ML20248D657
| ML20248D657 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/16/1989 |
| From: | Kohn S KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Zech L NRC COMMISSION (OCM) |
| References | |
| CON-#389-8989 NUDOCS 8908110103 | |
| Download: ML20248D657 (3) | |
Text
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KOHN, KOHN &~ COLAPINTO, P.C.
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ATTORNEYS ATLAW N
526 U STREET, NW
'A WASENGTON, DC 20001 VUN 2 019896 '_.
202
- 234 4663 OA occrEnnaa h
p EEBVICEBRAucy SECDf60U MICIIAEL D. KOHN * -
A STEPHEN M. KOHN * **
k DAVID K. COLAPINTO * +
ANN R
ADT June 16, 1989
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- ADWITEDINNi '
ADWMF NDC
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Lando.Zech, Jr.
Chairman-U,S. Nuclear Rerfulatory Commission Washington, D.Q.
20555 Re:
OI Subpoena to Joseph J.
Macktal, Jr.
o NRC Investigation No. 4-89-008 Dea,r Mr. Chairman:
We are writing to request leave to brief the Commission on' issues related to the above-referenced subpoena.
We understand that either NRC. Staff or the Office of Investigations (OI) will be requesting the Commission to enforce this subpoena.
.Mr. Macktal hereby prays that the Commission grant him five (5) working days to respond to any request filed for enforcement of said subpoena.
-o For your information, as of today we have been negotiating with the Office of General Counsel a mutually agreeable arrangement for Mr. Macktal tc be interviewed by OI.. Any enforcement action taken by the ^ommission would be premature as there is nothing on the public record which indicates that Mr. Macktal would not or will not fully
. cooperate with OI.
In fact, Mr. Macktal has agreed to make hincalf voluntarily available in the District of Columbia to be question.ed by OI.
See, Motion for Protective Order, June 13, 1989.
Moreover, Mr. Macktal has never opposed fully cooperating with the NRC.
The public record in this case, specifically the transcribed pages of Mr. Macktal's prior confidential' interview with NRC Staff in 1986, demonstrates that it was Mr. Macktal's former counsel (with the full k.
wiedge and tacit consent of NRC Staff) who instructed Mr.
Macktal not to answer certain areas of inquiry by the NRC.
Furthermore, as you are aware, at the risk of great personal sacrifice Mr. Macktal courageously exposed a practice suppressing testimony about safety concerns in exchange for money.
But for Mr. Macktal's exemplary conduct this l-practice would remain hidden from public view.
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8908110103 890616
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PDR COhMS NRCC CORRESPONDENCE PDR Y
.s A
Lando Zech, Jr.
June 16, 1989 Page Two Mr. Macktal is unemployed and indigent.
He has a family to support and as you know he has been forced to incur considerable legal expenses over the last several months just to have the Secretary of Labor and the Commission review the repugnant and illegal settlement agreement he was coerced into signing by his former attorneys and Texas Utilities / Brown and Root.
Mr. Macktal cannot afford to send his counsel to Texas; however, he has agreed to drive from Texas to Washington, D.C.
to be represented by counsel of his choice during the OI-interviewed'in,ikewise, Mr. Macktal has agreed to beTexas if the NRC would pay the proceeding.
L of his attorneys to travel to the Lone Star state.
Apparently this latter arrangement was acceptable to OI, but for bureaucratic reasons was unworkable.
We suggest that the Commission order the interview to be' conducted in the District of Columbia, or in the alternative, that the NRC pay the transportation costs for one of Mr. Macktal's attorneys to fly to Texas.
The Commission need not vote to enforce the subpoena since Mr.
Macktal is willing to provide the NRC with voluntary testimony.
The only issue before this Commission is the logistical problem of the time and place for the intervjew.
Please be advised'that the parties had agreed to deal with any issues of confidentiality, privilege, and other l
objections at the time of the interview.
We do not anticipate that such potential objections would interfere with Mr. Macktal's ability to fully explicate his safety concerns.
Moreover, we expressed a concern to OI investigators regarding the production of documents requested in the subpoena.
For example, certain documents are not in Mr. Macktal's possession, but are in storage.
We agreed that non-privileged documents which could be readily i
3 obtained would be produced at the time of testimony, and that Mr. Macktal would expeditiously produce any other non-privileged documents in his possession.
We understand that certain employees of the Commission may be hosti]e to Mr. Macktal.
At the Senate Hearings some NRC actions were subject to strong criticism and the Commissioners themselves revealed their personal biases on some of the issues involved in the Macktal case.
Furthermore, without naming names, Mr. Macktal's counsel has l
learned of negative opinions some Commission employees harbor about Mr. Macktal.
If the purpose of the subpoena is to harass Mr. Macktal then issue an enforcement order and ignore his desire to fully cooperate in a good faith effort by the Commission to learn his safety concerns.
s 16 Lando Zech, Jr.
1 June 16, 1989 Page Three We would also like to call the Commission's attention to the fact that, according to the public record, Mr.
Macktal's former-counsel, Bi31ie P. Garde, has reportedly l
represented NRC employees.
For example Judge Thomas F.
Hogan noted on page eight of the slip opinion of U.S.
v.
l Garde, that "one of Ms. Garde's clients is said to be an NRC
(
employee..."
In order to ensure that the Commission's investig'ation into Mr. Macktal's allegations is unbiased we hereby request that the NRC take reasonable steps to avoid any such potential conflicts of interest.
We are more than willing to negotiate this concern with counsel for the NRC; 1
however, we only bring it to the Commission's attention now in order to forestall potential problems which may.arise in negotiating the terms of confidentiality for Mr. Macktal's j
testimony.
But we sincerely hope that the Commission will not resort to punitive actions against Mr. Macktal.
OI's request that the subpoena be enforced should be denied and the Commission should order OI to conduct Mr. Macktal's l
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interview in Washington, D.C.,
or in the alternative, the NRC should pay the requested transportation costs.
We hereby request to present oral argument to the Commission on the issues raised herein and in the Motion for 4
Protective Order, dated June 13, 1989.
Res'pectfully
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_-5 Stephen M.
Kohn Michael D.
Kohn David K.
Colapinto Attorneys for Mr. Macktal f
cc:
Secretary of the commission Charles E. Mullins, Esq.
Sen. John Breaux i
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