ML20081E948
| ML20081E948 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/25/1983 |
| From: | Karr J GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| 78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8311020301 | |
| Download: ML20081E948 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .C 'E ~
ATOMIC SAF ETY AND LICENSING APPEAL BOAU' 00i 31 P Vii.;_. ...
) v00re i a 2, ,1.. ,. ,
, In the Matter of ) M
)
CONSUMERS POWER COM PA NY ASLBP Nos. S OL (Midland Plant, Units 1 and 2)
Docket Nos. 50-329 OL l g .
) 50-330 OL ;
Docket Nos. 50-329 OM j 50-330 OM l' MEMORANDUM IN SUPPORT OF APPEAL OF GOVERNMENT ACCOUNTABILITY PR OJECT
, DEPONENTS
'i I. Background i
Appellants Louis Clark, Thomas Devine, Billie Pirner Garde and Lucy
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Hallberg are all employed by the Government Accountability Project (hereafter," GAP"
, or "Proj ect") of the Instit u te for Policy Studies, a private, non-profit organization '
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.'l located in Washington, D. C. Mr. Clark is G AP's Executive Director; Mr. Devine is
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'ithe Project's Legal Director; Ms. Garde is Director of GAP's Citizens Clinic for h
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!{ Government Accountability (he reafter, "Citi z ens Clinic"); and Ms.11allberg is G A P's I
repre sentative in the State of Michigan.I/
Among et her activities, G AP offers assistanc e to public and private employees, private citi ze ns and community-oriented groups who pursue illegal,
- wasteful, improper or negligent actions by government or corporat e bodies.2/ In June, e'
'!1980, G AP was approached by a whistleblower who had been dismissed from his employ-ment at the Zimmer nuclea r power plant in Moscow, Ohio.3_/ As a consequence of the R&34 e LVONS WM.tW174M. D.C. 0006
< =>i ;L..a - See paras. I and 2, Affidavit of Louis Clark , which was attached as Exhibi t A to the motion to quash subpoenas filed by appellants with the Atomic Safety and Licensing Board on June 27, 1983.
r311020301 831025 PDR ADOCK 05000329
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9' Project's ensuing success in assisting this whistleblower and ot hers in expo sing serious safety problems at the Zimmer plant,5! GAP be gan to receive requests for assistance with nuclear pow er safety problems from many other citizens groups and whistleblowers. 5/ Among th o se citizens organizations were groups lccated in Midland, Michigan , who had been contacted by a number of whistleblowers at the Midland nuclear power plant operated by Consuncrs Power Co. (hereafter, " Consumers").5
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il The Midland citize.ns group s did not know how to assist the whistle-blowers; consequently, they sought advice from G AP's Citizens Clinic.7/- G AP asked
, the citizens organization s to provide the Project with as much information as possible d l
' about alleged safety problems at the Midland plant, and after it beccme convinced that :
the problems were serious , GAP agreed to assist the whistleblowers who had con-tacted the Midland citizens groups about plant safety problems. 8/ Thereafter, G AP submitted six affidavits to the Nuclear Regulatory Commission (hereafter, "NRC" or
" Commission") pre pared by persons who believe that there are major safety problems
- at the Midland plant. -9/ h'ith only one exception, all of the Midland affiants requested
- that theirinformation be supplied to the NRC on a confidential basis.10/ Accordingly, h G AP sought and ob tai n ed a guarantee from the Commission that the agency would pro- 5 U i l1
- tect the anonymity of t hese affiants.11/
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- l On August 8,1982, Consumers requested the Atomic Safety and Licens-ing Board (hereafter, " Licensing Board") to issue subpoenas to G AP representatives.
Consumers chose not to pursue these subpoenas in Augus:,1982, even though it t./ j
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97 19./Id _I d_..12.
. , para ll_/.Id. , para . 8 and Attachme nt 1.
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claimed the testimcny and documents it sou ght were relevant to quality assurance and quality control questions to be the subject of the OM hearings, then scheduled for !
October ,1982. liowever, in April,1983, near the end cf the OM hearings, in which most of the testimony on quality control and quality assurance issues was presented, Consumers decided to serve the subpoenas and puraie depositions of G AP represen-q tatives. 3 j On June 27,1983,.the G AP rep resentatives moved the Licensing Board to quash the subpoenas. The GAP employees contended that the subpoenas .
' ' were violative of the First Amendment to the Constitution of the United States 12 /
4 i and of common law principles of privilege,13/ and that the NRC was estopped from i ,
14 /
issuing sub poenas in violation of its promise of confidentiality.- After oral i
argument on the motion on July 26, 1983, the Licensing Board issued a memorandum and order on August 31, 1983, which denied the motion to quash but sua sponte imposed
' I a protective order limiting dissemination of certain information obtained through discovery to Consumers' attorne ys. l The GAP deponents subsequently moved the Licensing Board to re- l
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- , consider its August 31 order, and'at the same time moved the Atomic Safety and {
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i Licensing Appeal Board for an order staying the depositions. The Appeal Board i
l denied the request for a stay on October 4,1983, and on October 6,1983, the Appeal !
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Board issued a memorandum which explained the basis of its October 4 order.15/
-12 / Motion to Quash Subpoenas, pp. 4-8.
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M. , pp. 9-10.
b g.,p.11.
==aauou b! According to the October 6 memorandum at pp. 2-3, appellants'
" "",'",'$,.",','l " " motion for a stay "affirmat i v cly mi sled [the Appeal Board] into believing [ appellants]
had already sou ght and been denied a stay by the Licensing Board. . . ." Appellants (footnote continued on p. 4) i L kk i
o
_4-On the same day, the Licensing Board issued a memorandum and order denying the motion for reconsideration.
This appeal follow ed.16/
- 11. GAP Has A First Amendment Privilege To Protect its Information-Gathering Processes From Disclosure In Pro-yeding s To Which it Is Not A Farty.
g The primary basis on which G AP seeks to quash Consumers' subpoenas against it is its First Amendment right freely to collect informatior from confidential sou rces about the safety problems at the Midland nuclear plants. G AP, after gather-1 ing aftidavits from confidential sources, passes this information to the Nuclear i
(continued from p. 3) respond that if any confusion surrounded the question whether the motion for a stay ;
of depositions was ripe for consideration by the Appeal Board as of the date of its filing, the confusion was not cau sed by any " affirmatively misleading" representations t o the Appeal Board by appellants, but rather was directly and solely attributable to the Licensing Board's unam biguous statement at p. 2 of its order of September 26, 1983, that "we wish to make it clear that we are not staying our order of August 31, 1983." Appellants thought, reasonably enough, that the Licensing Board had thereby ,
indeed made it crystal clea r that the Licensing Board would not stay the depositions pend-ing appellants' efforts to obtain further review of the legality vel non of the subpoenas. !
- Appellants therefore concluded that an application to this Board for a stay was ripe Li as of September 26. Appellant s, of course, do not qua rrel with the Appeal Board 's i []
p] observation at p. 3 of its October 6 memorandum that " misleading sta j for thei r part are constrained to say that the integrit y of the hearing process is like- )
,j wise compromised when an administrative tribunal is too quick to infer bad faith motives on the part of litigants and their cou nsel.
I5! A nonparty is entit le d to take a direct appeal from an ord er of a Licensing Board granting discovery against it since such a ruling has all the attributes i
of finality insofar as that non party is concerned, in the Matter of Pacific Gas and I i Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683 (1979);
l In the Matter of Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-1 116, 6 AEC 258 (1973); in the Matter of Consumers Powe r Company (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322 (1973). The G AP depon ents are not, of course ,
parties to the eu rrent soils settlement and licensing hearings ongoing before the Licensing Board.
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9 Regulat cry Commission Staff so that an appropriate investigation may be cond ucted of these sources' allegations. In almos t all cases the sources are former or current Consumers' or Bech tel Power Company employees who give this information to GAP only under strict guarantees of confidentiality. In some cases the sources have already suffered retaliation for their outspokene ss about safety problems at the plants. 17 / Moreover, the NRC has given written promises of confidentiality to these ;
I d individuals in order to obtain their affidavits fro.n G AP.18 / l The growing line of cases which protects journalists and news editors 1
in thei r newsgathering and editorial functions clearly prot ects GAP's information-gathering which serves the public interest.19/ -
Journalists, scholars and other information-gathering organizations I
have a qualified privilege not to di sclose news sources and other work materials I
unless disclosure is essential to protect the public interest in the orderly administra-tion of justice and t he information whose disclosures is sought is at the heart of the moving party's case. Baker v. F& F Investment, 470 F. 2d 776 (2nd Cir.1972);
cert. denied, 411 U .' S. 966 (1973) (journalist would not be comp elled to disclose h '
1 confidential sources in case of alleged racial discrimination in sale of houses where h party had nct shown information relevant or critical to their civil rights action);
N E ee S Affidavit of Billie Pirner Garde, attached as E xhibit B to the motion for reconsideration of the August 31, 1983, order of the Licensing Board.
-IS/
See para.12 and Attach ment I to Affidavit of Louis Clark, supra n.l.
U The NRC suspended safety-related construction at the Zimmer nuclear power plant in November,1982, largely in response to G AP's petition to su spend const ruction, which wa s supported by affidavits and documentary evidence l too voluminous to describe . See Cincinnati Gas and Electric Co. (William H. Zimmer Nuclea r Power Station, Unit No.1), CL1-62 33,16 NRC (Nov. 12, 1982).
== Similarly, at Midland, G AP affidavits and documentary evidence has
~],Q*;*;' " led the NRC Staff to open both Region 111 and Office of Investigation investigations of alleged construc tion and quali t y assurance problems at the Midland site. No party can deny that G AP's information ga thering serves the public interest.
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v Silkwood v. Kerr-McGee Corp. , 563 F. 2d 433 (10th Cir.1977)(trial court must weigh wehther the party seeking information has made independent attempt to obtain information elsewhere, information goes to the heart of the matter, the information is relevant and the type of con troversy); Gilbert v. Allied Chemical Ccrp. , t.ll F.
Supp. 505 (D. Va.1976); United States v. C_uthbertson, 630 F. 2d 130 (3rd Cir.
p 1980)(CBS was not compelled to produce transcripts and audiotapes related to
[;; "60 Minutes" program s where defendant failed to prove that only practical access to information was through media source): Maughan v. NL Industries, 524 F. Supp.
i 93 (D.D.C.1981); Solargen Electric Motor v. American Motors Corp. , 506 F.
t! I I
d Supp. 546 (N.D.N.Y.1981)(motion to quash subpoenas of television reporters I granted insofar as plaintiffs failed to explore alternative sources of obtaining information).
i! This qualified First Amendment privilege clearly protects more than shnply the identity of confidential sou rc e s . It protects all materials whichthe news u or public interest organizaticr.s gather in performing their public service. Thus, h
in United States v. Cuthbertson , supra, the court stated that the privilege prohibits I
ii the compelled production of unpublished materials in CBS' pos session since such h
I' disclosure would " constitute a significant intrusion into the newsgathering and editorial il
[ processes." 630 F. 2d at 147 See also Herbert,v. Lando, 441 U . S .153 (1979)
F
~! (recognizing an editorial privilege); Richards of Rockford. Inc. v. Pacific Gas &
Electric Co. , 71 F.R.D. 3SS (N.D. Calif.1976); In re Popkin, 460 F. 2d 326 (1st Cir.1972), cert. denied, 411 U . S. 909 (1973); and in re Falk, 332 F. Supp. 938 i ll I
(D. Mass.1971), in which cou rts recognize a " scholar's privilege" or a free f
speech, First Ame ndment interest in maintaining the free flow of information to scholarly researcher s from confidential sources.
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- m. . g .. = In fact, GAP's sources and materials need not even be confidential to claim this First Amendm ent privilege . See Altemose Construction Co. v.
Building an d Constructiot. Trades Council, 4 '3 F. Supp. 489 (D. Pa.1977)
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(motion to quash granted even thou gh confidentiality had potentially been waived by disclosure of affidavits to third parties and by numerous references to these affidavits in course of broadca st by reporte r and affiant); Loadholtz v. Fields, 3S9 F. Supp.
1299 (M.D. Fla.1975). The Appeal Board's focus must be on whether the compell-ed production of the appellanis' testimony and investigative materials would intrude on GAP's protected inf ormation-gathering activities and the flow of information to p the NRC on safety problems at the,Mldland site, if so, this Board must then consider (1) that G AP is not a party to these proceedings; (2) the information sought does not go to the heart of Consumer's case; (3) that Cons umers has made no effort to obtain this information from other sou rces; and (4) that even if G AP were to be found to bc ,
the only practical source of inform ation , G AP's interest and the public's interest in i
protecting the flow of information about safety problems to CAP and to the NRC t outweighs Consumers' interest in obtaining information relevant to issues in the licensing hearings. Bake r v. F & F Investment, su pra; Richards of Rockford v.
Pacific Gas & Electric Co., supra . 71 F.R.D. at 390.
j In in re Appli ca tion of Cons umers' Union, 32 F.R. Serv. 2d 1373, H
H 1374 (S.D.N.Y.1981),the cou rt found this balance vas in Consume r's Union ("CU") ;
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< favor since the pu blic int c rest lay in CU's unfettered factfinding and publication of a ;
h; magazine providing a forum for " impartial discussion of safety, fitness reliability of products offered to the consuming public." See also, Apicella v.
M cNeil Laboratories. Inc. , 66 F.R.D. 78 (E.D.N.Y.1975).In this case as in in re Consumers' Union, supra, this Board's balancing of t hese factors must lead to a
- decision to quash the G AP sub poenas. ;
To be gin with, it is beyond serious dispute that G AP's effectiveness j will be substantially impaired by involuntary disclosure s of confidential information.
As is made plain by the supplem ental affidavits of deponents Clark and Garde, which
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_e-were attached as Exhibits A and B, respectively, to the motion for reconsideration filed with the Licensing Board, G AP has entered into a covenant of confidentiality with persons who have come to it with inform ation concerning nu' lear power plants, exactly becau se such per sons simply will not come forward with their information absent a clearly articulated and enforceable policy of confidentiality on GAP's part.
The injury resulting from forced disclosure of the information sought by Consumers ii i
from G AP would substantially undermi ne G A P's organizational effectiveness, and would intrude into the sp ecial and confidential relations hip that exists between GAPand those who com e to it with information which they wish to put into the public
- domain. Compare Machin v. Zuckert, 316 F. Gd 33o (D. C. Cir.1963).
By centrast, Con sumers has made no showi ng at all of any particularized need to depose and subpoena documents from G AP representatives at this juncture of the proc eeding s. In trut h, Consumers is simply attempting to discover the substance of an NRC investigation into allegations of construction deficiencies at t h e Midlan i Plant while the investigation remai ns ongoing. Accord-l ing to NRC practice and procedure, discovery of this sort would not be permitted
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[ against thc NRC staff until the conclusion of the investigation; consequently, by l^ l
{t pursuing discovery against GAP while the NRC investigation is pending, Consumers !
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is merely attempting to circumvent normal NRC procedures. Consumers will not l be prejudiced in any way by adhering to the course normally followed in NRC proceedings.
In short, Consumers has shown no particularized need for this
' discovery, while GAP has demonstrated a compelling interest in maintaining the confidentiality of its records, operations , and communications. Clearly, the subpoenas at issue must be quashed under the Firs t Amendment principles discussed above.
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111. The Subpoenas Are In s' Violation Of The Common Law Of Privilege.
Furthe rmore, quite independ ently of appellant s' c onstitutional claim, Consumers' subpoenas must be quashed as a matter cf common law.
There are four conditions necessary to the recognitien of an evidentiary privilege at common law: (1) the communications must originate in a confidence that they will not be disclosed;(2) the element of confidentiality must oc essential to the full !
and satisfactory mai ntenanc e of the relationship betwe en the parties; (3) the relation-ship must be one in which the cmnion ci the community ought to be sedulcusly foster-i o
ed; and (l.) the injury that would inure to the relationship by the disclosure of the ccmm unication must be greater than the benefit thereby gained for the correct dis-spo sal of litigation . 8 WlGMORE, EVIDENCE Sec. 2285. In the present proceed-ing, all four factors strongly mihtate in favor of recognition of a privilege.
First, the communications frem the Midland whistleblower; to G A P and thence to the NRC indisputably originated in the confidence that they would not
, i, be disclosed.20/
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i Second, without such an assurance of confidentiality, the Midland
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j whistleblowers would not have executed affidavits for submission l the elem ent of confidentiality is essential to the relationship between G AP and the whistleblowers, and to the full and free flow of informa tien to the NRC and to the public.
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- 0/- Affidavit of Louis Clark, supra n.1, paras. 8,12 and Attachment 1.
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l 91/Id . ,' pa ra s . 8, 9 and 12.
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Third, the public interest clearly favors encouragement of rela: ion-ships between whistleblowers, who may have knowledge of unsafe conditions in nuclear power plants, and GAP, which has the resources and expertise essential for effective ,
transmission of whistleblowers' information to the NRC and to the public.
Fourth, compelled disclosure of the communications between the whistle-blowers and G AP would not only destroy the relationship between G AP and these .
I !,
i pa rticular whistleblowers, it would also make it impossible for G AP to establish such relationships with future whistleblowers;22/ by contrast, Consumers has made s
no particularized showing of need for the infermation.
Clearly, then, all of the elements traditionally implicated in the recognition of common law evident iary privileges point toward recog nition of a !
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- privilege on the present facts. For that reason alone, Consumers' subpoenas should
.; i l quashed. -
)
IV. Conclu sion )
j For all of the foregoing r.casons, the orders of thclicensingBoard i n
'appealai from herein should be vacated, and the matter remanded to the Licensing Board with directions to enter an order to quash Consumers' subpoenas to GAP representa-I tives.
Respectfully submitted, l l
i i
Ichn W. fMrr hfL l/
j 525 Washington Building Washington, D.C. 20005
- Attorn ey for Appellants l
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W.E T CERTIFICATE OF SERVICE
.1 I hereby certify that copies of the foregoing ge gig tY2:45 >
day of ,1983, to the following persons: -
~
CFie t - . . . . .
00Cdii..'J& lei,a P Frank J . Kelley, Esq. Atomic Safety & LicensingEAppdal Panel jj 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 l Environmental Protection Div. Chief, Docketing & Services U. S. Nuclear Regulatory Comm. !
720 Law Building .
Lansing, Michigan 48913 Office of the Secretary Wa shington, D.C. 20555 Suite 3700 Ms. Mary Sinclair '
3 First National Plaza 5711 Summerset Street Chicago, Illinois 60602 Midland, Michigan 48640 William D. Paton, Esq. !
Mr. Wendell H. Marshall 4625 S. Saginaw Road Counsel for the NRC Staff f Midland, Michigan 48640 U. S. Nuclear Regulatory Comm. l Wa shington, D. C. 20555 l.
Charles Bechhoefer, Esq. ;
Atomic Safety & Licensing Atomic Safety & Licensing Board Panel l Board Panel U. S. Nuclear Regulatory Comm. ,
U. S. Nuclear Reg. . tory Comm. Wa shington, D. C . 20555 l j
Wa shington, D . C. 20555 i
, 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
- .s ,
the Institute for Policy Studies
- Babcock & Wilcox 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 g
- Three First National Plaza a5a a *
- a = Steve Gadler Chicago, Illinois 60602 2120 Carter Avenue
~ St. Paul, Minnesota 55108
, [M ~
n W. Karr 7 I