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'Executive Director of OperationsUNITED STATES NUCL. EAR P.EGULATORY CO'WISSIONWashington, D.C. 20555

Re: Appeal from F.0.I.A. Decision No. R7-665

Dear Executive Director:

Please allow this letter, drafted pursuant to 10 CFRD.11, to serve as an appeal from the initial determination ofDr. Thomas E. Murley, Director, Of fice of Nuclear ReactorRegulation, deleting portions of the document the subject ofF.O.I.A.-87-665. Specifically, the request sought a reportentitled "A Visit to the Mohave Generating Station to Deviewthe Steam Line Pupture" and all underlying data pertaining tosaid report. The basis underlying our appeal is our beliefthat the January 14, 1988 response of Director Grimsley failsto meet the agency's burden of delineating the precise mattersto be deleted and providing justification for such deletions.We respectfully point out that the response is couched inconclusionary terms, absent the detail and substance requiredby case ir, interpreting the P.O.I.A. We have attachedherewith the response received from Mr. Grimsley as Fxhibit"A".

It is our contenticn that the Nuclear RegulatoryCommission (hereinafter "your agency") has not met its burdenof describing matters deleted or explaining the precise reasonsfor the deletions as is required under the F.O.I. A. [5 U.S.C.-

Section 552(b)(4)]. To properly fall within this exemptionfrom disclosure, the protected information must he: (1) tradesecrete; (2) commercial or financial; (3) obtained from aperson; and (4) privileged or confidential. 5 U.S.C. Section552 (b)(4).

Your agency's response fails to identify how thedeleted portions of the document meet the criteria set forthabove. The response is couched in broad conclusionaryassertions that the "information could impair the agency'sability to receive sinilar information in the future and,

8804060152 000217b^ZE AN80 A-10E PDR

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Executive Director of Operations '

O.S. Nuclea r Regula tory Commission '

Rn: Mohave Litigation1 February 17, 1DPP

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therefore, it is considered to be proprietary and exempt frompublic disclosure". This bald statement is not sufficient !

under the law.4'

! The law is clear that the withholding agency has theburden of justifying its refusal to disclose requested,

'

material. IPlease see Stern v. Richardson, 367 F.Supp. 1316 ;

1

) (D.C.D.C. 1973).) In fulfilling its burden, your agency mustprovide more than mere conclusionary assertions. The claimed !exemptions must be supported by substantial justification and

j explanation of its basis. [Please see Vaughn v. Rosen, 484F.2d 820, 826-828 (D.C. Cir. 1973)].

; At.the very minimum, your agency should be requiredto provide a substantive explanation of the relationship

) between the nature of the information deleted and the NPC's: belict that disclosure of such "exempt" information would

!! impair its future ability to gain similar information. [please I

i see Black Hills Alliance v. United States Forest Service, 603 )j F.Supp. 117 (D.C.S.D. 1984).)a :

!In conclusion, we believe that your agency has f ailed I

t to provide sufficient information indicating that the portions4

of the documents which are claimed "exempt" are trade secrets,commercial or financial, obtained f rom a person, and privileged:

or confidential so as to meet *he hurde." established byrelevant case law. We do not believe the conclusionaryj, statements set forth within the respor.se to be sufficient toeer

: the law. Given the complete absence of substantiation regt . redi under the law, and our belief that all of *.he information] contained within the subject report is entitled to fullj disclosure, we respectfully request that your offices grant

this appeal' and require your agency"to permit inspection andi copying of the complete and unedited version of the report

entitled "A Visit to the Mohave Generating Station to Review,

the Steam Line Rupture" and all underly.ing data pertaining tosaid report,

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% .....Ms. Lisa K. Sepe IHaight, Dickson, Brown & Bonesteel g g i t 1988201 Santa Monica Blvd.P. O. Box 680 IN RESPCNSE REFERSanta Monica, CA 90406 TO FOIAa87-665

Dear Ms. Sepe:

This is in final response to your letter dated September 28, 1987, inwhich you requested, pursuant to the Freedom of Information Act (FOIA),a report entitled "A Visit to the Mohave Generating Station to Review theSteam Line Rupture," and all underlying data pertaining to said report.

The enclosed Appendix B identifies a document which is being made; available for your inspection and copying at the Public Document Room. (PDR). The document will be filed in PDR folder F0!A-87-665 under your'

name. Portions of the docunent contain information received inconfidence by the Nuclear Regulatory Comission (NRC) from the owners ofthe Mohave Generating Station. The NRC was invited to visit the plant

i after the accident to determine the applicability, if any, between that"

event and the areas of our regulatory responsibility. The entire eventis currently the subject of private litigation. The disclosure of thisinformation could impair the agency's ability to receive similarinformation in the future and, therefore, it is censidered to beproprietary and eyenpt from public disclosure pursuant to Exemption 4 ofthe FOIA (5 U.S.C. 552(b)(4)) and 10 CFR 9.5(b)(4) of the Comission'sregulations.

'

Pursuant to 10 CFR 9.9 of the NRC's regulations, it has been determinedthat the information withheld is exempt from production or disclosure,and that its production or disclosure is contrary to the publicinterest. The persons responsible for this denial are the undersigned

iand Dr. Thomas E. Murley, Director, Office of Nuclear Reactorj Regulation.

This denial may be appealed to the NRC's Executive Director for' Operations within 30 days free the' receipt of this letter. ~As'provided ".

" ...

in 10 CFR 9.11, any such appeal nust be in writing, addressed to thei Executive Director for Operations, U.S. Nuclear Regulatory Comission,

l| Washingten DC 20555, and should clearly state on the envelope and in theq 1etter that it is an ' Appeal from an Initial FOIA Decision."

Sincerely,

xwY wbyDonnie H. Grimsley, DirectorDivision of Rules and Records

: Office of Administration and] Resources Management,

j Enclosure: As statedt

,q ( 6P2toPMf7 4EXHIBIT "A"

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; Re: F01A-87-665-,

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i APPENDIX 8 i.

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WITHHELD IN PART|

1. 8/15/85 NRC Memorandum by L. C. Shao and R. Yo11mer, subject: !

! July 9, 1965 Memo Visit to Mohave Generating Station to :

| Review Steam Line Rupture. (12 pages) EXEMPfl0N 4 |!

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IN REPLY REF ER TO'

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September 28, 1987

fMEDOM 0F INFORMATION''JCI REQUEST~

OT/-S7-hkJMr. Donald GrimsleyDirector, Office of AdministrationU.S. NRCWashington, D.C. 20055

|Re: Freedom of Information Act Request '

Dear Sir:

This request is made pursuant to the Freedom of InformationAct.

I request a copy of the Nuclear Regulatory Commission Reportentitled "A Visit to the Mohave Generating Station to Review the

1

Steam Line Rupture", and all underlying data pertaining to said|report. The report refers to the rupture of a 30" hot reheat seam

welded pipe at the coal-fired Mohave Generating Station in Laughlin,Nevada on June 9, 1985.

It is my understanding the document I request is not exemptunder exemption (b)5. The exemption for internal agency communi-

|cations does not extend to factual materials, documents recounting lor reporting fact or scientific results of investigations.,w.. . ., ..,

Pursuant to Section (a) (4))F) of the Freedom of InformationAct I understand reasonable grounds do not exist for withholdingthe requested documents.

Should the Commission decide to deny and withhold the reportentitled "A Visit to the Mohave Generating Station to Review theSteam Line Rupture" I request a detailed statement of the essenceof the deleted or withheld items and reasons which justify with-holding of these items.

Please inform me of the reasonable standard charges forsearch time and copying fees as provided by regulation to reimburseyour offices. I would appreciate phone contact should fees incurredexceed $500.00.

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Mr. Donald GrimsleyRe: Freedom of Information Act RequestSeptember 28, 1987Page -2-

I would appre.:iate your response within 10 working days ofreceipt of this request.

Very truly yours,

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Lisa K. SepeHAIGHT, DICKSO;', BROWN & BONESTEEL

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