ML20215D647
| ML20215D647 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/11/1987 |
| From: | Goldberg J, Paton W, Wagner M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#287-3775 OL, NUDOCS 8706190092 | |
| Download: ML20215D647 (29) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'C7 JUN.12 P4 :50 BEFORE THE COMMISSION OFrtCE of 35w Ms..
DOCXETIN(; >. r,g J'
in 'the Matter of
)
spAncy
)
IlOUSTON LIG11 TING AND-
)
Docket Nos. 50-498 OL POWER COMPANY
)
50-499 OL
)
-(South Texas Project,
)
Units 1 and 2)
)
)
I NRC STAFF AllSWER 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 Mary E. Wagner Counsel for NRC Staff
.r June 11,1987 8706190092 870611 PDR ADOCK 05000498 PDR g
0501
.A-3.
UNITED STATES 'OF AMERICA
. NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
1100STON LIGIITING - AND
)
Docket Nos. 50-498 OL POUER COMPANY '
)
50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
)
l NRC STAFF A11SMER OPPOSING ' MOTION TO QUASH SUBPOENA FILED BY BILLIE P. GARDE, ESQ.
1 Jack R. Goldberg William D. Paton Acting Assistant General Counsel Counsel for NRC Staff for Enforcement Mary E. Wagner Counsel for NRC Staff June 11,1987
'd l
TABLE OF OCNIETIS
?.*B*.
' I.
IN!Il0DUCTICH........................
1
- II. BAGCEDUND '.........................
1 III. DISCUSSIW.........................
5
'A.
De EDO is Authorized To issue he Subpoena......
5 B.-
De Cmmission Need Not Reach he Questions Of thether The Attorney-Client Privilege Or Work Product Doctrine Applies 8
1.
h e Attorney-Client Privilege 8
2.
H e Vlork Product Doctrine 10 IV. OCICLUS ION..........................
12 h
4 e
.w
1 il --
i TABIE OF CITATIONS
,1 PAge(s)-
'4
. CASES l
' 1
{
-Fleming v. Mohawk Wrecking and IANDber CO., 331 U.S. 111, i
6, 7 j
121 (1947)
Ilicimun v.. Taylor, 329 U.S. 495, 511 (1947)'
11 i
N.L.R.E. v. Harvey, 349 F.2d 900 (4th Cir. 1965).
8, 9 United States v. Fitch 011 Co., 676 F.2d 673 (T.E.C.A.1982)..
7 Upjohn Co. v. United States, 449 U.S. 383, 401 (1981) 11 STATUIES Atomic Energy Act of 1954, Section 161c.............
6, 7 1hergy Reorganization Act of 1974, S'ection 209(b)...
6 ItEGLIATimS 10 C.F.R. I 1.2.........................
7 10 C.F.R. I 1.36........................
6 10 C.F.R. I 1.40........................
6 OIIIER AUllmITIES Fed. R. Civ. P. 45(a) 8 i
Fed. R. Crim. P. 17(a).....................
8 8 Wigmore, Evidence I 2292 (McNaughton rev. 1961).
9 81 Am. Jur. 2d Witnesses, I 182 (1976).
9 NRC Manual, Chapt er 0103....................
7 4
i l
UNITED STATES OF AMERICA gg NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
IIOUSTON LIGilTING AND
)
Docket Nos. 50-498 OL POWER COMPANY
)
50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
)
NRC STAFF ANSWER OPPOSING MOTION TO QUASH SUBPOENA FILED BY BILLIE P. GARDE, ESQ.
I.
INTRODUCTION Lillie P.
Garde, Esq., Director, Midwest Ofilce of the Government Accountability Project (GAP), claims she possesses numerous allegations concerning safety, wrongdoing and intimidation at the South Texas Project, but she will not provide them to the NRC Staff.
For the purpose of obtaining those allegations, NRC Staff served a subpoena on lus. 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.
II.
BACKGROUND During the first four months of 1987, Ms. Garde exchanged 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 expressed a willingness to provide i
the allegctions to the NRC, but only on the condition that they not be turned over to ~ Region IV for. resolution.
On April 8,1987, after l
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repeated attempts to obtain information regarding the allegations, j
4 Mr. Stello 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, -ho woulci be constrained to take steps to acquire it by other means.: Ms. Garde's position remained unchanged.
On Wednesday, May 20,
- 1967, the NRC served a
subpoena commanding. Ms. Gar 6 to appear at the Nuclear Regulatory Commission offices in Bethesda, 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.1I A copy of the subpoena, signed by Mr. Stello, is Attachment 1 to this pleading.
On l'
Friday, May 22, 1967, the NRC aild Ms. Garde entered into an agreement i
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 r ) tion 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, 1987 to fourteen days after a decision with
-l
'1/
Prior to issuance of the subpoena, Ms. Garde' attempted to negotiate with Mr. Stello's office 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 after the subpoena (Motion,
Memorandum and Petition of the Government Accountability Project).
k i
d i
respect to the motion, unless the parties agreed on an earlier date.
A copy of the agreement is Attachment 2 to this pleading. 2_/ By agreement with Counsel for liRC 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 Motion 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 so 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.
(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 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 questions pursuant to the subpoena except under court order.
1 however, that compliance with the subpoena would in no way compromise the he'alth and safety of the public. On the contrary, failure of the NRC to obtain the information could compromise public health and safety if the cliegations raise health and safety issues that are substantiated.
Concurrent with the filing of her Motion, Ms. Garde filed a document entitled " Petition 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 allegations, divided in this manner:
(1) fifty percent relate to safety, (2) thirty-seven percent relate to wrongdoing, (3) ten percent relate to intimidation and threats, and (4) three percent are "other".
Petition at 4. 3_/
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 STHP and are not employees assigned to Region IV for purposes of their performance evaluations or work reviews and editing.
and that:
)
-3/
The issue raised by the Petition, generally the trustworthiness of Mr. 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
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before the Commission for a determination, and in any event was not i
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.
i 4,
I,
t Supervision of independent. inspection effort
. cannot in any way be reviewed or in control of j
Mr. Stello or his staff.
j 4
Petition at 20.
b :,'
[.
For reasons set out below, the NRC Staff opposes Ms. Garde's Motion b j
4 III. DISCUSSION 13cfore addressing the arguments presented by Ms. Garde's Motion, it is important to understand what is, and what is not, at issue before the Commie,sion in deciding whether to grant or deny the Motion.
As explained below, the only issue which need be decided is whether. the 1
1 Mr. Stello has authority 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 i
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protected - by attorney-client privilege or the attorney!s work product
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doctrine.
These generalized assertions are prematurely raised by Ms. Garde and obfuscate the only issue the Commission need decide, i
whether Mr. Stello 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 6tello, Jr.,
is not authorized to issue the subpoena.
j i
4/
Ms. Garde requests oral argument on her Motion.
The Staff does
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-not believe cral argument is necessary.
l I
y i
Nemorandum at 7-10.
This argument is - patently without merit.
As
- discus' sed below,
the Commission hau statutory authority to issue -
subpoenas; the Commissio'n: has authority to delegate-this function to the
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EDO;. and.he Commission has in ' fact delegated this function to the EDO.
The Commission's subpoena authority is. clearly set forth in section 101c 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 person to appear and testify, or to appear and produce documents, or both, at any designated place." Section 209(b) of the Encrgy Reorganization Act of 1974 - specifies that the EDO "shall
. perform-such functions as the Commission shall direct... ", and constitutes authority for the Cm mission to delegate subpoena. authority to.
I the EDO4 5_/ There is' ne -">'; ament 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 (1947).
To construe the authority of the Commission not to include 1
authority to delegate subpoena authority to the EDO would unnecessarily j
. frustrate the efficient workings of the NRC in its efforts to achieve its 5/
While Ms. Garde fails to address the authority granted to the EDO i
by section 209(b), she deems it "especially significant" that the I
power to issue subpoenas is not specifically included in the scope of the EDO's duties set fo th in the Commission's regulations,
'10 C.F.R. I 1.40, since subpoena power is specified in the powers of the Office of Investigations (10 C.F.R.. I 1.36).
Memorandum 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 functions in i 1.40 contains a general statement - that he
" performs such functions as the Commission may
- direct, including" certain specified powers.
Contrary to Ms. Garde's assertion, then, 51.40 does not imply that the EDO has' not been delegated the authority to issue subpoenas.
t I
l
n statutory objectives.
See United States v.
Fitch 011 Co., 676;R.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. 6_/ 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 ccnsultation 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.
Ms. Garde complains that the subpoena is deficient in that it does not cite the legal authority under which it is issued.
.See Memorandum at 8.
No case law is cited for this unusual proposition.
As stated above, the Commission's subpoena authority is set forth in section 161c of 6/
The fact that Mr. Dircks, and not Mr. Stello, was Executive Director
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for Operhtions 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 Commission... has delegated to the Executive Director 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 available for public inspection and copying at the NRC public document room.
A copy of manual chapter 0103, which includes a section (0103-0214) specifically authorizing the EDO to issue subpoenas under section 161c of the Act, is Attachment 4 to this pleading.
. i.
the Act.
Therc 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 l
request a subpoena from the Commission, and the subpoena issued to Ns. Garde was duly authorized.
B.
The Commission 'bd Not Reach The Questions Of Whether The Attorney-Chent Privilege Or Work Product Doctrine Applies CAP attempts to resist the subpoena on the basis of assertions of attorney-client privilege and the work prod at doctrine.
Neither l
determination is necessary to a resolution of the question of whether the issuance of the subpoena should be upheld.
Moreover, Ms. Garde's it.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 this case.
See N.L.R.B.
v.
- Harvey, 349 F.2d 900 (4th Cir.1965), discussed infra at p. 9.
1.
The Attorney-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
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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.
_g_
1 (1)
Where legal advice of any kind is sought (2) from a
professional legal adviser in his j
capacity as such, (3) the communications relating 1
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 I 2292 (McNaughton rev.1961).
1 Ms. Garde, on behalf of GAP, has gathered allegations concerning 4
the South Texas Project.
If. she was not acting in the capacity of attorney, the privilege would not apply:
The privilege accorded to communications between l
attorney.and client is limited to communications l
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 advice on 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 disclosura.
eo 81 Am. Jur. 2d Witnesses, B 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 an attorney-client relationship, further facts unequivocally establishing the character of the attorney's retainer were necessary to determine l
whether the attorney-client privilege was applicable.
The question was whether the attorney was acting in that capacity or if he was employed in some other capacity.
It is not at all clear that Ms. Garde, in gathering 1
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 privilege would attach to all of the informa-tion she has gathered.
I
. 4 As:to the claimed existence of the attorney-client privilege, the Staff would
- depose Ms. Garde with respect to (1) each of the essentials necessary to establish the privilege (see pp. 8-9 supra) and (2) circum-stances that re. late to waiver of the privilege.
This information would 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 Doctrine Ms. Garde argues in the alternative that if the communications she -
has received are not protected by the attorney-client privilege, they are protected - by the work product doctrine.
Memorandum at '13-14.
This also is a -question that the Commission cannot decide on the basis of the
)
assertions in Ms. Garde's pleading, and one which it need not decide in ruling on the Motion before it.
I As set forth above, it is not clear whether an attorney-client -
relationship exists in this case.
Absent such a relationship, of course, there could be no valid assertion of work product. A: uming, arguendo, however, that the attorney-client relationship is eventually established, the question of applicability of the work product doctrine would then become ripe for determination.
The work product doctrine applies, at least, to material "obtained or prepared by an adversary's counsel" in the i
l 1
l
.j course of his legal duties, provided'his work is done "with an eye toward i
I II litigation."
Ilickman v.
Taylor, 329 U.S.
495, 511 (1947).
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 i
prerequisite for such. a determination have not yet been ' developed; all that the Commission has before it are conclusory statements of counsel. SI in conclusion, the Commission does not have enough facts before it at this time to rule on applicability of either the attorney-client privilege of the work product doctrine, and such. rulings are unnecessary to its determination of the Motion before it..
l o
8/
Ms. Garde's. " standard attorney-client representation form" used for
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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 l
written agreement" (emphasis added).
On its face, this statement raises a onestion as to whether the work product doctrine is applicable at all.
9/
Even if it is ultimately deterndned that the documents are subject to
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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, s gu ra, 329 U.S.
at 513; Upjohn Co.
v.
United States, 449 U.S.
383, 401 (1981).
3, :
IV.
CONCLUSION For the reasons stated above, Mr. Stello had the authority to issue
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the May 20, 1987 subpoena to Ms. Garde and Ms. Garde's Motion to Quash Subpoena should be denied.
Respectfully submitted, cI W
ack R. Goldberg William D. Paton Acting Assistant General Counsel Counsel for NRC Staff for Enforcement Mary
. Wagner [
Counsel for NRC Staff Dated at Bethesda, Maryland
- this lith day of June,1987 S
4
MilitCD ItatEn Df A11121'ICH A M CHMUlT 1 NUCLEAR REGULATORY COMMISSION.
C o
in the matter of: Houston Lighting and Power Company
> DOCKET NO.' 50-498 50-499 TO f*s. Billie Pirner Garde Government Accountability Project 1555 Connecticut Avenue, fl.W.
Suite 202 i
Washington, D.C.
20036 YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory Comd ssion, 7735.01d Georgetown Road, Bethesda, Maryland on the 26th day (if May 1987'at 9:00 o' clock A.M. to continue as necessary
'for t.he purpose of testifying before NRC personnel concerning allegations of.ctrrent and/or fomer employees of the South Texas Project concerning j
the safety of the South Texas Project, as described in your letter of i
January 20, 1367 to Messrs. Victor Stello and James t'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 possession or under your custody or control concerning such allegations.
7 ctor Ste
.J.
Executive Director for Ooerations du$a$r"R7eulatory Comission l'7A
- 4, 1987-f aune e anmen n e r(301) 492-7619 On motion made fromptly, and in any event at or before the time specified in the subpoena for compliance )y.the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Connission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition dental of the motion on just and reasonable tems. Such motion should be directed to the Secretary of the Comission, Washington, D.C. 20555.
l
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ATTACHMENT 2 Law Offkas p
Anthony Z. Roisman, RC, Smte 800
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p 1401 Now bt Annus, N.W.
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Weshington. DC 20005 l
Of Counsel Tb:
%!sphons Cohen.Mileteln a Hausfeld (202)638-2 00 Washington.D.C Mourt G Ratoer. P.C
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Weshington. D.C
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l May 22, 1987 j
william D. Paton, Esq.
Nuclear Esgulatory Commission Washington, DC 20555 RE:
Subpoena of Billie Gardo Houston Lichtina & Power cce, Dkt. Nos. 50-498, 499
Dear Bill:
This is being faxed to you along with the agreement 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 quash the subpoena, we will work out a way of handling Billie's formal refusal so that none of us (including Billie) has to spend noney on plane fare.
Sincerel,
l Anthony E. Roisman AZR/bp enclosure
GXb.E00P15R2961
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5-2187:11:45 PWI sei 4,2 t m 2,j2sp?3 s 8 a es m e 1,1i4s we.nas g,,,
t*ttso atArne NUCLEAR RIQULATORY COMMittl0N
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nAsMimeto% o. c. noems
- ees*
A*Teement between Bulle P. Garde and the U.e. Ruetoar segWtory Coamission (WRC) with Peopoet to tne attaches subpoenal t
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- 1) allMa P. Garde has indicated an intent to fue e antion to
(
autah the subpoens.
She agrees to file the motion not later team alone of business. THesy, may as stet.
She opvos net te cha13 sage wrvice of the subpoena.
l (t) WRC agrees to continue the appearsmogs dets frein Tses-pg War 18. 1987 to 14 days after the dectalon wits respect to..
mottaa ta cuaan, uniass partsee agree = an earner saw.
D
/
.Th i
Ancener s r-n n U. Faton (AID)
Attorner 90t NRC.
I 6
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P ATTACH'1ENT 3 j,g j
UNITED STATES ACTION'- GCunnir)gham f /
h,' f,i n--
Stello NUC'CEAR REGULATORY CdMMISSION Cys:
Dircks E
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Rehm
.y W AS HIN GTON, D.C. 20555
+
M July 20, 1982 DeYoung Regional CFFICE OF THE.
Administrato
' SECRETARY
,83rry MEMORANDUM FOR:
William J. Dircks, Executive Director for Operations
$\\
'FROM:-
Samuel J. Chilk, Secreta:
g
SUBJECT:
SECY-82-239-DELEGATION,OPjbOBPOENA AUTilORITY yV This is to advise you that 'the Coinmission (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, g
withthepowertoredelegatethatauthoritytotheDirector,h Office of Inspection and Enforcement, and to Regional Administrators.
The Commission requests that you advise 4,3 it in advance.of the: staff's" intention to exercise subpoena authority (at least for an initial trial period of about 10 ca es).
d!
You should amend. subsections -02 and--03'of Manual Chapter 0103 as indicated in the attachment.
You should also make any required conforming. changes to other sections of the NRC Manual' and to 10 CFR Part 1. ( 6LD).
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Attachment:
6/29/82OGCMemo(b.y) 4 cc:
Chairman Palladino Commissioner Gilinsky j
Commissioner Ahearne Commissioner Roberts Commissioner Asselstine j
]
OPE CONTACT:
A. Bates (SECY)-
4 41400 Rec'd off. EDD m e. 4..... t ?./..Nn.e.p.......t o ne...
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A
Ar.iend Subsections -b2 and -03 of Manual' Chapter -0103,
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" Organization and Functions, Office of the Executive Director for Operations" by:
1)
Inserting new paragraph 0214 to subsection 0103-02.
0103-02 Functions The Executive Director for Operations, subject to other provisions of this!, Chapter is 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 f ollowin~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 Director and consultation with the Offic.e of Investigations.
T.. :
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e 9
e 4
0
ATTACH!1EliT 4 4
U. S. NUCLEAR REGULATORY COMMISSION NRC MANUAL Volume:
0006 General Administration Part :
0100 Organization EDO CHAPTER 0103 ORGANIZATION AND FUNCTIONS OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS 0103-01 SUPERVISION a
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 Commission 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 j
and currently informed about matters within its functions.
0103-02 FUNCTfONS
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The Executive Director for Operations, subject 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.
022 executton of the budget of the Commission.
023 distribution of business among the offices which report to the EDO.
024 preparation for Commission consideration of:
the budget estimate for the Commission; a,
b.
the proposed distribution of appropriated funds according to major programs and purposes; and proposals for the reorganization of the major offices which report to c.
the EDO.
025 consulting with the Chairman prior to the Chairman's initiation of the appointments of the Directors of Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, Nuclear Regulatory Research and Inspection and Enforcement.
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 7
98 R C -0103-027 OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS 4
4 the offices reporting to the EDO except: Directors of Nuclear Reactor Regula-tion, Nuclear Material Safety and Safeguards, Nuclear Regul.a{ory Research and, inspection and Enforcement.
027. supervising, directing, coordinating, and approving the activities of the offices reporting to the EDO.
028 developing and approving delegations of authority for offices reporting 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.
0211 performing any other matter or function explicitly assigned by the Commission or the Chairman. Any matter or function not explicitly assigned l
to the EDO is reserved to the Chairman unless otherwise delegated to the l
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 the Commission before submitting a final rule to the Federal Realster.
021,4 issuing 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 f
Licensed Fuel Facility Status Reports for Inventory Difference Data
( N U R E G-0430), and issuing such reports after Commission approval by a Commission negative consent paper.
0103-03 AUTHORITIES l
The Executive Director for Operations shall be the chief operating and admin-I.
istrative officer of the Commission and, except as otherwise provided by law, regulation, Commission action, or action by the Chairman, reports to and is supervised by the Chairman as provided in 0103-01 and is authorized and directed to discharge such licensing, regulatory, and administrative functions of the NRC, and to take such actions as are necessary to carry out the func-tions and execute the authoritles assigned by this chapter, chapters of offices reporting to the EDO, or other official' 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-sion for resolution. With respect to such questions, all major views of the affected offices shall be presented to the Commission.
Approved:
December 3,1985
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ORGANIZATION AND FUNCTIONS l
N R C -0103-0310 OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS j
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0310 the EDO's delegated authority, under paragraph 0213 of this chapter, l
to develop and promulgate rules applies with respect to 10 CFR Parts 7, 8, I
and 9'Subpart C, only if the proposed or final rules or amendments to these l
Parts do not raise policy issues or are of a corrective nature.
Before pro-
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mulgating a proposed or final rule modifying Part 2, the EDO is to obtain the i
concurrence of the Office of the General Counsel, the Office of the Executive l
i Legal Director, the Chairman of the Atomic Safety and Licensing ' Appeal Panel, and the Chief Administrative Judge of the Atomic Safety and Licensing Board
- 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 I
FOR OPER ATtONS The Executive Director for Operations may, except where expressly prohibited I
herein, redelegate to others authority delegated by this or other official direc-tive or communication, except that such redelegations and any stipulations on further redelegations 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 REGIONAL OPE R ATIONS AND GENERIC REQUIREMENTS l
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.
1 Approved: December 3,1985
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ORGANIZATION AND FUNCTIONS W
OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS l
N R C-0103-07
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0103-07 ORGANIZATION STRUCTURE AND INTERNAL ASSIGNMENTS i
The Office of the Executive Director for Operations includes the Deputy
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Executive Director for Operations (DEDO), the Deputy Exec 0tive Director for Regional Operations and Generic Requirements (DEDROGR), and the Admin-istrative and Correspondence Branch. (NRC Appendix 0103 contains further
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delegation's of authority to the Executive Director for Operations.)
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Approved:
December 3,1985 t
ATTACHt1ENT 5
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/# " *,o Cys:Stello UNITED STATES NUCLEAR REGULATORY COMMISSION Roe
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f 'y 3,.7 W ASHIN GT ON. D.C, 20555
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,e GCu am ieberman June 17, 1986 Denton OFFICE OF THE SECRETARY Taylor Davis Regions I-V 01
_1 MEMORANDUM FOR:
Victor Stello, Jr.
_J' Ex ti e Director for Operations FROM:
gamuel
. Chilk, Secretary SUBJECT ISSUANCE OF SUBP0ENAS WITHOUT PRIOR
{CONSULTATIONWITHTHECOMMISSION This is to inform you that the Commission does not object to your exercising fi.nal approval over issuance of subpoenas by the staff without prior consultation with the Commission as outlined in your June 4, 1986 memorandum.
cc:
Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech OGC OPE t
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UNITED STATES 3
NUCLEAR REGULATORY COMMISSION WASHING ton, D. C. 2066s JUN 04 5 MEMORANDUM FOR:
Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech FROM:
Victor Stello, Jr.
Executive Director for Operations
SUBJECT:
ISSUANCE OF SUBPOENAS WITHOUT 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 IT
. As permitted under the Commission's delegation to the EDO, this av
- C cases.
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 three 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 subpoena 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.
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-i sion's approval is no longer necessary.
In addition, although Commission approval can be obtained rapidly, as in the recent, Golden Gate Forge and 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 CONTACT:
Stephen G. Burns, OELD x27268
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.~poena is necessary to obtain information.
In the absence of the Coricission's instruction 16 the contrary, the staff. does. not intend in the future -to seek prior approval and :give prior notification of the issuance of subpoe-1 As. the EDO has in the past, I will continue to exercise final approval nas.
over. Issuance of subpoenas by the staff. - The staff will notify the Commission
' that a subpoena has been issued.
4 i
Original signed by l
71ctor Stelig,,
' Victor Stello, Jr..
Executive Director for Operations
Enclosure:
As stated ec: SECY OGC-OI
~ OPE DIST:
ROED Rdr ~..
ROED Subj
., ELD Rdr-
. JLieberman/SBurns Info SChidankel Chron~
1 EDO/TRehm/JSniezek /JRoe KC/RH/WP/LD Info 1
NRC Central JTaylor, IE f
Reg. Administrators HRagan, OELD GCunningham/JMurray, OELD EDO R/F
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5/30/86 5/%/86 5/30/86
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4 tqCKETED aMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO</ JUN 12 P4 :50 BEFORE THE COMMISSION OFFICE OF H.G.t TAsl in the Matter of
)
00CKEi!NG & SEi<VICf.
)
BRANCH HOUSTON LIGHTING AND
)
Docket Nos. 50-498 OL POWER COMPANY
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50-499 OL
)
(South Texas Project,
)
Units 1.and 2)
)
)
i CERTIFICATE OF SERVICE I hereby certify that copies of "NEC STAFF ANSWER OPPOSING MOTION TC QUASil SUBPOENA 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:
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 i
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 i
William D. Paton Counsel for NRC Staff
_