ML20237K001
| ML20237K001 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/22/1987 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20237J595 | List:
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| References | |
| FOIA-87-467 SECY-87-151, NUDOCS 8709040156 | |
| Download: ML20237K001 (12) | |
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ADJUDICAkbRY ISSUE June 22, 1987 SECY-87-151 For: The Commissioners From: James A. Fitzgerald Assistant General Counsel for Adjudications and Opinions
Subject:
REQUEST FOR INDEPENDENT TASK FORCE TO REVIEW SOUTd'n TEXAS ALLEGATIONS AND MOTION TO QUASH SUBPOENA
Background:
Beginning in January, 1987, Billie P. Garde, Esq.,
Director of the Midwest Office of the Government Accountability Project (GAP), informed the NRC that GAP was investigating allegations concerning the safety of the South Texas plant. According to Ms. Garde, GAP received these allegations from approximately 36 current and former employees of the plant. GAP further informed the NRC that upon completion of the investigation it would issue a public report, but in the interim it would not advise its clients to provide the allegations to NRC Region IV because of its lack of confidence in the office's ability to comply 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 committees, and/or other regulatory and municipal bodies interested in ensuring the public safety at South Texas. See Attachment 1.
Correspondence followed between the EDO and GAP regarding allegations management. See Attachments 2-6. GAP desired an investigation of the allega-tions by an NRC employee or task force independent of Region IV. 'The Staff's view was that South Texas is located in Region IV and the personnel in that region can adequately conduct the investiga-tion, and in any event, GAP should turn over the Information in this record was deleted-
Contact:
Act, exemptions _ff[)in accordance with the Karla , Smith, OGC, 41465 F0lA_9 7-44d7 8709040156 870828 w g
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allegations to the agency so that the agency can determine the proper handling of them. After repeated requests for the information, on May 20, 1987, the EDO issued a subpoena to Ms. Garde requesting testimony and documents regarding the allegations. Attachment 7.
On May 29, 1987, Ms. Garde moved to quash the subpoena, and on the same day the Government Accountability Project (GAP) petitioned under 10 C.F.R. 2.206 for the establishment of a task force independent of NRC Region IV and the EDO, to investigate the allegations. Ms. Garde refuses to l
provide the allegations to the agency pursuant to the subpoena, unless the agency establishes an ,
independent investigatory unit.
This paper addresses both the motion to quash and.'na, 1
Discussion:
the 2.206 petition.
I. Billie Garde's Motion to Quash Ms. Garde moves to quash the May 20, 1987 NRC subpoena on the grounds that compliance with the subpoena will compromise the public health and safety; the EDO lacked authority to issue the subpoena; and the attorney-client privilege and work product doctrine preclude divulgement of the information.
l Ms. Garde ites no authority for her first argument, robably because it could not possibly In serveasabasisforquashingthesubpoena]w.
fact, failure to comply with the subpoena ould more likely jeopardize the public health and safety, because such action only results in delay
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of resolution of any safety problems.
Movant's second argument is equally without merit.
The Commission delegated the authority to issue subpoenas to the EDO in 1982 and incorporated that delegation in NRC Manual Chapter 103-0214. ,S ee l
Attachments 8, 9, & 10.
For various reasons outlined in the attached draft j
memorandum and order, Ms. Garde has not provided I
sufficient factual information upon which the Commission can make a determination that all the
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information that the subpoena requests is protected by the attorney-client privilege or work product doctrine. Appropriate determinations I
l regardidg the applicability of these doctrines can I best be made when and if Ms. Garde testifies in At that time she may response to the subpoena.
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invoke privileges which she believes are l applicable. At this time, her assertions are premature.
II. GAP's " 2.206 Petition" In its 2.206 petition, GAP specifically notes that I it would be inappropriate for Region IV officials ,
or the EDO to be involved in the petition 1 decision. Since 2.206-petitions are addressed to .
the office directors (Nuclear Reactor Regulation ' !
and Nuclear Material Safety and Safeguards) who - l report directly to the EDO, it is clear that the EDO by virtue of his position would be involved in -
.the 2.206 deliberative-process. '
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. . 4 o b"Y James A. Fitzgerald Assistant General Counsel for Adjudications and Opinions Attachments:
- 1. 1/20/87 letter from GAP to EDO and Texas Attorney General 2-6. Correspondence between EDO and GAP
- 7. EDO subpoena to Garde -
- 8. Chilk memo re delegation of --
subpoena authority
- 9. NRC Manual Chapter 103 (Excerpt)
- 10. Chilk memo re issuance of subpoenas w/o prior consultation with Commission
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5 Commissioners' comments or consent should be provided directly l to the Office of the Secretary by c.c.t Tuesday, July 7, 1987. I This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of July 6, 1987 Please refer to the appropriate Weekly Commission Schedule, when published, for a i specific date and time.
l DISTRIBUTION '
Commissioners OGC (H Street)
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I DVERNMENT ACCOUNTADIUTY PROJECT (202)232-8550 55 Conneencut Avenue NW Svae 202 uNnejen. D.C. 20036 January 20, 1987 Victor Stello, Executive Direc:ct 4 U. S. Nuclear Regulatory C:r.m:ssion Washington, D.C. 20555 Jcmes Mattox Attorney General for :n.e Sta:e ;f Texas l Suilding !
Supreme Court 14th & Colorado Austin, Texas 78711
- Re
- South Texas Nuclear Pro;ect
Dear Messrs. Stello and Yattox:
the E
This letter is to :nform your respective agencies (CAP) has formally that begun
- Government Accountabil:ty Pro;ect:nto workre allegations at the South
- preliminary investigat.on Texts nuclear project.
role in advocating l
Since 1980, CAP nas p;ayed a significant j i on behalf of whistleb1:wers and concerned citizens various nuclear on issues power a
I involving saf ety-rela:ed p colems o nuclear power atOur nas seen steadfastly appecacn l facilities.
to ensure tra: :ne government enfe:<;es the nuclear l safety laws and regula:::ns. As a resulttoofexp:se GAP'ssafety-related efforts (alone the same:
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or in concert with otner crqan:zations) severai nuclear l problems, the construct.:n and/or cpera:::n :o teoffi: to operate --
power f acilities -- prev;ously :nougn: The cancelled vere cancelled or pcstponed for furtner rev;ew.c mp;e:+d I;r.mer nuclear power facilities include :ne 98 percen u. ~.and p'.an:. Th:se wn:ch -
plant and the 85 percen: c:mple:ed ; c;.de
- e C:Pancne Feat, vere postponed for far:Ner rev;ew -=
j Three Mile Island, D;asi: Canyon, and aa:erf::: fac;;;;;es.
.; -:r<.ng w; n CAP currently e::ner represents : rand /or former emp;:yees of :ne Scuth approximately Texas project.36 currentThe allegations fr n the -:r<ers range frem grand I [
thef t of nuclear grade steel to eng:neering def ects :n severalThe allegat l
t major Houston safety Lightcomponents.
& Power :: guarantee succentrac Or compliance with
- ncluding but not I
industry limited to:
and federal safety requirements, defects :n :ne instrumentation and con l
t i defects and lack of ccep';ance wi:n federal requisitions in the lack of heating, ventilating, anc 4.c cond::icn;ag system l ,
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compliance c:mpaction: with quality standards in the area of soilsfailure to c:mp; and harassment falsification of requ; ed CA or QC documentation:to adhere to federal l
I and intimidation of pers:nnet'wno attemp:
safety standards.
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, UNITED STATES * <
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l ei NUCLEAR REGULATORY COMMISSION WASHINMON O C 20$$5 W'
- ' :n .%7 ket No. 50-498 l
l Ms. Billie Pirner Gardt.
Mr. Richard Condit Government Accountability Project Suite 202 h
1555 Connecticut Avenue, S.W.
Washington, D.C. 20036
Dear Ms. Garde and Mr. Condit:
'Ee I am in of General receipt Texas.,of your January ?O,1987 letter directed to me and the Attorney Your letter describes investigative activities you plan to undertake relative to allegations you. have received from approximately 36 1 current and/or former employees of the South Texas Project. Your letter also identified the general nature of some of these allegations which appear to .
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i fall within the safety and regulatory responsibilities of the Nuclear Regulatory Comission. Your letter also states that you cannot advise your clients to i l provide their concerns to the Region IV office of NRC. You assert that your experience has been that Pecion IV does not comply with its requirements as outlined in agency procedures. Morcover, you demand that unless NRC provides othei inspection personnel to process thesa allegations, you plan to provide i
those allegations to other fedividuals or organizations.
The South Texas Pro.iect is within ,the jurisdiction of Region IV and that Region is the appropriate organization to review the concerns of your clients. I l
! have confidence that Region IV will properly pursue this responsibility. I have been in contact with Mr. Robert O. Martin. Cegional Administrator for "
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IV, and he assures ce that his staff is therruchly prepared to commit the resources required to appropr'ately resolve the issues which your clients might raise.
As you are aware. NRC is the responsible federal agency for ensuring that safety significant issues are addressed where appropriate. Therefore, I uP94 you to bring forth promptly, or advise yrur clients to do so, to NRC or I
Houston Lighting and Power, any rir ormation you have on deficiencies which
' would have a bearing on nuclear safety. To retain them until ycur own report 18 DreDared and published would not be in the best interests of as?uring the Drompt resolution of legitinate safety concerns.
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NERNMENT ACCOUNTADILIT( PROJECT i 55 Connecticut Avenue. N W Suite 202 sningron. D.C. 20036 (202)232 8550 t
/ERNMENT ACCOUNTABILITY PROJECT
- DWEST OFFICE 24 MARCOS LANE j PLETON , WISCONSIN 54911 l
March 4, 1987 l
l Victor Stello Executive Director Opera tions U.S. Nuclear Regulatory Commission ,
11ashington, D.C. 20355 RE: South Texas Investigation D
Daar Mr. Stello, Your letter of February 18, 1987 regarding our South Texas investigation states that South Texas should be directed to Mr.any f uther communica tions regarding Adminis t ra tor. Bob Martin, Regional Your letter also urges us to bring forth any issues regarding safety to Region IV promptly.
Given the history of I t
issues of nuclear saf ety andincompetence in Rm2 ion IV regarding
- the more recent g priety in R,egion IV I am surprised that you would continue toevidence of impro-advise us to take allegations of nuclear saf aty to your present regional management. Your professed faith a the Regional management can only be bureaucratic posturino, as I seriously doubt prieties whethe; eveninyou confirmed thecan ignore the seriouness of the impro-recent
- by the Of fice of Inspector and Auditor.and continuning investigation -
Mr. Stello, at some point you must assu e responsibliity for the operation in Region IV to insure that the public health and safety are around willing the Region to sacrifice thatIVassurance facilities is protected. You apparently in orf.er to give the public appearance of support for Mr. Martin et.al. Your error
! an judgement is incredible.
l Within the past 18 months we have
, seen evidence and testimony of the improper release of a draf t to Kerr-McGee of ficals, inspection report on the Sequoyan Fuels Corporation f resident inspectors, thethe harassment deletion items and intimidation of l IfProper o manipulation and/or release of from inspection reports, t h <-
Inspection report results enchance the possibility of licensing, the destruction of documents, the f ailure to comply with statutory requirements unde e Freedom of Infortnation Act, r Mlegations of engineering, the failure to properly investigate L l
- Metors in Region IV, technical or hardware deficiencies at "EIoyees that have come forward with concerns,the release of confidentiality of site the cooperation r t I 1
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Attachment 4 i
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g pm tacg A h UNITED STATES i
E NUCLEAR REGULATORY COMMISSION WASHING TON. D. C. 20S56
..... MAR l 01987 t's. Billie Pirner Garde r
1 iovernment Accountability 1555 Connecticut Avenue,yNW, Peniee Sui *e ?02 vashinnten, DC 2n036
Dear Ms. Garde:
I have received your letter n' March 4, 1987, it prompts me to remind ~
you that NRC is the responsible federal agency 'or ensurino that safety .g signf ficant views are aporopria*ely addressed.
I therefore urge you to bring forth promptly any infomatice wou have on deficiencies which ve a would ha bearing your clientson nuclear to do so. safety to P!DC v to Hnuston Lighting and e Power - or To withhold such information would not be in the best interests of assuring the prompt resolution of legitimate safety concerns .
Sincerely,
, b
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.y q374,.
i Victor StelM, Jr.,
Er.ecutive Diractor for operations I
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VERNMENT ACCOUNTADil.lTY PROJECT i5 Connecncut Awnue NW., bre 202 hington. D.C. 20006 (202)232 8550
) WEST OFFICE 1 E. WISCONSIN AVENUE l PLETON, WISCONSIN 54915-8605 March 23, 1987 Victor Stello, Jr.
k Executive Director for Operations i U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 .
REr South Texas Investigation
Dear Mr. Stallo,
Ms Your letter of March 18, 1987 sidestepped the issue of whether I or not you are going to appoint an individual or a task force from NRC's Washington office to accept and/or investigate allegations concerning the safety of the South Texas Project. a
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us. We are very concerned about the safety allegations known to l We investigated.
properly are so concernedthat we intend to insure that they are l j
We do not believe that Region IV is either capable or willing to do that type of investigation. Please advise.
Sincerely, A~
Billie Pirner Garde P b i.
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cc Richard Condit cs I l
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o, 1 ,, UNITED STATES i
a NUCLEAR REGULATORY COMMISSION WA$wshC7oN. D C 20664 April 8.1987 Ms. Billie Pirner Garde Government Accountability 1555 Connecticut Avenue.yNW, Project Suite 202 Washington, DC 20036
Dear Ms. Garde:
a I have received your letter of March 23, 1987 lluelear Power Plant in a significant .
wayof the allegations e y of the S. Texas % ~3, I urge you to bring these issues to NRC for our revi eithin MRC they will be addressed is myAsresponsibility vill be governed by the nature of the allegations ew.
to where and how Assignment within NRC be handled corifidentiality. properly, both in regard to technical re iI can assure you the v ew and in regard to By t'he nature of significant safety issues four letters imply that you have had this info. they must be addressed p therefore Cays we willif beweconstrained do not receive to takeon full rmation theinformation for some time.
steps to acq wi allegations i u re it by other means. thin 30 Sincerely,
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Vi I ello, .
b Executive Director i
for Operations e
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U._._____-.__--_____.______--__.___--._.-._.____._.________.- ._ _ _ - . _ _ - - - . _.a
Witch 9"ates of America ~
NUCLEAR REGULATORY COMMISSION In the matter of: Houston t.ighting and Power .
Company
> DOCKET No. 50-498 50-499
.-70 i:s. Sillie Pire.er Garce l Government Accountability .
l- Project 1555 Connecticut Avenue, fl.W.
Suite 202 Washington, D.C. 20036 -
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YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory l Comission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th ,
day of May- 1387 at 9:00 o' clock A.M. to continue as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or former employees of the South Texas Preject concerning the safety of the South Texas Project, as described in your letter of January 2J 1367 to Messrs. Victor Stallo and James f*attox, and any other allegations which you have received concerning the safety of the South Texas Project, and to provida any records or other documents in your possession or under your custody or control concerning such allegations.
~
y ctor Ste .J Executive Director for Oeerations Nu e RNul atory Comi ssion M4u f/> ,19 87 Ek a c.nlaherg /
nwg f 301) 492-7619
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On retion made promptly, and in any event at or tsefore the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party et whose instance the subpoena was issued, the Comission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable tenas. Such setton should be directed to the Secretary of the Comission, Washington, D.C. 20555.
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,- UNITED STATES . ACTION - GCunningha .
- ' -. - ; NUCfE AR REGULATORY CdMMISSION 1.Os : Dircks
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- S .I W ASHIN GT ON. D.C. 2051s Rehm i / Stello j e
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,*****#, July 20, 1982 DeYoung Regional i
iorrier or twa , Administrator l l l srcattARY ,Barry l
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- MEMORANDUM FOR: William J. Dircks, Executive Director {
} for Operations !
8 FROM: Samuel J. Chilk, Secreta:. 4)
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SUBJECT:
SECY-82-239-DELEGATION 0FjUBPOENA 1.
AUT3ORITY () V -
t l This is to advise you that 'the Coinmission (sith all Commissioners -
j agreeing) has approved the subject paper and has dalegated to S '
i . the Executive Dir2ctor for Operations the authority to issue subpoenas during the course of investigations or inspections, 4 ;
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' with the power to redelegate that authority to the Director,n '
Office of Inspoetien and Enforcement, and to Regional /k I Administrators. The Commission requests that you advise I it in advance of the staff's intention to exercis'e subpoena 3 authority (at least for an initial trial period of about 10 e es).
You should amend . subsections -02 and -03 of Manual Chapter
- 0103 as indicated in the attachment. You should also l8 ~ make any .raquired conforming. changes to other sections of the NRC Manual' and to 10 CFR Part 1. ( 64 b)
Attachment:
6/29/82OGCMemo([r.g
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cc: Chairman Palladinc Commissioner Gilinsky Commissioner Ahearne . .
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- Commissioner Roberts Commissioner Asselstine l OGC OPE ,
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f CONTACT:
A. Bates (SECY) 41400 . Ree's off, too s on..... 4. . . . .tM.-Ek;,
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Attachment 9 1
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U. S. NUCLEAR REGULATORY COMMISSJON NRC MANUAL Volume: 0000' General Administration Part : 0100 Organization E00 i
CHAPTER 0103 ORGANIZATION AND FUNCTIONS OFFICE OF THE EXECUTIVE DIRECTOR FCR OPERATIONS j 0103-01 SUPERVISION The Chairman;Executive Director for Operations (EDO) reports for all matters to the -
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- -
l ings EDO, The and determinations 'as the Commission through the' Chairman, shall may by law be authorized to make. .
W' j and currently informed about matters within its functions. ensure that the Commission is fully 1 0103 02 FUNCTIONS The Executive chapter, Director is specifically for Ope rations, responsible for: subject to other provisions of this 021 and grievance matters and provid!ng. Support services. administrative EEO functio 022 execution of the budget of the Commission.
023 distribution of business among the offices which report to the EDO.
024 preparation for Commission consideration of:
- a. !
the budget estimate for the Commission;
- b. the proposed distribution of appropriated funds according to major programs and purposes; and c.
proposals the EDO. for the reorganization of the major offices which report to 025 consulting with the the appointments of the Directors Chairman prior to the Chairman's initiation of Material Safety and Safeguards, of Nuclear Reactor Regulation, Nuclear and Enforcement. Nuclear Regulatory Research and Inspection l
1 026 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 d' ,
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i Attachment 10 !
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- UNITED STATES Cys:Stello Roe g ' ,, 7
, NUCLEAR REGULATORY COMMISSION
.!- i W As sin o r oN. D.C. 20$55 Rehm Sniezek
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v ,e# erman
, e,,,c o, ts: ,
June 17, 1986 Denton
- sica
- Tany Taylor !
Davis 8 Regions I-V
- 01 -_i i MEMORANDUM FOR: Victor Stello, Jr. >' l
! Exec ti e Director for Operations j 1
l FROM: gamuel . Chilk, Secretary SUBJECT ISSUANCE OF SUBPOENAS WITHOUT PRIOR l CONSULTATION WITH THE COMMISSION l
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This is to inform you that the Commission does not object to
. your exercising final approval over issuance of subpoenas by the i staff without prior consultation with the Commission as outlined -
in your June 4, 1086 memorandum. %
cc: Chairman PalltJino
, Commissioner hoberts ^
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- Commissioner Asselstine i l
t Commissioner Bernthal ,
Commissioner Zech !
OGC ;
I OPE i
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