ML20214W612
| ML20214W612 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/11/1987 |
| From: | Newman J HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| CON-#287-3721 2.206, OL, NUDOCS 8706160103 | |
| Download: ML20214W612 (10) | |
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JACMR hEWMAN 1615 L STR EET. N.w.
COLKETED WiLuAM E. nAER.Ja 4
I iC 6j y' DOUGLAS L. SERESFORO JOHN E. MOLTZINGER. JR.
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MATHLEEN M. SHEA JILL C. GRANT DOUGLAS G. GREEN ANDREW N. GREENE*
EAROL LYN NEWMAN PAMELA A. LACEY JOHNT.STOUGM.JR FRANK R UNDM JAMES S VASaLE F"~
MEVIN J UPSON MICHAEL A SAUSER h0C' KATHLEEN M. MCOERMOTT ALVIN M GUTTERMAN JEFFREY S. MULMALL' EDWARD J. TWOMEY ERROL R PATTERSON JAMES R. WtLCOM. JR.
JANE L RYAN KEVIN P. GALLEN PAUL J. SAVIDGE' THOMAS A. SCMMUTZ DONALO J. SILVERMAN MICHAEL F. MEALY JACOLYN A. SIMMONS leOSERT f. WHITE ROBERTM. SOLOMON SCOTT A MARMAN JOSEPH E. STUSBS STEVEN P FRANTZ NANCY A. WHITE' OAVIO S. RASRIN ROSlN T. WIGGINS' ROSERT LOWENSTEIN W ADeaTTED.s O.C.
MERSERT 5. COHN ERNEST C. SAYNARO. m OF COWNSEk June 11, 1987 Samuel J.
Chilk, Secretary Office of the Secretary of the Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Houston Lighting & Power Co., et al.
South Texas Project, Units 1 & 2 Docket Nos. 50-498 OL, 50-499 OL
Dear Mr. Chilk:
Houston Lighting & Power Company (HL&P) is in receipt of two documents filed by the Government Accountability Project (GAP) on May 29, 1987:
first, a motion to quash a subpoena issued by the Commission's Executive Director for Operations (EDO) to Ms. Billie Garde to appear and present information which Ms. Garde claims to have regarding the safety of the South Texas Project (STP); and second, a petition pursuant to 10 CFR S 2.206 regarding the STP.
HL&P urges the Commission to deny both the motion and the 2.206 Petition and to continue investigation of the allega-tions purported to be in the possession of Ms. Garde.
The Commission's obligations to protect the public health and safety require it to explore fully any allegations that there may be safety significant deficiencies in a nuclear power plant.
i HL&P, has itself, actively sought to obtain GAP's cooperation in assuring that the allegations are investigated.
l When the first press accounts of the allegations appeared, HL&P 1
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[ ' NrWMAN & Hox.Tzawcan, E C.
Samuel J. Chilk June 11,.1987 Page 2 L
contacted Ms. Garde and asked for her cooperation.
See Attachment'#9a to GAP Motion to Quash.
Ms. Garde identified a series of conditions and objections, and HL&P offered to modify its investigation procedures to accommodate her demands.
Despite repeated efforts by HL&P, Ms. Garde persisted in refusing to provide the Company with even one of her purported hundreds of allegations. 1/
Consequently, HL&P concluded that GAP had no intention of identifying any allegations to HL&P or its independ-ent employee concerns program, the STP SAFETEAM, and urged GAP to provide the allegations directly to NRC.
See Attachment to this letter.
GAP has also rejected voluntary cooperation with the NRC, arguing that the EDO and Region IV are not trustworthy (all are characterized as " proven and unrepentant miscreants").
Motion at 3.. Nevertheless, Ms. Garde has the duty to provide such information to-the NRC (see Statement of Policy:
Handling of Late Allegations, 50 Fed. Reg. 11,030, 11,031 (March 19, 1985)), and the NRC has the duty and authority to investigate the allegations and determine whether they raise valid concerns about the safety of STP. 2/
Such an investigation should be conducted utilizing all necessary investigative tools available to the 1/
Although Ms. Garde based her refusal on her distrust of HL&P's SAFETEAM program, HL&P has been commended by the NRC for that program (see SALP Board Report 50-498/86-19 and 50-499/86-18 for period July 1, 1985 through December 31, 1986 at pages 23-24] and a thorough NRC inspection of the STP SAFETEAM program found that the program is being properly implemented and, in particular, that confidentiality of the individuals was appropriately protected.
NRC Inspection Report 50-498/85-18, 50-499/85-16, January 2, 1986.
2/
GAP states that "the information provided to GAP is known by STNP management or has been raised through proper channels"
[ Attachment #1 to GAP Motion to Quash at paragraph 7] and that in each instance the GAP " client" had " raised a discrete concern or concerns to his management super-vision.
SAFETEAM or the NRC.
[ GARDE Affidavit, 1 4.a].
These statements and GAP's further statement that "no licensing issues are being raised in this petition nor are we requesting the Commission to delay licensing at this time"
[Section 2.206 Petition at 19], indicate that the allegations are unlikely to identify significant deficiencies that have not been resolved.
Nevertheless, the NRC has a duty to conduct an orderly investigation of them.
.,I NswwAw & Hon.rzawcz=, R C.
Samuel J.1Chilk o.-
. June 11,.1987 Pagex3 Commission, including compulsory testimony and document produc-tion.
The Commission should proceed with-this investigation in the manner it deems most appropriate.
Motion'to Ouash 4
Aside from its condemnation of Commission officials who
~might investigate its allegations, GAP identifies two basic legal grounds for quashing the subpoena.
Neither is of any substance.
l.-
The EDO Lacks Authority To Issue The Subpoena The Commission's authority to issue the subpoena'is clear under Section 161(c) of the Atomic Energy Act.
The EDO has broad statutory authority to act on the Commission's behalf pursuant to Section.209(a) of the Energy Reorganization Act and the Commission's regulations (10 CFR S 1.40).
2.
The Information Sought By The Subpoena Is Privileged-GAP claims that the information sought by NRC is shielded from discovery because it is confidential attorney / client communication or constitutes attorney work' product.
Neither claim provides a basis for quashing the subpoena unless it is proven that_all relevant information in the possession of the witness is protected from discovery.
In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 429, 437-40 (E.D. Pa. 1981).-
It appears from the face of GAP's pleadings that Ms. Garde possesses information which is neither privileged nor protected from discovery.
Further, GAP's all encompassing
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claim of work product protection is insupportable.
Ms. Garde argues that the attorney / client privilege.
serves as.a complete bar to the enforcement of the subpoena, but her Motion to Quash and accompanying affidavit show that much of the-information in her possession is'not protected by the privi-
'lege.
First, it appears that a number of the individuals who provided information to Ms. Garde are not represented by her at
- all and, therefore, have no claim to any attorney / client privi-lege.' Ms. Garde's January 20, 1987 letter to Messrs. Stello and Mattox states that " GAP currently either represents or is working with approximately 36 current and/or former employees of the South Texas Project."
(Emphasis added.)
Whatever is meant by
" working with," it obviously falls far'short of any possible
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' NcwwAx & Hon.Tztwo::::i, R C.
Samuel J. Chilk June 11, 1987 l
Page 4 attorney / client relationship.
Accordingly, at least some individuals _have apparently provided information to her outside the attorney / client context.
Second, where Ms. Garde has been " retained to represent employees in litigation against their employers and/or to provide advice regarding disputes and potential disputes with their employers" (Garde Affidavit, 1 3), communications between these clients and Ms. Garde may, under certain conditions, be protected by-the attorney / client privilege.
The privilege, however, does not extend to communications made by those employees who contacted Ms. Garde for the primary purpose of investigating and reporting " safety concerns that they wanted pursued by the NRC."
Id. at 1 2.
The retention of Ms. Garde to investigate and report to the NRC safety concerns which the employee, for whatever reasons, chooses not to report himself does not constitute legal services.
The service provided by Ms. Garde in this vein is not any different than that performed by a lay investigator or detec-tive whose employer requests that his identity remain anonymous.
Non-legal _ services such as these are not protected by the attorney / client privilege.
See Underwater Storage, Inc. v.
United States Rubber Co.,
314 F. Supp. 546, 548 (D.D.C. 1970).
Ms. Garde also argues that she is prohibited from disclosing the identity of her clients by her obligations under the attorney / client privilege.
Even assuming, arguendo, that the attorney / client privilege is applicable to her communications with these persons, Ms. Garde's contention is without merit and is contrary to the law.
The courts widely and uniformly hold, as a general principle, that the attorney / client privilege does not protect the identity of the attorney's client. 3/
In re Grand 3/
j The rationale for the general rule is a simple one:
The existence of the relation of attorney and client.is not a privileged communication.
The privilege pertains to the subject matter, and not to the fact of the employment as attorney, and since it presupposes the relationship of attorney and client, it does not attach to the creation of that relationship.
So, ordinar-ily, the identity of the attorney's client, or the name of the real party.in interest, and the terms of the employment will not be considered as privileged matter.
N.L.R.B. v. Harvey, infra, 349 F.2d at 904 (quoting Behrens v.
Hironimus, 170 F.2d 627 (4th Cir. 1948)).
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,' NewxAw & HOI.T2INGEc, P. C.
Samuel J. Chilk June 11, 1987 Page 5 Jury Investigation, 631 F.2d 17, 19 (3d Cir. 1980), cert. denied, sub nom. Tinari v. United States, 449 U.S.
1083 (1981);
N.L.R.B.
- v. Harvey, 349 F.2d 900, 904-905 (4th Cir. 1965).
Finally, GAP claims a broad " work product" privilege for records or documents in Ms. Garde's possession partaining to the safety of STP.
She contends that all of these records and documents are protected from disclosure by the work product rule.
Contrary to Ms. Garde's assertion, however, the work product rule does not confer upon the subpoenaed records an absolute protection against discovery.
First, the rule applies only to materials prepared in
" anticipation of litigation."
Allegations provided to Ms. Garde for purposes of securing an NRC investigation of individuals' concerns, rather than in connection with a potential Department of Labor proceeding, for example, are not provided in anticipa-tion of litigation and therefore are not protected work product.
- See, e.g.,
Coastal States Gas Corp.
v.
Department of Energy, 617 F.2d 854, 864 (D.C.Cir. 1980).
Secondly, even if some of the information in Ms.
Garde's possession is work product, it may nevertheless be discovered for " good cause" shown.
Given the strong public interest involved in a thorough, orderly investigation of potentially significant safety matters, there is good cause for requiring disclosure.
As stated by Ms. Garde's attorney (Mr.
Roisman) in a recent pleading on behalf of another client in the Comanche Peak proceeding:
The logical extension of [ Applicant's claim of l
work product protection] is that so long as a l
document is prepared with an eye to possible i
use in any litigation it and the materials and l
methodology used in preparing it can be with-held from disclosure to the NRC even though it contains information that is vital to the NRC in carrying out its health and safety func-tions.
Needs far less significant to the l
public than protection of life and health have been found to be sufficient to compel produc-tion of documents prepared by attorneys or at their direction and under their control and p
even where the attorney-client privilege is involved.
Consolidated Intervenors' Reply to TUEC's Opposition to Motion to Compel Re:
Gregory Discovery (Sets 5 and 6) dated April 20, 1987 (citations omitted).
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NawwAw & Hon.Tztwaam, R C.
Samuel J. Chilk
- r June 11, 1987 j
Page 6 Finally, to the limited extent that the work product
. rule applies at all, it would be--limited to documents (or
~ portions thereof) which record the lawyer's thought processes and n
mental. impressions, and would not. affect the ability of Ms. Garde to provide testimony in response to the subpoena.
. Individual determinations regarding whether the attor-ney/ client privilege or the attorney work product rule apply to.
the information sought by the subpoena can best be made when Ms.
Garde testifies in response to the subpoena.
The Section 2.206 Petition The Motion to Quash was accompanied by another document-i addressedLto the Commission, this one styled.as a petition
~
pursuant to 10 CPR S 2.206 (GAP Petition).
The GAP Petition reiterates the basic arguments of the Motion to Quash (i.e., that-GAP.has received certain " safety allegations" related to STP and that Region IV and Mr. Stello cannot be entrusted with their investigation), and requests that the Commission order a special-investigation of the STP and direct that the investigation team I
not include members from Region IV and not be under the supervis' ion of Mr. Stello or his staff.
i Section 2.206(a) permits any person to file a request for specified NRC Office Directors "to institute a proceeding-i.
pursuant to S 2.202 to modify, suspend or revoke a license, or for such other action as may be proper."
The Petition must specify, among other things, the facts that constitute the basis for the request."
i.
l The GAP Petition asserts that GAP has received a number-of " safety allegations", but fails to specify any supporting
- facts.
GAP Petition at 1.
GAP cannot invoke the Section 2.206 process and at the same time refuse to provide any of the alleged
. facts which form the basis for the requested action.
-See, e.g.,
Duke Power Co. (Oconee Nuclear Station, Units 1, 2 and 7T, DD-79-6, 9 NRC 661 (1979).
A Section 2.202 proceeding might be appropriate only after completion of such an investigation, not before any-facts are known or asserted.
This inadequate attempt to invoke Section 2.206 should not distract the NRC from the basic issue of how to proceed in the face of GAP's refusal to disclose the " serious safety allega-tions" allegedly in its possession.
GAP Petition at 1.
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- ., ' -Nr twAw & Hon.Tzawss=, P. C.'
' Samuel J. Chilk
' June 11, 1987 Page 7 By its Motion-to. Quash and its Section 2.206 Petition, GAP-is seeking to dictate to the. Commission how it manages NRC.
- resources.. It implicitly refuses to provide its allegations to
-the.NRC.unless and until NRC agrees to GAP's terms regarding the manner in-which'NRC employees.should be assigned to investigate them..The Commission need not. accede to'such pressure.
It has the authority to compel the disclosure of the allegations and to determine for itself how they should be handled.
If the concerns expressed by GAP --'that the inability, unreliability or incompetence of Region IV and/or the EDO and his Staff will. impede the-investigation ---have any substance, GAP will be free to point out deficiencies in the investigation after it is completed and to seek appropriate relief at.that time.
GAP has made very-serious allegations and has since refused to provide any specifics that can be investigated without further information.'.We urge the NRC to investigate these allegations.. The testimony of Ms.~ Garde is a~necessary and appropriate step in such an investigation.~
Ms. Garde's claim that she cannot testify because of her professional relationship to various unnamed-individuals is not. supported by sufficient evidence to meet'her burden of demonstrating that.no relevant information can be obtained through her testimony.
Accordingly,
.we urge that'the Motion to Quash and the accompanying Section 2.206 Petition be denied.
Respectfully submitted, ack R. Newman6 Attorney for Houston Lighting &
Power Company, Project Manager of the South Texas Project, acting herein on behalflof itself and the other Applicants, CITY OF SAN 4 7" ANTONIO, TEXAS, acting by and through the City Public Service.
Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS i
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7 The Light MmPuy ne.,,ee i.ish,ies re.., r.o. ee,ivoo ne.,,ee.r..,220oi <>>3,228 92ii April 6, 1987 7
Ms. Billie Garde fidil{} OP T Director of the Midwest Office Government Accountability Project b
APR 09 887 3424 N. Marcos Lane Appleton, Wisconsin 54911
_ QQQ Newman & Holtzinger, P.C.
Dear Ms. Garde:
In response to your lettir of March 27, 1987, please be advised that Houston Lighting & Power Company is very skeptical that any further dialogue with GAP would be constructive. Although we are ready to utilize our SAFETEAM organization to perform investigations of any concerns related to nuclear safety or quality at the South Texas Project, we believe that protracted discussion with your organization is wasting valuable time that could be better spent investigating such matters.
Your obvious low regard for SAFETEAM, which is consistent with the manner in which GAP has criticized other nuclear projects, prompts us to again urge that you imediately share your concerns with the Nuclear Regulatory Comission. Your letter suggests that you have sought " guidance" from the Nuclear Regulatory Commission but "have not received a response".
That statement is puzzling.
In fact, you have received a response from Mr. Stello by letter of February 18, 1987 (available in the Nuclear Regulatory Comission public document room) in which you were assured of the availability of Nuclear Regulatory Comission resources to resolve issues your clients might raise. That letter concluded that failing to bring forth information promptly "would not be in the best interests of assuring the prompt resolution of legitimate safety concerns".
Your letter states that Houston Lighting & Power and its contractors have been made aware of serious safety concerns through internal processes.
The innuendo is that nothing has been done. To the best of our knowledge, every such matter brought to our attention or those of our principal contractors has been investigated and resolved or is the subject of a pending investigation.
If you have information to the contrary, please tell us.
The statement in your letter concerning information obtained during discovery for the Goldstein case and and the conclusions which you have dFewn from that information are presumptuous at best. Contrary to your statement, a comparison of the interview transcript and the investigation report reveals that each of the issues raised during the interview were understood, investigated, and conclusions drawn based upon the facts.
In any event, as you well know, the Goldstein case has been adjourned. When it resumes later this year, the defendant will present its case and a conclusion will be reached based upon all the evidence.
l
o, Houston Lighting & Power Company
'(
Ms. Billie Garde April 6, 1987 Page 2 I reiterate our suggestion that you try our SAFETEAM system as modified to meet your concerns with respect to any matter of potential safety consequences. In the meantime, however, we are taking steps to request appropriate government officials to obtain from you or your organization information which could potentially affect the safety of the South Texas Project.
If such information exists and is furnished to us, we will spare no effort in pursuing its resolution.
In closing, let me add at the risk of being immodest, that the South Texas Nuclear Project is managed by experienced professionals of the highest integrity. Our concern for public safety is of paramount importance. Any suggestion by your organization to the contrary is not supported by the record. Our concern for protecting the public and the plant is demonstrated by our dogged determination to unearth weaknesses wherever they can be found and dealing with them. SAFETEAM is but one of many techniques that we utilize in that effort. While our SAFETEAM program is not perfect, I believe it to be among the very best in the country.
VerytrulyyouJs, J. H. Goldberg Group Vice-President, Nuclear JHG/JEG/sd cc: Chairman L. W. Zech Comissioners K. M. Carr T. M. Roberts J. K. Asselstine F. M. Bernthal Exec. Dir.
V.
Stello Reg. Adm.
R. D. Martin Dir. I & E J. M. Taylor Owners T. V. Shockley A.
vonRosenberg M. B. Lee s
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UNITED STATES OF AMERICA (I:,
NUCLEAR REGULATORY COMMISSION
'87 JF 11 P2 :46 In the Matter of
)
)
0Frt ;
r e HOUSTON LIGHTING & POWER
)
Docket Nos. 50-khbb$ii4 COMPANY, ET AL.
)
50-499 OL
)
(South Texas Project, Units 1 )
and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the letter to Samuel J.
Chilk from Jack R.
Newman, dated June 11, 1987, have been served on the following individuals and entities by deposit in the United States mail,.first-class, postage prepaid, or by arranging for messenger delivery as indicated by asterisk, on this lith day of June 1987.
Lando W.
Zech, Jr., Chairman
- David S. Rubinton*
U.S. Nuclear Regulatory Commission Richard E. Condit*
Washington, D.C.
20555 Government Accountability Project 1555 Connecticut Avenue, N.W.
Commissioner Thomas M. Roberts
- Suite 202 U.S. Nuclear Regulatory Commission Washington, D.C.
20036 Washington, D.C.
20555 Anthony Z. Roisman*
Commissioner James K. Asselstine*
1401 New York Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 600 Washington, D.C.
20555 Washington, D.C.
20005 Commissioner Frederick M. Bernthal*
William Paton*
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Kenneth M. Carr*
U.S. Nuclear Regulatory Commission Jack R. Goldberg*
Washington, D.C.
20555 Office of the General Counsel U.S. Nuclear Regulatory Commission Ms. Billie P. Garde Washington, D.C.
20555 Director of the Midwest Office Government Accountability Project Office of the Secretary
- 3424 North Marcos Lane U.S. Nuclear Regulatory Commission Appleton, Wisconsin 54911 Washington, D.C.
20555 V
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