ML20151N890
| ML20151N890 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 08/19/1987 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Condit R GOVERNMENT ACCOUNTABILITY PROJECT |
| Shared Package | |
| ML20151N771 | List: |
| References | |
| FOIA-88-107 NUDOCS 8804260037 | |
| Download: ML20151N890 (44) | |
Text
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- A P:(2au UNIT ED STATES
!"),
g NUCLEAR REGULATORY COMMISSION
}O'
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t W ASHtNOToN, D. C. 20555
/
C/ )9 August 19, 1987 Richard E. Condit, Esq.
Staff Attorney Government Accountability project 25 E Street, N.W.,
Suite 700 Washington, D.C.
20001 Re:
Subpoena of Billie P. Garde, Esq.
Dear Mr. Condit:
The Commission has asked me to respond to your August 11, 1987 letter.
In that letter you request the Commission to meke available for deposition Victor Stello, Robert Martin, Ben Hayes, and Sharon Connelly *(i]n order to construct a complete and accurate record' 'upon which the Commission (cen) determine whether to seek enforcement of the (Billie Garde] subpoena."
At the outsit we fail to see how the requested depositions could assist the Commission in determining whether to seek enforcement of the subpoena.
Ms. Garde is withholding the. subpoenaed South Texas safety information under claims baaed upon the attorney-client privilege and work product doctrine.
None of the individunis that you seek to depose has any knowledge of Ms. Garce's legal basis for withholding the subpoenaed information.
Therefore, their testimony would net ' complete the record' o; assist the Commission in determining whether to seek enf orcent.nt of the subpoena.
At any rate, we need not debat.e this point at any length since, as you undoubtedly already are aware, on August 14, 1987, the United States on behalf of the NRC filed a petition to enforce the subpoena in tae U.S. District Court for the District of Columbia.
A copy of the petition and supporting memorandum are enclosed.
More fundamentally of concern, however, your letter suggests that you believe that when the agency subpoenas information, the subpoenaed party is entitled to reciprocal discovery.
To the contrary, issuance of an agency subpoena is necesserfly a summary matter as delays may disrupt the agency's ability to obtain information which is necessary to discharge significant agency responsibilities.
Here discovery is particularly inappropriate.
First, as noted above, the discovery that you seek is irrelevant to the basis upon which Ms. Garde has asserted the attorney-client privilege snd work product doctrine.
Second, your requested discovery will further delay any NRC investigation of the safety concerns which you contend are serious.
Finally, your i
requested discovery is not proper for a third, very important 8804260037 880410 PDR FOIA w
F DAYBB-107 PDR
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reason.
Your discovery seems designed to support Ms. Garde's claim that neither Region IV nor Victor Stello, the Executive Director for Operations, is qualified to deal with the safety information purportedly possessed by those unknown individuals who allegedly have confided in her.
Congress has entrusted the regulation of the health and safety aspects of nuclear power plants to the NRC -- not Ms. Gardo or others who allege that they know better than the agency how to handle such matters.
In our view it is highly inappropriate for Ms. Garde to demand that the agency do things her way or all must suffer the consequences.
In particular, she has no right to insist that the NRC adjust its organization and personnel to suit her preferences as a condition for its even receiving the information she allegedly possesses.
We understand that some of the individuals who provided allegations to Ms. Garde may fear retaliation and reprisal if their confidentiality is compromised by release of their names and allegations to the NRC.
That concern is unfortunate and, from our point of view, unwarranted.
As you are aware from the new NRC Manual chapter that the agency provided to you at Ms. Garde's deposition, the NRC has appropriate proctdures for protecting the confidentiality of those who request it.
See NRC Manual Chapter 0517, Part II; Statement of Policy on Confidentiality, 50 Fed. Reg. 48506 (1985); 10 C.F.R.
S 21.2.
We ascure you that the agency is committed to these procedures and will protect the confidentiality of each and every one of these individuals under these provisions.
We further believe that receipt of the information under these conditions is a most equitable and reasonable manner in which to address the concerns j
of those persons who possess allegations.
Due to the purported seriousness of the allegations, we urge you j
to ask Ms. Garde to reconsider her decision not to fully comply with the subpoena.
In our view c11 would benefit -- Ms. Garde, the NRC, the utility, the Court, and most importantly, the public
-- if Ms. Garde furnishes the names of those persons who purport-cdly have safety information concerning South Texas to the NRC i.nder its established confidentiality procedures.
Sincerely, j
-w L.
1 liam -. Parler General Counsel Attachments:
Petition and supporting memorandum l
UNITED STATES DISTRICT COURT-FOR THE DISTRICT OF COLUMBIA THE UNITED STATES OF AMERICA,
)
)
Petitioner,
)
v.
)
Misc. No. 87-674[
)
BILLIE PIRNER GARDE,
)
)
Respondent.
)
)
PITITION TO ENFORCE SUBPOENA ISSUED BY THE NUCLEAR REGULATORY COMMISSION I.
INTRODUCTION 1.
The United States of America, on behalf of the Nuclear Regulatory Commission ("NRC" or "Commission"), respectfully petitions this court to order respondent, Billie Pirner Garde, E r. I. to comply with an administrative subpoena issued to her on May 20, 1987.
Exhibit A.
II.
'a
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JURISDICTION AND VENUE 2.
This action arises under the Atomic Energy Act of 1954, as amended, 42 U.S.C.
I 2011 et s,e,.,
and is brought by the United States of America.
Jurisdiction is conferred on this Court by 42 U.S.C.
I 2281.
3.
Respondent transacts business in the District of Columbia.
Venue lies in this court pursuant to 42 U.S.C. l 2231.
- ~
e III.
PARTIES 4.
Petitioner, the United States of America, is acting on behalf of the NRC which is authorized, inter alia, to conduct investigations, obtain information, and require persons to appear and testify by subpoena concerning matters related to the discharge of the NRC's responsibilities.
42, U.S.C. I 2201(c).
5.
Respondent, Billie Pirner Garde, Esq. is an attorney for the Government Accountability Project ("GAP").
Respondent contends that she possesses information related to numerous safety allegations obtained from current and former employees at the South Texas Nuclear Project ("South Texas").
IV.
ADMINISTRATIVE PROCEEDINGS 6.
In January 1987, Ms. Garde wrote a letter to the NRC's Executive Director for Operations ("EDO"), the official who directs all operations of the NRC regulatory staff.
Exhibit B.
That letter stated that GAP had commenced an investigation into allegations regarding the safety of the South Texas Nuclear Project.
According to Ms. Garde, GAP received these safety allegations from approximately 36 current and former South Texas Project employees.
Ms. Garde informed the EDO that "once our
)
investigation is complete, we plan to issue a public report.
Unfortunately, in the interim, we cannot advise our clients to provide their concerns to the Region IV office of the NRC.
our experience has been... that the [ Region IV) office is i
2
I
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i either unable or unwilling to comply with its rsgulatory requirements as outlined in governing agency procedures." Ms.
Garde further advised, "unless the NRC is willing to provide independent inspectors to process the allegations..., GAP will to the (S} tate Attorney General provide the allegations congressional committees, and... other
[ sic) office, regulatory [and) municipal bodies" interested in ensuring the 6
Exhibit B.
public safety at the South Texas plant.
The EDO and Ms. Garde exchanged correspondence 7.
regarding the NRC's re'sponse to allegations concerning safety-Exhibits C, D, E, F,
related problems at n2 clear power plants.
Ms. Garde requested an investigation of the allegations and G.
which she claimed to have obtained by an NRC employee or task force independent of Region IV.
Later, in a May 29, 1987 administrative pleading, Ms. Garde requested that the individual The EDO or task force be independent of Region IV and the EDO.
position on allegations management was that the South Texas Project is located in Region IV, and the personnel in that and in any region could adequately investigate the allegations; Ms. Garde should turn over the allegations to the agency
- event, so that the agency can determine the proper handling of them.
i Exhibits C, E and G.
Af ter repeated requests for the information, the EDO 8.
issued a subpoena directing Ms. Garde to testify and produce documents and information concerning the South Texas safety allegations on May 26, 1987 at 9:00 a.m.
at the NRC, Room 6507, 7735 Old Georgetown Road, Bethesda, Maryland.
i 3
9.
On May 22, 1987, Ms. Garde and the EDO (through their attorneys) entered into an agreement to postpone the deposition.
The agreement provided that Ms. Garde would move the Commission to qu. sh the EDo's subpoena by Friday, May 29, 1987, and the EDO agreed to continue the appearance date for the subpoena from May 26, 1987 until fourteen days after the decision on the motion to quash, unless the parties agreed on an earlier date.
10.
Pursuant to the agreement, on May 29, 1987 Ms. Garde moved the full Commission to quash the NRC staff's subpoena.
She argued that compliance would compromise the public health and safety, that the EDO lacks authority to issue the subpoens, and that the information from, and identities of, those who had made allegations to her were protectec by the attorney-client privilege and work product doctrine.
11.
In a July 15, 1987 memorandum and order, the Commission denied the motion to quash and ordered Ms. Garde to appear pursuant to the subpoena and provide the information being sought.
Exhioit H.
12.
Pursuant to the Commission's order, the agency deposed Ms. Gards on July 27 and August 5, 1987.
During the deposition, Ms. Garde refused to provide either the allegations from,or the names of, those who had allegedly raised safety concerns about the South Texas Project to her.
She claimed that the information was protected by the attorney-client privilege and work product doctrine.
i 13.
Alleged safety allegations and the identity of the i
persons who have purportedly furnished respondent those 4
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allegations are unknown to the NRC and are not protected by the attorney-client privilege and work product doctrine.
Absent judicial enforcement of the NRC subpoena, Ms. Garde will not provide the identity of any persons who alleged safety problems at South Texas.
14.
Respondent's repeated failure to fully comply with the NRC subpoena is contrary to law and the NRC is entitled to invoke the jurisdiction of this Court and to have its subpoena enforced.
WHEREFORE, the United States petitions:
1.
That this Court order respondent to appear before this Court on a date certain and show cause why she should not be compelled to fully comply with the subpoena issued by the NRC on May 20, 1987; 2.
That this Court order respondent to fully comply with the subpoena by producing documents and testifying before NRC personnel concerning both the identity of persons known to her who allegedly have safety-related information regarding the South Texas nucisar plant and the substance of any such safety allegations which she may know; l
3.
That the petitioner recover its costs and attorney fees
{
in maintaining this action; and S
4 4.
That the Court grant petitioner such other relief as it deems just and proper.
Respectfully submitted, kus /1 $di.bisum JOf PH t~.~DIGENOVA, D.C.* Tat #073320 United States Attorney k t.v (- M M
ROYCE C. LAMBERTH, D.C.dBar #189761 Assistant United States Attorney
?
MARK'E. NAGLE
/
Assistant United States Attorney 0F COUNSEL:
Attorneys for Petitioner Karla D. Smith office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (202) 634-1465 6
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1HE JNITED STATES OF AMERICA,
)
)
Petitioner,
)
)
v.
)
Misc. No. 87 ep 7
)
BILLIE PIRNER GARDE,
)
)
Respondent.
)
)
MEMORANDUM IN SUPPORT OF PETITION TO ENFORCE SUBPOENA ISSUED BY THE NUCLEAR REGULATORY COMMISSION INTRODUCTION The United States of America, on behalf of the Nuclear Regulatory Commission ("NRC" or "Con. mission"), has petitioned this Court to enforce a subpoena issued pursuant to its authority under the Atomic Energy Act, 42 U.S.C. I 2201(c).
That subpoena seeks information which respondent has concerning the identities of people who allegedly know of safety defects at the South Texas Nuclear Power Plant.
Obtaining the informstion requested, if it ir fact revenir serious, previously-unretolved safety defects, would assist the Commission in furthering its mission of protecting the public health and safety in and around nuclear power plants.
FACTUAL BACKGROUND In January 1987, respondent, Ms. Billie Garde, an attorney l
for the Government Accountability Project ("CAP"), wrote a letter to the NRC's Executive Director for Operations ("EDO"),
-e-w
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the official responsible for directing all operatiene ci the NBC regulatory staff.
Exhibit B.
The letter stated that GAP had commenced an investigation into allegations concerning the safety of the South Texas Nuclear Project.
According to Ms.
Garde, GAP received these safety allegations from approximately 36 current and former South Texas Project employees.1 Ms. Garde informed the EDO
[o]nce our... investigation is complete, we
' plan to issue a... 'public report.
Unfortunately, in the interim, we cannot advise our clients to provide their concerns to the Region IV office of the NRC.
Our experience has been... that (Region IV office) is either unable or unwilling to comply with its regulatory requirements as outlined in governing agency procedures.
Ms. Garde further advised the NRC that "unless the NRC is willing to provide independent inspectors to process the allegations..., GAP will provide the allegations to the
[S) tate Attorney General [ sic) office, congressional committees, and... other regulatory [and) municipal bodies"
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interested in ensurint the public safety at the South Texas plant.
The EDO and GAP exchanged correspondence regarding the NRC's response to allegations concerning safety-related problems at the South Texas plant.
Petition, Exhibits C, D, E, F,
and G.
Essentially Ms. Garde desired an investigation of the allegations by an NRC employee or task force independent of l
1 Ms. Garde now claims that the number of individuals has increased to approximately 54.
2
NRC's Region IV.
The EDo's position was that the South Texas Project was located in Region IV, the NRC personnel in that region should logically, and can adequately, investigate ths allegations.
Exhibit C.
Moreover, the EDO took the position that, in any event, Ms. Garde should turn over the allegations to the agency so that the agency can determine the proper handling of them.
Exhibits C, E,
and G.
Later, in a May 29, 1987 administrative pleading, Ms. Carde requested that the individual or task force be independent of Region IV and the EDo.
As we understand it, this is still respondent's demand.
Because the entire NRC technical staff works for the EDO, this request is tantamount to a request that the NRC fire its staff directer or isolate him from all safety allegations concerning a nuclear power plant whese safety is under his supervision.
Af ter repeated requests for the information, the EDO issued a subpoena directing Ms. Garde to testify and produce documents regarding the South Texas allegations on May 26, 1987.
Prior to that date, Ms. Garde and the EDO (through their attorneys) agreed to postpcne the deposition while Ms. Garde moved the e
Commission to quash the subpoena.
Pursuant to the agreement, on May 29, 1987, Ms. Garde moved to quash the subpoena, arguing that (1) compliance would compromise the public health and safety, (2) the EDO lacks authority to issue the subpoena, and (3) the information from and identities of those making the i
allegations are protected by the attorney-client privilege and work product doctrine.
In a July 15, 1987 memorandum and order, the Commission denied the motion to quash and ordered Ms. Carde 3
l l
to appear pursuant to the subpoena and provide the information being sought.
Exhibit H.
Pursuant to the Commission order, the agency took Ms. Garde's deposition on July 27 and August 5, 1987.
During the deposition, Ms. Garde refused to provide either the substance of the allegations or the namer. of those who made them, claiming the information was protected by the attorney-client privilege and work product doctrine.
ARGUMENT Thit Court Has Authority to Enforce The NRC Subpoena.
The /.temic Energy Act empowers the NRC to obtain information and testimony by subpoena in cor.nection with, inter alia, its investigation authority.
42 U.S.C. 5 2201(c).
Failure to comply with a subpoena issued under this authority subjects the violator to summary enforcement proceedings.
42 U.S.C.
I 2281 specifically provides:
In case of f ailure or refusal to obey a subpena served upon any person pursuant to section 22Ol(c) of this title, the district court for any district in which such person is found or resides or transacts business, upon application by the Attorney General on behalf of the United States, shall have jurisdiction to issue en order requiring such person to appear and give testimony or to appear and produce documents, or both, in accordance with the subpena; and any failure to obey such order of the court may be punished by such court as a contempt thereof.
Because respondent repeatedly has failed and refused to fully comply with the lawful subpoena for information potentially affecting the public health and safety, this Court has jurisdiction to immediately enforce the subpoena.
4
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o II.
The United States Has Established The Necessary Elements For This Court to Enforce the NRC Subpoena.
The Court's role in proceedings to enforce administrative subpoenas is strictly limited.
F.T.C.
- v. Texaco, Inc., 555 F.2d 862, 871 672 (D.C. Cir. 1977), cert, denied, 431 U.S. 974 (1977).
A prima f acie case is ettsblished upon a showing (1) that the investigation has a legitimate purpose and that the inquiry may be relevant to that purpose; (2) that the informatier.'. sought is not already within the government's possession; and (3) that procedures required by the agency issuing the subpoena have been followed.
United States v.
Powell, 379 U.S.
48, 57-58 (1964); Equal Emp., Etc. v.
University of Pittsburgh, 643 F.2d 983, 985 (3rd Cir.1981),
cert. denied 454 U.S. 880 (1981).
Those elements are all clearly met in this case.
A.
The Investigation The NRC Seeks To Conduct Has A Legitimate Purpese And The Inquiry Is Relevant To That Purpose.
There can be no dispute that an investigation' which the NRC would like to conduct into alleged safety defects will serve the purpose of uncovering -- and protecting the public from.. any safety defects that may exist in and around the South Texas plant.
Clearly, the request for the identities of l
- those who allegedly possess information concerning the South Texas plant is not only relevant but crucial to a thercugh investigation of any safety problems at the plant.2 2
The plant is not presently operating but is near completion and ready to begin low power testing, which is the first step toward commercial generation of power.
Houston Lighting and 5
B.
The Information Sought Is Not Already Within The Government's Possession.
This element is clearly met.
Indeed, the gravamen of this dispute is that Ms. Garde has not furnished the NRC with the identities of persons who allegedly have safety information concerning the South Texas plant.3 C.
The EDO Followed Proper Procedures In Issuing The Subpoena.
The EDO properly issued the subpoena under delegated authority.
The Commission is authorized to issue subpoenas pursuant to 42 U.S.C. I 2201(c) (Section 161c of the Atomic Energy Act).
It further has the power to delegate this authority consistent with 42 U.S.C. I 5849 (Section 209(b) of the Energy Reorganization Act) and 10 C.F.R. 1.40, which provide that the EDO shall perform such functions as the Commission may direct. See also Atomic Energy Act Section 161n, 42 U.S.C.
I 2201(n).
The Commission delegated the authority to issue 1
subpoenas to the EDO in 1982.
This delegated responsibility has been incorporated in the NRC Manual Chapter 103-0214 which provides:
"The [EDO),
is specifically responsible for:
issuing subpoenas under Section 161c of the Atomic Energy Act of Power Company, the licensee, is seeking an operating license which the Commission is scheduled to vote on in the near future.
3 At Ms. Garde's deposition, although she claimed that GAP previously provided a small portion of the allegations to Region IV, she was unable to identify to whom in Region IV the allegations were reported.
Her attorney c). aimed that CAP refuses to give the allegations to the agency twice.
Deposition Tr. c.t 215-216.
(Exhibit I).
6
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,o 1954, as amended, where necessary or appropriate for the conduct of inspections or investigations." Thus, the EDO properly issued the subpoena under his delegated authority.
Becau,se the NRC has established the elements for a prima facie case, the Court should enforce the subpoena.
III.Ms.GardeHasNotRaisedAnyValidObjectionTo Excuse Her Compliance With The Agency s Subpoena.
A.
Ms. Garde Has No Right To Control How The NRC Uses Its Resources To Respond To The Allegations She Purports To Have.
Ms. Garde's refusal to comply with the NRC's subpoena rests on her assertion that she believes that Region IV and the EDO cannot competently investigate the allegations which certain unidentified persons have given her.
It is her right, she asserts, to withhold possible safety-related information from the Nuclear Regulatory Commission, until the agency reorganizes its personnel and resources in a manner that satisfies her.
To state this remarkable claim of authority is to refute it.
Indeed, the claim alone strongly suggests that Ms. Garde is either indifferant to the public's health and safety or seeking to satisfy a desire to assume control of the NRC.
Whatever her motives may be, this irresponsible behavior is no defense to a valid NRC subpoena.4 4
This line of reasoning, even if Ms. Garde had the remarkable organizational authority which she claims, has at most minimal relevance to how the agency, within its discretion, might manage the allegations it receives.
It provides absolutely no basis, legal or otherwise, upon which this Court may refuse to enforce j
the subpoena.
The issue of allegations management is for the Commission, not Ms. Garde, to decide, j
7
RMdjyr*?T9{g.,
B.
Respondent's claims of Attorney-Client Privilege And Work Product Doctrine Should Not B2 Allowed To Defeat The NRC's Entitlement To The Public Health And Safety Information Which She Allegedly Possesses.
The NRC's administrative subpoena primarily seeks the identity of those individuals whom Ms. Garde alleges to have information about the safety of South Texas.
The NRC does not desire to probe the content and details of any communications between Ms. Garde and anyone else, nor does it wish to probe Ms.
Garde's thought processes.
Wha t i t seeks is the identities of the individuals whom she insists have information which is to the sadety of a nuclear power plant.b relevant Given this lack of interest in anything which the attorney-client or work product privilege is designed to protect, it is difficult to understand the nature of any such claim in this case.
In fact, neither the attorney-client nor work product privileges are as broad as Ms. Garde claimed in refusing to obey the agency's administrative subpoena.
Theidentity of individuals who allegedly have information
'a regarding safety defects at nuclear power f acilities cannot be shielded by such sweeping assertions of privilege.
Even assuming that every person who Ms. Garde has talked to
................. ~.
5 As a less desirable alternative to the identities of those l
whom she alleges to have knowledge of safety defects, the NRC would accept a description of any such alleged defects, i
However, investigating the nature and details of the safety l
allegations being raised would be much more difficult if the NRC i
were limited to working with second-hand information.
To l
investigate properly, the NRC technical staff needs to talk I
directly to people who allegedly have both first-hand knowledge cf problems and the expertise and ability to answer follow-up technical questions about their allegations.
I, l
8
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e e
about the South Texas plant is her client (something she does not apparently claim), that every communication she received was uttered in strictest confidence with no intention of ever divulging it to anyone else, and that th>are has been no waiver by her dealings on this matter with others than the NRC. th6 mere identity of an attorney's client is generally not a matter that is protected by the privilege.
See e.g.
NLRB v. Harve, 349 F.2d 900, 904 (4th Cir. 1965); Tomlinson v. United States, 93 F.2d 652, 655 (D.C. Cir. 1937), cert. denied, 303 U.S.
646 (1938).
Nothing makes this case an exception to this general rule.
Similarly, even assuming arquendo that the predicate for an attorney work product claim existed (however, Ms. Garde is not in litigation with the NR2 over the South Texas facility), the work product rule does not protect the disclosure of fact witnesses from discovery.
- See, e.g.,
Butler v. United States.
226 F. Supp. 341, 343 (W.D. Mo. 1964).
Moreover, even if the rule had some application to the identity of f act witnesses, it seems clear that the need for information regarding alleged saiety defects in a nuclear power plant, given the general unavailabilit of such facts otherwise, outweighs any possible claim of attorney work product privileg.
Ms. Carde appears to allege that her privilege claims are necessary because the individuals whose identities she seeks to protect must be kept confidential in order for them to avoid reprisals and retaliation which may follow if they divulge safety infarmation.
However, this concern is legally 9
I 'y a
insuf ficient to justify her refusal to comply with the NRC's subpoena.
The agency has made extensive efforts to protect the confidentiality of those who wish to raise safety concerns without "gojng public." See, NRC Manual Chapter 0517, Part II; Statement of Policy on Confidentiality, 50 Fed. Reg. 48506 (1985); 10 C.F.R. I 21.2.
This program is a reasonable and effective way in which the NRC encourages people who may ' fear retaliation to nonetheless come forward in order to allow tl.e NRC to take any action that may be necessary to protect the public.
The program is designed to balance the sometimes competing needs of getting the necessary information to protect the public, but allowing confidentiality for those who desire it.
Moreover, there is a statutory scheme and an extensive administrative process at the Department of Labor which provides an effective, make whole remedy for those who allege that reprisals have been taken against them because tt e advised the i
NRC of safety defects.
Section 210, Energy Reorganization Act, 42 U.S.C.
I 5851, see e 22, Kansan cas and Electric Co. v.
Breek, 780 F.2d 1505 (loth Cir.1985), cert, denied, 106 S.Ct.
3311 (1986).
CONCLUSION The NRC's subpoena should be enforced and Ms. Garde should be ordered to provide forthwith the identity of anyone she 10
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"alleges to have information concerning safety defects at South Texas.6 Respectfully submitted,
? r 2H f. A ~ & n d M JpSEPH E.
DI GENOVA',' D. C. Bar #073320 United States Attorney L t. ( -
}N ROYCE /C. ~LAMBERfH, D.C' Bar #1d9761 Assistant Unit,ed States Attorney Jo 0
MARK E. NAGLE
.f Assistant United States Attorney OF COUNSEL:
Attorneys for Petitioner Karla D. Smith Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (202) 634 1465 6
Petitioner is filing herewith a proposed order to show cause which sets September 4, 1987, as the date by which respondent must file her opposition to the petition.
This date was selected to accommodate the schedules of respondent and her counsel.
Petitioner believes that this matter can be resolved expeditiously, however, and therefore our proposed order provides that no discovery shall be permitted.
Petitioner will reply to the respondent's opposition within 5 days.
Argument can be scheduled at the Court's convenience thereaf ter, but we wish to advise the Court that the Assistant United States Attorney primarily responsible for this case will be in trial from September 14 to 18, 1987.
11 1
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{(i. e,
} ol UNITED STATES DISTRICT COURT FOR THE DISTRICT CF COLUMBIA j g-j i
UNITED STATES OF AMERICA,
)
)
Petitioner,
)
)
)
Hisc. No.87-274 y,
)
EILLIE PIRUER OARDE,
)
t I
R6spondent,
)
)
EILED
. and
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OCT 2 71987 00VERNMENT ACCOUNTABILITY
)
j
- PROJECT,
)
et.tRK. U.S. DisTRic7 Couc
)
DtsTR1cf 0F cO W V" Intervenor-Respondent. )
MEMORANDUM OpfNfON The United States of America petitions to enforce a Nuclear Regulatory Commission subpoena to compel an attorney f.or the Government Accountability Project, Lillie pirner Garde, to disclose any and all information, including client identities, in her possession concerning the safety a nuclear power project in The Court finds that the subpoena is not narrowly drawn Texas.
to avoid unnecessary abridgement of constitutionally protected associational rights.
Accordingly, the petition shall be denten EACI.1 The covernmental Accountab111try Project (OAP) is a nonprofit organization which has been an advocate on behalf of vhistleb1cvers" on safet,y-related issues at various nuclear a
In the past, CAP has been able to reach power projects.
accommodations with the Nuclear Regulatory Commission (NRC) permitting safety information and allegations in UAP's hands to
I I reach appropriate government officials.
Ms. Garde, the respondent, is an attorney and director of the Midwest Office of GAP.
On January 20, 1987, she wrote a letter to Victor Stello, Jr., the NRC's Executive Director for Operations, and to Texas Attorney General James Mattox stating that GAP had begun investigating worker allegations concerning the safety of the south Texas Project, a nuclear plant nearing completion southwest of Houston, Texas.
The letter stated that CAP represented or was working with 36 current or former employees at the plant.
The letter stated:
Once our preliminary investigation is complete, ve plant to issue a formal public report.
Unfortunately, in the interim, we cannot advise our clients or tho'se ve work with to provide their concerns to the Region IV office of the NRc.
Our experience has been (and recently released internal agency reports confira) that the Arlington office is either unable or unwilling to comply with its regulatory requirements as outlined in governing agency procedures.
Thus, unless the NRC is villing to provide independent inspectors to process the allegations pursuant to internal.NRC regulations, GAP vill. provide the allegations directly to the state Attorney Otneral of fice, and/or to the appropriate congressional committees, and/or to other requiatory or municipal bodies which have an interest in ensuring that the south Texas plant is designed, constructed, and financed in a manner that protects the public.
An exchange of le,tters folloyed between Ms. Garde and Mr.
l stello, who insisted that Region IV was the proper forum for GAP's information an4 expressed his unreserved confidence in that s
The tone of thJ 1etters, never lof ty, deteriorated office.
rapidly.
Ms. Garde accused Mr. stello of "bureaucratic posturing" and declared that 've vould be irresponsible if we led
l arra whistleblevers blindly to the slaughterhouse of your Arlington office."
Mr. Stello replied with a one-paragraph reminder that "NRC is the responsible federal agency for ensuring and that safety significant views are appropriately addressed."
i so on, until the final letter from Mr. stallo, which carried a varning that "if we do not receive full information on the allegations within 30 days we vill be constrained to take steps l
to acquire it by other means."
Those "other means" were a subpoena, signed by Mr. stello on May 20, 1987, ordering Ms. Garde to testif y and produce documents regarding the south Texas ellegations on May 26, 1987.
The subpoena, the first ever directed at GAP by the NRC, was issued pursuant to 42 U.S.C. 8 2201(c) (1982) and stated:
YOU ARE HERE3Y COMMANDED to appear at Room 850f, Nuclear Regulatory Commission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May 1987 at 9:00 o' clock A.M. to continua as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or former employees of the south Texas Project concerning the sat'ety of the south Texas Project, as described in your letter of January 20, 1987 to Messrs. Victor stello and Jants Mattox, and f
any other allegations which you have received concerning the safety of the south Texas Project, and to provide any records or other documents in your possession or under your custody or control concerning
(
such allegations,i Before May 26, attorneys f or Ms. Garde and the NRC agreed to postpone the deposition yhile Ms. Carde noved the full Commission to quash the subpoena.
On July 15, 1987, the Commission denied the motion to quash, and on July 27 and August 5, 1987, Ms. Garde information testified.
During the deposition she furnished some
4-but refused to provide either the substance of the allegations or the names of those who made them, claiming the information was protected by the attorney-client privilege and work product doctrine.
on August 14, 1987, the government filed this petition to S 2281 (1982), which allows enforce the subpoena under 42 U.S.C.
the district court to order testisc.ny and production of doct:monts GAP was and to punish failure to obey such an order as contempt.
allowed to intervene in the esse, and Houston Lighting & Power Co., which is building.the South Texas pir.nt, was permitted to brief the issues as amicus curfae.
DiscusstON Ms. Garde and GAP raisad a number of challenges to the
~
In its papers mEd at oral argument, the government O
subpuvue.
cast the subpoena in somovhat narrover terms and advised the j
Court that it would consider the subpoena satisfied if Ms. Garde disclosed the identity of her clients and other informa.nts.*
' It appears from disclosures made during deposition and from af fidavits filed in this proceeding that Ms. Garde claims 56 About 46 of sources of information for roughly 600 allegations.
Of those individuals are within the scope of the NRC subpoena.
46 individuals, 24 are "clients" and 22 are "vitnesses."
those Because of parallel ptoceedings before the Department of Labor, the identity of about 16 of the clients has been disclosed to the One other client's identity is known to the WRC, so the NRC.
identity of seven clients remains confidential.While the court fin it does consider Hs. Garde's lawyer-client confidentiality issue, argument substantial under the line of cases that begir.s with 279 F.2d 623 (9th Cir. 1960), and includes ELER gaird v. roerner, Harvty, 349 F. 2d 900 ( 4 th Cir. 19 6 5), where it was recognized that the identity of a client may be privileged "when so much of v.
the actual communication has already been disclosed that
l s.
However, the government also advised 'that if the identities were not forthcoming it would have no alternative but to seek enforcement of tha subpoena as drafted.
The court shall evaluate i
the subpoena on its face as no effort has been made to formally j
amerd its terms.
Ms. Garde and GAP submit that compelled disclosure of GAP's informants vould have a crippling effset'on the organization's efforts on behalf of whistleblowers to present their safety f
concerns to the NRC and to the public.
The government acknowledges that GAP has served a beneficial role in the past, and denies any interest in harming GAP or choking off the flow of allegations and information through it.
Ironically, both the NRC and GAP claim the same ultimate ain--to see that nuclear safety allegations are fully
)
investigated so the public may be protected.
It is lamentable.
for whatever reason (and e personality clash and overheated 1
that rhetoric appear to be prime suspects) the NRC and CAP have been Both sides have shown a I
unable to work out their differences.
its tendency to overplay their hands--the NRC because it cast subpoena too broadly without fully exploring alternative means of
.i l'
obtaining the information, GAP because it is clear that under the appropriate circumstances its First Amendment rights vould give interest in nuclear safety.
Ms.
way t'o the compelling government Identification of the client amounts to disclosure of a 349 F.2d at 905.
confidential communication."
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oral argument that Eng enforcement of the Garde's counsel said at subpoena, no matter how care'ully tailored to protect privileges or constitutional rights, vould send a message to whistleblevers Ms. Garde and GAP vould be ill-that GAP was not a safe harbor.
advised to consider the outcome of this case as granting them any lamunity from NRC subpoenas or endorsing their attempt to dictate how NRC conducts its affairs.
Alabte,g, 357 In a series of cases beginning with NAACP v.
absent a U.S. 449 (1958), the Supreme Court has held that, compelling government 1nterest, an organization could not constitutionally be compelled to identify the names of its f
members, agents, contributors, or recipients of contributions if it could be demonstrated that such disclosure would subject those identifie'd to harassment or retallatior, by virtue of their The Supreme Court recognized that First Amendment association.
Button, 371 associational rights extend to litigation in WAACP v.
In that case, the Court struck down a Virginia
,U.S.
415 (1963)'.
ban on the solicitation of prospective litigants for the purpose
?
of advancing the lawful objectives of the NAACP and the NAACP The Court held that Legal Defense and Education Fund, Inc.
litigation is a form of political 6xpression deserving of full First Amendment protections.
Liu Et 429.
The Court elabor;eted on the protections announced in Button The in a subsequent case, In re Primus,, 436 U.S. 412 (1978),
Court held that South Carolina could not constitutionally punish for solicitation an American Civil' Liberties Union lawyer who
I 7
l
. advised people of their legal rights, offered free legal in order to assistance, and made referrals for legal assistance The Court found that further political and ideological goals.
the ACLU "engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful in' formation to the public."
Idi at 431.
It is beyond dispute that the legal activities engaged in by Ms. Garde and GAP serve as a vehicle for political expression and The government argues, however, that the disclosure association.
sandated by the HRC subpoena vould not infringe on constitutional its members, and those who associate protactions because GAP, The NRC with it would be exposed to no harm by the disclosure.
promises that the inf orm& tion vill be kept confidential,' subject only to its statutory obligations.
Ms. Garde and GAP argue that unenforceable promises are not worth much in the f ace of the track record of the NRC and particularly its Region IV office for leaking inf ormation Be that as it may (the Court aarlier provided in confidence.
denied a request for discovery and an evidentiary hearing on the the plain fact is that good f aith of Mr. Stell.o and the NRC),
Ns. Garde and GAP argue without con'tradiction that the They cite NRC'ss pledge of confidentiality is not enforceable. slip op. at 5 (D.D.C.
Civil Actinn No. 85-1082, McDermott v. NRC.where Judge Johnson ruled that a rimilar promise Apr. 26, 1985),
"As an of confidentiality could not ce enforced by mandamus. i (Diablo the exercise of the NRC's independent discretion, DCAMPis not enforceable in a Canyon Allegation Management Program) private civil suit."
16.
s
.g-GAP's informants have chosen not to go to the authorities directly with their complaints.
Indeed, one of Ms. Garde's clients is said to be an NRC employee who was not satisfied with the way the agency handled information furnished directly to it in the first instance.
It is not unreasonable to infer from the fact that these whistleblevers have gone to GAP that they do not wish their identities disclosed to the government without pledges of confidentiality acceptable to them.
The Court is not auch impressed by the government's argument that employees should not worry because federal law, 42 U.S.C.
t 5851 (1982), prohibits retaliation against whistleblevers.
Fros this point it is but a short step to the conclusion t ha t if the government is successful in compelling Ms. Garde to reveal the information given to her, espeelally the identi'ty of those she rep:esents, GAP will lose the confidence of some of its whistleblever informants and its efforts to gather and present safety allegations will suf fer.
This is the harm that GAP claims, and it is cognizable under the right to association.
The First Amendment bars this infringement on constitutionally protected rights unless the government can show a compelling interest that cannot 6e served by alternative means.
The interest in nuclear safety is no doubt compelling, and it is l
not contested in this case.
The question is whether alternative means of obtaining the information sought from Ms. Garde are available to the NRC.
The agency understandably has resisted Ms.
Carde's demand to set the terms and conditions of disclosure,
\\
9-especially on the issue of whether Mr. stello will be shut off from the information and the investigation of it.
However, it is not necessary to address the reasonableness or propriety of the various alternative means of acquiring the information propounded by Ms. Garde and GAP.
The burden of demonstrating a lack of alternative means is on the government, gg Ip re Primum, 436 U.S. at 432 (government must show that means closely drawn to avoid unnecessary infringement of associational rights), and the government has not satisfied this Court that it has explored alternatives to the use of compulsory process to obtain the information sought.
This conclusion is reinforced by the broad sweep of the subpoena, which encompasses all "allegations you have received concerning the safety of the South Texas Projecta and "any records or other documents in your possession or under your custody or control concerning such allegations."
The NRC cannot cast with such a vide net when constituti'.-nal freedoms are at stake.
Alternatives minimizing the intrusion on associational rights must be carefully and conscientiously explored before resort may be had to the court's process.
An order consiste0t with the foregoing accompanies this Memorandus opinion.
[
s 2 -s r jv/W Thomas F. H'o United States Dis ictJg,ge Octobersdj(,1987
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA i
l UNITED STATES OF AMERICA,
)
l
)
Petitioner,
)
)
)
Misc. No.87-274 v.
)
BILLIE PIRNER GARDE,
)
)
Respondent,
)
l EILED '
and
)
COVERNMENT ACCOUNTABILITY
)
@T 271987 j
)
- PROJECT, CLERK U.B. Dt#TRICT Cover
)
DistmcT opiootur Intervenor-Respondent. )
O__ R D ER f
j Upon consideration of the petition of the Onited States of America to enforce a subpoena issued by the Nuclear' Regulatory intervenor-Commission, the briefs of petitioner, respondent, and the entire respondent, and amicus curiae, oral argum*nt, record herein, and for reasons set forth in the accompanying opinion, it is this day of October, 1987 ORDERED that the petition is DENIED; and it is
?
FURTHER ORDERED that the Order to Show Cause issued by this-court on August 20, 1987, is DISCHARGED.
Thomas F.
United States Di r
Judge O
M
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'F.
- 5tn.Jt13 22,1987 E21 8
JACK ANDERSON and DALE VAN ATTA
,ns~.
Whistle Blowers Betrayed by NRC he Nuclear Regulatory Commission is The last breach occurred as Atchison was T workers who blow the whistle on safety belatedly drafting new rules to protect walking out of the plant moments after he was fired problems and incompetence by officials at nuclear in April 1982. The NRC's senior resident powzt plants.
inspector, Robert G. Taylor, was overheard to say, But the NRC's reputation for blowing the whistle
'There goes your 1980 alleger," according to the on whistle blowen-exposing them to dismissal or NRC report. The Labor Department subsequently other retaliation by disclosing their identitjes-is so overturned Atchison's firing as "improper,"
cidely accepted that the commission's latest according to NFC files.
More recenti, the targets of an internal NRC f
assurances have not que:Jed suspicion among critics.
investigation were given copies of the Lawyer Billie Garde of the Government Accountability Project, a public interest group investigators' highly critical report, which identified devoted to protecting whistle blowers,is so dubious their accusers either by came or by the context of about the comrmssion's claims of good faith that the information provided.
she refuses to testify about some 500 allegations of The frantic whistle blowers called NRC deficiencies at the South Texas nuclear power plant investigator George Mulley to protest their betrayal. "Most of these individuals felt that the near llouston. She is resisting an NRC subpcena to tell what she knows because she's afraid she will be distribution [to targeted officials] was done forced to name her informants at the plant, purposely to expose them to possible future subjecting them to possible reprisal.
retaliation," Mulley testified at a Governmental Affairs subcommittee hearing chaired by Se.a. John Garde told our associate Stewart Harris that Glenn (D-Ohio.).
most of the plant workers and NRC employes who Mulley w:s exasperated by the agency decision talked to her did so only with the explicit understanding that they would not be identified.
to distribute copies of the report to the targets of Their fears of retaliation are understandable; the investigation. But a mmmi%n official told us NRC offic2als in Texas have been accused of that the informants were not promised breaching confidentiality in the past. Charles confidentiality, and said internal reports are often Atchison, a worker at the Comanche Peak nuclear distributed to regional offices. But sources said p! ant near Dallas, was fired after the NRC broke its such reports would normally go to regional promise to him and revealed that be was the source supervisors, not to subbets of the investigation.
Footnote: NRC officials say current comnussion of infornution about defective welds at the plant.
policy is that informants' names will be available Indeed, according to an NRC internalinvestigative r: port, commissxe officials broke their pledge of only on a need.to-know basis. This, they said, protection on three occasions, means that officials should avoid using whistle blowers' names in documents or discussions.
Po w es-lo7 di
t t,0bh
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t 1.
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{ scated to helping whistfe-t towers.
'They felt cornit ance v.ith the ouchard said a t-tter was besig j
D:t Evtronr tat Wruc.
It has r(fused to turn over t!e suttorna wc itd not rostiproi.use se it to GAP 3 Gari e but declin t t,'
t i
workers" aarnes and (omplaints it pubhc hea rh and safety." Fou-lo rimuss its (or: tert s.
g
.:The Noctor Perd-forYe Colu-has collected wHbout f6C assur-chJrd s3sd "In fact the converse is "80slcatty. the le!!ing ts ne ld{tI l
rnp8csday to turn over the parneson osdesed a watch @g g.oup ances that. the agency's Texas-true Fai!ure to oblain the allega-ne-d to know mr>re about what the 7.r based Regiat. IV would be exclud-tions would be snort.kely to com-alt:gati.ons are before decidmitl
!*l I
l of workers at the South Texhs Nu. ed frora any resulting investigation.
promise public health and safety - wtether they shouk be handled by
- i atear Project and their cdm laints A recent internal NRC investiga-par'ic=;' arty J the *'!egations were aspecial teamf' he rid.
l about pyrported problems t the tion was sharply cntical of Regen P ue.
l when it requested the specialihl-godear plant.
IV's ovenight of the Coman(he The commissioners did not di-sestigation in late May GAP said at
- By a 4-0 vote et a Washingwn Peak nuclear prosect m North Tex-rectly address a GAP request that had collected more than 500 spe-anecting. the commissioners reject-as. It concluded sogne NRC rnana.
an independent hRC team from cific allegations from workers ed a snotion filed by the Govern-genaf people were too chummy outside Region IV be asugned tn about the South Texas Proiact. and gient Accountability Project to with the urditees budding the proi-mvestignie its findings at the Bay about 50 percent of these involved quash an NRC staff subpoena. The ect.
City nedear plant.
plant safety.
subpoena caBed on CAP to turn Condit said the South Texas erer its records imm a four-month Fyoject workers wanted nothing to go,,uo,,, fx (nquiry into affegations of safety do with Region IV because they po,
problams, theits and bid-rigging at feared this would result in the loss
,Cer.0:co18r2f N 0:e nuclea,r plard, of their confrdentialty and their An NRC order was being issued jobs.
t,o Billie Garde. GAP's Midwest di-
- Given the current Regson IV re-rector, to appear within 14 days at gime, we feel that problems turned liRC headquarters in Bethesda. over to them would more likely be Md., to testify and turn over GAP covered up than resolved." Condd documents.
said.
- But Richar Condit.a GAP attor-The NRC staff on the other r.cy in Washington who attended hand, said it issued the subpoena the NRC meeting, said II 2 nuclear because M could do nothmg until it agency wi!! have to get a court or-knows exactly what the workers der before CAP surrenders any rec-are concerned about.
ords.
Joseph Fouchard. NRC pubhc al-
. "We're not going to comply with lasts chief, said the cornmisseown tr.e sutmena voluntanly." he said. tpheld the subpoena because they The CAP organization is a non-did not feet GAP had just:hed its profit, pubhc-interest law farm ded-concems about Region IV.
r wege e
emer.gre, e a gw meema
N 7 's.
If 8
6/3 AITat n'.'TY Amencan Statesman (Cir. o.171,237)
NRC subpoenas watchdog fles' Agency orders group to verify daima against South Texas plant By Seth Kantor g,f joet. near Bay City, will serve Au Garde and Condit han argued a esie.e-ea stea y
tin San Antorno. Corpus Christi that NRC Executive Dirsctor for and Houston. The plant, beine Operations Victor Stello Jr., who WASHINGTON 'ngngeler.: built by manastng partner Houston imued the oubpoena, would place Remalato y Comminaion ruled 1.lghting & Power. Is scheduled to the invntiastion into W handa of WEneeday that a group claiming begin delivering full commercial the commienion's Region 4 in Ar.
to know of about 250 safety viola. power to clients by December, lington. The twolawyers claim that taons et the South.. Texas NurJear Meanwhile both the NRC and Stello and Regwn 4 officiale have Project must provide all records the proj'ect group are blaming eeth trsed to cover up amfety violatione and doeurnenta of those claims by cther for not having the public's in the poet.
July 29.
best safety concerne at heart. as the Condit was engered that the But Richard Cor.dit, e le_w_yer alleged clairns of 250 eafety v>ule.
repreaenting the Govern _ ment Ac.
tions remain undisclosed. Condit NRC commissiorwee alkrnd him countabbty Prnject said,"We an said his group has anhther 250 no oral argument before huding reing to ignore the NRC's subpoe.' claims of wroogdoing. intimidation down their ruhng Wedneedty, re. They are gotog 'o bjve to go and threate at the plant.
. It was evident that the commis.
into federal court to try and force Without discussion, the fou, ston was sendse a clear meccays to us o tum over names and records." NRC commissioners rejected th, nuclear power workere." Cenat sad Their nweasse was y
,. rncy cocaminaioners took 32 project group's requeste to form a Care what you have to tay.,, don -
second.1 Wednesday to deny the special probe and toJguash the sub.
Government Accountabilit pe;'. w;&aa4 re<FTeita %y Prv. poena. They taeued a written orderMeanwhile bi!La by Rep. Jack qEar.h that would force paoject attorney Brnnk s.
D.Beeurnont. and Sen.
the N'r: subpoena and to,wtablish Billie P. Garde to tastify before the John Glenn, D. Ohio, could a rve as e 5;eci.1 investigation unit to look NRC in two weeks and to provide a future remedy for be oe tnta the clattne of safety violations, the names of those reising com-prob eme es the federal @ nuclear Condit md,the subpoena is ilje. plainta about ufsty infractions estncy. They have written auth.
gal. and he said ths.t tht_cotamis. and other wrongdomge.
ored musures, espected to peu ;n unn's pl:ns to investigate the Commiteioners rejected Garde's the House and Senate in Septers c+mnn its own way, on a reg _ional claim m an affidavit that she ber, that would establish a perma.
levol. *,vould eubvert the efforts of should not have to comply with the nent indspendent invwtigotive at le:st 33 (nuclear power) workers subpoena because it would violate inspector general's office in the their conesins properly.her attorney.chent privilegn.
commimion.NRC.
to t.v pmu ai."
But be eernmissioners argued in o 7-i;tta order that the suopoena is a;;y 14J under the Atomic En.
er j act, 2nd thet -failure of the
.N'. 0 to sotain the nllegations NC) De.y ccrnpromise public the aCem com are substantiated."
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h-ith.nd scfety, particularly if
(
TN Co.6 Texas Nuclear Pro.
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I THE DAILY Jae m g% '-
g 2*2 NEWS SERVICE Mst o, m u$ C SUbpOGna bp $$Q
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D~hw_CroN Group may be forced to divu ge
- 9" caeroes of defects at STNP.
w ea -
w amendipent almed at pret/nting the Sea-By JAMES R. PIEROBdN Paton said NRC offacials not under Stello's brook Shoreham nuc7ar piar,ts from nrstee Cereme e wasragton Buread command could mvesugate the allegauons but only opening us cleanng th'twa/ for the No-if Stello did not have sufhelect time to supemse clear Re atory Comtg{ssion to remve them hamaelf, barners t t have bloei x! the placts.
I WAsif1NCTON - A government attorney lodf.
'me sppointmect of specialinvestigators at WNP Ry 3 X),160 vote, tr y Ho,se declined cated Wed esday the Nuclear Regulatory Commts-could amount to a vote of oo<orJtdence on Stello to force the C to mahtain curreat rules, non may a.tt a federal court to force a public and create the impress >on the commission was wh)eh requi at stalTand locr.) au$on.
mternt krcue to dani;e aDe;auces of about 500 yielding to G AP, several industry offKials and NRC ties participa n emeipey planturg be.
safety def:cd. at the Sout:1 Tez.as Nuclear Project staff roembers.igreed.
fore a full po r heerqe is granted.
near 3ay Cry.
'They want the auega60ns, int they don t vast W NRC ts 2 ing a rule to mr.ke "X&rr. D. P: ton, an NRC attorney who helped that appearance "one taff rnember said it easier for a maung lie,le plant to quah.*y for cend:c; a t7c day dqosioen of the Government.
Care said she ha been hired by about 34 eurrect an e n locaj govern-
[ati h"'$ Re gu["* *t*!'
- d c;
.he J a
t on to s
ed ts N P#P1 edcre a cernm:ssion subpoena m federalistnet allegabons w no dinct ties to the auclear coun :xi.:.g liformat:en about the alleged deh-against it at NRO <eted ana' testf.ed
]
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- tarings.
'N~;rra,.,... Nuires the co nm:ss en to investi-She admitted ceder questioning that "all of the the defeated
' n:iment, offered by dmW M to GAP m M h M Rep. Edward guuy
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al:e;f or the Texas perject) mana t or has been rased of a bill gove NRC todget, went N
v; through proper channe et she and her attomey down witn oppe
. clattning 11 mittt
'"c: H. :t,h,,,,e,Mf[r#
7.[,9,.
ly Anthony 2 Rctsraan, repeaffdly asserted that alj jeopardue the re ye: ear industry by 1.i",1ati h Pct er commassace or HL[P.the al!egations ma not have been addressed by the "l
estabhshmg a 14al rn.
ersuve local armoem:grdent for ttncorp-te y.
e e; 2:Im ey c.
t
,p c bN rettbate against a
- (The employees) don't want this plant to run anul "N L hte E rvirta.
1-ce'rt - 3.:-[/t.ly 'r-rS:s :nd it.at it cococr.
the:e safety problems are addressed. You should agr -- :. : 13 :ut;::it conf:desuauy any concerns nyerstand how deeply these %.
feel about amendm,en [kh " * #
to t:-
- t.i r :r:" who vert for a pnvate, 81 E0" 515d-gg gg led by Pubu tvice Co. I Nn P.::mp-ind-- - --*.r /Pr2 c:rt.pany. The franch:se N eornmissioo lssued its subpoena ln May after CAP announced la Jan-ary that the defleiencies,shJre, and llhorohsmD. lact is New ec m r.; e "..y.r.i?.
. Yort, owned 1.cng Ir.lanc.
tur CL, T9 - r ; :- r M_tz: siircush se a legal existed. GAP tned to quart the sabpoena, bot the lack the sucroort of loer.l au.
tu r -" '. cec. ::?.:7 Le start up of the first cornmissme denied the mouock claim evac 24' hon routes an v\\ ad of[I -
-. -e:;.e-: M CFP, whieb has been Throughoct the ctepostuen. Patoo and Karta D.
NRC n$ttlms require 't st ttDt 's Smith, a second NRC attorney seemed Letect ce sub mt eggency plans coy Tiag a lo
@an -- - :. -.e: : r..n 3w City.'cr more than ah -fr xsics inun the weakening the attorney-chent privilege Garde e tad trule plant pus. The proper I;ri.C rW o - -
C'C', lf *. { '., u...e x.--
as her reason for withholding the allegaboca and the wmld ext.npt plant eners 1: ) ma;e a b.... '.77."$'~rl.el at tM plant. It c:y :here es a small identities of the sources.
"go d fa:6 cad sustatncd" effor sto cuain
- ~E If the NRC refuses to a egioc office to investi EhP# =[h*1u P$
isoowcce other than sonna A ma'a Gl..
.. ;- 2:v ?. Cade cortsled that SteDo and the Southwest uon.
net tu.-
- J:M*.'."": e pettive directer of gate the a atices, and the Jcsuce Department recaJcitrut guternmeets.
4 cy -
- m..'.O WWct 3e;me ofSee asks a fed court to enforce the scbpoena, CAP in June, the NRC nW M -
cc:
- Q w Q.ge:S seca.se they probably will seek a beaneg before tM bdge plaC to bentse e p h,y M ha e.
- 5 /C'-p eg.icstly c ms of tavolved to defcod its argurnent said Richard "t@ Ne emer:eseyp:ndrE Tc$
rulet that Se bruti hadyt h 7*
tal:*.-
'. :;03.-".tr.mer pts in Co:dat,acc4ber GAP attoctey.
- .yt in-L-
-- ~
cc:gpecsate for tact c1:: tate cai 1:ca.
$4:1. bdep=edest ;rocp Thursday, AuguH, Ng7 Houston Chronicle S1)reham didn't prove why its t, re.
vg;,
l ' 7:c; tm.s encr.ng to the ;.
c.7, - ;;.2 ~ Gari2 tas'fd-q est to boost paier Ndn't L L2!d to t5r normal revuw process, the N; C n:'rd, rr
.;:Etelis ttoin fcr llnuch more hkely tk p. acts, it.The e he;--
. :C;t no 0 0.23 *a:*>
0:ur.
me a f 3.r-C.K11a n>
- aJly comtlete, MJ: te lleetsed.
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y" T!ECO C2c acMtc Cc camnjaw munp date nears gYg ef c~r.1 and fernrr v.5tf ers at the f.om the independent review t xatne ovuntatmhty Project) is trying to set r-Sout's Tens pacixt led tdd of more the andire:omp: tent practims irrelfvp as a regubtor that is above the
- VIASillNGTON --With thestN-than 50) plant pret.' ems 250cf them feder-I govemnrnt." Painter said.
fR IvanJ hfr.S:cIlo are ditatif x up of Tetts* first futty hcensej necicar rebted to safety.
b
~ k prwems a me South
~1 he tab:.:s ia this particu'ar licens-p'r.: Icts than a amth av.2y, federal The Govemment Accountability ingiszcare180degrecsfromwhat you Texas a l often firi Erstead of an anti-nuke rq:cMo;s are taki:q anti-nudcar activ-Prokct,anistervenorinIxensinghear-9g e e to have asts to court over alleg2tas of poten-sis fix the tsalinished Comanche rcak n SWro or nyone connected with I gmup charging that a utility is covering l
tial safety hnards at the piant.
nudear sc*r plant near G!cn Rose, R
IV decide the rr.crits of this up safety prob cens, you've got a utility i
8 Houston Lightirg & Power, princi-soettmest c(fW Worth,laf not been s pt owner of the South Tcass Nuclear invoivedin the South Texas case until P'
M@nt myiew)since chaging an anti-nuke group with cov-WWudswe am suking cring them up."
- Project near Bay City. phns its first the aEcgatious surf. iced.
relief from" the gmup v.sote to the Thegroup has maintained that most s nuclearreact>on at the Unit I reactorin But rather than tauti over the safety of the whistle-blower ailegations origi-y s commission members.
ojOctober, util ty s 2 kesman Graharn concerns to the Regzort IV NRCofrece
' arguing that the group had no pa!!y wac presented to the utility be-Passer saui.
in Astington, which has junsdscuon authority to dictate how the NRC fore the plant was licensed, but the
@from the Atomic Safety and Licensing The plant got its operating hcense overTexas and 13othersta tes, Govern-should condixt its business, issued a utility did not pursue them.
ment Acmentabihty Project attorney against Garde, demanding Pamter strongly denied the charge.
su
'* Board in June and is authorized to Bdlie Garde demanded thzt a special
'h' Id'"*if 'h* ".hisde Nowers' and tf they were put to us, we ciiber "reachfallpowersadbeginm.m.
l task forcebecon.-=:cd independentof f
operation by December.
Region IV, to investigate the t'. aims.
feP !! C1' 2D""
l acted on them and corrected them or o Meanwhi!c, the Nuclear Regulatory Gardesaid thecredibihtyof the Re-puNic 58 CfY-reviewed them and found that ihere wasn't anytfung wrong," he said.
- Corarmssion,in an unprendented re-gion IVofTscehad been destroyed when The(wr-e sembacommissionsided Condit said last week that the num-to versal of rofes, has filed a petition to an intemal NRC investigation found
.we Se persuade an anti-nuclear group to re-that officials there 1:ad downpleyed ber of South Texas =Msdeemns veal evidence of potential safety prob.
safety problems at Comanche Feak. '
peny the group s request during a hear-being protected by the Gos emrnent Ac-
-ilems at the plant.
Oxugesincluded A.ssmen:ofinspec-ing in lu4 coumability Pmject has nsen from @
i O The anti-nucicar groupL nomully tors and falsifying reposts.
De % reandy N a Wonja to 54 and 800 rnore hase been idenu-
'N~ uick to point out such problems, has And in a congressional hearing in l
co.S. Distnct Court in Washicgron to U
fied refused. claiming that top officials April, NRC agency witnesses testified mpel the Gmemmem AmntaNt-Even so, Condit said, none of the
', Prmecitotummertheepsies.
apeptions arc ofsuch a senous nature 1
Uwitf*in the regt.!atery q; ncy cannot be tint the report on Region IV would 8f*N 81'0*'Y8 that abe group will seek animme: hate
~
trusted with the information.
have been even moreenticalhadit not dit,inaintainedlastweekthat me6 hah of the Unit I stirt-up.
}
to The standolf is scheduled to go to beca censored at top levels of the agen-US. District Court in Washirston cy. It also was revealed 3 hat the toned-tie-blowers idenutiesare prosected be-
"What we had hoped to do was siin-1 ply dig ins the allegations to see if they Tuesdt y lessthanamenthbefc:eUnit down internal report, containing the cause communications between I is to bq;in low-power operation, and names ofconfiJearial whistic'Nowers, attorney and client are confidential werecred:Ne and get me agency todo neitherside cxpettsan carly setdernert.
was orcuhted widely throughout agen.
Garde, an attomey, says each of the what, the whiA' blowers warited, "Thisisheadeddown(tocotut)bkea cy oflicts, jeopardizing the whistle.
- hisde Nowers is her ctient.
Condet said."The wbole thinghas mal-snowb=fil9ed forhell,"Paintersaid.
blowervjobs.
NRC ofTicials dedined to comment U '"***' '
The Govemrnent Aomuntability The hearings prompted the Govern-oa the court caselast 4 The Atom 2e Safety and h,ing Project, a Washirgoo-based group ment Accountability Project to take an But Painter of Hous:on Lighting &
that desaib sitself as a whistle blower eve ttoucher standontheSouthTexas Pbwer'tMisrowlfsinessermeMthe f * " 2" * P* * * '* '"5 " "
support s: ncy on rWr power 15 plant inue.The group dern=nded that M dii ofst speciid reviewicam rtePen licensing hearings on the South sees,wwiinJant:.rythatd=c::s th-N"Cs top man:ti;er, Executive Di-within the NRCisspias too far Texas 6am.hBrWPWM*21 ressor Victor Stelkx also be exduded i "We think (the Govmawat. Ac.
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N WMsde ECWGrS VGVGEGd commisrion's po:luon on the $ouu[
Arljogtyi, said au but ont of tM sifety.
Co.nts.wed from Pete 1.
- et!*ted q'.sauors ratstd by the Labet Texas a!Jer.atfoss.
Dtp:rtuentrue retob(1 One of Gercys whi:lle blowers who of his imrxdir.te staff ard pctsotat!
T;ya're lyice,." Csrco retnecM filc3 a t b?r dariininouen complejet uld rret e pestient) cos!d tar
-To cwn titent to creute tLa lmpres-responsibla (c; nuclear prclcets h sien LLst Rete: IV Du donc sophing' Dirce'c::ed d4 sPfe oM2 IUon of t's coolice rptzn 10 the hrst of two Tec.
co tres e ttwllins ts a lle.".rd sr.!d f4ello reactort itExth Ter*a To!J th:t Ste!!) sco!d rtt ray.wto.
so9erman Joe Poechr The rhbtle bbett, Rovtd J. Col 3
. stock' zerve ca 0:ch a task terce, she dism.s:d tLe tt;'.ute as pcsturtat.
hadno cornwnton Gan'Ys secusauoo. stea claitted his employer at the LL'no.
Carde based her regnestin part on sa '
- We'tc not going to let DCe Garde Dr.sco Corp, tatsilled ct shop trJetn dictate bow we coeduct car settews,"
e See story on Page 10 FeveAsto saJd inspe* tion rtterta by the firm s gr.shty Foochard said M commtalai tash es',areneo Etcf! In IQ tot that they assertien that the comroission iger*4 force can be indeNndent of SteCo be-evca:cally cor ccted a welding prote similar allegations at ce Ccmanche cause he runs the agtocy's ?ay.te4ay lem be compidsed sbout.
i Coldsteln, wDo no longer worLs le the Peak roeieat power plant southwest of-cpcts tiorts.
Steco acknow}edced that some of nuclest ladostry aod new lives La the Garde said the comtr.ission is ignor-Comanche Peak workers'. }denutles San Franea.sco area, said test wcetted Fort Worth.
ing allegatier.s trst have surf aced in leated owl But he denied tM cvitimis-Ibat the falsificauon of imoettge re.
employmeet discritrdnatico cemplaints sico sog,bt to do ttiaL Me sand invest:ta-ports by Ebasee was and sull rn filed *rith the Departtocat of labor by Uve records that can become polle widespread at South Texas 13 Swth Texasemployees.
e:atie interested parties to idendly Donald White. Ebasco project mee.
The employees assert their com-whisue blowers, ager, said company poucy did not The atelemale betwen CAP and the mit him to commem, tm te dW say
(
plants pecto%ed retalistory moves by ecmmission =til Ekely reach a higher Goldstein has an *utremely bag hisa their cmolcycrs sod in some cases cret them thetrlots.
pitch Fridsf with CAP's respoose to the tory
- of complairat%rtmeed rvied that
$4el10 said he thosght n!! Ole safety-sof t trying to enforce the subpoena.
. The Labor De/Coldsteta was besed Rep. Patricia Schroeder..D.Colo, a Ebacco's layoff o celate: etucanons in the Labor Depart-deler. der of wMsde blovvrs'n4 Bis.ar4 on *on go reJuetiona* ot employees mer.t cases fu:d be.n 6ddremd.
Jcc Cillilani a press oftie:r for the cor.sumer advocate Ral;5 Nader an at the te and }A performatice cottmisson Lc its Repco IV offics in espected to jois CAP La enuctung the.rsdop yhiasupervsors.
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Front Edit Otner l en
'Page Page Pa;;e withheld M.. T.L.
T;E3
.' '. i. 0 N by group Victor Stello, executive director of,r e, _e g_p.
operations for the NRC,said keeping the requested information *would f,j h % $
not be in the best interests of assur-ing the prompt resolution of the le-
._' A local whistleblower group )es/ gitimate safety concerns.
terday said it won't release the' his. Garde disagreed.
cames of workers who have prof "The result of his action is obvi-ddedallegationsof safetyviolations ous, it chills speech, it makes until the Nuclear Regulatory Com-workers run for the cover of silence mission appoints an independent and it threatens the public health board to review the charges.
and safety," she said.
'!he Government Accountablity The group's legal arguments will Project said it fears reprisals' address the workers' First Amendment right to freedom of against the workers,. It plans to file a speech, and their right to confiden-response today in ederal District Caurt to a lawsuit f tied by the Justice tiality.
Department, which sought to reveal Rep. Patricia Schroeder. Colorado T a ega ons in t:ve the Hous-which is said,.The workers raised nuclear' t::nlighting and Pouer Co'r power scheduled place a nuclea safety issues. They want those is-piactonline in January.The employ-and ue went them to do it RC's job sues resolved. That's the N ees have alleged more than 350 safety violations will make the plant unsafe to operate.
Mrs. Schroeder is sponsoring leg-The independent board would en-islation to change a whistleblower scre utrker confidentiality and protection law to allow federal em-probably freedom from repnsals, ployees to go to court if ruessary to '
said Billie Garde, director of the seek relief from repnsais for expos-group's environmental whistle.
ing government wrongdoing.
bicser prc:ection clinic. Ms. Garde Joan Claybrook, chairwoman of has n!ked with 56 workers, she said.
Public Citizen, a Ralph Nader public Only a few work at the NRC's re-interest group, representing the in Houst,on where the 8roup,said the governmentis trying o
t intimidate it and send a strong "These workers are
'h, episalentof the cananes t$a'tinin; message to other public interest pps not to emge us achom verterstook with them to the mines.
.Tr this reason, Ms. Claybrook They are warning us of dangers ubdi are unseen and unheard by says,.Ae case could be precedent-the rertof the work force,or by the setting.
ansagement o' the top of the mine,-
Gove nri.*nt lawyers, claim in documents that the agency need.-
ML Garde said.
ttbrkers don't want to fight a long the names before it can begin en, court battle. They want the agency invt stigatior into the allegations.
mcarett the safety violations with-A F"Cd.M" " ** "
! case of the emNovees' identitic.*
out endang7 ring their carcers or ~ "asissued wcsC krtag anyone, Ms. Garde said.
- The ie.sas attorney generalis ale.
- At this. aint the NRC is acticg reviewing criminal allegations of amJkas stated Ihat they are going to theft of materials at the plant and crerate as if these allegations do not the use r.nd sale of dru;5 there.Ms.
enra*11s. Garde said, Carde w d.
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qu,ickly roolting tM ccaceres before th.s meath's secedoned Sceedag of to falsdy doce:nents 37NP,last May the tamos guardemen.
Cah White uld Zbuco customarHy re. af the.lormer ofte caDed Hews wort by in:Urideals f,' red from whistle blowers. B1!3e P. Garda, se 4 FJ Sakedor n Nedond a
tha p!s:t but.id he did not know wbat attorney wbe says she regraects some p.;
5.as* U AssomtWy test med appnsved to de
- ecse steps were takan to !cDow up of the former workers, rutased to com-1 Q
an errmaety that is espected to sees
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9 free about 825 poidcal as0t t$,r
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- 1 mana mrs bve aLoct cota,3 public.
D'j Q,M or.orrees, and savoral sch$ers gt core M. p~ -tit oi;dve:;t ' TL. D5trict Coart Judge bees F'
?"4 meneem of #15dn0 tour o.f 6.pey, ~!Ua deciped to gxerata 3c;:n of Wa: hit 3too lag mk mfsaid d'.1L gi y d humanpa cearDea, M
W 89 W8
..c y re e ach of south sad Scoth-a ec nM motica to enforce the jW
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mt au. t::t:ww an v.= boeu.y.
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Costa FUma has not ciechred Thei
- d. _T. 3_.i ;..E.:g 2.a t'cy in-C c3P
'the NRC man ar a r-nh(aerin the Washlagtse an
, sayicg I hc%3 no Cast for the Scath Tesas u.,,,. ~
pcAtical
- are,
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%0ct Epuld not be twewi Wodas.
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~/ E'3.,.3 y';-M later.
wf o """=2 about the Ottags.
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and StaD are sat the tal i
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on who h.m erM a
A MLA n
U3 t X..r~2 t'3 Sh7.- tulny.lc2pectice procr:m.
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Re:tJd Goldstala, who supery!and the,
L'r 1._. l.
f:.atit~:" :.
la.tJ6 tion of las'rtansats la the Brut c'....
- --~.torg..wceted se:ctu d:rta:212 and 1M4, contended a
'^'
- .;y;r.; I
- ; tt.s, 3:1 on] a few thace managers and
[D f/'n go ~'#5'..Q. :;','d e.;r, iroas hiper t' i m;a tJ attococys c*gned to STNP uW ts4 the nacsly. quhty.usurscos program 86 c, ; '. L. :. J.J.'.0J CMfewer-g:'. n
~ \\ n :; -ct; over.
=3::co's estire (qsa!!ty.eamrance) Comenmed kom Poge 1, letsmo pettiest taaer
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g(_.x. r - [ 5%.:.gi. estel by thaft alb:stamaecau peya:n uas re erncastralkc rte at
-.i,
rt47s, sad f dent Oscar Artaa $aneses, has aaW b '
ts4cej$
arQs c..
....; kiC2 in ass wastaJ to do se/thleg about Sandlaistas' laflesthtIlty rimains the '
h
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- a pt.
t of Later etened octa rias lled I
tIU" t 3.. :x..
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J t exe on escplaint that Gok' stein Olc.d alitst Sandia!atas to Managua's Ro. g,g%@M
t' 9 ~ ; -) la ;< <.J.
4 J.it part "maasco y coocludlag he was off mac Catholic artiblehop, bilguel 03rdi.
c:
2-% ace,;t:c;?,;re."
tree reductice.part of an overaD work nal Ohande y Bravo, as a mediators in.se bem SThP as Nicaragas Goldstela me! stains he plaaned a mas p g i N [~r~$ k.::,0 ca.scrutr.t; Jras in ses Drgd becair.s he qwsucosd the 8 See story c4 Pcge 12.
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3..
...-- ::,1 : 2..'9 Pr.rt of Smao's prob!em, as Cold. cease.f!re talka.
pg,,, g3,3,,,
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y n!, a : kr=al L b{lo.
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skin explalped it, wu that many qual.
While the Sadinistas havt declared t ---i 'a U.L. M :_..st et.gxor atoutthepro; ersor.oel knew too Lttle uellateral cease flets in four small M r.
ict 3r.(2crance p ects they were sasigned to ereu of the coce.try. Arias uld "this th'sk bana red.a 4 c:.~ -
e;
. '. ; ; ;a 2cs a crvdniu 400 had not been acbooted ce means surrender and not a cease.nre.'
ucuW tl,e u-h -
r-
..,L,eectC 23 tC:. ^=m=latics requ!ranests.
In a recent intarview, Artu saw tas tal, ud pheud ' L r--
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- :.7:nL;,Sd da Johan:2.an saclstactanportstandant SandirJstas 'shoc!d be a littia rnore ca h g for M h.
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the ove::aw the testsatt!on cd Ltattag. reehst)c...Dutta asdalag it."
danee vote
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.:: -';:es ".) net innt&tica r.nd air.cceditio. ting syo.
1.sd week. Iaced cith tha probabH!ty posttd.
..x c,3 " y 1s=a in LLa nr:t reactor dariat his three that the coodit:C 3 coddn't be met, th*
A trtet etnoorla thi~
J
- r ca tb :dd, "7a ::.ere to:d Eba3colto 5 shodd be coctidsred the d tadHne cely amnsty thst 2crJ' t e.
..,. a. n.e!J :scrs :t ONP, utich cad &d la 1%4, natices' foreign teinutare decided t4ev,.racu by Uct.:.:Wy n 2
r liz:::,;t?.~;3'rs lies ep. That vts r-
.a h;
sJtaation for governments to show prog ees to. naSoaal CtorC~ :21 w.c : :
c; e
c2;13tt &crou W beard. l ',,.
waM peace.
g.
. -, - ac:.; g;.;it p "With that hind of attitude,I tLltJt the The five govererneets will annogace ' Ant.;tasioamnnes ce wto custed by tie ::a g
" 7;:.,gAf.; ;.2 f.ac. teostructice)quauty of the ectire piang. today the rnaastres th2y 1 stand to take ;,*fta Sandinbtas have i
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- tax, ebo no,tocomply with the tre:,ty.
ate with the C:c.tss, c..!J.J
~'
,p;// "f '"f;;g;jr C:xnP::s haa 'Dere may not be aedot.s pechms
- ,2
- :: ce Dee la wertun Washieg'.co etata The accord is to be pet lato effect face to face talia 1 s
.G over the cert twe montha, a period that St&tes, g;;} ~-i., j.
3s; net can't ha sure."
- pF*ars likely to see sorne of the rocet SaMinistaleaders e r d "'
A N i'o h,--
M oc cm)inaenn i i e i u '? N ETm
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THE DAILY L, @
m a
,Z NEWS SERVICE october 28, tse
.,esda,-,-
4RC loses bid for names of cH&i
, -e
~ t. - e ~c ac e n ~.
.p e=saossow.= d = @a,=e.*y*
- ai=t d e
- d * =rp wta me
=
t rist useg r~cta use w
Na,e,, _, m m,,,,
. nc e swun n
c-e,e.~om,
sdub :ena, le. seed la Wy,,me cama. the compeLlag government deetaned&:lble seule on grounds C de ti g,,
a%,e t a av usa = b seelar ufm.-
.aoe.an. wom e=*r wrevisa.. es,icef vedd ::y alon's esattued sta!!ywould not pro-m.mcis -.a outrict uge Rog did not say what ctrem.
sornas P.Rogan handed to important t
,,,. %m,,, may by sees nor euew conf e uery, wsach,.
cedo pnnepal aternet. nomu m,3 n %,1,e, g j nor,towwemwentu.esdm-ee uge.u -ry te rra.eube.
J, Mack, hailed W nilag. He said it,1120m Dytng Up his managuner.t 3eeung a seew u Pes atey
. ands sa investgatke issson sot $ cess for naznes o( eur?ent }oba She pf.ed ecenmisslos perto meane tbe commiaske ts*goir.g M have regauvw id former workers critteal of the better coa.
to sek:mriedge that their everent Mit H0363 concuffed tetth an s'tg imaTesa:Neslear Prcject.
ocuide fesas.
Stelle has tsfinsed Garde's demand, &cy(of protectang wtds.tle blowetT'.
ment by Garde ttat ttt ecricr;ioc h.
The rtfectice means the comcV.ssio6.
tt wanu to invesugate handtsds d saytag she has a public oM!satloc to ttues)ta not suffteknt.neglected to mec; with sc r.s of t' ed safety defects at the spraw38 produce the wt!sth Mowere' r.arnes and Wrt & Nagte, h am!staat g lee'.h Tens workers who have fth DYear plaat 90 mCes souu: vest of nas se business 6ctating how be raag attorney represeturig 2e commL would cc.mment oaty by saytag it may meet of labor aboM tae!r alleged louston, may bart u uke estraordi-Oste naaba sc Adge Nossa ausentially as ted with appealwithin an allotted 60 days.
being Sted fet Mowegthe wMste.
ary steps 14 protect the worken' taes-poet of Garks legal atgument stytag Scwun Ushtar &
Graham Painter, a spokesmaa for, Joe CtInland, e spokasman for t
- gues, ne rWing don net settle a lees. tu esmmission
- cast its sepotes toobroadly w rtner of tae 80eth Texasa una iaid romey at commmn <
a.: Les. pots between W comme, punt.
eenis t= ma-
- mininc at whuu.
s.cu e.,m view su n a saneSw.en enstia repeat a pi to review ine a greep of wh!stle Nowers ar.d took c t
,for ce w m e sew.
let Hegee criticized G6t6e's attor-tjons trMe tof thecomm!atfor..
Garde rewted HLAP's pledge rectae actienhere ever tt mipt tr rs. Det R gives aturasys for both aeys tw trytag to overp'.ay their tase because. she says, the ettllty is need seviduals na taceaun to oegsaw a *tecause K is clear that eeder the
- caipromise. De dap'.'te threatens to Bubpoena too broad, judge aaYa r>,e % r swed., o.4.be, n.1947 I
NRC_ won't get whistleblowers' namoa nuclear safety, Hogan aajd that F Sy JUAN R. FALOMO
., ; Poster - the project manager - their heightened rhetorte during terest can be served by pursun Post Washington Ea.ressa ; ' ' a6d the NRC at the Bay City pati. confrontations leading up to b 16 sulng of the subpoena a and in altemate means of getting the i '
act WASHINGTON - A federal Tne agency contended that it the court proceedings.
formation the NRC needs.
judge Tuesday turned thumbs cosid not appoint an independent "Both sides have shown a ten-
"The govemment has not sat down on the attempt by the Nude-east larce to look into the whistle-deney to overplay their hands - fled t at Regulatory Commission to ob-hiewers' safety rMated alleguons the NRC becaues lt cast its tubpoe-attematives to the use of c tain the names of 36 whistle. - as GAP had demanded - un. na too broadly without fuly explor-sory pro blowers at the South Tczas Nucuar )ese R tot the names of the whistie-Ing altemauve mens of obtaining ti hiewers and a list of their a!!ega-the Information and GAP because A sponesman for the NRC s-pqect.
It is clear that. under the appropri-the agency would not comtnant U.S. District Judge Thomas Ho-eens.
GAP rwponded in a court hear-ate circumstances. Its Pint Arnand-the ruling unt!!it had an opportt.
mant rights would give way to the ty to review it. A GAP lawyer se gan dismissed an NRC subpoena seeking the names, calling it ing last week that such a wide-compelling government interest in' We are very pleased with this :
"overbroad" and saying the gov-nochang subpoena would have a tmment "carmot cast with such a chErg effect on future whiste. rauclear aaftry." Hogan wrote, ing."
wide net when constitudonal free-blowtri aines they covid not be ab He said Billie Gards, the OAP HL&P spokesman Grah sured rott&dentiality, attomey, and other OAP iawyen Painter rekersted what he said i doms are at stake /*
Hogan agreed. He said he was would be "lit. advised" to consider his nim's mnttime wi!!(ngness The judge ir#.icated, however
- not much irnpressed" whh the the outcome of the case aa grantint work with GAP to get inform 4' that a lesa-broad subpoena might purame3t's argument that om. taam any immunity hom NRC sub-on the allegatierta witho pase con,titutioatl rouster, d.ovld not worry because poenas ' or endonmg their attempt namee of tre whis+1eblowen, The NLC in May issued a sub.
law prohibits retallation to dictate how NRC conducta lts "We do foal that il they Covemment Acccounnbsty Proi-agairst whisdeblowers.
affain."
Something of importance. It is t poena to force a lawytt wdh the As be did during the hearing.
While agreeing that the govern-they f g"ured at a way to ::
oct to turn ovet the narees of the liegen criticl ed both sides for ment has a corrpellms lhterest In with us. he sad.
l we.dcen for Houston taghting and
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.g' DAR Y NEWS SERVICE octoberT9W:
yg
~
u,,,,
,. v, c
,Arr o.c.n Weekend Reporf Oefober 17 & 18,19d7 O
In its cling Carde's sob.. The Department of 1.abe'r ruled no a refusal, arde's crop!
the discrimmauoolawsuit Gled by Atchisce Yo vernment Accovatabihty reject.
sand the NRC can condott se tede that b4s d.amhssal was unjustified. But s,.
q lavestJgation esing specialla. the 5th UA Clrevil Court of Appeals la 9
}0 !
[
p taak forces or review tt:ams.
New Orleans oeertwroed the depart-
- M@.,
/*
g g
g The commission estabhabed a taak ment's nndhr.g. Atchison said be is sp.
force out of its Washlagtce headquar* peabeg 7,
ters that was separate troro the re l A'.chsen tjy tended two p
.eg gional staff reponsible for ocelaae jobs at the Wa nuclear plant in P,D
- g#
r tanta m Texas three years ago to tovistana But be said be was itred frten W %8' the hrst for testifying at bea vessigate alleged safety problems at aboet se et problems at Comane E
the Comanche Peak nuclear at to19 Peat A e prolublung the emp TVtommi<sion is scheduled to for-operated Texas l>Ulities south-jy J;..r, R, Pt3 ROBOH mally*ask 01 Dtstrict Court Justice westMFo Wonh-swet of any reriously p-massed from sterior cost Atch!sso!
teve on Ch,on.cte WHh'npon Bureau. 'homas F. Hogan in washirigton nu CAP and the commission that, his second job there.
w *1 tM ufWe in PMe.
nch "1AtECTO pne Nuclear Rego- {' aa S$11 has said t m E e m @hngs, has ar-N commission feak whistle blowers "cooperated day to Carde's ncent story Commison b esd to am a would not release their identtues but My* with an esteesm review W W 39ed that its al mardate to assure-oMr ; co&d not hforruse that they might not plants Wga nal W boe, as de safe of neckar lan3 icen to ":r. ton ght:ng is
,g g7,,3, me public.
wen as oGer tp bzas
- f: C:Ot.c Texas Nuclear Prc9d o.
1 rr.i.-; lc' tir t:1 cf !!ougen without l less a coort compels Garde to Uulltres Co. found pornerous problems. compelkd tene to subpoena mU+-
W &Em aM N m spokesmen i r Tesas Utilstaes and the gets nate es no that he could aaress toe:r.
3,e,e)f
$y;f.43 of alleged bet us. '*"ft P comrnission asiat Texas Uthities is re-anegatious.
I. ;tchlems at tbe plut-8 s
na : r/ :La st ifis compleung a -
be a g vimng the plant's design and has eveu w & 2tihtya compliance with frsi auclear power plant in Texas by I
P
,MI[
gk"*I mMea: :ndards t'.st an attorney
- ye&ruary with the safety allegations P*
- cr ::... : t ud fccmer plat 'ni antesolved. ne allegets contend Carde contends that the cwrest med t plant may bare defects that could lonrwr wh sob ct,uarns an M mp?,
vs hr..*e uen pond.
in the 6ves of bondreds of work. and that whistle blowers at acelear
.ir.1 '
_' C /4 a W M 00r ny.t.;us for fear of r;pn 'er(and hundreds of thousands of rosa. Plants througheet the country ban ex.-l a h..
in Worda Wharton and Bre-sacrihced their careers for gotag pob-arena counties-y -- - '"its suff i: es to
')
1:12 Hove r thL Carde has aaid she would disobey any Ow Comanebe Peak whistle blow,
- 3. t
. m 31yrecot of the erger to doctose the allegers' names Charles A. Atchison, statad in 43 athda.
. a i.wnmi: prtner. te wramut an assurar,ce from NRC that vit fded in su cf Carde that prob.
.r r - a ;; oprate ce far t of 14 udi not be maoe pebbe. $6e says kms be bou t to Ow commiassons 1;.n ther2.,said hee.,a;awine to go14 jadif sheis locad suention la 1940 ellimately got Mm s
..: : ma': :to,;<t 6t:c-
, epe en,.rt blackballed from the 6edustry
'r
- -if Pl W S I2 18 u ettensne fding last weekend, Atch' son said an NRC lovesugator at for Carde procure $ twe aooo. promised hirn confidestiali:y but re-n th t..rClc41.C TC.21 C.-
'.4:-tce 'l.et:r tiello
. c.hn Dce' all8tavita. orw from.vged after he was fired by Ehasco a
a 3.' :
m c!pic& mstttouc een eyee a4 b ot.ber from a C a Comanche Ptah coctt6: tor,for edlear i utry worker, alleglag 're to approve anaceegab6e eco-e.::
. a !.it.u:::: his Ws" a c aess in empeyxs. sahty problems at South TesaA dor wel w-Jc r
..M..
e C NJthCf
-1 am rionally aware of serious Ebasco is Se construction coottsetor
= w.-
tm.hi L:m M ted peerns that were re-at South Text.1.
'T.
.. m:T s.1 %eJ N 4 but have not been addnssed by Commission esman Joseph Cilli-ht es pPananagement To my knooledge land confirrned weet that the in-Nt cl -
w : a Cp)to to no ptaas have teco made by manage, or. Robert C. T lor, told Texas c, o 4 - t aCet to address these concerns. the talities otheiala that tetilsoe was the
'.co. La hT,C;to aihdays from the plant emp6 cyes' commission's anonymo s s
.m K L s 'l
- :; :!'ic alle,;a. Witt
~
1960 But Gilliland said Tayloe u ource to 27,
- 3. '
- ps Wase Ti.a affldavlt froro the lolastry ised only to withhold Atchiaon's ty ic-s 7.6, airea e.r., ur e :sserted *1 have perscetal *hile he nas emp}oyed at Comanebe nr
.t
~-.I C :Mtf $' kt:s at that Ocre are safety prob-Pea k.
>c; -
NP involvi g violauons of
', ',b t:.e Amencan Sme{y of Mechaft6 cal
,..e.3 ot :3 Mwn sasnd:rds, Sunday,0dobec 18 HE7 Housfee chroelete gr
'J- (,g,g, x4 :ss.rt wt.st ricJaboo tog tace.
. ' 43 og neit:stry werker's affidavit does J
}~u,;;CC"~[. t;e.U octces the plat em leyee s af dant p
~
s.a;.nj ca Mcte oo his sa My rtLated coo.
3 i e n.
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- ------- - ~~~ - ~ ~~~'~~
FnW8 pin 1 t
The HouHon PoM/Prt., Oceber M, IN/
/
UE. judge sees
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[
' Goo much heat' Un NRC 05tigation Whistleblowers at issu'e By Jt)AN R. PALOMO pendent task force to look into Poet Washington Dareau what it says are safety concerns mised by whisueblowers at the Bay.
WASHINGTON - A federal City _ proect.
tudge Thutedty chastised both the The > RC maintalm that it won't Nuclear Regulatory Commission name such a task force unt0 it gets and the publicintestet group repre-the information it seeks from OAP sentir.;; a number of whistle. - both the namis of the whletle.
blowers et '.he South Texas Nuclear blowers and the ausgations they Pro)oct whoes names the govern-have raised.
At aNngYehon whetherthe lierth a
tlefore NRC's subpcena of the whistle-the court supporting the NRCs po-blowers'lawyst forcing her to turn sition.
nyer the names should be en.
GAP attomey Themes Mack told Hogan that the agency hasn't "lift.
O TexJe tecsity gets 342.5 true.
ed a fLnger"to attesopt to negotlete Son contract /psge 21 A with it, as it hr.s done in the past over s'.milar disputes, fored IJ1 Dietrict Court Jud "This le a case that cries out for Thomas Hog 6n criticised bofh acmumadation." he said, skks' harsh language and thalt un, Justice Department Marit wimagness to work toward rasohr. Nag.137 tin 5 the RC, nr.
'"bJ'C"% heat on I"a wYm car %'T'JoA'C this cave but not mue lie t." said subpoena. But Hosan espressed, Hosan. "The helch thetorie skepticism over that tigunnat.cM.
' docan't help'"
188 th Sh0't of tists be.
tween the Cs initial entact L"gan was relI'T a h b,t h *ed
==*-
He charges with me group and h Sang of h
.v** *ariaad*=* * ~
t, M y g ow *, wg, g g ;.
a d
The Government Aco1ntability names to be canadential.
' Prc d has chimed the NC is try.
'That confid is not wal.'
ing>to destroy & Power,wh!ch was it. The NP.C cad vable at the whlm,,
any of5c!st,,
Houston 1.12ht ge said. Anomeys for the other, h$ve m OAp W u
tw
- le / rgddry the WAt's startup.,*,8.j,0 h &46 @ 6e yi
,J Hegan said he wt!! ned bsue a Cr-hm Paintar. a epokesmarf.
rullttJ ura two wec4 but stica-kr HLP. srld tttor the heaeing.
r.ays fcr Gil: Ovda, the ut.lsit that GAP's cisuments that it has.
1:lowerJ' bwyer, cad GAP. ict b0en trytas to v or;c out an esas.
whle's :.he weeks, c:7.:er;ed o',@
- r. ant enth tha ;,wcinament "does..
mbm over the judp a st%4to6nts n't Wash."
at the cod of 'he two. hour hearin6 Painter said the udty has tried, He etid he thcv3ht the two cMes to Cet QAP ta dve it the workers'.-
shou!d hava :.ttatcptui to rea.th an el!cstions without the nafdse of mmmodstfon tulore the esse the whisusblowers but the (poup, seded up in court.
has tshed.
'it.s youp his asked for an Inda,
Na$e refused to comment.
FROM NRC RID ARL.TX.
10/26/87 09:50 P.
4 TOTAL P.
4
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%ex
@_ui TEE DAILY Sf55 1%EWS S2RVICE october 23,1987 l
~
M*4 W tre itRArttles Dcammerd i
i u;ma 9
w'lege to rule on S.n iP I3 J
~
gg 37 '
WN3b$ }bDW@[8 h sbo bed Wated as %
l "y JiMi:0.h P!3RCMN cas&,ise'Js nasne be keptsotttt.
E;ovMen CuonW3 WuMriton farosu Iwmoito a:ree with CitWs I
lbstIM travity of the wh'.stle Nb3oth:M:s empa*ts requine que'ai b
~7.CIt:C70:7 - C:
fee 1.::= 's af t;; dtpa,a fxnl proaer.ss to sec rrpisal by their$
- 1.:-do wur: yi>r.rJMe:azi I'e :n coesss,ilebJe*'L e'n :e =w,t'at 78'"a*s
,.,4 r&d d
je
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a u oa
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.'d.h TJ'J Kact.at to y m'.A us echpa:na tat r.ho femVanto1:14 c;struer.
'.:t C 2..
- t*Je it'ts.
,J
%2e m tr.terests to be mart.mma.
~
.... a :_C.J.b er.:st.usi:a ans
~ ~ ' na _.N ;& EMya v.tc.T / rI:-'c:an estod embeth sMes,"ucaW.Re as tr@d tb4 0(l.u
- ; 1..!
- .:a '.42 tsi;;s C::; ele nagiuste a ccatnrerni;e. He ce-A he wot3d tot van '
and I,
a:..."-.. 4
- 3 bra:sehli,p wouW ast tearate may talre '
a. i 1..'
t.23 S>As hepagW"fnaneitherside.
,;/.rj;;t!:w ch i #
!a teatrast to 04 ce*J ear 5er do.
... i u ;"M. h.! as; fem sarlasatndt;;arTw.s NRC staffsrs
-.0 a 1:
2:.
- st ce ccarn'n;ou's 41rsator of opete.
':**i d.w],ae la M 2 *Jasc. Tic'.t L'!sDe. be invc.lved te any
';n;;dyi'.;a. I.T tvMptl atterr.ar
..i..d J.;;;.:;3i.:!3
- .,iw a.wras eraesdC::recaytx.titw:3stresD>
t the court teYic:pt each
- ;;t d'!2t!*.
- a. Ce ta a;nc
.. 1J.a e e w F'A> scroey. Nrnes J. tL*ck, said,-
-, w :;c t "';'s:maranebaneara==ag per
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3 ';.;xt Cr 1s ht.n'JJk 1 Me$n, as ambe UA
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- at23 the "m*%
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5@ ih 'auty ve61 be revoked
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L i:.txA cl gts04 ust,,tatic:na esca,- Negle l
ad tut imund a.xac r.hpa.mgaSctively mH chst ders
- N _wnsas.sk r
- ' '.> u ; ward?" he tb 23 cd troty rs'.atad ILformatlos mp, trigLtt aMost:D 6:32:4 de IGC has work 3d 5
--. -,; :.;- ':::t 7 ::t.a
~
._.,j c;.s J toccia arJ othat ctirseys at the 2_i;Jj c:a;t.:n ;De ts'.:::st Law heta thtt sanelaysJ. O Gmrtme"1 Acexatablity
- .n.
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F G' O M NPC RiU ARL.TX.
10/26/87 09: 49 p,
g
""--v--
1 FoMAs-If PUBLIC AFFAIRS NEWS SUMMAM 01/11/88 i
HOUSTON--The hPC staff will conduct an on-site investigation of alleged safety problems at the South Texas ruclear power plant.
On-site work is (xpected to begin within two weeks and will involve quality essurance and control matters and heating, ventilating and air conditioning systems.
The Wall Street Jcurnal, (p. 8),1/8.
WASHINGTON--The Nuclear Regulatory Commission has delayed, for the fourth time, a vote on a full power license for the South Texas nuclear power plant; however, the delay is not related to an investigation of alleged safety problems at the facility which is just gettino underway.
The United Press International, 1/7.
NEW YORK--A four-year study of the monitoring of radiation at nuclear power plants is to be released today.
The study, which was funded by the Three Mile Island Public Health Fund, recommends, among other things, that tissue samples t'e collected from people living near nuclear power plants--both while they are alive and during autopsies--to check for the presence of radiation.
The New York Times, (p.18),1/10.
WASHINGTON--In an "Outposts" report, Lawrence M. Lidsky, a professor cf nuclear engineeririg at Massachusetts Institute of Technology, looks at the status of nuclear power in the United States today and argues that safe power reactors can be and have been heilt.
The Weshington Post, (p. C3), 1/10.
BANJUL, GAMBIA--Reports of Europeans dumping food contaminated with radioactivity from the Chernobyl accident persist in Africa, in part because it is believed that European traders historically have sold shoddy goods in Africa.
The New York Times, (p.15),1/10.
j SEATTLE--The Borneville Pcwer Administration plans to file a lawsuit to deter 1 tine if it can terminate work on two partially-corstructed ruclear power plants (WPPSS 1 and 3) without defaulting on the plants' bonds.
The New York Times, (p. 43),1/9.
1 PARSIPPANY, N--General Public Utilities Corporation is slowly regaining itc I
financial health followinn the Three Mile Island accident and plans to double its quarterly dividend and buy back as many as two million shares of its comer stock. The Wall Street Journal, (p. 31),1/8.
WASHINGTON--Scre officials believe that Pakistan is building a second uranium enrichmert plant to provide material for nuclear weapons; however, other o'icials are less certain.
The New York limes, (p. 8) 1/10.
PLYMOUTH, PA At a hearing in Plymnuth last week, Senator Edward Kennedy gave his support to efforts to keep the Pilgrim nuclear power plant closed and criticized the NRC for not pernntting an adjudicatory hearing on thr matter.
He also said that he has asked the National Institutes of Health to study rcports of higher incidences of leukenia ana other diseases around nuclear pcwer plants. The. United Press International, 1/8.
0FFICE OF GOVERNMENTAL AND PUBLIC AFFAIRS
PUBLIC AFFAIRS NEWS SilMMARY 01/?O/88 HOUSTON--A team of 13 NRC inspectors is checking records and systenis at the South Texas nuclear power plant this week in response to allegations from the Government Accountability Project.
The Hooston Chronicle, 1/19.
HARRISBURG--Representatives of Three Mile Island Alert have told the Cormiission's Advisory Concittee on the Cecontamination of Three Mile Island 2 that f.lanned NRC staff cuts trean the agency is turning its back and walkino away from the situation.
The Lancaster Intelligencer Journal, Harrisburg Patriot-news, 1/14.
Fo%A-88-101 E/21 l
0FFICE OF GOVEPhMENTAL AND PllBLIC AFFAIRS
. -..l
l.
[# cg'o, h{(GMU l
UNITEo STATES j'
'g NUCLEAR REGULATORY COMMISSION f:
,,, 7 g
W A$HINGTON, O C. 20$55 0fI?
.,%v f July 15, 1587 OFFtCE OF THE
'87 JL 17 A9 52 SECRETARY Billie P. Garde, Esq.
5%,.
Director, Midwest Office Richard E. Condit, Esq.
Staff Attorney Government Accountability Project 1555 Connecticut Avenue,, N.W., Suite 200 SERVED JUI. 1 7 1987 Washington,D.C. 20036
Dear Ms. Garde and Mr. kondit:
This letter responds to your May 29, 1987 petition under 10 CFR 2.206 for the establishment of an investigative unit independent of NRC Region IV and the Executive Director for Operations (EDO), to review allegations concerning the South Texas nuclear power plant.
You s >ecificall have :the ED0) y state in your petition that '[1]t would be inappropriate to or anyone connected with Region IV decide the merits of this petition since they are the individuals we are seekino relief from." GAP 2.206 Petition at 15. A 2.206 petition is addressed to the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards. 10CFR2.206(a). These directors report to the EDO who by virtue of his position is involved in the 2.206 deliberative process. Taking into consideration the plain languace of your request, the Comission decided to treat the document that you characterize as a 2.206 petition as a request for Comission consideration. The Comission notes, however, that the detennination of the most appropriate means of evaluating allegations is essentially within the Comission's discretion and is not within the scope of actions contemplated by 10 C.F.R. 2.206.
The agency can best detennine whether the allegations should be handled by Region IV personnel or by :n independent task force only after detailed review of the nature cf the allegations. The Comission encourages GAP to provide the allegations to the agency promptly pursuant to the May 20, 1987 subpoena issued to Ms. Garde. Additional delay in turning over the infonnation to the agency will cely result in further delay in looking into matters which you claim are releant to public health and safety. Af ter the agency has reviewed the substance of the allegations, it will be in a better position to detennine whether Region IV is the appropriate entity to review the ellegations or whether ti;e appointinent of an independent task force is necessary. The Comission assares GAP that the agency will handle the investigation of the alleaations properly, both with regard to technical review and confidentiality.
.w-JM. ilk Secretary of the Ccanmission
Enit b Biates of A_aerica I
NUCllAR REGULATORY COMMIS.510N O
In the matter of: Houston t.ighting and Power Company
> DOCKET NO. 50-GS l
50-499 To f:s. Billie Pirner Garde Goverrvnent Accountability Project 1555 Connecticut Avenue, N.W.
Suite 202 Washington, D.C.
20036 YOU ARE HERE5Y COMMANDED to appear at Room 6507, Nuclear Regulatory Comission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May-1987 at 9:00 o' clock A.M. to continue as necessary for the purpose of testifying before NRC personnel cla:erning allegations of current and/or fonner eeployees of the South Texas Project concerning the safety of the South Texas Project, as described in your letter of January 2),13E7 to l1essrs. Victor Stello and James l'attox, and any other allegations 6thich you have received concerning the safety of the South Texas Project, and to provide any recor,1s or other docunents in your possessior, or under your custody or contiol concerning such allegations.
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Executive Director for Oeerations Nu e r Q culatory Ceission MA/
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net (301) 492-7619 On action ude promptly, and in any event at or before the time specified in the subpoena for corr.pliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Ccmission my (1) quash or modify the subpoena if it is ertasonable or requires evidence not relavant to any matter in issue, or (2) condition dental of the motion on just and reasonable tenas.
Such action should be directed to the secretary of the Comission, Washington. 0.C. 20555.
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CO'ARNMENT ACCOUNmDluTf PROJECT 1555 Ccuecncut Awnve. N W. Suite 202 Washrgren. D.C. 20036 (202)232 8550 January 20, 1987 Victor Stello, Executive Dire-r U. S. !!uclear Regulatory Ccen.,ston Washington, C.C.
20555 James Mattox Attorney General for the State of Texas Supreme Court Building 14th & Colorade Austin, Texas 78711 Re:
South Texas Nuclear Pro;ect
Dear Messrs. Stelle and Matter:
This letter is to inform your respective agencies that :ne lovernment Accountability Project (CAP) has formally begun preliminary investiga:icn into worker allegations at the South Texas nuclear project.
Since 1980 CAP nas played a significant role in advocating on behalf of whistleblewers and concerned citizens on issues involving safety-related problems at various nuclear pcver facilities.
Our approacn to nuclear powitr ".as been steadf as:ly the same:
to ensure :.a
- ne government en! crees the nuclear saf ety laws and regula: tens.
As a result of GAP's efforts (alone or in concert with c:ner organizations) to expose safety-related problems, the construe::en and/or operat on of several nuclear power facilities -
previously enough; to be fit to operate --
were cancelled or postpened f er f urtner review.
The cancelled f acilities include the 98 percent ecmpleted Zinner nuclear power plant and the 85 percent ecepleted Midland plant.
Those whien were postponed for further rev.ew include :ne comanene Peak, Three Mile Island, Diatic Canyon, and Wat erf ord f ac:litics.
CAP currently either represents or :s wer<;ng wi:n approximately 36 curren: Ard/or former espicyees of the Soutr.
Texas project.
The allegatiens from the wer<e-s range from grand theft of nuclear grade steel to engineering def ec:s in severa; ca]or saf ety component s.
Tne allegat:ons concern the fa: 1ure of Houston Light & Power to guaran:ee subcontrac:cr ccmolianet wa:n industry and federal saf ety requirements, including out not limited to: defects in ena instrumentat't1 and centrol divtsion:
defects and lack of cc:.:p.:ance w::n f eds ral regulations in :ne neating, ventilating, and air conditierpng system; lack of complisnee with quality standards in the.rea cf soils compaction; failure to comple:e required QA c QC documenta::en; i
f alsification of required QA or QC dccumentation; and harassmen znd intimidation of personnel who attempt to adhere to federal safety standards.
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Janut y 20, 1987 - Page Two Additionally, and of specific concern to :he State of Texas, there are allegations that include delibera:e actions of some of the subcontractors at STP to overcharge Housten Light & Power for goods and services by "charging off" their own unacceptable work to Brown & Root, Inc.
There is also information which suggests that subcontractora have fraudulently charged STP for manhours not worked, and for portions cf the prc.+ce: which were not completed as claimed.
GAP is cberently cerdyct: ag interv:ews with both current and former workers who are cencerned about :ne South Texas project.
GAP investigators re accept:ng calls fecm workers at our Washingten, D.C. offi:e anc cur Midwest office.
Once our p.iliminary investigation is cceplete, we plan to issue a formal public report.
Unfertunately, in the interim, we cannot advise our clients or those we work with to provide their concerns to the Region IV of fice of the NRC.
Our experience has been (and recently released internal agency repor*.s confirm) that the Arisngton ef fice is e::ner u6able or unwilling to comply with its regulatory require en s as outlined in governing agency procedures.
Thus, unless the NFC :s w:11ing to provide ;ndependent inspectors to process ne allegations pursua t to internal NRC regulatiens, CAP will prov:de the allegattens directly to the state Atterney General eff.ce, and/or :o tne appropriate congressional committees, and/or to c:ner regulatory or municipal bodies which have an interest
- n ensuring :na the South Texas plant is derigned, const ructed, and financed in a manner that protects the public.
Please direct any :nquiries abou: 0AP's Scuth Texas investigation to Richard Cond:t, Staff A::ce cy Investigator, 202-232-8550, or Bill:e Carde, CAP M 3-es: Off.ce, 4:4-730-8533.
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'ocket No. 50-498 Ms. Billie Pirner Garde Mr. Richard Cor.dit Government Accountability Project Suite 202 1555 Connecticut Avenue, N.W.
Washington, D.C.
20036
Dear Ms. Garde and Mr. Condit:
I am in receipt of your.1anuary 20, 1987 letter directed to me and the Attorney General of Texas.
Your letter descrihes investigative activities you plan to undertake relat've to allegations you have received from approximately 36 current and/or former employees of the South Texas Project.
Your letter also identified the general nature of some of these allegations which appear to fall within the safety and regulatory responsibilities of the Nuclear Regulatory Commission.
Your letter also states that you cannot advise your clients to provide their concerns to the Region IV office of NRC.
You assert that your experience has been that Pegion IV does not comply with its requirements as outlined in agency procedures. Moreover, you demand that unless NRC provides other inspection personnel to process these allegations, you plan to provide tFose allegations to other individuals er organizatiens.
The Scuth Texas Pro.4ect is within the jurisdictien of Region IV and that Region is the appropriate organization to review the concerns of your clients.
have confidence that Region ?Y will properly pursue this respontibility.
have been in contact with Mr. Robert D.. Martin, Degional Administrator for.
Region IV, and he assures re that his staff is thercuchly prepared to cocrit the resources required to aporopriately resolve the is' sues whiu your clients i
r.ight raise.
As you are aware, NRC is the responsible federal agency for ensuring that safety tignificant issues are ad&essed where appropriate.
Therefore, I urge yW to bring fcrth promptly, or advise your clients to do so, to NRC o'r Houston L!ghting and Power, anj information you have on deficie.ncies which would have a bearing on nuclear safety To retain them until your own report is prepared and published weuld not be in the best interests of assuring the prompt resolution of legitimate sa'ety cencerns.
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Anv further communications you may have regarding this matter should be directed l
to" Mr. f4artii) in Region 1Y.
Sincerely.
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The Honorable James Mattox Attorney General State of Texas Austin, Texas 78711 l
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. 4 GOVERNMENT ACCOUNTADILITY PROJECT 1555 Connecncut Avenue. N \\V, Suite 202 Woshington. D.C. 20036 (202)232 8550 GOVERNMENT ACCOUNTABILITY PROJECT MIDWEST OFFICE 3424 MARCOS LANE APPLETON, WISCONSIN 54911 March 4, 1987 "ictor Stello Executive Director Operations U.S. Nuclear Regulatory Commission Washington, D.C.
20555 RE:
South Texas Investigation Dear Mr. Stello.
Your letter of February 18, 1987 regarding our South Texas investigation states that any futher communications regarding South Texas should be directed to Mr. Bob Martin, Regional Administrator.
Your letter also urges us to bring forth any issues regarding safety to Region IV promptly.
Given the history of incompetence in Region IV regarding issues of nuclear safety and the more recent evidence of impro-priety in Region IV I am surprised that you would continue to advise us to take allegations of nuclear safety to your present regional ma,agement.
Your professed faith in the Regional
-management can only be bureaucratic posturing as I seriously doubt whether even you can ignore the serioun dss of the impro-prieties confirmatd ir. the recent and continuning investigation by the Office of Inspector and Auditor.
Mr. Stello, at some point you must assume responsi'oliity f or the operation in Region IV to insure that the public health and safety around the Region IV facilities is protected.
You apparently are willing to sacrifice that assurance in order to give the public appearance of support for Mr. Martin et.al.
Your error in judgement is incredible.
Within the past 18 months we have seen evidence and testimony of the improper release of a draf t inspection report on the Sequoyan Fuels Corporation f atal accident to Kerr-McGee of ficals, the harassment and ir.timidation of resident inspectors, the deletion items from inspection reports, the improper manipulation and/cr release of inspection report results to enchance the possibility of licensing, the destruction of documents, the f ailure to comply with statutory requirments under the Freedom of Information Act, the failure to properly investigate allegations of engineering, technical or hardware deficiencies at reactors in Region IV, the release of confidentiality of site employees that have come f orward with concerns, the cooperation 2 * 'W!:: ' 2 3fp
e with utility of ficals to cliseredi t whistleblowers, and a total disregard for public accountability.
For all of the above reasons we would be irresponsible if we led more whistleblowers blindly to the slaughterhouse of
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your Arlington office.
At some point you must choose between protecting and defending the egos of your staff and protecting the public htalth and satety.
You are paid by the taxpayers and citizens to do the later.
We will not partici'pate in your doing the f ormer.
I hope you are able to find an independent tean to review the South Texas allegations.
Sincerely, Billie Pirner Garde
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Ps. Billie Pirner Garde Government Accourtability Penier.
1555 Connecticut Avenue, NW, Suite ?02 Washingten, DC 20036
Dear Ms. Gar'de:
I have received your letter n' March 4, 1987 It prompts me to remind you that NRC is the responsible federal agency fnr ensuring that safety significant views are apercpeia*.ely addressed.
I therefore urge you to brino forth promptly any informatter vou have on deficiencies which would have a bearing on nuclear safety to NCC ne to Houston Lighting and Power. - or advise your clients to do so.
To witrhold such information would not be in the best interests of assuring the prompt resolution of legitimate safety concerns.
Sincerely, Victor Stelhf, Jr.,
Executive Director for Ooerations
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Attachmont-a s GOVERNMENT ACCOUNTADILITY PROJECT 1555 Connecncut Avenue, N W, bre 102 Woshingron. D.C. 20006 (202)232 8550 MIDWEST OFFICE 104 E. WISCONSIN AVENUE APPLETON, WISCONSIN 54915-8605 March 23, 1987 Victor Stello, Jr.
Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C.
20555 RE:
South Texas Investigation
Dear Mr. Stello,
Your letter of March 18, 1987 sidestepped tne issue of whether or not you are going to appoint an individual or a task force f rom NRC's Washington office to accept and/or investigate allegations concerning the safety of the South Texas Project.
We are very concerned abeut the safety allegations known to us.
We are so concernedthat we intend to insure that they are properly investigated.
We do not believe that Region IV is either capable 'or willing to do that type of investigation.
Please advise.
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Richard Condit es E40i l [C H-+ - M :p
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April 8. 1987 Ms. Billie Pir.ner Garde Government Accountability Prcject 1555 Connecticut Avenue, NW, S, site 202 Washington, DC 20036
Dear Ms. Garde:
I have received your letter of March 23, 1987.
! accept your :haracterization of the allegations you have in hand as bearing on the safety of the S. Texas Nuclear Power Plant in a significant way, i
! vrge you to bring these issues to NRC for our riview. As to where and how.
within NRC they will be addressed is my responsibility. Assignment within NRC will be governed by the' nature of the allegations.
I can assure you they will be handled properly, both in regard to technical review and in regard to conf 4entiality.
By the nature of significant safety issues, they must be addressed promptly.
Your letters ir. ply that you have had this information for some time.
Therefore, if we do not receive full information on the allegations within 30 days we will be constrained to take steps to acquire it by other means.
Sincerely,
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY CO*!SSION
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COMM15510NERS:
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Lando W. Zech, Jr., Chainnan Thomas M. Roberts
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Frederick M. Bernthal Kenneth M. Carr SERVED JUL 151S47 In the matter of:
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Docket Nos. 50-498 6L i
50-499 OL (South Texas Project) ll J
MEMORANDUM AND ORDER On May 20, 1987, the NRC Executive Director for Operations (EDO) subpoenaed Billie P. Garde. Esq. of the Gcvernment Accountsbility Project (GAP) to testify before NRC personnel concerning safety allegations of current and former employees of the South Texas Project and any other safety l
allegations regarding the South Texas Project. The subpoena further requested.
Ms. Gade to provide any records or documents regarding the allegations.
Ms. Game now moves to quash the subpoena, arguing that compliance with the subpoena would compromise the public health and safety, the E00 has no authority to issue the subpoena; and the attorney-client privilege and, work prcet doctrine procluda divulgement of the infoie4 tion requested. Movant also requests oral argument on the motion, i
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2 Houston Lighting and Power Company and the NRC Staff filed responses to the action on June 11, 1987. Ms. Garde also filed a reply to the NRC staff's response on June 25, 1987.
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Background _
Beginning in January 1987 Ms. Garde inferined the NRC that GAP had i
corzenced an investigation into allegations concerning f.he safety of the South Texas nuclear project. Accurding to Ms. Garde, GAP received these safety allegations from approximately 36 current and former esployees of the South Texas Project. GAP infor1ned the NRC that upon completion of the investigation it would issue a public report, but in the intsrfei it would not advise its clients to provide the allegations to the NRC Region !Y office because of its-lack of confidence in the office's ability to comply with regulatory requirements. Thus GAP advised the NRC that unless it was willing to provide independent inspectors to process the allegations, GAP would turn over the allegations to the State Attorney Gener:l's office, congressional connittees, and other regulatory and municipal bodies interested in ensuring the public safety at the South Texas plant.
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- The subpoena was issued in support of the staff's responsibility to pursue and resolve allegations bearing on NRC licensed activit*es, but was not istued in connection with a pending licensing or enfortement adjudication on the South Texas Project. Thus, the Houston Lighting & Pcwtr Company is not, strictly speaking, a party to the dispute over the subpoena and has no legally cognizable interest in its enforcement.
Nonetheless, the Connission has considered the utility's views insofar as they may aid the Connission's resolution of the issues.
3 Correspondence followed between the NRC Executive Of rector of Operations (EDO) and MP regarding allegations management. Essentially GAP desires an investigation of the allegations by an NRC employee or task force independent of Region !Y. The EDO is of the position that the South Texas Project is located in Region IV, and the personnel in that region can adequately investigate the allegations; and in any event, GAP should turn over the allegations to the agency so that the agency can determine the proper handling of them. After repeated requests for the inforvation, the EDO issued a subpoena requesting Ms. Garde to testify and produce documents regarding the South Texas allegations on May 26, 1987 at 9:00 a.m. at the NRC, Room 6507, 7735 Old Georgetown Road, Bethesda, Maryland. On May 22,19P7, attorneys for Ms. Garde and the hRC entered into an agreement. Ms. Garde agreed to move to quash the subpoena by Friday, May 29, 1987, and the NRC agreed to continue the appearance date for the subpoena from May 26, 1987 until fourteen days after the decision on the motion to quash, unless the parties agreen on an earlier date.
- 11. Analysis A.
Compliance With the Subpoena Would Compromise the Public Health and Safety.
Ms. Garde cites no authority for her first argument which is based on her belief that Region !Y and the EDO ceuld not competently investigate the allegations. Compliance with the subpoena would not compromise the public health and safety.
In f act, the converse is true. Fsilure of the NRC to obtain the allegations would more likely compromise the public health and safety, particularly if the allegations are substantieted. Moreover, the i
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4 agency has demonstrated its comitment to protect health and safety through the rigorous and repeated efforts of the EDO to obtain the allegations, which cuisinated in issuance of the subpoena.
B.
ED0's Authority to Issue the Subpoena Contrary to Garde's assertions, the EDO clearly had the authority to issue the subpoena. The Comission is authorized to issue subpoenas purtuant to 42 U.S.C. 2201(c) (section 161c of the Atomic Energy Act).
It further has the power to delegate this authority consistent with 42 U.S.C. 5849 (section 209(b) of the Ener'gy Reorganization Act) and 10 C.F.R.1.40, which provide that the EDO shall perfom such functions as the Commission may direct. he, also Atomi'c Energy Act i 161n, 42 U.S.C. 2201(n). The Cossnission delegated the authority to issue subpoenas to the E00 in 198?. This delegated responsibility has been incorporated in the NRC Manual Chapter 103-0214 which provides: "The (EDO),... is specifically responsible for:... issuing subpoenas under Section 161c of the Atomic Energy Act of 1954, as amended, where necessary or appropriate for the conduct of inspections or investigations." Thus, Garde's argument that the EDO lacked authority to issue the subpoena is without merit.
C.
Attorney-Client Privilege and Work Product Doctrine Ms. Garde claims that she can not comply with the subpoena, because the withheld information is protected by the attorney-client privilege and the work product doctrine. The Comission does not reach these issues, because l
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5 Ms. Garde has not provided sufficient factual information in her affidavit, retainer agreement, or other supplemental docunents upon which the Consnission can make the determination that all the relevant information that the subpoena requests is protected by the ettorney-client privilege or work product doctrine. See N.L.R.B. v. Harvey, 349 f 2d 900 (4th Cir.1965).
The Comnission notes however, that based on a review of the information that Ms. Garde has prov'W on its face, it appears that she possesses at least some infomatf
, is not withho1dable under the attorney client privilege or shielded by ti.? work product doctrine. The attorney-client privilege applies if:
to whom the coninunication was eude (a)ge is a client; (2) the person (1) the asserted holder of the privile is a mee6er of the bar of a court, and (b) in connection with this comrunication is acting as a lawyer; (3) the connunication relates to a fact of which the attorney was infomed (a) by his client (b) without the presence of opinion on law or (ii) purpose of securing (primarily eithte (1) an strangers (c) for the legal services or iii) assistance in some or tort; and (4) the privilege has been (pose of convisitting e crime legal proceeding, and not (d) for the pur a)claimedand(b)not waived by the client, Eagle-Picher Industries, Inc. v. United States,11 C1. Ct. 452 (1987). The work product doctrine is a qualified privilege which protects documents and tangible items prepared in anticipation of litigation or trial. g.; Fed.R.
Civ. P. 26(b)(3); 10 C.F.R. 2.740(b)(2).
Fact work product is discoverable upon showings of substantial need and inability without undue hardship to obtain the substantial equivalent of the materials by other means. H.; see Hickman v. Taylor, 329 U.S. 495, 510-12 (1947); In re Murphy, 560 F.2d 326, 334'(8thCir.1977). Opinion work product (mental imprusions, conclusions, opinions, or legal theories) may be discoverable upon extraordinary justification.
See Hickmar., 329 U.S. at 513; In re Murphy, 560 F.2d at 336.
As the utility points out, Ms. Garde indicated in her January 20, 1987 letter to the EDO and the Attorney General for the State of Texas that GAP
either represents or 'is working with" approximately 36 current or former employees of the South Texas plant. Attachment 2 to Garde's Motion to Quash.
Obviously, the attorney client privilege cannot attach if there is no client.
Thus, the presumption is that consnunications with the employees that GAP 'is working with" as opposed to representing, are not a part of or protected by the attorney-client privilege.
Furthermore, it is unclear from the facts before the Cornission whether Ms. Garde was acting in a legal capacity when she gathered allegaticns from employees for the purpose of having them reviewed by the NRC.
If she wa.s not acting in such a capacity, it would be questionable as to whether the connuni-catiens made at that juncture would be protected by the attorney-client privilege.
Also, Ms. Garde seeks to withhold the identities of her clients.
Assuming arguendo that the attorney-client p.ivilege applies, generally the
- identity of an attorney's client is not considered privileged.
N.L.R.B., 349 F.2d at 904. Moreover, it is difficult to determine from the information thus far provided whether the privileged nature of the information, if any, has been waived, thereby tent.inating the privilege. he, Artesian Industries. Inc.
- v. Department of Health and Human Services, 646 F.Supp.1004,1008 (D.D.C.
1986), citing In re Grand Jury Investigation of Or.ean Transportat,1,on, 604 F.2d 672, 675 (D.C. Cir.1979), cert. enied sub nom. Sea-Land Service, Inc. v.
United States, 444 U.S. 915 (1979).
It appears that gap intends to reveal at least some of the information when it releases its public report.
The Connission also lacks sufficient data te determine whether the work product doctrine applies to all documents requested under the subpoena. The Caraission would need more information regarding the circumstances surrounding the creation of each document in order to make that detennination. Also, since it is unclear whether the attorney-client privilege is applicable, it is l
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anticipation of litigation and whether work product documents, if any, are discoverable under the substantial need exception. See10C.F.R.2.740(b)(2);
Fed. R. Civ. P. 26(b)(3).
The Comission's view is that the more appropriate time for Ms. Garde to assert the attorney-client privilege and work product doctrine is when Ms. Garde testifies regarding specific questions posed, in response to the At that time she may invoke privileges which she believes are subpoena.
applicable and explain their relationship to the infor1 nation sought by the Comission. Her assertion of them at this time is premature.
Therefore, the motion to quash the subpoena and the request for oral argument are denied. Unless the parties agree otherwise, Ms. Garde shall 6507, 7735 Old appear 14 days af ter the date of this decision at Room Georgetown Rcad, Bethesda, Maryland at 9:00 a.m. to testify and produce documents concerning allegations bearing on safety at the South Texas plant, pursuant to the May 22, 1987 agreement between Ms. Garde and the NRC.
It is so ORDERED.
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Dated at Washinsten. DC this
_/5 E day of July,1987
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the South Texas allegations?
l 2
A If there was a, letter and that letts: is in my 3
file, then I have constructive knowledge that that is what he 4
sent to the NRC if they got it.
I don't know what he told g
5 the NRC because I wasn't a party to any conversations.
6 Q
So you wouldn't be able to turn over to us what 7
the client turned over to the NRC7 8
A In the case that I am thinking of, there was a
)
9 transcript of a meeting which the NRC has not relitased, that 10 ;;
the NRC has, that I have never seen.
The reason I know of I!
11 its existence is because I reme.Ther trying to get the 12 transcript.
But I don't have the transcript.
I wasn't at i
13,i the meeting.
And I don't know, I don't remember if there was
.i 14 ',
a letter that went frem the client to the NRC.
I just don't 15 remerter that.
16 MR. ROISMAN:
Can I just have a clarification?
I 17 You said turn over to us that the client has given to the 18 l
NRC.
You are the --
19 MS. SMITH:
Turned over to date.
We are the NRC.
20 But that you can turn over today.
21 i MR. ROISMAN:
You understand our position has been 22 consistently that we will not turn over to you twice what we 2.1 have already given you ence.
So we wouldn't give it to you
[
24 aven if we didn't claim any privilege at all.
Go find it.
25 Part of our whole argument --
i; ACE. FEDERAL REPORTERS, INC.
20'.34%)*00
%uon=ede Coserne 80rk).W%4A 1
31950.0 '
.Y rOo 216 1
MS. SMITH:
Who was it given to?
2 MR. ROISMAN:
Part of our whole argument is that 3
when it gets given in the context of your normal operating 4
._ procedures, it goes into a dark whole at Regien 4 or at the 5
ED0's office and never surfaces, and we want you to find it 6
so you will understand why we wouldn't do it again and give 7
it to the same group of people or let you take it and give it 8
to them so they could lose it again.
9 BY MS. SMITH:
10 j Q
Was the information given to Region 4 when the h
11 client turned --
12 A
I understand what it was given to Region 4, yes.
13 0
Do you know specifically whom within Region 4 it 14 was given to?
15,j MR. ROISMAN:
Moe, Curly or --
i'i 16 li THE WITNESS:
No.
4 17 I do not know the answer to that question.
I i-10 assume that it, like everything else that disappears, goes i
19 J through Mark Emerser..
But I don't know that.
Mark Ernerson l
20 is the allegation coordinator, or exterminator, depending on 21 how you look at it.
22 BY MS. SMITH:
23 Q
Did you ever have a clients by the name of Charlie h
24 Jones?
25 A
I don't want to answer that question.
D ACE. FEDERAL REPORTERS. INC.
j!
2 @ ) n 3'00 Nmonude Coserage 80Lk.136 t646 L.
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0 UNITED STATES OF AF. ERICA d'
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Coctrrro 1
NUCLEAR REGULATORY COMMISSION
((
UUN2519875 g m %g aa4xcy i
4 In the matter of:
Houston Lighting and Power
)
to Company
)
Docket Nos. 50-498 OL co
)
50-499 OL (Soutn Texas Project, Units
)
1 and 2)
)
)
REPLY OF BILLIE P. GARDE, ESO. TO THE NRC STAFF'S OPPOSITION TO MOTION TO QUASH AND DE FACTO OPPOSITION TO PETITION PURSUANT TO 10 C.F.R.
$2.206
.ll 1 l
l l
4 Anthony 2. Roisman, Esq.
1401 New York Avenue N.W.
Suite 600 Washington, D.C.
20005 (202) 628-3500 David S.
Rubinton Richard E. Condit Staff Attorney, GAP l
1555 Connecticut Avenue N.W.
l Suite 200 Washington, D.C.
20036 l
(202) 232-8550 o,,,,,,,
/3fu l
u i r s a wu yv=
l Sated:
June 25, 1987 l
I.
INTRODUCTION Victor Stello, Jr.,
improperly subpoenaed Billie P. Garde, Esq., to testify before NRC personnel concerning confidential and privileged communications between Ms. Garde and her clients.
In response, Ms. Garde moved 'to quash the subpoena and, through a concurrently filed $2.206 Petition, demonstrated an acceptable approach to the NRC's treatment of the subject matter of the subpoenaed information.
Specifically, this Petition requested the establishment of an NRC investigative unit independent of Mr. Stello and Region IV, with which Ms. Garde's clients would be willing to share their concerns.
The NRC Staff responded to Ms. Garde's Petition and Motion by requesting the denial of the Motion.
However, the Staff failed to respond to charges of the misfeasance, malfeasance and dereliction of duty of Mr. Stello and officials in Region IV.
Failure to raise a defense to these charges suggests that these charges have merit and confirms that they are properly before the Commission.
o e
For the reasons set forth below, the Commission should quash the subpoena by granting the Motion or, in the alternative, set aside the subpoena and grant the Petition.
II.
THE ATTORNEY-CLIENT PRIVILEGE RAS BEEN ESTABLISHED A.
The affidavit of Billie Pirner Garde and the retainer agreement clearly establish an attorney-client relationship.
In their answer, the NRC Staff claims tnat "GAP has not provided a sufficient basis on whien ene Commission could -__-... _
9 5
conclude that the attorney-client privilege protects any of the information sought by the NRC staff."
Staff Answer at 10.
This argument is patently without merit.
The Staff recites Wigmore's elements for establishing the attorney-client privilege (1)
Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
8 Wigmore, Evidence 52292 (McNaughton Rev. 1961).
Ms. Garde accepts this characterization of the black letter law of the attorney-client privilege and asserts that she clearly meets each and every element as set forth therein.
First, the South Texas Nuclear Project (STNP) employees who i
came to Ms. Gardo sought advice regarding disputes and potential disputes with their employers.
(Garde Affidavit, 13).
These employees also sought adv1ce on the proper handling of their allegations (Representation Agreement, 11; Affidavit, 13) and the protection of+their jobs and future employment possibilities (Affidavit, 13).
Billie Pirner Garde is an attorney, and in that capacity Ms.
Garde is advising her clients, thereby meeting the second element.
(See generally, Representation Agreement and Affidavit).
The STNP employees who came to Ms. Garde communicated to her their concerns about the design, construction, management and the potential operation of the STNP in the hope of receiving advice 2-
from Ms. Garde on how best to handle these allegations within the NRC while protecting their employment status (Affidavit, 1 4).
These communications clearly fall within the scope of Wigmore's third element.
Further, it is improper for Mr. Stello to attempt to probe into the attorney-client relationship by commanding Ms.
Garde to testify concerning the allegations made to her by STNP employees.
The communications for which the privilege is claimed were clearly made in confidence, satisfying Wigmore's fourth element.
The STNP employees would not speak to Ms. Garde without the understanding that the communications would be kept confidential.
(See Representation Agreement, 12 and see generally, Affidavit).
Since it is the client's communications which are in issue, Wigraore's fif th element is clearly met as well.
The remaining elements merely follow from the establishment of the initial five' elements and therefore no further analysis is needed.
Since the elements necessary to establish an attorney-client privilege have been met and the clients have not waived e
privilege, the privilege attaches to the communications l
that between Ms. Garde and her clients.
Nevertheless, the Staff asserts that it is unclear whether l
Ms. Garde was actually acting in a capacity to which the attorney-client privilege attaches.
In support of this assertion i
the Staff cites N.L.R.B.
v.
Harvey, 349 F.2d 900 (4th Cir. 1965) l l
for the proposition that "notwithstanding a detailed affidavit by l
an attorney purporting to establish an attorney-client l
l relationship, further facts unequivocally establishing the 3-
character of the attorney's retainer were necessary to determine whether the attorney-client privilege was applicable."
Staff Answer at 9.
Curiously, the Staff failed to indicate, even in a general sense, how Ms. Garde's retainer agreemant or detailed affidavit make it unclear whether she was acting in he capacity as an attorney such that the attorney-client privilege attaches.
Harvey adds credence to Ms. Garde's claim of privilege by recognizing that the attorney-client privilege attaches where, in' order to furnish adequate legal services to the client, the legal services become indistinguishable from non-legal services.
Harvey at 907.
Therefore, even if it is found that some of Ms.
Garde's communications were not of a legal nature, as the Staff l
seems to suggest, the attorney-client privilege will remain in j
effect.
The Staff also questioned whether Ms. Garde could l
demonstrate "that the privilege would attach to all of the l
information she has gathered."
Staf f Answer at 9.
The Staff cites no precedent for the notion that a demonstration of the applicability 4cf the privilege nee'ds to be made for all of the information obtained by Ms. Garde from her clients.
However, to the extent that it is necessary to make such a showing, Ms. Garde has already done so.
The Commission has already been presented with Ms. Garde's affidavit and representation agreement.
These documents plainly demonstrate that the information Ms. Garde received from her clients was only communicated to Ms. Garde in an attorney-client centext.
Finally, the Staff questions the applicability of the attorney work product doctrine in light of Ms. Garde's
-4
Representation Agreement which states that Ms. Garde's services to her client "do not includa litigation" unless otherwise provided for.
This agreement is the manifestation of an understanding reached between Ms. Garde and her clients.
It was understood that the term "litigation" as used in this agreement, referred to actions in the courts or before other administrative tribunals.
Ms. Garde's agreement included the "do[es) not include litigation" provision to underscore the fact that she was representing her clients beyond the level of NRC proceedings.
not The NRC rules (10 C.F.R. Part 2) and actions (e.g. the caption of the present matter) suggest that they construe Ms. Garde's representation of her clients before the NRC for the purpose of pursuing their allegations, to be in the nature of an adjudication.
Ms. Gr.rde's agreement clearly applies to the representation of her clients in NRC proceedings and is therefore i
afforded the full protection of the attorney work product doctrine.
III.NRCSTAfPRASFAILEDTODEFNbDTHECONDUCTOF MR. STELLO AND REGION IV l
l The trustworthiness of Mr. Stello and Region IV to competently investigate allegations of workars and provide protection to those workers is clearly an issue relevant to Ms.
l Garde's Motion to quash Mr. Stello's subpoena, and to GAP's Petition pursuant to 10 C.F.R. 52.206 (Petition).
The NRC Staff's position that ".
compliance with the subpoena would in no way compromise the health and safety of the public" (Staff l
l j
.a...-...
Answer at 4) is a conclusion void of substance or analysis.
The issue of trustworthiness and regulatory competence is a factual one which was raised in our memorandum in support of the Motion To Quash (Memorandum) and !.n GAP's Petition.
Our position with respect to the competence and trustworthiness of Mr. Stello and Region IV has been summed up as follows:
Mr. Stello's public and private support of Region IV's worst offenders and his failure to take any corrective action regarding the agency employees who have actively engaged in conduct that is a violation of NRC Regulations and practices is understandable only if he condones such activity.
As a result of Mr. Stello's repeated failure to demonstrate any acknowledgement of the NRC's own regulations regarding the processing of allegations and interfacing with alleger, while simultaneously being the de facto operative of the utility from which the workers need protection, requires that (Ms.
Garde) comply with her professional obligation to l
her clients and protect them from Mr. Stello and Region IV.
Memorandum at 7.
l l
..,. Neither Mr. Stello nor Region IV can be i
expected to use any information to protect the public's l
health and safety.
In fact, it is likely 'that any informat' ion released to Mr. Stello on Region IV would either be covered up or inappropriately shared with l
STNP officials.
l Id. at 13.
l Furthermore, as we carefully articulated in our i
Petition, Region IV has had a history of misfeasance and malfeasance in which Mr. Stello has been a participant.
See Petition at 4-15.
Requiring Ms. Garde to submit potentially significant information concerning the safety of the STNP to Mr.
Stello or Region IV would result in a cover-up or an inadequate l
)
investigation.
Any subsequent investigation, even if properly l 1
- ~
-.. o conducted, would be unlikely to find ths serious safety problems because of the damage done by an improper investigation.
Additionally, the identities, and therefore the careers, of the clients involved would be placed in jeopardy, judging frca past performances of Mr. Stello and Region IV.
The NRC Staff argues that "failure of the NRC to obtain the information could compromise public health and safety if the allegations raise health and safety issues that are substantiated."
Staff Answer at 4.
However, the Staff's argument misses the point.
We agree that the NRC must review all allegations pertaining to the STNP.
In fact, it is clearly NRC's responsibility to do so.
The issue here is to whom should the workers' allegations and information be released?
We do not understand the Staff's argument to mean that the information in question should be investigated by persons within the agency who lack the competence and commitment to take proper corrective action.
Both Mr. Stello and Region IV have received extraordinary criticism from sources within NRC as well as outside the Igency, therefore calling into question their ability to protect the public health and safety.1/
l l
IV.
AN EVIDENTI ARY HEARING IS REQUIRED TO PROPERLY RESOLVE THIS MATTER As pointed out in their brief, it is the Staff's pcsition that there are factual issues regarding the applicability of the i
attorney-client privilege and work product doctrine to Ms.
1/
See generally, Petition at 4-15 and Appendicies G-M.
{
Garde's response to Mr. Stello's subpoena.
See Staff Answer at 0-11.
The Staff suggests that the proper way to resolve any questions involving Ms. Carde's attorney-client relationships would be to depose her.
Staff Answer at 10.
Regarding the applicability of the attorney-client privilege and work product doctrine the Staff stated:
The Commission would have to evaluate the facts surrounding the creation of the documents for which the privilege is asserted, in order to strike a balance between the need for information and the need to provide confidentiality of attorneys' files.
The facts forming the necessary prerequisite for such a determination have noc yet been developed; all that the Commission has before it are conclusory statements of counsel.
(footnote omitted)
In conclusion, the Commissica does not have enough facts before it at this time to rule on applicability of either the attorney-client privilege of (sic work product doctrine, and such rulings are unne)cessary the to its determination of the Motion before it.
Staff Answer at 11.
Contrary to the Staff's conclusions, sufficient information, not rebutted or challenged in any substantive manner by the Staff, exists in Ms. Garde's affidavit and retainer pgreement for the Comnission to find that the attorney-client privilege and work product dcctrine are applicable here.
See discussion, supra, at 1-4.
The Staff's suggestion that Ms. Garde be deposed in order to clarify her attorney-client relationships is clearly inappropriate.
Mr. Stello's authority does not cover the investigation of the attorney-client relationship.
The subject of the subpoena is information pertaining to the safety of the STNP.
Furthermore, neither Ms. Garde nor any of her clients are.,
j
~
\\
l presently parties in anv NRC proceedings relating to the STNP.
No case or authority we could find permits the deposition of an attorney regarding her attorney-client relationships.
Should the Commission conclude that factual issues do exist, then an evidentiary hearing would be required.
Harvey at 907.
In order for the Commission to comply with the basic requirements of due process such a hearing must include the investigation of all factual issues.
Ms. Garde must be permitted to call The Staff's witnesses and ask questions relevant to her defense.
suggestion that Ms. Garde be deposed is completely unacceptable and inadequate.
See Staff Answer at 10.
4 It a hearing is required, we recommend that the Commissioners assign the Atomic Safety and Licensing Board judge currently involved in the STNP licensing proceedings to conduct The factual issues for the judge to rule on would the hearing.
l be:
and Are Mr. Stello and Region IV officials competent (1) sufdiciently committed to protecting the hea.ith and safety of the public to be permitted a role in the processir.g and review of worker allegations and information?
Does Ms. Garde have an attorney-client relationship (2) with the individuals she represents?
If there information in Ms. Garde's possession (3) protected from disclosure by the work product doctrine?
If there is information protected by the work product I
(4) doctrine, can the NRC Staff establish that there are :
i extraordinary circumstances which warrant a waiver of the protection?
Ms. Garda would probably call Mr. Stello, Mr. Martin, Ms.
Connally, Mr. Hayes, and other NRC Headquarters and Region IV officials as witnesses.2/
The testimony of these witnesses is necessary to Ms. Garde's defense.
Rather than deal with the complicated issues in this matter, many of which are issues of first impression for the Cet. mission, the Commissioners could resolve Ms. Garde's and GAP's concerns simply by providing a special review team to review and investigate all allegations pertaining to the STNP.
Thg_Hgg's s y ia_1 cases g t is probably the most appropriate mechanism the agency has for dealing with the problems at the STNP.
V.
CONCLUSION The NRC Staff has not established that Ms. Garde's assertions of attorney-client privilege and/or work product doctrine are not sustainable.
In fact, Ms. Garde has met her factual burdep establishing an attorney-client privilege relationship by producing an affidavit and copy of a detailed retainer agreement.
Furthermore, the Steff failed to even attempt to defend the actions of Mr. Stello and Region IV officials against claims that they are unable to adequately 2/
By insisting on an appropriate hearing before an ASLB judge, Ms. Garde does not waive her right to insist on a court issued subpoena and the opportunity to present evidence, conduct discovery, and hold a hearing on the Motion To Quash to the extent that an NRC hearing is inadequate., _ _ _ _ _ _ _ _. _. _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _.
t investigate worker allegations and protect the public health and safety.
For that.e reasons, the Commission should quash the subpoena by Mr. Stello of Ms. Billie Garde, and grant the Petition.
Respect. fully submitted,
'Wb 0Y([h Anthony Z? Roisman 1401 New York Avenue N.W.
Suite 600 Washington, D.C.
20005 (202) 628-3500
- b. b x
Richard E. Condit David S. Rubinton GAP Staff Attorneys 1555 Connecticut Avenue N.W.
Suite 200 Washington, D.C.
20036 (202) 232-8550 Dated:
June 25, 1967 g
069a01
- 11
l 8 4 CERTIFICATE OF GERVICE I certify that a copy of the foregoing document was served upon the addressees listed below.
Service' was accomplished by hand delivery oa June 25, 1987.
\\~
NRC Commissioners r\\
d L.W. Zech, Jr., Chairman Thomas M. Roberts 00CE7r.D A
James K. Asselstine t
UUNP.5198754 Fredrick M. Bernthal Kenneth M. Cart lg e
U.S. Nuclear Regulatory Commission 1717 H Street N.W.
fo Washington, D.C.
20555 Bill Paton, Esq.
U.S. NRC 1717 E Street N.W.
Washington, D.C.
20555 Secretary, U.S. NRC 1717 H Street N.W.
Washington, D.C.
20555 Jack R. Goldberg, Esq.
U.S. NRC 1717 H Street N.W.
Washington, !NC. 20555 Mary E. Wagner, Esq.
U.S. NRC 1717 E Street, N.W.
Washington, D.C.
20555 O
F
/
,./
David S. Rubinton
hNY' Ob 101 (3 / ] : "j :-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,,,Q,,
y j g BEFORE THE COMMISSION
- y in the Matter of
)
)
1100STON LIGilTING AND
)
Docket Nos. 50-498 OL POWER COMPANY
)
50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
)
NRC STAFF AliShER OPPOSING MOTION TO QUASH SUBPOENA FILED BY BILLIE P. GARDE, ESQ.
Jack R. Goldberg William D. Paton Acting Assistant General Counsel Counsel for NRC Staff for Enforcement l
l
?.iary E. Ungner l
~,;ounsel for NRC Staff June 11,1987 l
x,,,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of
)
)
IlOUSTON LIGilTING AND
)
Docket Nos. 50-498 OL POWER COMPANY
)
50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
)
NRC STAFF A!! SHER OPPOSING MOTION TO QUASH SUBPOENA FILED BY BILLIE P. GARDE ESQ.
Jack R. Goldberg b'illiam D. Paton Acting Assistant General Counsel Counse! for MRC Staff for Enforcement Mary E. Wagner Counsel 'or NRC Staff June 11,1987 e
i e
i TABIE OF CINIHTIE i'
)
\\
P, age, 1
1.
T h"J000CTICN........................
1 II. BAQ U n ND.........................
1 I I I. DI SCUSS !CN.........................
5 A.
De EDO is Authorized To issue ho Subpoena......
5 B.
De Ca mission Need Not Reach h e Questions Of 1.hether ne Attorney-Client Privilege Or Ibrk Product Doctrine Applies 6
1.
h e Attorney-Client Pr Wilege 8
r 2.
he tbrk Product Doctrine 10 IV. Cr1CES ICH,........................
12 A
.I l
I j
t t
t j
O f
I f
l
O 11 -
TAB 12 OF CITATICNS Page(s)
CASES Fleming v. Mohawk Wrecking and IAmber Q., 331 U.S.111, 121 (1947)..
6, 7 Hielnin v. Taylor, 329 U.S. 495, 511 (1947) 11 N.L.R.E. v. Harvey, 349 F.2d 900 (4th Cir.1965)........
8, 9 United States v. Fitch oil Co., 676 F.2d 673 (T.E.C.A. 1982)..
7 Upjohn Co. v. thited States, 449 U.S. 383, 401 (1981) 11 STA'IUIES At omi c Tr.e rgy Ac t o f 1954, Se c t i on 161 c.............
6, 7 I:ncrgy Reorganizatiou Act of 1974, Section 209(b)...
6 hIILLC103 10 C. F. R. I 1. 2.........................
7 10 C. F. R. I 1. 3 6........................
6 10 C. F. R. I 1. 4 0........................
6 CrDIER AUIKEITIES Fed. R. Civ. P. 45(a) 8 Fed. R. Cr im. P. 17 ( a )....................
8 4
l 8 Wigrrore Evidence i 2292 GbNaughton rev.1961).
9 81 Am. Jur. 2d Witnesses, i 182 (1976)..
S lBC Manua l, Chapt er 0103....................
7 l
i
.,,-_-.,_.-,.-_--,.-..-,.--_--_._..-..r_-.
O UNITED STATES OF AMERICA
.s NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of
)
)
IlOUSTON LIGilTING AND
)
Docket Nos. 50-498 OL POWER CO!iPANY
)
50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
)
NRC STAFF ANSWER OPPOS!!!G MOTIO!' '10 QUA5}l SUEPOENA FILED BY BILLIE P. GARDE. ESQ.
I.
INTRODUCTION Lillie P. Garde, Esq., Director, Midwest Office of the Government Accountability Project (GAP), claims she possesses numerous allegations concerning safety, wrongdoing and intimidation at the South Texas
,e Project, but she will not provide them to the NRC Staff.
For the purpose of obtaining those allegations NRC Staff served a subpoena on L
?.:s. Garde.
Ms. Garde refuses to comply with the subpoena and has filed a Motion to Quash Subpoena (Motion).
For the reasons set forth below, the Commission should uphold the subpoena by denying the Motion.
BACKGROUND During the first four months of
- 1987, Ms. Garde exchanged l
correspondence with Victor Stello, Jr.,
NRC Executive Director for Operations (EDO), with regard to numerous allegations Ms. Garde claimed to have received concerning the South Texas Project.
(See Attachments 2 through 7 to Ms. Garde's Memorandum in Support of Motion to Quash Subpoena (Memorandum)).
Ms. Garde e:: pressed a willingness to provide
,~.-----g...c.~,ww.-.-,m. -. - - - -
,----~,,-,c--,
--n
the allegt.tions to the NRC, but only on the condition that they not be turned over to Region IV for resolution.
On April 8,1987, after repeated attempts to obtain information regarding the allegations.
Mr. Sts11o wrote Ms. Garde that (1) it was his responsibility to determine how the NRC deals with her allegations, (2) the issues must be addressed promptly, and (3) if he did not receive full information from her within 30 days, la woulc be constrained to take steps to acquire it by other m e ar.s. Ms. Garde's position remained unchanged.
On Wednesday, May 20,
- 1987, the NRC served a
subpoena commanding Ms. Gar *d to appear at the Nuclear Regulatory Commission offices in Dethesca, Maryland on the 26th day of May,1987 to testify concerning allegations of current and/or former employees of the South Texas Project relating to the safety of that facility. II A copy of the subpoena, signed by Mr. Stello, is Attachment 1 to this pleading.
On Friday, May 22, 1967, the NEC and Ms. Garde entered into an agreement which (1) acknowledged that Ms. Garde intended to file a motion to quash the subpoena, and (2) set out her agreements to (a) file the motion not later than close of business Friday, May 29, 1987, and (b) not challenge service of the subpoena.
The NRC agreed to continue the appearance date from Tuesday, May 26,1)r87 to fourteen days after a decision with l
1/
Prior to issuance of the subpoena, Ms. Garde attempted to negotiate with Mr. Stello's ofilce the manner in which the NRC would investi-
~
gate the allegations.
Only after her attempt failed and Mr. Stello issued the subpoena did Ms. Garde allege that Mr. Stello himself cannot be trusted to appropriately investigate the allegations.
Compare GAP letters dated January 20. March 4, and March 23, 1987 (Attachments 2, 4 and 6 to the Memorandum) to GAP pleadings filed I
after the subpoena (Motion,
Memorandum and Petition of the l
Government Accountability Project).
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respect to the motion, unless the parties agreed on an earlier date.
A copy 6f the agreement is Attachment 2 to this pleading. 2_/ By agreement with Counsel for !!RC Staff, Ms. Garde filed her Motion prior to 8:00 a.m.
on Monday, June 1, 1987.
(The circumstances causing the delay in filing are not legally significant.)
The h'c tion states that the specific grounds for quashing the subpoena are:
(1)
Compliance with Mr. Stello's command would compromise the health and safety of the public.
(2)
There is no authority for Mr. Stello to issue the May 20, 1967 subpoena.
(3)
The information and identities of movant's clients are protected by the attorney-client privilege.
The Memorandum, however. divides its "legal argument" into three et parts:
(1)
The Executive Director for Operations has no authority to issue the subpoena.
(2) The attorney-client privilege prevents movant from divulging the requested information to Mr. Stello.
l (3)
The work product doctrine prevents movant from divulging the requested information to Mr. Stello.
The Motion's first ground, based on alleged untrustworthiness of l
Mr. Stello and Region IV, was not briefed by Ms. Garde and is not addressed in this pleading.
See note 3, infra.
It is the Staff's position, 2/
The May 22, 1987 cover letter to the agreement shows that Ms. Garde does not intend to answer questionb pursuant to the subpoena except under court order.
4-however, that compliance with the subpoena would in no way compromise -
the he'alth and st.fety of the public.
On the contrary, failure of the NRC to obtain the information could compromise public health and safety if the clleghtions raise health and smiety issues that are substantlkted.
Concurrent with the filing of her Motion, Ms. Garde filed a document entitled "Petitioni of the Government Accountability Project" (Petition) which, among other things, requests that the NRC Commissioners estab-lish an independent investigative unit or special projects review team to deal with allegations at the South Texas Project.
In the Petition, GAP claims to have received 500 611eptions, divided in this manner:
(1) fifty percent relate to safety. (2) thirty-seven percent relate to wrongdoing, (3) ten percer.t relate to intimidation and threats, and (4) three percent are "other".
Petition at 4. U GAP's Petition explicitly requests that:
Interviews and subsequent inspections,
investigations and document reviews must be conducted by personnel who have had no previous involvement with the ST!1P and are not employees
~
assigned to Region IV for purposes of their performance evaluations or work reviews and editing.
and that:
3/
Thi issue raised by the Petition, generally the trustworthiness of f.lr. Stello and Region IV, is the same as that raised by the Motion's first ground for quashing the subpoena. Since this issue is directly before the Commission for a determination, and in any event was not briefed by Ms. Garde in her Memorandum, the Staff does not address that issue here.
The Commission may wish to defer ruling on the Motion to Quash Subpoena until a decision has been reached with respect to the Petition, since granting the relief requested in the Petition, for whatever reasons, could moot the issues raised by the subpoena, f
Supervision of independent inspection effort
,s cannot in any way be reviewed or in control of
' Mr. Stello or his staff.
1 Petition at 20.
For reasons set out below, the NRC Staff opposes Ms. Garde's Motion. U 111.
DISCUSSION L'efore addressing the arguments presented by Ms. Garde's Motion, it is important to understand what is, and what is not, at issue before the Commission in deciding whether to grant or deny the Motion.
As explained below, the only issue which need be decided is whether the Mr. Stello has t.uthority to issue the subpoena to Ms. Garde.
If so, the Motion must be denied.
Not at issue in deciding whether to quash the subpoena is whether or not the subpoena seeks information which may be protected by attorney-client privilege or the attorney's work product coctrine.
These generalized assertions are prematurely raised by Ms. Garde and obfuscate the only issue the Commission need decide, whether Mr. Stelic has authority to issue the subpoena.
A.
The EDO is Authorized To issue The Subpoena Ms. Garde argues that the subpoena is invalid because the EDO, Mr. Victor
- Stello, Jr.,
is not authorized to issue the subpoena, 4/
Ms. Garde requests oral argument on her Motion.
The Stsff does
~
not believe oral argument is necessary, t
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e
.ge
?.:ctc.orandum at 7-10.
This argument is patently without merit:
As discus' sed below,
the Commission has statutory authority to issue subpoenas; the Commission has authority to delegate this function to the EDO: and the Ccamission has in fact delegated this function to the RDO.
The Con. mission's subpoena ' authority is clearly set forth in section 1G1c of the Atomic Energy Act of 1954, as amended ( Act), which authorizes the Commission to "administer oaths and affirmations, and by subpoena to require any perron to appear and testify, or to appear and produce documents, or both, at any designated place." Section 209(b)Jf the Encrgy Reorgar.12ation Act of 1974 specifies that the EDO "shall perform such functions as the Commission shall direct... ",
and constitutes authority for the Commission to delegate subpoena authority to thc EDO. b There is no requirement that there be a statutory provision specifically authorizing delegation of the power to issue a subpoena.
Fleming v.
Mohawk Wrecking and Lumber Co.,
331 U.S.
- 111, 121 i
(1947).
To construe the authority of the Commission not to include authority to delegate subpoena authority to the EDO would unnecessarily l
frustrate the efScient workings of the NRC in its efforts to achieve its 1
1 5/
While !Lis Garde fails to address the authority granted to the EDO
~
by section 209(b), she deems it ~ "especially significant" that the j
power to 16vue subpoenas is not specifically included in the scope of the EDO's duties set forth in the Commission's regulations,
l 10 C.F.R. I 1.40, since subpoena power is specified in the powers of the Of0ce of investigations (10 C.F.R.
I 1.36).
Memorandum i
at 8.
However, while the scope of the Office of Investigations' duties and powers are specifically enumerated in the Commission's 1
regulations, the scope of the EDO's functicas in i 1.40 contains a 4
general statement that he "performs such functions as the Commission may
- direct, including" certain specified powers.
Contrary to !.1s. Garde's assertion, then, i 1.40 does not imply that the EDO has not been delegated the authority to issue subpoenas.
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statutory objectives.
See United States v. Fitch 011 Co., 676,E.2d 673 (Temp *. Emer. Ct. App. 1982), citing Fleming v. Mohawk Wrecking and Lumber Co., supra.
Pursuant to the above statutory authority, the Commission has delegated to the EDO the authority to issue subpoenas with power to redelegate to other specified officials.
The memorandum under which the delegation was made is Attachment 3 to this pleading. $I Ms. Garde next asserts that the subpoena is flawed by Mr. Stello's failure to make a "timely request to the Commission for a subpoena".
No such request is necessary; Mr. Stello has been authorized to issue such subpoenas without prior censultation with the Commission.
See Attachment 5 to this pleading.
Ms. Garde's arguments that issuance of the subpoena by Mr. Stello was unauthorized are meritless.
it Ms. Garde complains that the subpoena is deficient in that it does not cite the legal authority unde'r which it is issued.
goe Memorandum i
at 8.
No case law is cited for this unusual proposition.
As stated I
above, the Commission's subpoena authority is s(t forth in section 161c of l
6/
The fact that Mr. Dircks, and not Mr. Stello, was Executive Director
~
for Operntions at the time the delegation was made is of no legal import, since the delegation is to the Office and not to the individual holding the position at the time of delegation.
The delegation states
... the Commissior... has delegated to the Executive Director i
for Operations the authority to issue subpoenas...."
10 C.F.R.
I 1.2 requires that the definitive statement of NRC delegation of authority is contained in the NRC Manual, which is i
available for public inspection and copying at the NRC public l
document room.
A copy of manual chapter 0103, which includes a section (0103-0214) specifically authorizing the EDO to issue i
subpoenas under section 161c of the Act, is Attachment 4 to this I
pleading.
i i
.g.
the Act.
There is no requirement, either in NRC practice or in Federal civil o'r criminal practice, that a subpoena recite the legal authority under which it has issued.
See Fed. R.
Civ.
P. 45(a); Fed. R. Crim. P.
17(a). U in conclusion, the Commission's clear authority to issue subpoenas has been properly delegated to the EDO, the EDO does not have to request a subpoena from the Commission, and the subpoena issued to Ms. Garde was duly authorized.
B.
The Commission 'N cd Not Reach The Questions Of Whither The Attorney-Client Privilege Or Work Product Doctrine Applies CAP attempts to resist the subpoena on the basis of assertions of attorney-client privilege and the work product doctrine.
Neither oetermination is necessary to a resolution of the questior. of whether the issuance of the subpoena should be upheld.
Moreover, Ms. Garde's fr.ctual assertions to support her claims of attorney-client privilege and work product do not provide an appropriate basis for the Commission to decide whether they apply in tais case.
See N.L.R.B.
v.
- Harvey, 349 F.2d 900 (4th Cir.1965), cilscussed infra at p. 9.
1.
The Attcrney-Client Privilege The essentials of the attorney-client privilege are stated by Wigmore to be:
7/
These rules provide that every subpoena must contain:
the name of the court, the title of the action, if any, and a command to each person to whom it is directed to attend and give testimony at a specified time and place.
3 (1)
Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such. (3) the communications relating to, that purpose. (4) made in confidence (5) by the client,
(6) are at his instance permanently proacted (7) from disclosure by himself or by the legal adviser, (8) execpt the protection be waived.
S Wigmore Evidence I 2292 (McNaughton rev.1961).
Ms. Grrdt. en behalf of GAP, has gathered allegations concerning the South Texas Project.
11 the o not acting in the capacity of 6ttorney, the privilege would not up.
The privilege accorded to ammunications between attorney and client is limited to communications made to the attorney as such and in his professional capacity.
Where an attorney is employed for some other purpose than to conduct litigction, to Five kdvice en legal questions, or to engage in some other activity peculiarly within the province of an attorney at law, communications made during the course of that employment are not accorded protection from disclosure.
ec 81 Am. Jur. 2d Witnesses, i 182 (1976) (footnote omitted).
N.L.R.B.
v.
Harvey, 349 F.2d 900 (4th Cir. 1965), held that, notwithstanding a detailed affidavit by an attorney purporting to establish i
an attorney-client relationship, further facts unequivocally establishing the character of the attorney's retainer were necessary to determine whether the attorney-client privilege was applicable.
The question was whether the attorney was acting in that capacity or if he was soployed in some other capacity.
It is not at kil clear that Ms. Garde, in gathering allegations with the intent to have them viewed by some entity within the NRC other than Region IV, has been acting in a capacity to which the attorney-client privilege attaches, or that she could meet her burden
)
of demonstrating that the priv;1ege would attach to kil of the informa-tion she has gathered, j
As to the claimed existence of the attorney-client privilege, the Slaff would' depose Ms. Garde with respect to (1) each of the assent!ala necessary to establish the privilege (see pp. 8-9 supra) and (2) circum-stance: that Islate to waiver of the privijege.
This information would
-,.r po ten then form the basis for an ultimate determination on the applicability of the attorney-client privilege to the facts of this case.
At this time,
- however, GAP has not provided a sufficient basis on which the Commission could conclude that the attorney-client privilege protects any of the information sought by the NRC Staff.
2.
The Work Product Loctrine Ms. Garde argues in the alterr.utive that if the co'nmunications she has received are not protected by the attorney-client privilege, they are protected by the work product doctrine.
Memortndum at 13-14.
This also is a question that the Commission car.not decide on the basis of the sssertions in Ms. Garde's pleading, and one which it need not decide in ruling on the Motion before it.
As set forth above, it is not clear whether en attorney-client relationship exists in this case.
Absent such a relationship, of course, there could be nc valid assertion of work product.
Assuming, arguendo, however, that the attorney-client relationship is eventually established, the question of appilcability of the work product doctrine would then becote ripe for determination.
The work product doctrine applies, at l
least, to material "obtained or prepared by an adversary's couneel" in the 4
1
course of his legal duties, provided his work is done "with an eye toward litigati'on. "
llickman v.
Taylor, 329 U.S.
495, 511 (1947). 8_/
The Commission would have to evaluate the facts surrounding the creation of the documents for which the privilege is asserted, in order to strike a balance between the need for information and the rieed to provide confidentiality of attorneys' files.
The facts forming the necesst.ry prerequisite for such a determination have not yet been developed; au that the Commission has before it are conclusory statements of counsel. 8I in conclusion, the Commission does not have enough facts before it at this time to rule on applicat!11ty of either the attorney-client privilege of the work product doctrine, and such rulings are unnecessary to its determination of the Motion before it, b
-8/
Ms. Garde's "standard attorney-client representation form" used for the individuals she purports to represent in this matter, see Garde Affidavit at 1 18, is attached to her Memorandum.
That form states that her services to her client "do not include litigation, unless specifically stated, or provided for in a previous or subsequent written agreement" (emphasis added).
On its face, this statement raises a question as to whether the work product doctrine is applicable at all.
9/
Even if it is ultimately determined that the documents are subject to a claim of work product, to the extent that the work product contains relevant, non-privileged facts, as well as the attorney's thought processes or judgments, portions of those documents may be discoverable upon a showing of adequate reasons.
In addition, to the extent that counsel's thought processes or judgments are revealed, such documents may be discoverable on a showing of extraordinary justification.
Hickman v.
Taylor, supra, 329 U.S.
at 513; Upjohn Co.
v.
United States, 449 U.S.
383, 401 (1981).
~
IV.
CONCLUSION For the reasons stated above, Mr. Stello had the authority to issue the May 20,'1987 subpoena to Ms. Garde and Ms. Garde's Motion to Quash Subpoena should be denied.
Respectfully submitted.
.W ack R. Goldberg William D. Paton Acting Assistant General Counsel Counsel for NRC Staff for Enforcement f,
g9 Mary
.Wagned Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of June,1987 i
.I l
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Milll(O MINI (3 O[ Mlll&N(N ATTACHflEllT 1 NUCLEAR REGUL.ATORY COMMISSION v
In the rnatter of: Houston 1.ighting and Power Company
~-
> DOCKET No. 50-498 50-499 TO l's. Billie Pirner Garde Governrnent Accountability Project 1555 Connecticut Avenue, fl.W.
Suite 202 Washington, D.C.
20036 YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory Comission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May 1987 at 9:00 o' clock A.M. to continue as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or fortner employees of the South Texas Project concerning the safety of the South Texas Project, as described in your letter of January 2J,1387 to Messrs. Victor Stello and James l'attox, and any other allegations which you have received concerning the safety of the South Texas Project, and to provide any records or other documents in your
,c possession or under your custody or control concerning such allegations.
l l
s ctor Ste
.J l
Executive Director for Ooerations
$be$r RI[ulatory Comission Jhp 9 /), 1987
.h 4 e nnishng
/
7ter (301) 492-7619 On inotion made promptly, and in any event at or before the time specified in the cubpoena for compliance by the person to whcnn the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Comission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relev6nt to any matter in issue, or (2) condition denial of the motion on just and reasonable tems.
Such inotion should be directed to the Secretary of the Comission, Washington. 0.C. 20555.
l
Q; '
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ATTACHMENT 2
- t. w omc..
Anthony Z. Roisman, RC, smte soo 1401 Now Wd: AWnue,N.W.
~,
Wesh!ngton. D C. 20005 Of Counsel Tb:
M phone Cohen.Milstein & Hausfeld (2a2)628 3400 Weshinston. D,C Mozart C. Ratas?. P.C Weshlryrton. D.C May 22, 1947 William D. Paton, Esq.
Nuclear Regulatory Commission Washington, DC 20555 RE:
Subpoena of Billie Garde Houston Lichtine & Power Co., Dkt. Nes. 50-498, 499
Dear Bill:
This is being faxed to you along with the agrooment which I have signed (I retain the copy with my original signature, and you retain the copy with your original signature) in order to memorialize the further understanding we reached on the phone.
Inasmuch as Billie will not answer any questions pursuant to the subpoena except under court order, you, Bill Briggs, and I agree that, even if the Commission decides not to quaah the subpoena, we will work out a way of handling Billie's formal refusal so that none of us (including Billie) has to spend money on plane fare.
Sincerel l
Anthony E.
Roisman AZR/bp enclosure l
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MS W lG 296 i 5-2181:11:46 pu:
ses seg m,
gu,yn, 8 a es m m gsi4s a m.m.,
NUCt. EAR _R N_dN.N. _CONMitsl0N g...j Arreement between 31111s P.
On.rde and the U.e..
auctnr segWtery Cocunhsten (NBC) with Map +et to the 6ttaches subpoenal (1) 5113a F.
Oude has indicat44 aa intent to fue a exrtson to ausah the subpoens.
She agrees to fue the motion not utet tsaa a3ose of business, nicay. May 30 tief.
She e gnes net to chalknge eervice of the eubpoena.
(3)
WRC agtees to continue the appostsang date fran Teesi.m Wav i8. il4Y to 14 daye aft 4r the 6ectaion wtta Hspoet to u e act1Aa la quash. unisse partise agvge en sa eerser ease,
/
'f?
4.'1Ia%
Ancener r
S-))Sf l
Am 9. Fatett (am)
Atiorney $tt NRC.
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6
Mi iat,Nattil 3
/
%e UNITED STATES ACTION - GCunninghan
'~
'.p.' ~,, f NUC'I.hAR REGULATORY CdMhilSSION Vs:
Dircks n
' *I W AS HIN GTON. D.C. 20$55 Rehm t
Stello July 20, 1982 DeYoung Regional OFFICE OF THE Administra SECRETARY Barry MEMORANDUM FOR:
William J. Dircks, Executive Director for Operations FROM:
Samuel J.
Chilk, Secreta:
Q.C)
SUBJECT:
SECY-82-239 - DELEGATION OF SUBPOENA AUTHORITY Qi This is to advise you that 'the Commission (sith all Commissioners agreeing) has approved the subject paper and has delegated to the Executive Director for Operations the authority to issue subpoenas during the course of investigations or inspections, 4
withthepowertoredelegatethatauthoritytotheDirector,h Office of Inspection and Enforcement, and to Regional 4
Administrators.
The Commission requests that you advise 6
it in advance of the staff's intention to exercise subpoena 4,1 F
authority (at least for an initial trial period of about 10 caves).
k You should amend. subsections -02 and -03 of Manual Chapter 0103 as indicated in the attachment.
You should also nake any required conforming. changes to other sections of the NRC Manual' and to 10 CFR Part 1. ( 6LD)
Attachment:
6/29/82OGCMemo([y.
cc:
Chairman Palladino Commissioner Gilinsky Commissioner Ahearne Commissioner Roberts Commissioner Asselstine OGC OPE CONTACT:
A.
Bates (SECY) 41400 Rec'd Ott. tDo m
Tim.. 4......t:2 c,,q.,g on.....
- .m.p.........
e-,-.------y,-
_,e..-
r
-,,-.,,_,--,m.%,
.-,___.r
,..-.,,,...,_...._,,.,,.,,-...,,---,,.-m,.-_,,--,-,,w.,-,-
.m--..--
,--,---.e,.
dmond' Subsections -52 and -03 of Manual' Chaptor -0103, "organization and Functions, Office of the Executive Director for operations" by:
1)
Inserting new paragraph 0214 to subsec' tion 0103-02.
0103-02 runctions The Executive Director for operations, subject to other provisions of this.. Chapter ts specifically responsible for 021...
0214 'IEsuing subpoenas under Section 161C of the Atomic
~
Energy Act of 1954, as amended, where necessary or
' appropriate for the conduct of inspections or investigations.-
2)
Inserting new paragraph 0311 to subsection 0103-03.
0103-03 Authorities Limitations placed on the authority of the EDO include the followin'g:
031...
0311 The function delegated to the EDO under paragraph 0124 of this Chapter may be redelegated only to the Director of the Office of Inspection and Enforcement and to the Regional Administrators.
The issuance of any subpoena will require the concurrence of the Office of the Executive Legal i
Director and consultation with the Office of l
Investigations.
T.. '
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w 4
N g g 4
,_.-nn._,,.-..-,,----...,.
ATTACHliEllT 4 U. S. NUCLEAR REGULATORY COMMISSION NRC MANUAL Volume:
0007 General Administration Part :
0100 Organization EDO CHAPTER 0103 ORGANIZATION AND FUNCTIONS OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS 0103-01 SUPERVISION The Executive Director for Operations (EDO) reports for all matters to the Chairman; and is subject to the supervision and direction of the Chairman as provided in Reorganization Plan No.1 of 1980. The EDO shall be governed by the general policies of the Ctsmmission and by such regulatory decisions, find-ings and determinations 'as the Commission may by law be authorized to make.
The EDO, through the' Chairman, shall ensure that the Commission is fully and currently informed about matters within its functions.
[
0103-02 Ff)NCTIONS
\\.
The Executive Director for Operations, subje:t to other provisions of this chapter, is specifically responsible for:
021 administrative functions of the Commission including resolving EEO and grievance matters and providing, support services.
executi$n of the budget of the Commission.
022 023 distribution of business among the offices which report to the EDO.
024 preparation for Commission consideration of:
a.
the budget estimate for the Commission; b.
the proposed distribution of appropriated funds according to major
(
programs and purposes; and c.
proposals for the reorganization of the major offices which report to the EDO.
l 025 consulting with the Chairman prior to the Chairman's initiation of l
the appointments of the Directors of Nuclear Reactor Regulation, Nuclear l
Material Safety and Safeguards, Nuclear Regulatory R esearch and Inspection and Enforcement.
j 026 appointing and removing after consultation with the Chairman and without any further action by the Commission, all officers and employees of Approved:
December 3,1985
ORG ANIZ ATION AND FUNCTIONS j
N R C -01d30027 OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS l
the offices reporting to the EDO except: Directors of Nuclear Reactor Regula-tion, Nuclear Material Safety and Safeguards, Nuclear Regulatory Research and, inspection and Enforcement.
I 027 < supervising, directing, coordinating, and approving the activities of the offices reporting to the EDO.
028 developing and approving delegations of authority for offices reportin0 to the EDO.
029 responding to the requests of members of the Commission for access to information.
0210 ensuring that the Commission, through the Chairman, is fully and currently informed about matters within its functions.
0 0211 performing any other matter or function explicitly assigned by the Commission or the Chairman. Any matter or function not explicitly assigned to the EDO is reserved to the Chairman unless otherwise delegated to the Commission by the Reorganization Plan No.1 of 1980.
0212 executing contracts, agreements, or interagency actions subject to.
the limitations in 032, below.
0213 developing and promulgating rules, as defined in subparagraph 4 of Section 551 of the Administrative Procedure Act (5 U.S.C.
$ 551(4)),
subject to the limitations in 038, 039 and 0310.
The EDO shall notify -
Commission before submitting a final rule to the Federal Register.
.t 0214 is s.uing subpoenas under Section 161c of the Atomic Energy Act of 1954, as amended, where necessary or appropriate for the conduct of inspec-tions or investigations.
0215 determining that all declassification criteria are met for all Licensed Fuel Facility Status Reports for Inventory Difference Data (NUREG 0430), and issuing such reports after Commission approval by a Commission negative consent paper.
0103-03 AUTHORITIES The Executive Director for Operations shall be the chief operating and admin-istrative officer of the Commission and, except as otherwise provided by law, regulation, Commission action, or action by the Chairman, reports to and is supervisea by the Chairman as provided in 0103-01 and is authorized and l
directed to discharge such licensing. regulatory, and administrative functions c
of the NRC, and to take such actions as are necessary to carry out the func-tions and execute the authorities assigned by this chapter, chapters of offices reporting to the EDO, or other officlaf directives or communications.
Limitations placed on the authority of the EDO include the following:
031 all significant questions of policy shall be presented to the Commis-l sion for resolution. With respect te such questions, all major views of the affected offices shall be presented to the Commission.
l l
Approved: December 3,1985 n--
-v-
ORGANIZATION AND FUNCTIONS N R C -010bO310 OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS, 0310 the EDO's delegated authority, under paragraph 0213 of this chapter, to develop and promulgate rules applies with respect to 10 CFR Parts 7, 8, and 9'Subpart C, only if the proposed or final rules or amendments to these Parts do not raise policy issues or are of a corrective nature.
Before pro-mulgating a proposed or final rule modifying Part 2, the EDO is to obtain the concurrence of the Office of the General Counsel, the Office of the Executive Legal Director, the Chairman of the Atomic Safety and Licensing ' Appeal Panel, and the Chief Administrative Judge of the Atomic Safety and Licensing Scard Panel.
If any Office falls to concur, the proposed action is to be referred to the Commission.
0311 the function delegated to the Executive Director for Operations under paragraph 0214 of this chapter may be redelegated only to the Director of the Office of Inspection and Enforcement and to the Regional Administrators.
The issuance of any subpoena will require the concurrence of the Office of the Executive Legal Director and consultation with the Office of investigations.
0103-04 REDELEGATION OF AUTHORITY BY THE EXECUTIVE DIRECTOR FOR OPERATIONS The Executive Director for Operations may, except where expressly prohibited herein, redelegate to others authority delegated by this or other official direc-tive or communication, except that such redelegations and any stipulations on further redeleg6tions must be in writing. A copy is to be filed with the Secre-tary of the Commission, and is to be reflected in the NRC Management Direc-tive System.
0103-05 DELEGATION OF AUTHORITY TO THE DEPUTY EXECUTIVE DIREC-TOR FOR OPERATIONS The Deputy Executive Director for Operations is authorized to act in the stead of the Executive Director during the latter's absence, and is authorized to take such action as is necessary to perform any other functions assigned by the Executive Director.
0103 06 DELEGATION OF AUTHORITY TO THE DEPUTY EXECUTIVE DIREC-TOR FOR R EGION AL OPERATIONS AND GENERIC REQUIREMENTS The Deputy Executive Director for Regional Operations and Generic Require-ments is authorized and directed to assist and act for the Executive Director for Operations (EDO) in performing the following functions: providing day-to-day guidance, direction, and coordination to the Regional Administrators; establishing and directing the implementation of procedures for controlling and tracking generic communications with, and generic requirements placed on, licensees; serving as chairman of a committee to review generic requirements; overseeing and implementing procedures to reduce and control the backlog of licensing actions; performing other functions explicitly assigned by the EDO; and taking such action as may be necessary to carry out the functions assigned by this chapter or other official directives or communications.
Approved: December 3,1985
...,,w..s OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS NRC 0103-07 0103-07 ORGANIZATION STRUCTURE AND INTERNAL ASSIGNMENTS The Office of the Executive Director for Operations includes the Deputy
?
Executive Director for Operations (DEDO), the Deputy Executive Director for Regional Operations and Generic Requirements (DEDROGR), and the Admin-istrative and Correspondence Branch. (NRC Appendix 0103 contains further delegation's of authority to the Executive Director for Operations.)
{
i 4
I i
}*
)
l 1
I Approved:
December 3,1985
AIIACHf1ENT 5
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UNITED STATES Cys:Stello NUCLEAR REGULATORY COMMISSION Roe
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wa s H IN GT ON. D.C. 20555 Rehm Sniezek
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f GCu am teberman June 17, 1986 Denton cmce or TH,
secarrAny Taylor Davis Regions I-V MEMORANDUM FOR:
Victor Stello, Jr.
N Ex ti e Director for Operations FROM:
gamuel
. Chilk, Secretary SUBJECT ISSUANCE OF' SUBPOENAS WITHOUT PRIOR ICONSULTATIONWITHTHECOMMISSION This is to inform you that the Commission does not object to your exercising final approval over issuance of subpoenas by the staff without prior consultation with the Commission as outlined in your June 4, 1936 memorandum.
cc:
Chairman Palladino Commissioner Roberts Ccmmissioner Asselstine Commissioner Bernthal Commissioner Zech OGC OPE l
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[a cteu 'og UNITED STATES g
NUCLEAR REGULATORY COMMISSION s
WASHINGTON, D. C. 20685 i5 JUN 94 W MDtORANDUM FOR:
Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech FROM:
Victor Stello, Jr.
Executive Director for Operations
SUBJECT:
ISSUANCE OF SUBPOENAS WITHOUT a
PRIOR CONSULTATION WITH THE COMMISSION On July 20, 1982, the Commission delegated to the Executive Director for Op-erations the authority to issue subpoenas during the course of investigations or inspections.
In this connection, the Commission requested that the Execu-tive Director for Operations advise it in advance of the staff's intention to exercise subpoena authority, at least for an initial trial period of about l' As permitted under the Commission's delegation to the EDO, this at-cases.
'C thority to issue subpoenas has been re-delegated to the Regional Administra-tors and the Director of IE.
We have now sought approval to issue subpoenas in eight cases.
In threa cases subpoenas were sought at the request of the Office of Investigations.
A brief summary of the circumstances surrounding the issuance of a subpoena
- in each of these cases is enclosed.
In no instance in which the staff has proposed to issue a subpoens has the Commission declined to approve issu-ance.
Judicial enforcement has been necessary under Section 233 of the Atomic Energy Act in only one case to date.
In our view, the circumstances in which the staff has chosen to exercise the authority to issue subpoenas have been reasonable and discreet.
Legal concurrence from OELD has always been received and issuance of the subpoenas has been coordinated with the Office of Investigations as required in NRC Manual Chapter 103-0311.
l Accordingly, I believe that the trial period has demonstrated that the staff's exercise of the subpoena power has been appropriate and that prior Commis-sion's approval is no longer necessary.
In addition, although Commission approval can be obtained rapidly, as in the recent Golden Gate Forge and l
Flange case, the formality of obtaining prior approval can result in delay in issuing a subpoena, particularly where rapid service and return of the sub-l l
CONTACT:
l Stephen G. Burns, OELD x27268
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poena is necessary to obtain information.
In the absence of the Commission's instruction to the contrary, the staff does not intend in the future to seek l
prior approval and give prior notification of the issuance of subpoe-As the EDO has in the past, nas.
over issuance of subpoenas by the staff.I will continue to exercise final approval The staff will notify the Commission that a subpoena has been issued.
Original signed by
.Yiet or St e,tig,,
Victor Stello, Jr.
Executive Director for Operations
Enclosure:
As stated cc:
SECY OGC 01 OPE DIST:
ROED Rdr ROED Subj ELD Rdr JLieberman/SBurns Info SChidankel Chron~
EDO/TRehm/JSniezek /JRoe KC/RH/WP/LD Info NRC Central JTaylor, IE HDenton, NRR JDavis, NMSS Reg. Administrators HRagan, OELD GCunningham/JMurray, OELD EDO R/F
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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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DEFORE TIIE COMMISSION In the Matter of
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liOUSTON LIGHTING AND
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Docket Nos. 50-498 OL POhER COMPANY
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50-499 OL
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(South Te:tas Project,
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Units 1 and 2)
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CERTIFICATE OF SERVICE 1 hereby certify that copies of "NRC STAFF ANSWER OPPOSING MOTION TC QUAsil SUDPOENA FILED BY BILLIE P.
GARDE, ESQ." 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this lith day of June,1987:
.c Samuel J. Chilk*
David S. Rubinton Office of the Secretary Richard E. Condit U.S. Nuclear Regulatory Commission Staff Attorneys, GAP Washington, DC 20555 1555 Connecticut Ave., NW Washington, DC 20036 Anthony Z. Roisman, Esq.
1401 New York Ave., NW Docketing and Service Section*
Suite 600 Office of the Secretary Washington, DC 20005 U.S. Nuclear Regulatory Commission Washington, DC 20555 672 /9 9 William D. Paton Counsel for NRC Staff n-
.,,...