ML20153C331

Responds to Inquiring About Status of Motions That Gap & Citizens Concerned About Nuclear Power Filed Re Plant & Requesting Indication as to When Low Power Testing at Plant Scheduled to Commence

ML20153C331
Person / Time
Site:	South Texas
Issue date:	07/31/1987
From:	Harold Denton NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA)
To:	Pickle J HOUSE OF REP.
Shared Package
ML20153C231	List: ML20153C227 ML20153C255 ML20153C300 ML20153C318 ML20153C331 ML20153C348 ML20153C374 ML20153C393 ML20153C416 ML20153C460 ML20153C531 ML20153C547 ML20153C573 ML20153C582 ML20153C602 ML20195G452
References
FOIA-88-107 NUDOCS 8805060209
Download: ML20153C331 (2)

Text

SM N Nd h DISTRIBUTION

[,, n g e, UNITED STATES SECY

[~ ,c'j NUCLEAR REGULATORY COMMISSION

• * . E W ASHINGTON, D. C. 20555

! OSP c, - #

%, ' ' # GPA/CA

• "** JUI,311987 PA IP SLITP The Hono.Ible J. J. Pickle United States house of Representatives Washington, D.C. 20515

Dear Congressman Pickle:

This responds to your July 10, 1987 letter inquiring about the status of notions that the Government Accountability Project (GAP) and Citizens Concerned About Nuclear Power (CCANP) filed regarding the South Texas Nuclear Project and requesting an indication as to when low-power testing at the plant is scheduled to comence.

On July 15, 1987, the Comission denied a GAP / Billie P. Garde motion to quash an NRC subpoena requesting information about allegations regarding the South Texas facility. The Comission ordered Ms. Garde to appear before the agency pursuant to the subpoena. (See attachment)  !

The sarre day, the Comission addressed GAF's request for a task force  !

independent of NRC Region lY and the Executive Director for Operations to handle the South Texas allegations. The Comission infomed GAP that the l agency cculd determine more appropriately whether the appointment of an )

independent task force is warranted, af ter careful review of the ailegations in detail. (See attachment) Thus, the Comission encouraged GAP to provide l the allegations to the agency. Ms. Garde appeared pursuant to the subpoena, but thereafter, refused to furnish either the allegations or the identities ,

of the allegers to the agency. If GAP complies with this request, the agency ,

will be in a position to make the appropriate determination regarding l allegations management. Further delay by GAP in turning over the information I

will only result in further delay in the agency looking into the matters to which GAP has alluded in its comunications with the NRC and others.

The Comission recently denied CCANP's motion to reopen and referred it to the NRC Staff for consideration under 10 C.F.R. 12.206.

1 Finally low-power testing at the South Texas plant is scheduled to I begin either the latter part of July or early August,1987.

Sincerely, Harold R. Denton Director 8805060209 88042e Office of Governmental and PDR FOIA Public Affairs DAY 88-107 PDR Attachments:

1. July 15, 1987 Memorandum and Order , ,

2. NRC Letter to GAP, July 15, 1987

e 6 -

o i

}

I i ,

d I

s i

i I

4 l

1 e

1 Attachment 1 1

a I

i i

I, I

a

?

4 i

• ?

4I '.

i

,o !

1 Ii l

.a - , , , -

_-,,.-----.--._-n , - - .,e , . _ . ,,_ , . , - , _ , _ _ _ _ _ _ _ _ _ . . , , . , _ . . _ , , , , , , , _ _ _ _

.* }

UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY Com !SSION l

'87 JA 15 P12:15 j COMMISSIONERS

• I Lando W. Zech, Jr., Chairman ,

b^*  !

Thomas M. Roberts l Frederick M. Bernthal l Kenneth M. Carr SE. W ED JUL 151M7 i J

i l

.n the matter of:

' j Houston Lighting end Power Company Docket Nos. 50-498 6L f 50-499 OL i (South Texas Project) l MEMORANDUM AND ORDER On May 20, 1987, theNRCExecutiveDirectorforOperations(EDO)  ;

I subpoenaed Billie P. Garde. Esq. of the Government Accountability Project (GAP) to testify before NRC personnel concerning safety allegations of current and fomer employees of the South Texas Project and any other safety  ;

"- allegations regarding the South Texas Project. The subpoena further requested Ms. Garde to provide any records or documnts regarding the allegations.

Ms. Garde now moves to quash the subpoena, arguing thtt compliance with the subpoena would compromise the public health and safety, the EDO has no authority to issue the subpoena; and the attorney-client privilege and work product doctrine preclude divulgement of the infennation requested. Movant also requests oral argument on the motion.

l i

l i

~1 -

7,.

/ti j l

l

2 Houstc4n Lighting and Power Company and the NRC Staff filed responses to the motion on June 11, 1987 Ms. Garde also filed a reply to the NRC staff's response on June 25, 1987.

1. Baikoround Beginning in January 1987 Ms. Garde infonned the NRC that GAP had convenced an investigation into allegations concerning the safety of the South

> Texas nuclear project. According to Ms. Garde, GAP received these safety allegations frotn approximately 36 current and former eeployees of the South Texas Project. GAP informed the NRC that upon completion of the investigation f it would issue a public report, but in the interim it would not advise its clients to provide the allegations to the NRC Region lY office because of its-lack of confidence in the office's ability to corply 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 General's office, congressional comittees,  ;

and other regulatory and municipal bodies interested in ensuring the public safety at the South Texas plant.

l The subpoena was issued in support of the staff's responsibility to

pursue and resolve allegations bearing on NRC licensed activities, but was not issued in connection with a pending licensing or enfortement adjudication on i' the South Texas Project. Thus, the Houston Lighting & Power Company is not, strictly speaking, a party to the dispute over the subpoena and has no legally j cognizable interest in its enforcement. Nonetheless, the Comission has j j considered the uti*ity's views insofar as they may aid the Comission's j resolution of the issues.

i i

3 .

.. l Correspondence followed between the NRC Executive Dfrector of Operations (EDO) and GAP regarding allegations management. Essentially GAP desires an investigation of the allegations by an NRC employee or task force independent of Region ly. The EDO is of the position that the South Texas Project is located in Region IV., ard the personnel in that region can adequately l 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. Af ter repeated requests for the information, the EDO issued a subpoena requesting Ms. Garde to testify and produce documents regarding the i 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, 1987, attorneys for, Ms. Garde and the NRC 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 agreed on an earlier date,

!!. Analysis ,

j A. Compliance With the Subpoena Would Compromise l 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 could not competently investigate the j allegations. Compliance with the subpoena would not compromise the public health and safety. In fact, the converse is true. Failure of the NRC to 4

obtain the allegations would more likely compromise the public health and safety, particularly if the allegations are substantiated. Moreover, the

]

i.

~ - - - - - - , , , . .----+w- . , , , -

,, , ---m----- - - - --e- 4 +- w- x.n,- >--- , , ----,,- . -,,.-- ,w-,-,w

. 4 agency has demonstrated its comitment to protect health and safety through the rigorous and repeated efforts of the E00 to obtain the allegations, which culminated in issuance of the subpoena.

8 .* E00's Authority to issue the Subpoena Contrary to Garde's assertions, the EDO clearly had the authority to ,

I issue the subpoena. The Comission is authorized to issue subpoenas pursuant 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)oftheEnergyReorganizationAct)and10C.F.R.1.40,whichprovide ,

that the EDO shall perfom such functions as the Comission may direct. &

also Atomi'c Energy Act i 161n, 42 U.S.C. 2201(n). The Comission delegated ,

the authority to issue subpoenas to the E00 in 1982. This delegated responsibility has been incorporated in the NRC Manual Chapter 103-0214 which  !

i provides: "The (EDO). ... is specifically responsible for: .s. issuing  !

subpoenas under Section 161c of the Ateetc Energy Act of 1954, as amended, ,

where necessary or appropriate for the conduct of inspections or investigations." Thus, Garde's argument that the ED0 lacked authority to issue the subpoena is without merit. f l

l C. Attorney Client Privilege and Work Product Doctrine Ms. Garde claims that she can not comply with the subpoena, because the

' withheld infortnetion is protected by the attorney-client privilege and the work product doctrine. The Commission does not reach these issues, because t

---' \

5

\

Ms. Garde has not provided sufficient f retainer agreernent, or other supplernental dactual infomati can uke the detemination that all the relevocuments upon whi requests is protected by the attorney antcliinfomation that the subpoena doctrine.'jeeN.L.R.B.v.Harvey ent privilege or work product i

The Comission notes however, that based, 349 F that Ms. Garde has provided, on its on faca review of the infomation least some infomation that is not withhold ble, it appears th a

privilege or shielded by the work product doct ie under the a r ne.

privilege applies if: The attorney-client to whom the coernunication was mde(1) the ass a court

4) is a meeber of the bar ofs a client aat lawyer, torney;wa(sand (b) in connection with(this comunic 3

)infomed '

strangers the coernunication a

by his client opinion on(c) for the p(ur) pose of securing relates c theto a fact of wh (b) without th law or prim rily either

• legal proceeding, a(nd not (dii) legal services or (iii) assistan for the purpo or tort; waived byand (4) the privileg)t has been (a)sen some the client. of comitting a crim claimed and (b) not Jacle.Picher Industries, Inc. v. United States work product doctrine is a qualified privileg , 11 Cl. The Ct. 452 (1 tangible items prepared in anticipation e which protects documents and Civ.P.26(b)(3);10C.F.R.2.740(b)(2) of litigation or trial.

M.; Fed.R.

upon showings of substantial need and inabilityFact wo obtain the substantial equivalent of the u teri lwithout undue h Hickman v. Tah, 329 U.S. 495 a s by other means.

M. ; s_e_e, ee 334 (8th Cir. 1977). , 510-12 (1947); !_n re Murphy, 560 F.2d 1 opinions, or legal theories) may, conclustons, justification.

be discoverab e upon extraordinary See Hickmar. 329 U.S. at 513; in re M r h As the utility points out Ms. Garde indi u p y, 560 F.2d at 336 letter to the EDO and the Attorney cated in her January General f 20, 1987 or the State of Texas that MP

6 l i

• i i*

either represents or "is working with" approximately 36 current or former l 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. .

i Thus, the presumption is that connunications with the employees that GAP 'is j working with" as opposed to representing, are not a part of or protected by j the attorney client privilege. (

Furthermore, it is unclear from the facts before the Commission whether i j .

Ms. Garde was acting in a legal capacity when she gathered allegations from employees for *,he purpose of having them reviewed by the NRC. If she was not f i acting in such a capacity, it would be questionable as to whether the communi- j l

cations made at that juncture would be protected by the attorney-client , )

privilege. Also, Ms. Garde seeks to withhold the identities of her clients.  !

Assuming arnuendo that the attorney-client privilege applies, generally the * ,

l. identity of an attorney's client is not considered privileged. N.L.R.B., 349 l l F.2d at 904. Moreover, it is difficult to determine from the information thus f far providc! whether the privileged nature of the information, if any, has been waived, thereby tenninating the privilege. Sgt Artesian Industries. Inc.

l v. Department of Health and Human Services 646 F.Supp.1004, 2006 (D.D.C. I 1986), citino in re Pand Jury investination of Ocean Transportation 604 F.2d 672, 675 (D.C. Cir. 1979), cert, denied g h n,ge. Sea-Land Service. Inc. v.

j UnitedStates,444U.S.915(1979). It appears that GAP intends to reveal at I least some of the information when it releases its public report.

)

} The Connission also lacks sufficient data to determine whether the work product doctrine applies to all documents requested under the subpoena. The l

l; Commission would need more information regarding the circumstances surrounding I the creation of each document in ortler to make that determination. Also, l

i since it is unclear whether the attorney-client privilege is applicable, it is 1 .

equally unclear whether logically any of the documents could be attorney work

, product. Other questions include whether Ms. Garde prepared the documents in anticipation of litigation and whether work product documents, if any, ere See 10 C.F.R. 2.740(b)(2);

discoverable under the substantial need exception.  :

Fed. R. Civ. P. 26(b)(3).

The Comnission'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 subpoena. At that time she may invoke privileges which she believes are applicable and explain their relationship to the inforination 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 Unless the parties agree otherwise, Ms. Garde shall '.

argument are denied.

6507, 7735 Old appear 14 days after the date of this decision at Room Georgetown Road, 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.

F r the Comission

• 8 49 ha**g d

L3 5MUEL J. CHILK

(

Secretary of khe Comission If he

• Consnissioner Carr was not present for the affirmation of this Order.

had been present he would have approved it.

Dated at Washington, DC this

_6M

[ day of July, 1987 i

s e

i 1

i l

f l

. i 1

I 1

l 1

l l

Attachment 2

. [s.* a t ewc, UNITEo STATES g, ,. c j NUCLEAR REGULATORY COMMISSION I s,  ; W A$ MIN GT ON,0.C. 20$55

\v* " *,[

• July 15, 1987 o r r .C s o' '*'

$ECRETARY '87 JG.17 A9 52 Billie P. Garde, Esq. b.-

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 1

Dear Ms. Garde and Mr. Condit:

This letter responds to your May 29, 1987 petition under 10 CFR 2.206 for the establishment of an investigative unit independent of MRC Region IV and the Executive Director for Operations (EDO), to review allegations concerning the South Texas nuclear power plant.

You s >ecificall

• have :the E00)ory state anyone in connected your petition withthat Region"[1]t IV would decidebethe inappropriate merits of thisto i

petition since they are the individuals we are seeking 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 Coninission 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 determine whether the allegations should be handled by Region IV personnel or by an independent task force only after detailed review of the nature of 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 information to the agency will only result in further delay in looking into matters which you claim are relevant to public health and safety. After the agency has reviewed the substance of the allegations, it will be in a bety,er position to detennine whether Region IV is the appropriate entity to review the allegations or whether the appointment of an independent task force is necessary. The Cocinission assures GAP that the agency will handle the investigation of the allegations properly, both with regard to technical review and confidentiality.

Sincerel ,

L A mueT J, nilk s

/ Secretary of the Ccanission.

_. _ .- _ _ ___