ML20212K345
| ML20212K345 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/03/1987 |
| From: | Berry G, Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2715 CIV-PEN, EA-84-137, NUDOCS 8703090280 | |
| Download: ML20212K345 (25) | |
Text
1 27/5 03/03/87 00LXETED ust4RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 MR -6 P4 :05 DEFORE TIIE ADMINISTRATIVE LAW JUDGE OFFICE GF SEUt W f.
00CKLIWC & si%ICI In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320
)
(Civil Penalty)
(Three Mile Island Nuclear Station
)
License No. DPR-73 Unit No. 2)
)
EA 84-137 NRC STAFF RESPONSE TO GPU NUCLEAR f tOTION TO COMPEL NRC STAFF TO PRODUCE DOCUMENTS I.
INTRODUCTION On February 4,1087, GPU Nuclear (OPUN) filed a motion in which it requests the Presiding Officer to compel the NRC Staff to produce certain documents withheld by the NRC Staff pursuant to governmental privilege.
In addition, GPUN requests that the NFC Staff be compelled to search for and produce additional unidentified documents which GPUN " believes must exist."
Motion at 1.
As explained in this response. OPUN's motion should be denied.
The privileges esserted by the NRC Staff in withholding certain documents sought by GPUN were invoked properly.
Ffmilarly, there la no basis for compelling the NRC Staff to undertake another scarch for responsive documents.
A scarch cannot be deemed inndequate merely because, as here, the number and type of documents retrieved fall to measure up to the requester's expectations.
II.
DACKGROUND On September 4, 1986, and without first complying with 10 C.F.R.
Il 2.720(h)(2)(li) and 2.744, OPUN served upon the NRC Staff its "First 0703090200 070303 PDR 0
ADOCK 05000320 01 PDR
i'f o:
3 Set of Interrogatories and First Request for Production of Documents" in which the firm sought to discover various documents in the Staff's possession relating to the NRC's investigation of the matters culminating in the Notice of Violation (NOV) and $64,000 proposed civil penalty issued to CPUN on August 12, 1985.
The NOV charged the firm with a violation of 10 C.F.R. I 50.7, the Commission's regulation which prohibits an employer or its agents from discriminating against an employee for making known a safety or quality concern.
In the interest of expediting the proceeding, the NRC Stuff did not seek to invoke the applicable procedural rules and responded to GPUN's discovery requests.
See NRC Staff Response to CPU Nuclear's First Set of Interrogatories and NRC ritaff Partial Responr,e to GPUN's First Request for Production of Documents (September 23, 1986).
In this connection, the NRC Staff answered each of the interrogatories propounded by OPUN and conducted a search for responsive documents.
GPUN sought, intg alla, all documents relating to communications between Richard Parks, the Bechtel contract employee at Three Mile Island Unit 2 who was the employee discriminated against, and the NRC: the Staff's findings relating to the validity of P!r. Parks' safety concernst Mr. Parks' chargen of improper conduct by the NRC Prograc.. Office at TMI-2 and to the Office of Investigations' (OI) investigation into Mr. Parks' allegettons of discrimination.
Responsive documents were identified, and, if not already in GPUN's possession, made avnllable.
The Staff inspection reports, OI and Office of Inspector and Auditor (OTA) investigatory reports, and portions of the Department of 1,nbor (DOI,) report which were responsive to GPUll's recuent already had been made public.
ie 3
After reviewing these reports and other documents made available by the Staff, GPUN filed the instant motion to compel in which it claims that "fundemental fairness" requires that it be provided access to every handwritten
- note, record,
- paper, and other documentary material prepared or reviewed by the NRC in the course of its investigation of CPUN's elleged wrongdoing.
Although it disagrees with GPUN's legal position, the Staff has elected to withdraw its privilege claims for all but four groups of the withheld documents sought by GPUN and has made them available to the firm. II Sco Letter from G. Johnson to J. Ilickey at 1 (March 2,1987).
In withdrawing these privliege claims the Staff does not concede the merits of the legal arguments advanced by GPUN.
Indeed, GPUN's motion betrays a fundamental misunderstanding of the nature of this case, and scope of its discovery rights and the Staff's discovery obligations in enforcement proceedings.
As explained below, GPUN has no legal right to the drafts or hsnduritten notes of interviews prepared by members of the MRC Staff or O! investigators.
Nor is the firm entitled to transcripts of witness interviews not bearing on the matters involved in this proceeding.
OPUN similarly is not entitled to seek discovery into the process culminating in the decision of the NRC's Director of the Office of Inspection and Enforcement to issue the NOV to GPUN charging the firm i
1/
In order to expedite the discovery in this caso, the Staff has
~
determined to make the 01 investigatory files on its Parks-King-
{
G!schel investigation avn!!able for inspection and copying by CPUN, except for documents exempted from disclosure pursuant to 10 C.T.R. I 2.790(a)(5), (a)(6), and (a)(7)(lii).
4 0
with a Severity Level II violation of 10 C.F.R. I 50.7.
Finally, the Staff will explain why GPUN is not entitled to documents generated by the Staff's Office of Inspector and Auditor (OIA) in connection with O!A's investigation of certain allegations of Etaff misconduct relating to cleanup activities at Three Mile Islar.d Nuclear Station, Unit No. 2.
I!!. LEGAL STANDARDS A.
NRC Enforcement Proceedings Under section 234 of the Atomic Energy Act of 1954, as amended, and section 2.201 of the Commission's regulations, the NRC is authorised to " modify, suspend, or revoke a license or to take other action for alleged violations of any provision of the Act or [ Chapter 10 of the Code of Federal Regulations)."
10 C.F.R I ?.201.
Among the "other action" which the NRC may take in response to an alleged violation of the Act or Commission regulation is the imposition of a civil penalty.
See 42 U.S.C.
F 2282: 10 C.F.R. I 2.205.
Before an order imposing a civil penalty can 1:ecome effective, however, the party accused of the alleged violation must be notified in writing of the charge.
10 C.F.R. I 2.205(a): Metropolitan Edison Company (Three IWile Island Nuclear Station, Unit 1), CLI-82-31, 16 NRC 1236, 1238 (1982).
The " notice of violation shall specify the date or dates, facts, and the nature of the alleged act or omission with which the person is charged, and shall identify specif1celly the particular provisions or provisions of law, rule, regulation... involved and shall stato the amount of each penalty which [the NRC) proposes to impose."
Id_. :
Three Mlle Island,
- supra, 16 NRC at 1238.
Section 2.205(e) provides an opportunity for any person charged with a violation to
5 request a hearing to contest the charges set forth in the notice of violation.
10 C.F.R.
I 2.205(e); Pittsburgh-Des Moines Steel Company.
ALJ-78-3, 8 NRC 649, 653 (1978).
The only issues to be considered at the hearing by the Presiding Officer is whether the facts set forth in the notice of violation, if proved, constitute a violation of law, rule, regulation, or other legal requirements end, if so, whether the smcunt of the proposed civil penalty is warranted. g re Radiation Technology, Inc., ALAB-567,10 NRC 533, 536 (1979). U The NRC Staff, as the proponent of the order, bears the burden of prcof.
10 C.F.E I 2.732. The Staff must prove its allegations "by a
preponderance of the
- reliable, probative, and substantial evidence. " Consumers Power Company (Palisades Nuclear Power Facility),
ALJ-80-1,12 NRC 117,126 (1980); Radiation Technology, supra,10 NRC at 536.
There can be no dispute that in lesning the Notice of Violation and proposed civil penalty to OPUN, the Staff complied with sections 2.205(a) and (e).
The NOV issued to GPUN on August 12, 1085, by the Director of the Office of Inspection and Enforcomnt set forth the dates, facts, and nature of tho alleged acts and omissions with which OPUN is charged: the particular regulatory provision GPifN la alleged to have violated: and the amount of the proposed civil ponalty.
See Notice of Violation at 1-3
( A ugust 12, 1085).
Specifically, OP11N was informed that it hed violated i
2/
See also. Notice of llearing. 51 Fed. Reg. 20384 (June 4,1986):
~
fl6morandum and Order Following Prehearing Conference
( August 13,198C).
6 la C.F.R.
F 50.7, the Commission's regulation which prohibits an employer from discriminating against an employee for makinpr known a safety or quality concern.
Id. at 1.
GPUN was notified that charges were being brought against it because during the period February 23 through March 24, 1983, Richard Parks, an employee of one of GPUN'a ngents, had been (i) removed from his position "as Alternate Startup and Test Supervisor";
(ii) " subjected to improper and intimidating interrogation";
(iii) removed from his position as "the primary Site Operations Department representative for the Test Working Group"; and (iv) " ultimately placed on administrative leave."
g.
The NRC Staff charged that these actions were taken against Mr. Parks because he had
" reported safety concerns" to his management and the NRC in February 1983.
Id.
These adverse actions against Mr. Parks were deemed a Severity Level II violation of 10 C.F.R. I 50.7 for which a civil per.alty in the amount of $64,000.00 was proposed.
I_d. at 2.
d On October 21, 1985, GPUN responded to the notice of violation in which it denied the allegations set forth therein.
See Letter from P.R.
Clark to J.M.
- Taylor, Director of the Office of Inspection and Enforcement, at 1, 8 (October 21, 1985).
On March 4, 1986, the NRC rejected CPUN's denial and issued an Order Imposing Civil Penalty.
51 Fed. Reg. 8581 (March 12,1986).
On May 21,1986, GPUN requested a her. ring be held on the issues in controversy.
On May 30,1986, the Commission issued a notice of hearing and appointed a Presiding Officer.
51 Fed. Reg. 20384 (June 4,1986).
7 B.
Discovery in Enforcement Proceedings The rules governing discovery in. Commission administrative proceedings are set forth'in 10 C.F.R. Part 2, Subpart G.
GPUN claims
"[t]here is some uncertainty" es to whether the the Commission's discovery provision apply to enforcement proceedings. Motion at 13 n. 8.
. Even a cursory reading of the rules reveals that the rules by their terms apply to enforcement proceedings.
Subpart G, of which the discovery rules are a part, is entitled " Rules of General Applicability."
(emphasis added).
That the Corrmission intended the discovery provisions contained in Subpart G to be applicable to enforcement proceedings is made clear by section 2.700:
The general rules in this subpart govern procedure in all adjudications initiated by the issuance of an order... pursuant to I 2.205(e)....
10 C.F.R. I 2.700.
Section 2.205(e) is the provision that allows a party, such as GPUN, to request a hearing to contest a proposed civil penalty.
10 C.F.R.
I 2.205(e).
Additionally, the regulations make clear that Part 2 is intended to govern the conduct of all proceedings for " imposing civil penalties under section 234 of the [ Atomic Energy Act of 1954, as amended). "
10 C.F.R.
I 2.1.
It is impossible to envision a more unequivocal expression of the Commission's intent regarding the applichbilty to civil penalty proceedings of the discovery provisions contained in Subpart G.
See Palisades, supra, 12 HRC at 110, 126.
In view of the foregoinf, it is clear that the scope of discovery against the Staff in civil penalty and other enforcement proceedings is governed by 10 C.F.R.
I 2.720(h)(2)(ii) (interrogatories); 10 C.F.R.
I 2.744 (production of NFC records and documents): and 10 C.F.R.
_ _ _, _ _ _ _, _ _ _ ~, _ _ _. _ - _..
__,_,._,_--..._-----_.-m_
8
! 2.720(h)(2)(i) (depositions).
As explained in the following section of this response, 10 C.F.R. I 2.744 does not authorize GPUN to discover hendwritten notes or drafts of witness interviews prepared by Staff inspectors or OI investigators in connection with their investigation into GPUN's alleged violation of 10 C.F.R. I 50.7.
Nor in the Staff required by section 2.744 to disclose to GPUN documents bearing on matters not relevant to the proceeding.
Finally, section 2.744 and 2.700 preclude GPUN from discovering from the Staff information which is already in the Srm's possession or obtainable from other sources.
C.
Production of NRC Records and Documents OPU,N notes correctly that the purpose of discovery is to enable a 4
pr.rty to ascertain the facts underlying an adversary's position, refine the issues in controversy, and preparo for trial.
See Pennsylvania Power a Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAD-613,12 NRC 317, 322 (1980).
Discovery eliminates the element of surprise by allowing a party to learn of the facts and evidence it will be required to meet at trial.
Id_.
This is why the Commission's discovery rules are to construed liberally, except whero discovery is sought from the Staff.
Commonwealth Edison Comyany (Zion Station, Units 1 and 2), ALAB-185, 7 AEC 240 (1974).
Given that the purpose of discovery is to eliminate the element of surprise, it is obvious why discovery against the Staff " stands on a different fcoting" than doca discovery with roepect to other partica.
Fith very limited exceptions, final NRC records and documents are made available to all members cf the public in the NRC's Public Document Room.
Because
9 these documents "should reasonably disclose the basis for the Staff's position," there is little need for formal discovery against the Staff.
Susquehanna, supra,12 NRC at 323.
It should be noted that 10 C.F.R. 9 2.790 expressly excludes " handwritten notes and drafts" from the class of documents made available to the public.
The reason is quite simple:
such materials are by their nature preliminary and do not represent the agency's final position.
Eg Coastal States Gas Corp. v. DOE, 617 F.2d i
1154, 866 (D.C. Cir.1980).
A party may request production of a document not riede available pursuant to 10 C.F.R. I 2.790 ff the document is relevant to a matter in controverr,y.
See 10 C.F.R. I 2.744(a).
If the document is exempt from disclosure pursuant to 10 C.F.R. I 2.700(a), however, discovery may be had only upon a showing that disclosure is "necessary to a proper decision in the proceeding" and that the doeurient sought or the information contained therein is not reasonably obtainable from another source."
10 C.F.R. I 2.744(d).
As explained holow, GPUN has not met these standards.
The NRC Staff's position in this case is reflected in the NOV issued to GPUN on Auguct 12, 1985.
The conclusions reached by the Staff relatir.g to G PU N's alleged wrongdoing are set forth in published documents that have long since been made available to GPUN.
Fee NUREG-0080, Supp. 5 at 11 10.2.1, 10.3.
GPUN does not, and indeed credibly could not, argue that it is unaware of the Staff's position or the underlying facts since that information has been in its possession for more than eighteen months.
10 GPUN puts forth a variety of reasons, each of which is lacking in merit, why it should have access to certain doeurcents withhcid by the Staff.
At one point OPUN states that the discovery sought is necessary to defend it corporate reputation.
See Motion at 11.
This is not a case about libel or defamation: GPUN's reputation is not in issue.
Rather, as stated earlier. the only issues to be resolved in this proceeding is whether the allegations set forth in the NOV constitute a violation of 10 C.F.R. 8 50.7.
See _ Radiation Technology, supra, 10 NRC at 536.
The Ftt.ff does not seek to impose a $64,000.00 civil penalty because GPUN's corporato character and reputation is poors imposition of the civil penalty is sought because the Staff believes that GPUN's agents, in violation of 10 C.F.R.
I 50.7, discriminated against Mr. Parks for engagintr in protected activities.
CPUN concedes that the events recounted in the NOV occurred.
See Motion at 21.
Such an admission dispels any pretensfon thr.t discovery is necessary for CPUN to ascertain the nature of the Staff's case.
In apparent recognition of this obstacle, OPUN asserts that the "real issues" involved in this proceeding are of motive and intent.
!_d,.
The Staff does d
not diengree with OPUN.
Whenever a violation of 10 C.F.R. I 50.7 is alleged, the qucetion of motive and intent is significant.
This in because section 50.7 prohibits an employer or its agents from dfncriminating against an employee for engaging in protected activities: if the adverse nction taken against an employee is motivated by "logitimato reason" and predicated on " nondiscriminatory" lrrounds, there is no violation of section 50.7.
83 10 C.F.It. I 50.7(d).
Thus, the rearon why GPUN's agents (1) removed Mr. Parks from his position s Alternato Startup and
11 Test Supervisor; (11) subjected Mr. Parks to intimidatinir interrogations (iii) removed Mr. Parks from his position as the primary Site Operations Department representative for the Test Working Groups and (iv) ultimately placed Mr. Parks on cdministrative leave is a central issue in this case.
A discriminatory motive for these actions is an essential element of a violstion of 10 C.F.R.
I 50.7 and must be proven by the Staff (not disproved by GPUN) by "a preponderance of the reliable, probative, and substantial evidence."
See Palisades _, supra, 12 NRO at IN.
That the motive and intent of certain of CPUN's employees and agents are in fecue does not mean that OPUN is entitled to the discovery it seeks.
Without c::ception, all of the individuals alleged to have engsgod in wrongful conduct are employees or agents of GPUN.
See og Staff Eceponse to GPU Nuclear's First Set of Interrogatories, Answers 1-28 at 8-28.
All of thebo persons are subject to GPUN's control and evidenco relating to their motives for engaging in the a!!cred wrongful conduct readily may be obtained from them by GPUN.
The Staff is not required to disclose to GPUN investightory records bearing on these matters becauso any information contained in the documents sought "is renconably obtainable from another source." 10 C.F.R. I 2.744(b).
1.
Documents Relating to !!RC Interviews of Mr. Parks CPUll also claims it is entitled to all documents relating to any oral or written communications between the !!!!C and Mr. Parks reprnrding Mr.
Parks' harassment and safety concerns.
Plotion at 25.
According to OPUN, Mr. Parks' statements nro " clearly relevant" an to whether he "rn16ed any significant technical issue, whether [ho) was discriminated t
L
12 against, end whether there was the necessary nexus between the raising of technical issues and the conduct alleged to be discriminatory."
Id.
at 25-26.
GPUN's assertion does not establish a basis for granting the discovery sought.
First, section 50.7 does not limit its protection only to those employees who raise "significant" technical issues. Nor does section 50.7 cxtend its protection only to those employees who raise valid safety or quality concerns.
By its terms, section 50.7 prohibits an employer or its agents from discriminating against an employee who provides the NRC "information about possible violations of requirements" imposed on an employer by the NRC pursuant to statutory authority.
10 C.F.R.
I 50.7(b) (emphasis added).
Second and more important, Mr. Parks' statements to the NRC are not relevant to the motives of GPUN's employces and agents for engaging in what is elleged by the Staff to be diceriminatory conduct.
As noted above, evidence bearing on that issue uniquely is within the control of CPUN.
Mr. Parks' intentions and motiven are not at issues those of CPUN's agents and employees are.
2.
Prior Statements of Lawrence King OPUN asserts a need to discover the complete transcript of a statement given to OIA investigators by Lawrence King, a former GPUN employce.
The Staff previously withheld portions of this document on the grounds that it le irrelevant since it "does not refer or relate to the allegations by Parksl.)"
Letter from O. Johnson to J.
Hickey (November 6, 2000).
OPUN claims that the transcript is relevant because Mr. King states therein that the investigation conducted by GPt1N's agents into his involvement with Quiltec, Inc. was "pretextual."
Motion
13 et 35.
GPUN also seeks the transcript for the purpose of challenging the credibility of Mr. King should he be a witness' in this proceeding.
Id.
While the propriety of Bir. King's conduct is not in issue in this proceeding, and the Staff does not at this time intend to call Mr. King as a witness, the Staff does intend to show that the investigation into Mr.
Parks' involvement with Quiltec was pretextual.
The pretextual nature of the investigation is shown, in part, by the fact that OPUN was aware of Mr. King's and Mr. Parks' involvement with Quiltec well before the investigation of Pir. Parks took place, but occurred only after both had raised safety concerns.
In light of the fact that GPUN has previously deposed Mr. King at length on this very matter and possesses a copy of a transcript of a related deposition of Mr. King taken by OI, OPUN has not demonstrated a need for the requested transcript.
Nevertheless, the Staff has determined to release to GPUN a copy of th9 requested 1
transcript of P.ir. King's interview by OIA.
3.
Documents involving Ol's investigation of Parks' Allegations Finally, the Staff must address briefly GPUN's contention that it is entitled to "all documents prepared during the course of Ol's investigation."
M. at 40.
In GPUN's view, it "is entitled to know the scope of Ol's investigation and the identity of witnesses O! thought were relevant." M. at 41.
According to the firm, such evidence is relevant i
because it may indicate that Ol's investigation may have been inadequate in some respects.
M.
GPUN clearly is not entitled to discovery for this purpose.
It bearn repeating that it is _0 PUN's actions, not those of Pir. Parks I
or those of the NBC, that are it, issue in this proceeding.
If the Staff is 1
-,, ~.. - - -
-.-,c.,.---._,.,._.,..__,..-.m_.._--._.m.,
_ _,,, - m.
14 unable to prove by a preponderance of the reliable, probative, and substantial evidence that GPUN committed the violation alleged in the NOV, the proposed civil penalty cannot and will not be imposed no matter how thorough Ol's investigation.
Conversely, assuming arguendo that OI conducted an exceedingly poor investigation of Mr. Parks' harassment or safety allegations, GPUM will not be relieved of liability if the Staff carries its burden at trial of demonstrating that GPUN discriminated ogninst Mr. Parks for engsging in protected activity.
G PUN's request for documents related to the scope of Ol's investigation appears to be an attempt to fish for evidence that the firm helieves would have persuaded the Director of the Office of Inspection and Enforcement not to issue the NOV.
Thus, it appears that the real reason GPUN cceks to discover Ol's investigatory methods is not to obtain evidence relating to the substantive issues in this proceeding but to explore the process by which the decision to issue the NOV was reached.
It is well settled, however, that this type of discovery is improper.
EJ.
United States v. Morgan, 313 U.S. 400 (1941); McCulloch Gas Processing Corp. v. DOE, 650 F.2d 1216 (Temp.
Emer.
Ct. App.
1981):
see Pallandes, supra,12 NRC at 125-26.
The only way GPUN could overcome this prohibition against probing the minds of the decisionmaker is by making a threshhold showing that in issuing the NOV, the agency " looked beyond the law itself to arbitrary considerations."
United States v.
Derrios, 501 F.2d 1201, 1200 (2d Cir. 1074).
OPUN has not even attempted to m5ke this showing.
Among the 01 documents OPilN seeks to have the Staff compelled to produce are handwritten notes and drafts of statements of certain persons
15 interviewed by OI investigators in connection with the investigation of CPUN's alleged wrongdoing.
See Motion at 30-33.
As noted earlier, drafts inherently are predecisional and preliminary in nature and are thus exempt from disclosure under Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C.
I 552(b)(5).
Coastal States, supra, 617 F.2d at E66.
Since 10 C.F.R.
I 2.790(a)(5) is coextensive with FOIA I:xemption 5, see Palisades, supra, 12 NRC at 123, the draft material which GPUN seeks is exempt from disclosure under the Commission's regulations.
Moreover, none of these handwritten drafts are necessary for a proper decision in this proceeding because reports of each of those interviews are contained in the official agency reports which already have been made available to GPUN. A party is not entitled to an investigator's rough notes where the information contained in the notes later was transcribed and made available to the requesting party.
See Killian v.
United States, 368 U.S. 231, 242 (1961).
GPUN is right to note that under the rule enunciated in Brady v.
Maryland, 373 U.S. 83, 87 (1963), the Government is required to disclose to the accused favorable evidence that is material to guilt or punishment.
Motion at 11.
This is another reason why it is unnecessary to compel the Staff to disclose the handwritten notes of interviews sought by GPUN.
In the event those documents contained material exculpatory information, the Staff, pursuant to its affirmative obligation, would voluntarily disclose them to CPUN.
In fact, if this were a criminal proceeding, the motion filed by GPUN would be improper because its purpose is not to discover the nature of the Government's case but rather to fish for exculpatory
16 evidence.
See United States v. Crisona, 416 F.2d 107 (2d Cir. 1969),
cert. denied, 397 U.S. 961 (1970); United States v. Conder, 423 F.2d 904 (6th Cir.1970).
4.
Documents Involvintr OIA's investigation of Parks' Allegation GPUN also seeks to have the Staff compelled to produce documents relating to OIA's investigation of any allegation of NRC misconduct made by Mr. Parks.
Motion at 35.
According to GPUN, such records are needed to impeach Mr. Parks' credibility.
Id.
The relevance which GPUN attaches to the documents sought is misplaced.
The O!A investigatory records requested by GPUN are not relevant to any material issue in this proceeding.
As stated before, the focus of this proceeding is upon the actions of GPUN and its agents.
Neither the Staff nor Mr. Parks is on trial in this proceeding.
Activities or statements of either the Staff or Mr. Parks not relating to G PUN's alleged violation of 10 C.F.R.
I 50.7 simply are irrelevant.
That Mr. Parks may have alleged that certain members of the Staff engaged in misconduct in connection with cleanup activities at the Three Mlle Island Nuclear Station is not relevant to the ouestion of whether GPUN'a agents diocriminated against Mr. Parks for engaging in protected rettvity.
Similarly, the fact that OIA concluded after investigation that none of the Staff members accused by Mr. Parks acted improperly sheds no light on the legitimacy, vel non, of the adverse actions to which Mr. Parks was subjected by GPUN's agents after he had advised the NitC of GPUN's possible violations of procedural requirements.
/
- 17 GPUN cites United States v. Esposito, 523 F.2d 242, 248 (7th Cir.
1975), cert. denied, 425 U.S.
916 (1976), for the proposition that the Government is obligated to produce to the accused evidence in its possession material to impeaching a Government witness.
Motion at 12.
In view of the considerations expressed above, it is clear that the OIA 4
investigatory records reouested by CPUN are not relevant, much less
" material. "
Additionally, the obligation to produce material impeaching evidence is an extension of the obligation to produce to the accused exculpatory evidence imposed upon the Government in Brady v. Maryland, supra.
As such, it is an affirmative obligation on the part of the Government to produce such evidence; the - accused ' is not entitled to rummage through the Government's file to determine whether such evidence exists, b See United States v. Crisona, supra, 416 F.2d 107; United States v. Conder, supra, 423 F.2d 904.
5.
Documents Still Withheld by NRC Staff GPUN has been apprised sufficiently of the nature of the violation with which it has been charged and the facts upon which the violation is based.
The evidence relevant to the issues in this proceeding either has been made available to GPUN or uniquely is within the firm's control.
l Thus, GPUN long has been in position to prepare its defense, if any it i
-3/
While the Staff maintains that the particular OI documents sought are not relevant to this proceeding, the Staff has segregated the l
factual information contained therein and, with the exception of information the disclosure of which would constitute an unwarranted invasion of personal privacy (see 10 C.F.R.
l 5 2.790(a)(6)' and (a)(7)(iii)), is releasing those portions of the l
requested documents to GPUN.
i
(
18 -
g, has, to the charges set forth in the NOV and to marshal evidence in support of its position.
For all the foregoiing reasons, GPUN is not entitled under the Commission's discovery rules to any of the documents withheld by the Staff.
Nevertheless, as noted at the outset, the Staff has cIceted to withdraw its privilege claims for all but four categories of the withheld documents sought by GPUN and has released them to the firm.
See Letter from G. Johnson to J. Hickey at 1 (March 2, 1987).
The documents still withheld by the Staff are discussed below.
1.
Two undated draft of Memorandum from Harold Denton, Director, NRR, to Viilliam Dircks, Executive Director of Operations, entitled " Response to OI Review of SECY-84-37:
Staff Review and Response to OI Report on TMI-2 Cleanup Allegations. "
(
These two documents are drafts of a memorandum prepared for l
submission by the Director of NRR to his superior, the Executive Director for Operations (EDO).
Each of the drafts states that it was prepared in response to the EDO's request for the written views of his subordinate regarding OI's report of its investigation into allegations relating to cleanup operations at TMI-2.
The documents are exempt from disclosure for two reasons.
First, the documents are drafts.
Under 10 C.F.R.
I 2.790(a), draft documents expressly are exempted from disclosure.
This is because, as noted earlier, drafts inherently are preliminary in nature and do not represent the author's final views, much less the l
position of the agency.
See Coastal States v. DOE, supra, 617 F.2d at 866.
Second, the documents are exempt from disclosure pursuant to 10 C.F.R.
I 2.790(a)(5) because they were generated in the course of the process employed by the EDO (the Staff member with ultimate l
decisionmaking authority) in developing the Staff's position with respect
to the OI report referred to above. Thus, contrary to GPUN's assertion, the withheld documents are a product of the Staff's deliberative process and are therefore exempt from disclosure.
Disclosure of the documents would be injurious to the agency's consultative functions because it would inhibit the Director of -NRR and his associates from candidly expressing their views and recommendations to the EDO.
If that were to happen, the quality of the Staff's decisionmaking would suffer.
This is the danger that the deliberative process privilege is intended to prevent.
EJ.
EPA v. Mink, 410 U.S.
73 (1974);
Consumers Power Company (Midland Plant Units 1 and 2), ALAB-33, 4 AEC 701 (1971), aff'd,
ALAB-123, 6 AEC 331, 339-41 (1973).
The Staff's privilege assertion should he sustained.
2.
July 24, 1984 Note to Ben B.
Hayes, Director of OI, from Bernard J. Snyder, Program Director, TMI Program Office, with attachment.
This document forwards to the Director of OI a draft of the author's responses to certain questions propounded by the Commission relating to OI's investigation of allegations relating to cleanup problems at TMI-2.
.The covering note is exempt from disclosure pursuant to 10 C.F.R.
I 2.790(a)(5) because it was generated in the course of the process employed to develop a response to the questions posed.
The attachment similarly is exempt for this reason and for the additional reason that it is a draft.
As such, the attachment represents only the author's preliminary views and position.
As noted above, documents of this type are exempt from disclosure.
The Staff's privilege assertion for this document should be sustained.
3.
March 24, 1983 Memorandum to File from William Ward entitled: " Analysis of Affidavit By Richard Parks"
20 -
This document is a draft.
The document sets forth the author's preliminary and tentative analysis of the affidavit released ' by Richard Parks the preceding day, 14farch 23, 1983.
The author s analysis was t
intended to assist the OI Director in determining the appropriate actions to be taken by OI.
For the reasons stated above, this document is exempt from disclosure pursuant to 10 C.F.R. I 2.790(a).
The Staff's privilege assertion for this document should be sustained.
4.
Documents relating to SECY-84-65, described at pages 36-37, and 38 of Motion to Compel Pursuant to 10 C.F.R.
I 2.790(a)(5), the Staff has previously withheld portions of seven documents generated in connection with the agency's discussion of SECY-84-65.
These documents are identified in GPUN's motion at pages 36-37 and 38.
The Staff has re-examined two of
~the requested documents, and determined that they do not contain deliberative information.
These documents, which are item 5 (see Motion at 36) and SECY paper 84-65 (see Motion at 38), have been released to GPUN.
The withheld portions of the remaining documents reflect the views j
and recommendations of the authors to their superiors regarding the 1
i actions to be taken by the Commission with respect to Mr. Parks' allegations concerning the adequacy of OIA's investigation of Mr. Parks' allegations of Staff misconduct at TMI-2.
These documents are part and parcel of the deliberative process employed by the agency in deciding how best to proceed with respect to Mr. Parks' allegations.
As such, the withheld portions of the documents are protected from disclosure by the deliberative process privilege.
Disclosure of the withheld portions would have a deleterious effect on the quality of agency decisionmaking because
21 employees in the future would be inhibited from offering their candid recommendations by the knowledge that such information later might be made public.
As noted above, the purpose of the deliberative process privilege is to secure for the Government the benefit of a frank and robust exchange of views.
See EPA v. Mink, supra.
The Staff's privilege assertions for the withheld portions should be sustained.
D.
The Adequacy of the Staff's Search for Responsive Documents GPUN implies that the Staff's search for responsive documents was inadequate because it failed to locate a number of documents which the firm " believes must exist." See g. Motion at 1, 26, 28, 29.
The claim t
is groundless.
As the affidavit of OI investigator Ronald Meeks indicates, the Staff conducted a
thorough search for documents responsive to GPUll's request.
Affidavit of Ronald Meeks, attached to NRC Staff Response in Opposition to Issuance of Subpoense. (March 3, 1987).
The Staff's search for responsive documents included, but was not limited to, the Office of Inspection. and Enforcement, the Office of Investigations, and the Three Mile Island Project Directorate (TMIPO),
the three offices most likely to be in possession of responsive documents.
All documents responsive to GPUN's request either are being made available to the firm or are being withheld pursuant to privilege.
Additionally, it should be noted that Staff counsel orally advised counsel for GPUN of the dimensions of the search for documents contempleted by the Staff.
If GPUN harbo ad any reservations regarding the adequacy of the search as then planned and contemplated by the Staff it is reasonable
22 -
to expect that the firm would have voiced its concerns at that time.
It did not do so.
GPUN has not presented c credible challenge to the adequacy of the Staff's search.
The firm has not, for example, alleged that the Staff-failed to identify responsive documents known to exist or that the Staff failed to scarch any office or file reasonably expected to contain responsive documents.
Nor does the firm contend that the Staff construed its disclosure obligations narrowly.
In short, GPUN's real complaint is not that the search conducted by the Staff was inadequate but rather that the fruits of that search failed to measure up to the firm's expectations.
IIowever, as another federal administrative tribunal stated with respect to this issue: a search cannot he deemed. Inadequate "merely because the number or quality of responsive documents retrieved fail to measure up to the reonester's expectations."
Atlantic Richfield Company, 10 DOE 1 84,012 at 87,138 (1982); see also Goland v. CIA, 607 F.2d 339, 369 (D.C. Cir. 1978), cert. denied,- 445 U.S. 927 (1979)
(adequacy of search upheld where only eight responsive documents l
found).
l IV.
GPUN's Request for Oral Argument GPUN requests that oral argument be heard on the instant motion to compel.
Motion at 2, 52.
Although the Staff believes oral argument is unnecessary, it does not oppose GPUN's request.
i
p-Q:
- 23 V.
CONCLUSION The Presiding Officer should issue an order in accordance with the views set forth in this response.
R p tfully submitted.
l l
Gregory / la Be ry Counsel or NRC Staff y
Ge ge
.J on Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of Marc 51987
r 1
l Sk ?
UNITED STATES OF AMERICA
'87 M NUCLEAR REGULATORY COMMISSION Ff\\h YYh\\ -
BEFORE THE ADMINISTRATIVE LAW JUDG BE In the Matter of
)
)
Docket No. 50-320 GPU NUCLEAR CORPORATION
)
(Civil Penalty)
)
License No. DPR-73 (Three Mile Island Nuclear Station.
)
EA 84-137 Unit No. 2)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R. $ 2.713(b) the following information is provided:
Name Gregory Alan Berry Address U.S.
Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C.
20555 Telephone Number Area Code (301) 492-7852 Admission Supreme Court of the Commonwealth of Pennsylvania; Court of Appeals for the District of Columbia; United States District Court for the District of Columbia; United States Court of Appeals for the District of Columbia; and the United States Supreme Court Name of Party NRC Staff U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 f
n Grebry Alan J fry Counsel (orNI' Staff Dated at Bethesda, Maryland this 3rd day of March,1987 Y
t m-v v
rr r~
r:
00'.KE lit
( %Pr UNITED STATES OF AMERICA NUCLEAR PEGULATORY COMMISSION 17 tiAR -6 P2 :49 BEFORE THE ADRf!NISTRATIVE LAW JUDGE g
HC60.% '., i'df BRANC" In the Matter of
)
)
Docket No.
50-320 GPU NUCLEAR CORPORATION
)
(Civil Penalty)
)
License No. DPR-73 (Three Mile Islan d Nuclear Station
)
EA 84-137 Unit No. 2)
)
CERTIFICATE OF SERVICE I
hereby certify that copies of "NRC STAFF. RESPONSE IN OPPOSITION TO ISSUANCE OF S UD POENAS," "NRC STAFF RESPONSE TO GPU NUCLEAR MOTION TO COMPEL NRC STAFF TO PRODUCE DOCUMENTS," and " NOTICE OF APPEARANCE" for Gregory Alan Berry in the above-captioned proceeding have been served on-the following by deposit in the United States
- mail, first
- class, or, as indicated by an
- asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 3rd day of March,1987.
- Ivan W. Smith, Esq.
Ernest L. Blake, Jr.
Administrative Law Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Poard 2300 N Street, NW U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555
- Atomic Safety and Licensing Steven L. Hock, Esq.
Appeal Board Thelen, Marrin, Johnson, Bridges U.S. Nuc' ear Regulatory Commission 2 Embarcadero Center Washington, DC 20555 San Francisco, CA 94111
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 7
j/M j. C, i G, h*.s
'(/Geprge E!~Joh sonCounsel(for N C Staff