ML20235T417

Memorandum in Support of Motion to Quash or in Alternative in Support of Motion for Protective Order.* Martin 870922 Subpoena of Stites Invalid & Improper.Decision to Subpoena at Late Date Form of Harassment.W/Certificate of Svc

ML20235T417
Person / Time
Site:	South Texas
Issue date:	10/08/1987
From:	Condit R GOVERNMENT ACCOUNTABILITY PROJECT
To:	NRC COMMISSION (OCM)
Shared Package
ML20235T392	List: ML20235T389 ML20235T417
References
OL, NUDOCS 8710130080
Download: ML20235T417 (8)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of4 Houston Lighting and )

Power Company

)

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To Ed Stites

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Docket No. 50-498

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50-499

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MEMORANDUM IN SUPPORT OF MOTION TO QUASH OR IN THE ALTERNATIVE IN SUPPORT OF A MOTION FOR PROTECTIVE ORDER I.

FACTS On September 22, 1987, Robert D. Martin issued a subpoena for Mr. Ed Stites to appear in Arlington, Texas, to testify about l

and provide records on documents regarding safety-related j

deficiencies and/or records falsifications at the South Texas Nuclear Project (STNP).

On September 25, 1987, Richard Condit, Staff Attorney for the Government Accountability Project (GAP), received via regular mail and certified mail a copy of a subpoena for Mr. Stites.

Later, on October 2nd, Mr. Condit received a third copy of the same subpoena for Mr. Stites.

Subsequent conversations with Mr.

Stites revealed that he had not received a copy of the subpoena via registered mail.

II.

NRC'S SUBPOENA IS INVALID BCCAUSE IT HAS NOT BEEN PROPERLY SERVED NRC regulations provide that a subpoena issued by the agency must be:

(1) acknowledged on its face by the witness, 87101300B0 071008 PDR ADOCK 05000498 Q

PDR

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e (2) served by an officer or employee of the NRC, or (3) served by registered mail.

10 C.F.R. 52.70(c)4 In this case none of the above requirements L

were Culfilled.

Mr. Stites was never served in person or by l

registered mail.

In addition, Mr. Condit was not authorized to.

accept service on behalf of Mr. Stites and in signing for the letter did not accept service on his behalf.

Therefore, NRC has no jurisdiction over Mr. Stites because service was legally insufficient.

III. THE NRC'S SUBPOENA IS INVALID BECAUSE NO WITNESS OR TRANSPORTATION FEES WERE PROVIDED The subpoena directed Mr. Stites to appear in Arlington, Texas, at a date and time certain, but made no provisions for transportation expenses, lodging, or regular per diem witness fees.

The Federal Rules of Civil Procedure 28 U.S.C.

$1821 provides for witness fees, transportation fees including mileage fees, and lodging expenses, among other things.

The NRC cites no authority for the issuance of a subpoena without compliance with the Federal Rules that pertain to witnesses in any proceeding.

The only authority cited on the face of the subpoena is 10 CFR S2.720(f).

This is a procedure for quashing a supoena, but not for authorizing its issuance without provisions for such items as transportation and lodging that make compliance possible.

GAP attorneys have represented workers in depositions and i

~

interviews before the NRC since 1980.

The NRC has always provided for the transportation and lodging expenses of witnesses or workers that had agreed to talk to the agency.

It has been a longstanding agency practice to arrange for transportation costs and witness fees in advance of requiring a witness' appearance.

. Fees and transportation costs were never discussed with Mr.

Stites, nor with any of the attorneys representing Mr. Stites.

The agency cannot make the argument thac such fees are paid only to voluntary witnesses who provide information.

In another case, the NRC provided witness and transportation costs to Billie P. Garde for her two days of testimony at the agency's request on July 27, and August 5, 1987.

In Mr. Stites' case witness fees and transportation costs are essential if he agrees to provide further information to the NRC, and/or if a court of competent authority requires him to testify in response to this subpoena.

This is to be expected when a witness must travel a significant distance and testify over an undetermined period of I

time.

He is presently unemployed.

He lives in Bay City, Texas, a substantial distance from Arlington, Texas.

A trip to Arlington, Texas, for such an interview woudl require at a j

l minimum two days away from the area, costs and expenses, and j

travel costs and expenses.

He could not comply without great personal hardship even if the subpoena were valid. Therefore, even if service of the subpoena were legally sufficient, failure to provide for the necessary fees would be fatal.. - _ - _ _ _ - - _ _ _ - _ - _ _ _ _

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IV.

THE NRC SUBPOENA IS INVALID BECAUSE IT IS NOT SERVING A LEGITIMATE PURPOSE The only reason that the Region IV office of the NRC has issued this subpoena is to harass Mr. Stites. Unlike the case of Billie Garde, where the Commission claims that she had information that the Commission did not have and therefore they had a legitimate purpose to seek that information, Mr. Stites has q

already talked to the NRC.

Mr. Stites has had an allegation (4-86-A-096) pending before NRC-Region IV since at least September 1986.

In fact, he had discussed his concerns about the South Texas Nuclear Project with the NRC at least as early as March 1986.

To date, Mr. Stites has not received a complete assessment of or adequate explanation for the original allegations. In April 1987, Freedom of Information Act (FOIA) requesu 87-208 was filed to discover what had been done by the NRC.

The NRC failed to respond to the original request.

Consequently, an administrative appeal was filed (see, FOIA 87-A-35).

No response has been received even under this appeal.1/

NRC attorneys indicated that Mr. Stites' allegations were unsubstantiated.

If so, then there is no reason for further interviewing and interrogation of Mr. Stites.

Mr. Stites has no reason to believe that a further interrogation would convince the Region IV office to conduct a more thorough investigation.

To the contrary, Mr. Stites believes that the only purpose of this 1/

In July, 1987, NRC attorneys indicated that a report was Seing written on Mr. Seites' allegations.

Upon completion it was to be turned over to GAP pursuant to the FOIA request. _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _. _ _ - _ _ _.

E..

subpoena is an illegitimate one - to harass and intimidate him and others from coming to GAP or to the NRC with any concerns.

Mr. Stites asserts that the subpoena is in violation of the NRC's own policies about those who provide allegations to the NRC, which state:

Those who provide allegations to NRC staff must be treated with respect, consideration and tact.

Under no circumstances should they be dealt with brusquely or under an atmosphere of interrogation.

(Memo from Dircks to Office Directors and Regional Adminis-trators: January 6, 1984)

The process of issuing a subpoena to Mr. Stites, under the circumstances of his case, is neither legitimate nor equitable.

It has been more than one-and-a-half years since Mr. S' tes first spoke to NRC officials.

The agency has not responded to the concerns that he has already given, which is not in compliance with their old policy or their new policy on the procesning of allegations.

The agency has not responded to the FOIA request in compliance with the law, and yet the agency claims a legitimate purpose in seeking a full accounting of his concerns.

This request is not valid as a matter of law, not reasonable, not in accordance with the agency's own policies, and not serving a valid purpose.

Where was the agency when Mr. Stites raised his concerns while working at STNP?

Where was the agency when he complained of retaliation and intimidation?

Where were the investigators f

and the subpoenas when there was time to prevent the harm that _ _ _ - _ - - _ - _ _ - _ _ - _ - _ _ _ _ _ _ _.

a.

i I

1 l

Mr. Stites was trying to prevent from occurring?

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t The NRC's lack of interest in Mr. Stites' allegations until I

l recently can only be explained as harassment and an attempt to do I

damage control at a time when Region IV is receiving a good deal of public attention.

It is clear from NRC's past behavior toward Mr. Stites that there is no legitimate regulatory interest in his Concerns.

V.

IN THE ALTERNATIVE NRC MUST GRANT A PROTECTIVE ORDER In the event that the Commmission does not see fit to quash the subpoena he requests an issuance of a protective order until such time as the Commission's Region IV office complies with the production of the FOIA information, the production of the report into his previously rasied allegations, curing the deficiencies of notice and fees and costs, and until the outcome of the action of U.S.

v. Garde, Misc. No.87-274.

Mr. Stites fears that extensive cooperation with the NRC may result in retaliatory action by STNP officials against him or members of his family. In such a circumstance a grant of confidentiality and other projections are appropriate.

Grants of confidentiality and other projections can be provided by the NRC.

See, NRC Manual, Chapter 0517, 10 C.F.R.

SS2.790(a)(7), 21.2, In the Matter of Houston Lighting and Power Co., 13 NRC 469 (1981).

A protective order fashioned to suit Mr.

Stites' needs and concerns is both appropriate and necessary under tr.e circumstances.

VI.

CONCLUSION Mr. Martin's September 22, 1987, subpoena of Mr. Stites is invalid and improper.

He was never properly served or_provided with witness and transportation fees.

Furthermore, the NRC has received information from Mr. Stites which has not been legitimately investigated.

Nor has the agency' adequately explained the resolution of his original allegations.

The NRC's decision at this late date to subpoena Mr. Stites is a form of harassment and serves no legitimate purpose.

Respectfully submitted, e bl Billie P. Garde, Esq.

Richard E. Condit, Esq.

Government Accountability Project 25 E Street N.W.

7th Floor Washington, D.C.

20001 (202) 347-0460 Attorneys for Ed Stites Dated:

October 8, 1987 (191alG)

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CERTIFICATE OF SERVICE I certify that the foregoing documents were served upon the addressees listed below on October 8, 1987.

1 Samuel J. Chilk Secretary-U.S. NRC 1717 H Street N.W.

Washington, D.C.

20555 Delivered by hand William L. Brown Regional Counsel U.S. NRC - Region IV 611 Ryan Plaza Drive Arlington, Texas 76011 Via First Class Postage Prepaid Mail 2

Richard E.

Condit

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