ML20080P116

Errata to 830930 Motion for Reconsideration.Certificate of Svc Encl

ML20080P116
Person / Time
Site:	Midland
Issue date:	10/03/1983
From:	GOVERNMENT ACCOUNTABILITY PROJECT
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080P095	List: ML20080P093 ML20080P116
References
NUDOCS 8310060291
Download: ML20080P116 (4)

Text

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4 And with respect to the second point which was central to the analysis in Consumers Union -- i.e. , that GAP's effectiveness will be substantially impaired by involuntary disclosures of confidential information -- there again can be no serious dispute. As the supple-mental affidavits of deponents Clark and Garde (which are attached hereto as Exhibits A and B, respectively) make plain, GAP has entered into a covenant of confidentiality with persons who have come to it with information concerning nuclear power plants, exactly because such persons simply will not come forward with their informa-tion absent a clearly articulated and enforceable policy of confiden-tiality of GAP's part.

Moreover, in this case the GAP deponents can demonstrate an actual risk of harm to their witnesses ac opposed to theoretical harm. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 17 NRC (slip op, at 10) (July 27, 1983). In a prior instance Mr. Brunner, Consumers' counsel, promised that a GAP witness' identity would be maintained within a small control group of two or three persons. Yet it was clear to the witness that this promise was not kept and his identity released to other workers.

See Garde Affidavit at 2-4. In addition, Consumers insisted that MPQAD will handle workers ' allegations in confidence. Yet when GAP informed Consumers in June 1982, that many workers distrusted the company's internal complaint process Consumers never bothered to answer GAP and the workers' concerns. See Clark Affidavit at 2-4.

Instead Consumers came to the Licensing Board to ask for subpoenas of GAP staff members. Moreove r, practically all the workers who came to GAP did so because they feared retaliation from Consumers or did so'only after they had already been retaliated against by the 8310060291 831003 PDR ADOCK 05000329 C PDR

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undermine GAP's organizational effectiveness, and would intrude into the special and confidential relationship that exists between GAP and those who come to it with information which they wish to put into the public domain. See, e.g., Richards of Rockford, Inc. v.

Pacific Gas & Electric Co., 71 F.R.D. 388, 390 (N.D. Cal. 1976)

(discussing the public interest in protecting the confidential relationships which are essential for scholars and others whose

" work . . . has the unique potential to f acilitate change through knowledge"). See also, e.g., Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963).

In short, Consumers has shown no particularized need for this discovery, while GAP has demonstrated a compelling interest in main-taining the confidentiality of its records, operations, and communica-tions. Clearly, the subpoenas at issue should be quashed under the rationale of In re Consumers Union of the United States, Inc., supra.

Respectfully submitted, N- W hb&'

t JOHN W. KARR l 625 Washington Building Washington, D.C. 20005 l

l (footnote continued)

Morella, which occurred on July 19, 1983, af ter the oral argument on deponents' motion to quash subpoenas (attached hereto as Exhibit C) .

Over one-fourth of the deposition (41 of 151 pages) was concerned not with an ef fort to learn the substance of Ms. Morella's allegations I

l of unsafe practices but rather with Consumer's efforts to discredit Ms. Morella because she sought assistance from GAP.

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i company. See Clark Affidavit at 4; Garde Af fidavit at 4-7. Thus the applicant has its own internal complaint process to discover construction and quality assurance deficiencies which workers have disclosed to GAP. It is by Consumers' own retaliatory actions that this process has been discredited as a viable means to uncover safety problems at Midland.

Under the circumstances, the Board simply cannot avoid resolving GAP's claim of privilege. Furthermore, because GAP's privilege is of constitutional dimension, the Board must balance Consumer's need for the information sought through its subpoenas against the interests underlying the privilege. See, e.g., United States v. Cuthbertson 1(Appeal of CBS), 630 F.2d 139 3d (1980). That balance, we submit, is overwhelmingly in favor of preserving GAP's confidentiality.

On the one hand, Consumers is simply attempting to discover the substance of an NRC investigation into allegations of construction deficiencies at the Midland Plant while the investigation remains on-going. According to NRC practice and procedure, discovery of this sort would not be permitted against the NRC staff until the conclusion of the investigation; consequently, by pursuing discovery against GAP while the NRC investigation is pending, Consumers is merely attempting to circumvent normal NRC procedures. Consumers will not be prejudiced. in any way by adhering to the course normally followed in NRC proceedings.

i On the other hand,- the injury resulting from forced disclosure of the information sought by Consumers from GAP would substantially

( CERTIFICATE OF SERVICE 1 hereb certify that copies of the foregoing were mailed this O _. day of.[)rMg). _ _1983, to the following persons:

Frank J. Kelley, tsq. Atomic Safety & Licensing Appeal Panel Attorney General of the U. S. Nuclear Regulatory Comm.

State of Michigan Wa shington, D.C. 20555 Carole Steinberg, Esq.

Assistant' Attorney General Mr. Scott W. Stucky Environmental Protection Div. Chief, Docketing & Services 720 Law Building U. S. Nuclear Regulatory Comm.

Lansing, Michigan 48913 Office of the Secretary Wa shington, D.C. 20555 Cherry & Flynn Suite 3700 Ms. Mary Sinclair 3 First National Plaza 5711 Summerset Street Chicago, Illinois 60602 Midland, Michigan 48640 Mr. Wendell H. Marshall William D. Paton, Esq.

4625 S. Saginaw Road Counsel for the NRC Staff Midland, Michigan 48640 U. S. Nuclear Regulatory Comm.

Wa shington, D. C. 20555 Charles Bechhoefer, Esq.

Atomic Safety & Licensing Atomic Safety & Licensing Boarx! Panel Board Panel , U. S. Nuclear Regulatory Comm.

U. S. Nuclear Regulatory Comm. Washington, D. C. 20555 Wa shington, D . C. 20555 Jerry Harbour Dr. Frederick P. Cowan Atomic Safety & Licensing Board Panel 6152 N. Verde Trail U. S. Nuclear Regulatory Comm.

Apt. B-125 Wa shington, D.C. 20555 Boca Raton, Florida 33433 Lee L. Bishop

~ James E. Brunner, Esq. Harmon & Weiss Consumers Power Company 17251 Street, N. W. #506 212 West Michigan Avenue Wa shington, D.C. 20006 Jackson, Michigan 49201 Ms. Lynn Bernabei Mr. D. F. Judd Government Accountability Project of Babcock & Wilcox the Institute for Policy Studies P. O. Box 1260 1901 Q Street, N. W.

Lynchburg, Virginia 24505 Wa shington, D.C. 20009 Barbara Stamiris David Stahl 5795 North River Road Route 3 Susan D. Proctor Freeland, Michigan 48623 Isham, Lincoln & Beale

= * " " Three First National Plaza Steve Gadler Chicago, Illinois 60602 7[,9,1'~ 2120 Carter Avenue St. Paul, Minnesota 55108

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hn W. Karr