ML20005G067

NRC Staff Response to Motion to Modify Subpoena & Motion for Protective Order.* Request for Mod of Subpoena Re Place of Attendance Considered Moot in Light of Agreement Reached Between Bp Garde & NRC Counsel & Should Be Denied

ML20005G067
Person / Time
Site:	South Texas
Issue date:	12/27/1989
From:	Hoefling R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
Shared Package
ML20005G068	List: ML20005G067 ML20005G082 ML20005G086 ML20005G162
References
CON-#190-9644 OL, NUDOCS 9001180081
Download: ML20005G067 (6)

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Docket Nos. 50-41) 4 S[Ryl

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HOUS7ON LIGfTING AND POWER CDiPANY

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(South Texas Nuc1 car Power Plant)

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50-41 S i

NRC S77EF RESPONSE 70 KYTION TO }ODIFY SUBPODA AND HMION EDR PBum;n2 ORDTR l

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Richard K. Hoefling Counsel for hT Staff Decernber 27, 1989 9001100001 0912 5 p50?

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LNITED STATES OF MERICA

!UCITAR REGUIA70RY COMISSICN BEIORE TIE CONISSICN IN THE Mu"TER OF:

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l I!OUS70N LIGfTING NO POWEP, CEPANY

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Dcx:ket Nos. 50-448 (South Texas Nuclear Power Plant)

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50-449 I

NRC STIEF RESKESE 'iO K7fION TO M3DIFY SUBIODR AND i

MOTION FOR PROTDCTn'E ORDER i

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Richard K. Iloefling Counsel for NRC Staff l

Deceber 27, 1989

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UNITED STATES OF AMEPlCA NUCLEAR REGUIA70tY CCf?CSSION P770FF TIE CCBNISSION i

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HOUS70N LIGHTING AND POWEP, CT.EPANY

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Docket Nos. 50-448 (South 'Nxas Nuclear Power Plant)

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50-449 m

hTC STAFF RESIONSE 70 MOTION TO MODIFY SUBPODa AND MOTION IVR PROTECTIVE ORDER I.

Ih':T<0 DUCTION

- On Decanber 11, 1969, Billie Pirner Garde filed with the Secretary of the Nuclear Regulatory Ccmmission (NRC) a Motion regarding the subpoena issued by the hPC staff en Deceber 1,1989 to her client, Mr. John Corder, requiring his testimony before NRC staff personnel. A copy of the subpoena is attached ac Fr.hibit 1.

The Motion sought a modification regarding the place of attendance for the subpoena based on grounds of finarcial hardship.

In addition, the Motion sought a protective order staying the subpoena until such time as the hTC provided Mr. Corder with all documents and information requested by Ms. Garde on his behalf through the Freedan of Information Act (FDIA), specifically, FOIA Request No.89-431.

II. RACKGROUND In a September 28, 1989 letter to the NRC staff, Ms. Garde advised that Mr. Colder had concerns precunably regarding the South Texas hbelear Power Plant which he believed the NRC has not evaluated which he would provide to the NPC only under the protecticri of a subpoena. A number of other restrictions under which Mr. Corder would provide the infomation were also I

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.. set out in the Sept aber 28th letter. On the sane day, Ms. Cede filed roIA Request No.89-431 on behalf of Mr. Corder for all reccrds and information t

relevant to Mr. Corder's concerns and allegations about the South Texas Project frcn June 1986 to the present. These letters are attached as Exhibits 2 and 3, respectively. 'lhe NRC ctaff's response to Exhibit 2 is attached as -

Exhibit 4.

Following issuance of the subpoena, Ms. Garse irdicated that the place of attendance set in the subpoena, Lake Jackson, Texas, although near Mr.

Corder's residence, was objectionable. During telephone conversations between Ms. Garde and Staff Counsel, during the week of Deceber 11, 1989, it was agreed that the place of attenaance would be changed to the place preferred by Mr. Corder, i.e., the Arlington, Texas area. It was further agreed that any claim by Mr. Corder for costs associated with his attendance at the deposition would be limited to that pemitted by law as if the deposition had been held at Lake Jackson, 'nexas. The deposition was to go forward as originally scheduled on Deceber 19, 1989, After this agreement was reached, Staff Counsel received a copy of the i

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Motion filed by Ms. Garde and became aware for the first time that the records i

and informtion sought pursuant to FDIA Request No.89-431 vere asserted to be a prerequisite to conducting the deposition of Mr. Corder. Staff Counsel contacted Ms. Garde by telephone and informed her of the NRC staff's position that a response to the FDIA request was not necessary to permit Mr. Corder to l

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L cpprise the KTC of his current concerns.1/ In view of the Motion panding before the Comnission can this issue and the Staff's understanding that Pr.

Corder would not apppear in response to the ri1bpoena until his MIA request was reached, the h?C staff concluded that the deposition could not go forward unless Ms. Garde withdrew her Motion. She declined to do so and the imC staff chose reluctantly to postpone the de m ition. See Txhibit 5.

In light of the agreenent reached between the imC staff and Ms. Garde during the week of December 11, 1989 regarding the place of attendance, this aspect of the Motion-is now noot. 'lhe only remaining nettnr before the Ccr: mission is the notion for a protective order, which raises the issue of whether an individual who claims to have safety concerns can delay responding to a subpoena designed to obtain information regarding those safety concerne until after the h?C provides him documents related to hcv the Imc has addressed his previous concerns.

III. DISCUSSIO!

When the hPC staff is informed by an individual that he has safety concerns which he will discuss with the hTC only if subpoenaed, the Staff's subpoena to obtain that information prmptly should be upheld without prerequisites unlesst there is a denonstrated relationship to the information l

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Ms. Garde had been inforned on November 3,1989 of the estimated fees

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associated with the processing of M IA Bequest No.89-431. Her office was informed on November 15, 1969 that a fee waiver request could be filed. Ms. Garde did in fact subnit a fee waiver request on Decenber 11, 1989 (contmporaneous with her Motion to the Ccrtission), Wich is presently pending. On Deceber 11, 1989, Ms. Gardc resubnitted her September 28, 1989 MIA request in the name of the Governnent Accountability Project, which is also presently pnding.

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4 sought. To condition a subpoena seeking safety infomation on resolution of a separate matter-here, an FOIA request--would unduly delay the NPC'c access to t

the safety inferrnation Mr. Corder alleges he has.

his is not a case Were an individual desires to provide safety i

information to the NRC staff, but can do so only with reference to certain doc mants in the possessien of the NBC. In such a circmstaace, the !GC staff prmptly would make available the necessary documents for reference. Rather, in this case, Mr. Corder is seeking documents, pursuant to the IVIA, which relate to the Staff's actions on previous concerns he brought to NRC's attention. The Staff's obtaining of the information which Mr. Corder currently has regarding safety of the South Te::as Project should not be conditioned on Mr. Corder's evaluation of the Staff's handling of his previous concerns, the stated purpose of his FOIA request. That IVIA request is unrelated to the matter covered by the subject subpoena and will be resolved ceparately.

IV. _ CONCLUSION

'Ihe request for modification of the subpoena regarding the place of attendance ib moot in light of the agreenent reached between Ms. Garde and Staff Counsel. 'Ihe recuest for a prctective order to stay Mr. Corder's deposition until certain records and information are provided to him by the NRC attec1 pts to impose an inappropriate limitation on the NBC's efforts to l

obtain safety information and, therefore, should be denied.

l Rec ly suinitted, q?LJ W'

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R chard K. Hoe Counsel for NRC Staff lj, l

rated at Rockville, Maryland this 27th day of December,1989 l-

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