CLI-90-01, Order CLI-90-01.* Denies J Corder Motion for Protective Order Staying Enforcement of NRC 891201 Subpoena on Basis That No Reason Exists to Delay Corder Compliance W/Subpoena. W/Certificate of Svc.Served on 900209.Re-served on 900212
| ML20006D377 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 02/08/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | CORDER, J. |
| References | |
| CON-#190-9815, CON-#190-9818 CLI-90-01, CLI-90-1, NUDOCS 9002130118 | |
| Download: ML20006D377 (7) | |
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NUCLEAR REGULATORY COMMISSION L
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Kenneth M. Carr, Chairman g"g L
Thomas M. Roberts Kenneth C. Rogers James R. Curtiss
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In the Matter of i
HOUSTON LIGHTING AND POWER COMPANY Docket Nos. 50 t48 50 t49 (South Texas Nuclear Power Plant, Units 1 and 2)
ORDER CLI-90-01 1.
Introduction.
This matter is before the Commission on a motion by Mr. John Corder for a protective order staying the enforcement of an administrative subpoena issued by the NRC Staff on December 1, 1989. Mr. Corder asks that the Commission stay the subpoena until the NRC has responded to a request under the Freedom of Information Act ("F0IA") for all records " relevant to and/or generated in connection with [his] concerns and allegations about the South Texas Project
("STP") from June 1986 to the present." FOIA Request (Sept. 28, 1989) at 1.
Af ter due consideration, we deny the notion for protective order for the 4
reasons stated herein.
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II. Factual Background In the spring of 1989, the l'RC became aware of the possibility that settlement agreements in several Department of Labor (" DOL") employment discrimination cases might contain possible barriers to individuals bringing safety concerns to the NRC. Accordingly, on April 27, 1989, the NRC's Executive Director of Operations ("ED0"), issued a letter to all utilities, major architect-engineers, nuclear steam supply system vendors, fuel cycle facilities, and major materials licensees, concerning provisions in settlement or other agreements which might be interpreted to restrict a person or party from communicating safety concerns to the NRC. Among other actions, this letter requested those entities to identify any such restrictive provisions in any settlement agreements to the NRC.
In response to the ED0's letter, the Bechtel Corporation, Mr. Corder's former employer, identified a settlement agreement between it 6nd Mr. Corder resolving an employment discrimination dispute under Section 210 of the Energy Reorganization Act as having potentially restrictive language.
See in the Hatter of John A. Corder, 88-ERA-9 (Oct. 28, 1988).
In turn, an NRC Staff representative wrote Mr. Corder's attorney of record asking if Mr. Corder had any "information concerning potential safety issues which have not been provided to the NRC" and inviting him to bring any concerns which he might have to the NRC's attention.
See Letter from Dennis Crutchfield to Robert T.
Rice, Esq. (Sept. 5, 1989) (emphasis added).
In the interim, Bechtel notified Mr. Corder's attorney that "the settlement [ agreement) ooes not prevent nor i
1 should it discourage" Mr. Corder from asserting any safety concerns and that he was free to bring "to the attention of the appropriate agencies any information i
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about nuclear power plant safety...." See Letter from H. Roger McPike to Robert T. Rice, Esq. (June 29,1989)at1-2.
In response, Mr. Corder -- through new counsel -- did not allege that he had falied to provide information to the NRC.
Instead, he indicated that he had " concerns that he believes the NRC has not evaluated" and sought to impose
" terms" or " conditions" on his presentation of such information to the NRC.
L See Letter from Billie P. Garde, Esq. to Dennis Crutchfield (Sept. 28,1989).
Among those " terns" was a request that the Staff subpoena Mr. Corder "to t
protect him from a potential breach of contract action by Bechtel for violating the terns of his settlement," Id. at 2, notwithstanding Bechtel's June 29th letter. On the same day, Mr. Corder's counsel filed the FOIA request noted above.
Negotiations between the parties continued until December 1, 1989, when the Staff issued the subpoena now before us. The subpoena called for Mr.
Corder's appearance on December 19, 1989, at a location near his residence. On December 11, 1989, Mr. Corder fileo a motion seeking (1) to modify the subpoena making it returnable at another location and (2) to delay the subpoena until after the Staff had responded to his F0IA request.
Subsequent negotiations have resolved the first issue, the location of the interview. Accordingly, the parties agree that this issue is now moot. The NRC Staff has responded to the motion for protective order and Mr. Corder has filed a reply.
Driefly, Mr. Corder alleges that he has provided information to the NRC Staff on numerous occasions and that he "has no way of knowing without reviewing documents in possession of the NRC staff (sic) what issues were recorded by the NRC for inspection or investigation and what became of those issues." Reply at 4.
He also alleges that he "is not satisfied that the 3
j
S issues he raised which h6ve been previously evaluated by the Staff ano apparently closed were even understood...." Reply at 4-5.
Finally, he alleges that he cannot be expected to remember all the " specific details that have been previously provided to the Statf with any degree of accuracy or reliability" regarding the South Texas Project.
Reply at 5.
For all those reasons, tir. Corder seeks to delay responding to the subpoena until af ter he receives and reviews the response to his F01A request.
According to both Mr. Corder's Motion and his Reply, the NRC's FOIA Offices have responded to his request by asking that he pay the necessary search and copying fees. See 10 C.F.R. 6 9.37-9.40. Mr. Corder also alleges that on December 11, 1989, he filed a request for a waiver of fees, 10 C.F.R. 9 9.40, and that he filed a second F0IA request which he hopes will be exempt from the fee requirement.
III. Analysis.
Mr. Corder apparently confuses the purpose cf the invitation issued to him on September 5 by the Staff. The purpose of the invitation was not to allow him the opportunity to review all prior NRC Staff actions on his previous concerns or allegations and to pass judgment on the technical correctness of the NRC Staff's actions.- Instead, the purpose was to give him the opportunity to present any concerns to the Staff which he had not previously provided to the NRC.
In sum, the $taff's request did not involve Mr. Corder's previously expressed concerns but simply an opportunity for Mr. Corder to express concerns which he may have failed to furnish previously because of the existence of a settlement agreement which might have been read to restrict such communications.
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Lest there be any doubt, the NRC Sta'f will listen to any concerns Mr.
Corder wishes.to express -- whether they be concerns he withheid from the IRC, concerns he has developed over the years since his termination with Bechtel, or concerns he simply suspects may not have been edequately addressed.
But independent of his FOIA request, f1r. Corder should be in a position to know whether he withheld concerns from the_NRC, developed new concerns since his e
termination with Bechtel, or has an interest in the manner in which his previously expresseo concerns were addressec. NRC records are not necessary for any of those purposes. Accordingly, we see no reason to delay Mr. Corder's compliance with the subpoena. We see no legal obstacle to '4r. Corcer 's presenting any safety concerns to the flRC at this time and we emphastze the need for the communication of safety concerns without de16y, If Mr. Corder wishes to communicate other concerns or information after his FOIA request has been processed, he is welcome to do so.
IV, Conclusion.
For the foregoing reasons, the motion for protective order is denied.
It is so ORDERED.
l FortheConm%sion 3
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f V SAMUEL d. UtILK o
Sgg Secretary of the Commission Dated at Rockville,, Maryland this &
day of February, 1990.
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I UNITED STATES OF AMERICA NUCLEAR RE6ULATORY COMMIS$10N i
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i HOUSTON LIGHTING AND POWER COMPANY
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Docket Nos.: 50-448 I
50 449 (South Texas Nuclear Power Plant, i
Units 1 and 2)
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GEBIIEIG6IE.9E.liBYlGE I hereby certif y that copies of the Commission Order (CL1-90-Oli has been served this cate on th's f o!!owing person by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR-Section 2.712.
i Richard K. Hoefling Senior Attorney Office of the Beneral Counsel U.S.~ Nuclear Regulatory Commission Washington, DC 20555 Billie P. Barge, Esquire i
Robinson, Robinson, Peterson, Berk, Rudolph, Cross and Garge Law Office 103 East College Avenue Appleton, WI 54911-Dated at Rockville, Maryland this l
9th day of February 1990 BiiiiiEi'ihiiieriiiry'''''"
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