ML20234D091

Responds to NRC 870514 Request for Production of Documents & Availability of D Feinburg for Deposition Re NRC Civil Penalty Enforcement Action Brought Against Util.Feinburg Requested Not to Disclose Further Info

ML20234D091
Person / Time
Site:	Three Mile Island
Issue date:	06/15/1987
From:	Smith P LABOR, DEPT. OF
To:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20234D074	List: ML20234D072 ML20234D091
References
CIV-PEN, EA-84-137, NUDOCS 8707070099
Download: ML20234D091 (3)

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- U.S. Department of Labor Employment Standards Administration Wage and Hour Division ' _ /f*"'<p" **c,  ;

Washington, D.C. 20210 -

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JLN i 51987 ueorge E. Johnson, Esq.

U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washing ton, D.C. 20555 Re: In the Matter of GPU Nuclear Corporation No. 50-320; EA84-137

Dear Mr. Johnson:

This responds to your letter of May 14, 1987, to Gail V. Coleman of the Office of the Solicitor, United States Department of Labor (DOL), which was referred to me for response. In that letter you informed us that Administrative Law Judge Ivan Smith, in connection with the above-referenced civil penalty enforcement action (to which DOL is not a party) brought by the Nuclear Regulatory Commission (NRC) against GPU Nuclear Corpora-tion (GPUN), had issued a subpoena to David Feinberg, a ,o former DOL Wage and Hour compliance of ficer. The subpoena directs Mr. Feinberg to attend and give testimony at deposition and produce documents and records pertaining to his investigation of the whictleblower complaint filed (independent from the instant matter) by Mr. Richard Parks pursuant to section 210 of the Energy Reorganization Act of 1974, 42 U.S . C. S 5851. You also informed us that the ALJ had directed the NRC staff "to envoke [ sic] and exercise its rights" under the Memorandum of Understanding (MOU) between the NRC and the DOL to obtain compliance with the subpoena of Mr. Feinberg and a subpoena duces tecum calling for production of the investigation file.

In accordance with the ALJ's directive, you requested that we make Mr. Feinberg available for deposition and make non-privileged documents contained in the investi-gation file available to GPUN as specified in the subpoena duces tecum. I also understand that in follow-up to your letter you and Mr. Lieberman, NRC Director of Enforcement, met with Ms. Coleman and other members of the Solicitor's staff to impress upon us the importance of our compliance with the subpoena in order that your case against GPUN not be weakened by possible sanctions imposed by the ALJ ,

in case of DOL non-compliance, jPg 188H IS8$o G

2-I understand that the Department has already disclosed and made available to GPUN and the NRC all f actual documents and material compiled in the investigation of Mr. Parks' whistleblower complaint, including a full unredacted copy of the compliance officer's report and the statements of all witnesses interviewed by Mr. Feinberg.

I further understand that Mr. Feinberg, af ter recently reviewing the entire factual record disclosed, has repre-sented that he possesses no further information regarding this matter beyond that which is contained in the factual documents already disclosed, that he has no personal or unique knowledge regarding this matter, and that he does not possess any personal records or notes pertaining to his investigation of Mr. Parks' whistleblower complaint.

In view of the above-referenced circumstances, it is the position of the Wage and Hour Division that it has cooperated with the NRC to the fullest extent possible in this matter, in accordance with sections 3(a) and (b) of the MOU between NRC and DOL.

Clearly, the NRC has a legitimate interest in successfully prosecuting its case against GPUN. However, the DOL has a valid interest in controlling the dissemination of its official information in actions to which it is not a party, as recognized in the regulations set forth at 29 C.F.R. SS 2.20 - 2.25. In our opinion these regulations and their underlying purpose and intent are not in conflict with, nor have they been superseded by, the MOU between NRC and DOL, particularly when, as in the instant case, the Department has generously and substantially accommo-dated the NRC by disclosing the entire factual record, including an unredacted copy of the compliance of ficer's narrative, containing his opinion, conclusions, and recommendations, and in seeking and obtaining authori-zation from the interviewed witnesses in order to also disclose their recorded interviews. These actions went well beyond the Department's normal disclosure practice, including disclosures made to parties in DOL's own whistle-blower proceedings before administrative law judges.

Af ter careful consideration of all of the above circum-stances and f acts and lengthy consultation with the Office of the Solicitor, we have recommended to the Deputy Solicitor that he not authorize Mr. Feinberg to disclose

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any further information or produce any material acquired as part' of the performance of his official duty in accordance-with the regulations set forth at 29 C.F.R. SS2.20-2.25.

Sincerely ,

Paula V. Smith Administrator-l l

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