ML20087H726

Partially Deleted Order (CLI-90-01) Denying Stay of Enforcement of Administrative Subpoena,Issued by NRC Staff on 891201,until NRC Has Responded to Request Under FOIA for All Records Re Concerns Re Plant from June 1986 to Present

ML20087H726
Person / Time
Site:	South Texas
Issue date:	02/08/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	CORDER, J.
Shared Package
ML20087H293	List: ML20087H726
References
FOIA-94-322 CLI-90-01, CLI-90-1, NUDOCS 9508180197
Download: ML20087H726 (6)

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CDCMETED USHRC UNITED STATES OF AMERICA

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,10 FEB -6 P4 :14 NUCLEAR REGULATORY COMMISSION C0erf1SS10NERS:

OFFICE Of SECRETART Kenneth M. Carr, Chairman

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DGCMEiWG & SI*VICI-BRANCH f

Thomas M. Roberts d

Kenneth C; Rogers James R. Curtiss Forrest J. Remick gRVED FEB 09 20 Mh FEB f 2 20 In the htter of

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519 9 HOUSTON LIGhill46 AND POWER C0liPAf4Y

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Docket Nos. 50-448' 1

50-441I (South Texas Nuclear Pov;er Flant, yM Units I and 2) f

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'CRDER CLI-90-01 I.

Introduction.

This matter 1s before the Commission on a motion by for a

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protective orcer staying the enforcement of an administrative subpoena issued by the NRC Staff on December 1, 1989, asks that the Comission stay the subpoena until the NRC has responded'to a request under the Freedom of. Information Act ("FOIA") 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)at1.

Af ter due consideration, we deny the motion for protective ordec. for the reasons stated herein.

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l II. Factual Background

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In the spring of 1989, the NRC 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

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facilities, and major materials licensees, concerning provisions in settlement l

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 E00's letter, the Bechtel Corporation, former employer, identified a settlement agreement between it an

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resolving an employment-discrimination dispute under Section 210 of :the Energy Reorganization Act as having potentially festrictive language. See In the-Matter of 88-ERA-9 (Oct. '28,1988). 'In turn, an NRC Staff representative wrote attorney.of record asking if 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:

l attorney that "the settlement [ agreement] coes not prevent nor.

should it discourage" from asserting any safety concerns and-that he I

was free.to bring "to the attention of the appropriate agencies any information

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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.

-- through new counsel -- did not allege that he had failed 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.

See Letter from Billie P. Garde, Esq. to Dennis Crutchfield (Sept. 28,1989).

Among those " terms" was a request that the Staff subpoena "to 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, counsel filed the FOIA request noted

.above, flegotiations between the parties continued until December 1,1989, when

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the Staff issued the subpoena now before us.

Thesubpoenacalledfor$

appearance on December 19, 1989, at a location near his residence. On December 11, 1989, filec a motio'n seeking (1) to modify the subpoena making it returnable at another location and (2) to delay the subpoena until after the Staff hac responded to his FOIA request.

Subsequent negotiations have resolved the first issue, the location of the interview. Accordingly, the.

parties agree that this issue is new moot. The NRC Staff has responded to the motion for protective order and has filed a reply.

Driefly, alleges that he has provided information to the NRC Staff on numerous occasions and that he "has no way of knowing witho'ut 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

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issues he raised which have oeen previously evaluated by the Staff ano

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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 Staff with any degree of accuracy or reliability" regarding the South Texas Project. Reply at 5..For all those

reasons, seeks to delay responding to the subpoena until after he:

receives and reviews the response to his FOIA request.

According to both otion 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.

also alleges that on December 11, 1989, he filed a request for a waiver of fees,i10 C.F.R.' '

9 9.40, and that he filed a second FOIA request which he hopes will-be exempt from the fee requiremeot.

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III. Analysis.

apparently confuses the purpose of 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 fiRC Staff actions on his previous.

concerns or allegations and to pass.judgrent 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 Staff's request did.not involve previously

expressed concerns but simply an opportunity for 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 connunications.

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Lesttherebeanydoubt,theNRCStaffwilll'isten'toanyconcernsh

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wishes to expi* -- whether they be concerns he withheld from the NRC, concerns he has developed over the years since his termination with Bechtel, or concerns he siinply suspects may not have been adequately addressed. But independent'of his FOIA request, should be in a position to know whether he withheld concerns from the NRC, developed new concerns since his I

termination with Bechtel, or has an interest in the manner in which his'-

1 previously expressed concerns were addresseo. NRC records are not necessary for any of those purposes. Accordingly, we see no reason to delay compliance with the subpoena. We see no legal obstacle to presenting any safety concerns to the NRC at this time and he mphasize the need for the communication of safety concerns without delay.

If wishes to communicate other conc 6rns or information after his FOIA. request has

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been processed, he is welcome to do so.

IV. Conclusion.

For the foregoing reasons, the motion for protective croer is denied.

It is so ORDERED.

For the ComnTilsion

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Dated at Rockville,. Maryland A

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• UNITED STATES OF AMERICA NUCLEAR RESULATORY COMMIS$10N i

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In the Matter afs I

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i HOUSTON LISHTING AND POWER COMPANY )

Docket Nos.: 50-440 I

50-449 (South Texas Nuclear Power Plant,

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Units 1 and 2)

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i I hereby certify that copies of the Consission Order (CLI-90-01) has been servec this date on the following person by U.S. mail, first class, sucept as otnerwise noted and in accordance with the requirements of 10 CFR Section 2.712.

Richard K. Hoefling Senior Attorney

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Office of the General Counsel U.S. Nuclear Regulatory Cometssion Washington, DC 20555 Billie P. Garge, Escuire Robinson, rod 2nsen, Peterson. Berk, Rudolph, Cross and Garge Law Office 103 East College Avenue Appleton, WI 54911 Dated at Rockville, Maryland this 9th day of February 1990 1

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