64, 18 NRC 7 66, 768-69 (1983), aff'd, ALAB-764, 19 NRC l 633, 641 (1984). The licensing board in Midland assumed that  ;

a qualified First Amendment common law " privilege of the 1 press" existed and proceeded to the balancing test, clearly I demonstrating that release under a protective order is not (continued...)

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In the present case a protective order limiting access to

) the requested INPO documents to MFP and its consultants also would 1

j not adequately protect the confidentiality of the documents or the policy rationale behind that confidentiality. The Court of Appeals j in Critical Mass recognized that compilation of INPO reports

" requires the solicitation of candid comments and evaluations . . . .

" 975 F.2d at 874. Confidentiality preserves the ability to conduct these important . self-assessments. The l policy favoring non-disclosure of these assessments is even i

j stronger in a litigation context, as in the present case, than it would be in a FOIA context, as in Critical Mass.

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First, MFP seeks to obtain these critical self-evaluations presumably for the precise purpose of challenging the

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j efficacy of the DCPP maintenance program. Revealing such' material for adverse use in litigation would certainly have a chilling l

effect on the candor and utility of future assessments. Second, i

j the documents at issue in Critical Mass were. generic in nature, not l

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} plant-specific. That is, they involved assessment criteria and the i

j like. The one document responsive to Request 13 and at issue here

! is a plant-specific evaluation, raising even stronger public policy l

l F(... continued) l recuired per se by Section 2.790(b) (6) . The licensing board i there concluded that there was a lack of a demonstration of-harm that would result from revealing the requested i information under a protective order. The present case j involves the inverse: while harm clearly exists from release

even with a protective order, there is no demonstrated need

i. for the documents. The' balance, therefore, in the present i case must lead to a different result.

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• l arguments for non-disclosure than cited by the NRC in Critical l

1 Mass.

1 i i j The importance of the confidentiality of INPO documents j was also recognized expressly by the Commission in its Memorandum

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{ of Agreement with INPO. Under the NRC-INPO Agreement, the NRC l a

I controls distribution of INPO documents and information that it has i

i received from INPO or licensees. Agreement at 2-3. It appears l

l that requiring PG&E to provide INPO documents to MFP would be i

j contrary to the Agreement, as well as contrary to the Commission l 9

policies sustained in the Critical Mags litigation. Therefore, PG&E believes no such action should be taken absent' Commission l i

, concurrence. PG&E respectfully requests that, should the Licensing

! Board determine that MFP's need for the documents outweighs the i

NRC's policy favoring non-disclosure, the Licensing Board certify j the question of release of these documents to the Commission '

i 1 pursuant to 10 C.F.R. S 2.718(i).I' l Finally, PG&E has already made available to MFP a 5

substantial number of documents related to maintenance and i

surveillance at DCPP, including procedures, internal audits, non-

! conformance reports, deviations, and the like. MFP also has access i

! to public documents such as NRC inspection reports and SALP 1 i 1 l' Similarly, the Licensing Board should stay, and refer to the j j Commission (pursuant to 10 C.F.R. S 2.730(f)), any ruling <

i ordering release of these documents (under protective order or i j otherwise).

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reports. MFP has ample information and data upon which to base its I own opinions of the DCPP maintenance program. In this light, there is no need to breach the well-recognized, and very important, confidentiality routinely attached to INPO documents.

IV. CONCLUSION Information on the confidentiality of INPO evaluations is provided in the attachments hereto. Moreover, for the reasons l l

explained above, Section 2.790(b) (6) does not require or permit release of these documents to MFP under a protective order or l otherwise.

Respectfully submitted,

.L L. Qb \

Joseph B. Knotts, Jr!

David A. Repka WINSTON & STRAWN 1400 L Street, N.W.

Washington, D.C. 20005 (202) 371-5726 Christopher J. Warner Richard F. Locke PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street San Francisco, CA 94106 Attorneys for Pacific Gas and Electric Company Dated in Washington, D.C.

this 2nd day of July, 1993 l

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ATTACHMENT A i

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