ML20101G204

Motion to Modify or Quash Subpoenas.* Requests Mod of Subpoenas Due to Manner in Which Ofc of Investigations Seeks to Enforce Is Unreasonable & Fails to Protect Statutory Rights of Subpoenaed Individuals.W/Certificate of Svc

ML20101G204
Person / Time
Site:	South Texas
Issue date:	06/18/1992
From:	Baer W HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER
To:	NRC COMMISSION (OCM)
Shared Package
ML20101G157	List: ML20101G155 ML20101G204
References
OL, NUDOCS 9206250335
Download: ML20101G204 (43)

Text

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UNITED STATES OF AMERICA Aly$!4M Q, l3 NUCLEAR REGULATORY COMMISSIO ow " 'y},qq 1W H BEFORE TIIE COMMISSION p% s nacen twNcn <JU nm,a m

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HOUSTON LIGHTING k ) Nos. 50-498-OL POWER COMPANY, et al. ) 50-499-OL (South Texas Project, Units 1 )

and 2) )

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AND ) OI Case No. 4-92-003

)

TEN SUBPOENAS ISSUED BY THE )

DIRECTOR OF THE OFFICE OF )

I!NESTIGATIONS )

)

liQIION TO MODIFY OR OUASE SUBPOENAS Pursuant.to 10 C.F.R. 3 2.720 (f) of the NRC's regulations, Houston Lighting te Power Company, et al. and the individuals named in ten subpoenas issued by the Director of the Office of Investigations (together, "Movants") 1/ hereby move the Commission to modify the subpoetas because the manner in l which the OI seeks to enforce them is unreasonable and fails to l

protect the statutory rights of the subpoenaed individuals. 2/

1/ The subpoenas issued by-the Office of Investigations ("OI")

on June 10,.1992 in Case No.--4-92-003 are-appended hereto as Attachment 1.

2/ Motions to quash or modify an OI subpoena are treated as motions under 10 C.F.R. S 2.720(f). See, e.g., Joseeh J.

Macktal, CLI-89-12, 30 NRC 19, 20 (1989).

(continued...)

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2 Movants request that the Commission modify the subpoenas to provide that each individual receive a copy of-any transcript of his interview that is prepared by OI within a reasonable speci.'ued time following the making of the transcript. As a precondition to receiving the transcripts, each of the l individuals (and their counsel) will agree in writing to hold the ,

' transcripts in confidence and not reveal them to anyone other  !

than counsel until OI's interviews are completed. Houston Lighting & Power Company ('HL&Pa) and the individuals are also willing to submit to interviews on a voluntary basis and without subpoenas as long as their rights are protected. Thus, the Movants request, in the alternative, that the Commission quash the subpoenas as unnecessary and direct OI to proceed with interviews on a voluntary basis under terms such as those described above.

FACTUAL BACKGROUND In mid-Apri) of 1992 the OI requested transcribed interviews with certain HL&P personnel (including senior management personnel) in connection with an investigation regarding the denial of a : cess authorization to an individual at the South Texas Project Electric Generation Station. HL&P and i 2/ ( . . . continued)

Under 10 C.F.R. 5 2.720 (f) , and as noted on the subpoenas, the Commission may:

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(1) Quash or modify the subpoena if it is l unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms.

f its management personnel agreed to proceed with these intervie <s voluntarily, and made no objection to the preparation of transcripts, provided that the individuals were supplied with copies of their respective transcripts within a reasonable specified time. These transcripts are needed because HL&P has been made a party to a Department of Labor (" DOL") proceeding concerning the very same facts underlying the OI investigation, and many of these witnesses either have been or may be required to testify in that case or possibly in related civil litigation.

When informed that, due to this situation, the individuals desired copies of their transcripts, OI maintained that its investigatory policies precluded it from providing copies of transcripts to the individuals, based upon a generalized concern that transcripts might be shared with other interviewees.

In several telephone conversations and follow-up letters, counsel for Movants attempted to negotiate a fair and equitable arrangement for conducting the interviews on a voluntary basis in a manner that would protect both the interests of the Movants and the investigatory needs of OI. 1/ In order to remove any OI concerns about the potential that these transcripts might be shared, the individuals (and their counsel) have expressed their willingness to agree in writing that the 1/ See Letter from W. Baer to V. Van Cleave dated April 24, 1992 (" Attachment 2"); Letter from W. Baer to V. Van Cleave dated April 27, 1992 (" Attachment 3"); Letter from W. Baer to V. Van Cleave dated April 29, 1992 (" Attachment 4"),

letter from W. Baer to D. Shapiro dated June 9, 1992

(" Attachment 5"). -

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transcripts would be held in confidence and not be revealed to anyone other than counse) until the OI interviews are completed.

Attachment 2 at 2-3; Attachment 5 at 2. The individuals have also been willing to agree that OI may withhold the transcripts for a specified time (up to 45 days af ter each respective interview) in order to allow the opportunity for interviews to be completed prior to releasing transcripts to anyone. Attachment 2 at 2 3; Attachment 5 at 2. These conditions assure that OI will be able to complete its interviews and have ample time for follow up interviews without any possible risk that the transcripts wculd be shared or released in any way that might impair the integrity of the investigation, while at the same time preserving the rights of the individuals. A/

Despite Movants' willingneas to cooperate and participate openly and voluntarily in transcribed interviews, OI has refused to negotiate terns which address the very serious concerns of Movants in any meaningful way. Instead, OI has .

consistently maintained that it will not provide copies of the transcripts to interviewees within any reasonable, specified time.

1/ In the alternative, Movents proposed to tape-record the interviews. See Attachment 2. OI refused to allow tape-recording despite_the general recommendation contained in the " Report of the Advisory Committee for Review of Investigation Policy on Rights =of Licensee Employees Under Investigation," at 17 (Sept. 13, 1983), that such recording be permitted. None of Movants' proposals would impose any additional cost or burden on the NRC.

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5-Movants believe that it is fundamentally unfair for one arm of the government to take depositions of these individuals, then to withhold their transcripts while they*are forced to participate in a proceeding on the very same matter before another government agency. Accordingly, Movants have reluctantly declined to proceed with transcribed interviews on this basis.

In response, OI has issued subpoenas to compel the testimony of the ten named individuals, but continues to maintain that it has no obligation to, and will not, provide copies of transcripts to the individuals within a reasonable specified time following the interv!.ews. Rather, OI asserts that it will withhold all transcripts until the end of its investigation, and that it cannot specify how long the investigation might take. 1/ This policy, particularly as applied in this case, is fundamentally unfair, discourages cooperation with OI investigations, and deprives individuals of statutory rights they may rightfully assert under the Administrative Procedure Act

("APA"). It is also unnecessary in the context of this investigation.

1/- kn attorney in the NRC Office of the General Counsel has indicated that if f.opies of transcripts were requested by the individuals, he would advise OI to review at that time whether there is good cause for withholding the transcripts.

However, OI itself has stated that it is OI's consistent policy to withhold transcripts until the end of its investigation. The OI investigator in charge of the investigation has specifically stated that OI would adhere to this policy and withhold transcripts of the interviews compelled under subpoena in this case.

-6a ARGUMENT I. THE OI POLICY IS IN CONFLICT WITE SECTION 555(c) OF THE ADMINISTRATIVE PROCEDURE ACT AND IS FUNDAMENTALLY UNFAIR _,,

The OI has determined that it will not provide copies of transcripts on a timely basis to the individuals who testify pursuant to the subpoenas. Enforcement of the subpoenas under

- these terms is a clear violation of Section 555 (c) of the APA, which'provides:

A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.

5 U.S.C. S 555 (c) . 5/

This provision establishes the statutory right of an individual to obtain a copy of a transcript of an interview such as those conducted by OI. It only perndts the withholding of such a transcript upon a showing of " good cause."

OI has not articulated any specific reason for withholding the transcripts in this case, but rather has asserted a blanket policy that  ;

transcripts will not be provided to interviewees, apparently based upon a speculative concern that interviewees might somehow 1/ Courts have reviewed NRC regulations concerning investigatory matters to assure that they afford individuals the minimum rights conferred by the APA, and presumably would review the OI's policy here under the same standards.

See Professional Reactor ODerator Society v. NRC, 939 F.2d 1047, 1051 (D.C. Cir. 1991).

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7 use the transcripts to impede OI's investigation. 2/ Under this policy, OI essentially has established an unrebuttable presumption that a transcript should be withheld. This policy is in conflict with both the plain language of Section 555(c) and Congress' clear intent that transcripts be provided unless there is " good cause" shown for withholding them. 1/

In this case, OI has no reasonable basis for withholding copies of transcripts. Movants are willing to pledge not to share the transcripts, and also will agree to wait as long as 45 days after the interviews before receiving copies of the transcripts. Under these conditions there is no possibility that the transcripts could be used to impair OI's investigation in any way, and accordingly there can be no good cause for withholding them.

2/ ApParently, this was not always OI's view. For example, in the investigations conducted of alleged sleeping on the job of operators at the Peach Bottom plant -- where the need to protect the integrity of the investigation was no doubt at its zenith -- it is our understanding that cartain individuals were provided with transcripts of their interviews with OI investigators. No specific reason why similar arrangements could not be made in this case is apparent.

1/ Clearly, " good cause" under S 555 (c) must amount to something more than merely speculative concern that the transcripts could somehow be used to impede the investigation. Otherwise, a claim.that such speculative

" good-cause" exists could be made in all cases, effectively nullifying the requirement that individuals are normally_

entitled to their transcripts. Accordingly, it is incumbent upon OI to show some specific, concrete evidence that the transcripts will be used to impede its investigation. Cf.

Erofessional Reactor Ooerator Society, 939 F.2d at 1051 (concrete evidence required to justify exclusion of attorney from NRC investigatory interview.)

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8-Additionally, in this instance, the individuals have an unqualified right to obtain transcripts because they will almost certainly involve information germane to an administrative proceeding currently being conducted by the Department of Labor.

Both the House and Senate committee reports which explain how Section 555(c) is to be applied state that interviewees compelled to testify in a nonpublic investigatory proceeding "should . . .

have such copies whenever needed in legal or administrative proceedings." 2/ HL&P is involved in precisely the type of administrative proceeding contemplated by Congress; it has been made a party to a DOL proceeding which involves the very same matters as to which OI seeks to interview these individuals. A number of the individuals subpoenaed by OI have been asked to testify in the initial phases of the DOL proceeding, and any or all of them may be asked to testify in formal hearings. These

, individuals therefore have a compelling need for copies of their on-the-record statements in preparing for this concurrent litigation, and accordingly are entitled to copies under the APA.

Furthermore, Section 555 (c) and its legislative history are absolutely clear that, regardless of whether there 10 agood cause" for withholding copies of a transcript, the interviewee has the right to inspect it. Inspection is to be allowed to E/ S. Rep. No. 752, 79th Cong., 1st Sess., (1945), reprinted in Administrative Procedure Act: Legislative History, 79th Congress, 1944-46, at 205-206 (1946); H.R. Rep. No. 1980, 79th Cong., let Sess. (1945), reprinted in Administrative Procedure Act: Legislative History, 79th Congress 1944-46, at 264-265 (1946). A copy of the relevant language from these reports is appended as Attachmen* 6.

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9 individuals "in order to assure that their evidence is correctly set forth, to refresh their memories in the case of stale proceedings, and to enable them to be advised by counsel." in/

If denied copies of their transcripts, the individuals involved in this case and the concurrent DOL proceeding will likely have need to repeatedly inspect their transcripts in connection with that proceeding. Because the individuals in any event have the right to inspect their transcripts whenever necessary, withholding the transcripts provides little meaningful extra protection to OI's investigation. As a practical matter, however, it would severely disrupt these individuals' efforts to prepare themselves for the concurrent proceeding, necessitating multiple repeated appointments for transcript inspection. A fairer and more straightforward procedure is simply to provide these individuals with copies of their transcripts, with suitable protections to ensure the integrity of OI's investigation.

It is a matter of fundamental fairness that a witness should have copies of prior sworn statements, depositions, or other relevant testimony given to the government before being asked by the government to testify on the same matters in a different forum. There is no legitimate reason to deprive a witness of the benefit of' prior sworn statements, nor is there I

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2 10 any reason to deprive counsel of the benefit of these transcripts during hearing preparation. 11/

This.is of special concern because OI has refused in this case to guarantee that copies of transcripts would be provided even if the individuals themselves were to become the subject of a future enforcement action or order by the NRC. As a practical matter, this position forces such persons to decide whether to contest an order or enforcement action, and to participate in an enforcement conference, without the ability to carefully analyze the evidence upon which it may be based. This can be extremely prejudicial, because orders and enforcement actions growing out of OI investigations have led to the f ing

.or demotion of affected individuals (as recently occurred at Sequcyah Fuels Corporation), 12/ Such a policy serves no legitimato purpose and unnecessarily impinges on the vital interests of affected individuals and licensees.

11/ .It is our understanding that the DOL, which is usually relied upon to conduct the primary investigation of a whistleblower" claims such as that being investigated by OI in this instance, ordinarily provides a witness with a copy of any sworn statement made to the investigator, and apparently_does not believe that withholding witness statements is necessary to assure the integrity of such investigations.

12/ See Order Modifying License (Effective Immediately) And Demand for Information, issued to Sequoyah Puels Corporation on Oct:ber 3, 1991, Docket No. 40-8027, EA 91-067. In that case, the Commission ordered a licensee to remove an individual from licensed activities based on alleged statements by the individual during voluntary interviews with OI. OI refused to allow the individual, or the company, to review the transcripts of those interviews prior to' deciding whether to contest the order.

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11 II. T4E OI POLICY IS UNSOUND The factual background underlying the issuance of the OI subpoenas in this case vividly illustrates that the OI policy is ill-advised. Here, the individuals have continuously been willing to appear voluntarily to be interviewed by OI. See, e.g., Attachments 3 & 4. They have been willing to participate either without transcripts, or with transcripts upon the simple assurance that any transcripts that are prepared would be provided to them within a reasonable time. See, e.g.,

Attachments 2, 4, & 5. Moreover, the individuals have been willing to agree in writing to hold the transcripts strictly confidential for the duration of the OI interviews, and have been willing to agree that OI could withhold the transcripts for a period of 45 days (six weeks) after each respective interview, a period more than sufficient to assure that other OI interviews can be conducted without concern for compromising of the investigatory process. Attachment 5 at 1-2. 11/

The failure of OI to agree to reasonable terms has resulted in repeated telephone conversations and correspondence involving counsel for the Movants and has led to inevitable delay 11/ By way of comparison, the law permits the Department of Labor only 30 days to complete its investigations of the very same matters. See 42 U.S.C. S 5851(b) (2) (A) . In this case, OI has already conducted a number of interviews and reviewed documentary evidence, so the time it requires should be much less. Based on the schedule of interviews provided by its own subpoenas, OI expects to complete the interviews of the ten subpoenaed individuals in only three days, which also indicates that any reasonable follow-up could easily be accomplished in 45 days.

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12 in the OI investigation. In a situation where these individuals were ready and willing to cooperate on a voluntary basis months ago, OI's policy has driven it to waste substantial NRC and licensee time and resources for no obvious benefit.

Finally, the OI policy at issue here has significant adverse implications for NRC practice. It is well-established that the statutory rights afforded by Section 555(c) extend "only to persons ' compelled' to testify or to submit data, and not to those who are merely requested to do so or who do so voluntarily." Attorney General's Manual on the Administrative Procedure Act, I nplementation Memorandum, S 6(b), at 66 (1947).

Thus, if the CL<ission will not by its own policy or by prior agreement (on a case-by-case basis) preserve these rights for individuals willing to act voluntarily, counsel will inevitably advise them to provide testimony to OI only if compelled to do so by subpoena. 11/ This will force OI to obtain subpoenas in many situations where they would not otherwise be necessary, resulting in a more cumbersome process with inherent delays.

Moreover, this more adversarial and legalistic-posture is likely to detrimentally affect the timely and open exchange between NRC investigators and the employees of licensees, thereby reducing 11/ In this case, the OI policy affects a number of senior management officials whose statements to OI might be construed as admissions by their employer and affect their company's legal positions in state and federal administrative or judicial proceedings relating to the same i tatter. OI's policy compels these individuals to choose l between voluntary cooperation with OI and reasonable protection of their own and their company's legal interests.

the effectiveness of OI investigations -- even in cases like this one, where both the licensees and the individuals desire to fully cooperate with the investigation.

CONCLUSION Despite a consistent willingness of Movants to voluntarily participate in transcribed interviews, OI has persisted with a policy that is fundamentally unfair and deprives individuals of their statutory rights. By doing so, OI has forced them to insist upon the more cumbersome and time-consuming subpoena process. Moreover, OI has indicated that it will withhold copies of transcripts prepared in conjunction with subpoenaed testimony without demonstrating any specific good cause for doing so. OI's blanket policy determination that copies of transcripts will never be provided to interviewees within a reasonable time violates Section 555 (c) of the APA, and in this case injures Movants' legal interests for no clear investigatory benefit. When applied to persons who are fully willing to testify voluntarily, such a policy will also no doubt lead to more cumbersome and less effective investigations in the future.

Thus, Movants respectfully request that the Commission modify the ten subpoenas to provide that if transcripts of these interviews are prepared, copies of those transcripts be provided to each individual. If deemed necessary by the Commission, Movants would not object to waiting for a reasonable specified time cercain before receiving copies of the transcripts (such as

14 up to 45 days af ter the interview is conducted), or to agreeing not to share copies of the transcripts with anyone as a condition of their receipt. In the alternative, since the individuals are willing to be interviewed voluntarily (and have transcripts made) without subpoenas, as long as their rights are protected, Movants request chat the Commission quash the subpoenas as unnecessary and direct the OI to proceed without them.

Respectfully Submitted,

/ II Jack R. Newman William E. Baer, Jr.

Newman & Holt:inger, P.C.

1615 L Street, N.W.

Tenth Floor Washington, DC 20036 (202) 955-6600 ATTORNEYS FOR LICENSEES AND THE INDIVIDUALS NAMED IN TEN SUBPOENAS ISSUED BY THE DIRECTOR OF THE OFFICE OF INVESTIGATIONS */

1 f/ In conformity with 10 C.F.R. 5 2.708 (e) , Movants hereby give notice that service upon them may be made to William E. Baer, Jr. at the address noted above.

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CERTIFICATE OF SERVICE j[ DOGITD f

I hereby certify that on June 18, 1992, Housthn J U N '> ' wp m Lighting & Power Company, et al., and the individuals namedninmu E/

ten subpoenas issued by the Director of the Office of !A CUMOE BTMN Investigations (OI Case No. 4-92-003) served copies of j'" MOTIONR /

/

TO MODIFY OR mail, QUASH SUBPOENAS" on the following O >'

by deposlt'fn'the q/ ,V United States certified, returned receipt requested','QU3 properly stamped and addressed.

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Chief, Docketing and Service Section (Original plus two copies)

Ivan Selin, Chairman Kenneth C. Rogers, Commissioner James R. Curtiss, Commissioner Forrest J. Remick, Commissioner E. Gail de Planque, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Ben B. Hayes, Director Office of Investigations U.S. Nuclear Regulatory Commission Washington, DC 20555 Virginia van Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, TX 76011 Daryl M. Shapiro, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 June 18, 1992 ,/ ,

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William E. Baer, 'Jr.

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Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, DC 20036

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Attcchment 1 Mutteh 8tates of Amerita NUCLEAR REGULATORY COMMISSION

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IN THE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: Richard L. Balcom Manager, Nuclear Security Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 TOU ARE HEREBY COADRYDED, pursuant to Section 161 (c) of the Atomic Energy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 30th day of June ,1992 , at 1:00 p.m. to testify in the matter of the employment of Thomas 3. Saporito at the South Texas Project.

including any and all circumstances surrounding his hiring, work history, employment termination, the Oranting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to or have knowledge of regarding this matter.

YOU ARE FURTHER COASRVDED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas 3. Saporito.

BhO THE DIRECT R, OTF1 IAT, 'S I

B =*

DATE Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV '

O.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011

• TELEPHONE: 817-860-8286 On motion made promptly, and in any ennt at or before the time speciGed in the subpoena for compliance by tbc person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Commission may (1) quash or modify the subpoena if it is unreasonable or requires evMence not relevant to any matter in issue, or (2) condition denialof the motion on just and reasonable terms. Such motion should be directed to the Secrettry of the Commission, Washington, DC 20555. Failure to comply with the terms of this subpoena may result in the Commission's seeking judicial enforcement of the subpoena pursuant to Section 233 of the Atomic

. Energy Act of 1954, as amended,42 U.S.C. 2281.

l. Etitch 5tates of Amerita NUCLEAR REGULATORY COMMISSION

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IN THE MAlTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: Rick W. Cink Speakout Investigator Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 YOU ARE HEREBY COADitVDED, pursuant to Section 161 (c) cf the Atomic Energy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 29th day of June ,1992 , at 3:30 p.m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project, including any and all circumstances surrounding his hiring, work history,

' employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

YOU AREFURTHER CO3SitGED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

4 BY ORDJ THI C7 OFTIc;E F TE 'I . '

B va DATE '

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Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made prompdy, and in any event at or before the time spected in the subpoena for compliance by the person to whom the subpoena is dtrected, and on notice to the pany at whose instance the subpoena was issued, the Commission may (1) quash or goodify the subpoena ifit is unreasonabic or requires evidence not relevant to any matter in issue, or (2) condition denial of tbc motion on just and reasonable terms. Such motion should be directed to the Secretary of the Commission, Washington,DC 20555. Failure to complywith tbc terms of this subpoena may result in the Commission's seeking judicial enforcement of the subpoena pursuant to Secten 233 of the Atomic Energy Act of 1954, as amended,42 U.S.C. 2281.

L;. Etteh 9tates of America NUCLEAR REGULATORY COMAUSSION

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IN THE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: D. P. Hall Group Vice President, Nuclear Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 l'OU ARE HEREBI'COAOf(VDED, pursuant to Section 161 (c) of the Atomic EnerEy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 1st day of July ,1992 , at 1:00 p .m. to testify in the ma'ter of the employment of Thomas 3. Saporito at the South Texas Project,

, includina any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site acce:s, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

l'OU ARE FURTHER CO3DLtVDED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

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BY ORD THE D CT 01T3 TE A OS

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TE !A Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made prcmp0y, and in any event at or before the time speciSed in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the pany at whose instance the subpoena was issued, the Commission n ay (1) qur,5b or modify the subpoena if it is unreasonable or requires evidence not stlevant to any eatter in issue, or (2) condition denia) of the motion on just and reasonable ; crus. Such motion should be directed to the Sec-etary of the Commission, Wtshington, DC 20555. Failurt to comply with the terms of this subpoena may result in the Commission's seeking judicia] enforcement of the subpoena pursuant to Section 233 of tbc Atomi

. EnerEy Act of 1954, as amended,42 U.S.C. 2281.

] MutteD 9tates of Amertra NUCLEAR REGULATORY COMAUSSION wxXXos IN TIII MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: 3. Watt Hinson Senior Investigator Nuclear Security Houston Lighting & P,ower Company s South Texas Project P. O. Box 289 Madsworth, Texas 77483

}'OU ARE HEREBY COAOL4NDED, pursuant to Section 161 (c) of the Atomic Energy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 1st day of July ,1992 , at 3:00 p .m. to testify in the matter of the employment of Thomas 3. Saporito at the South Texas Project, including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

}'OU ARE FURTHER CO3GL4NDED to provide the NRC any and all files, recerds, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

BY ORDER THE D Op.

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DATE

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Requested by:

Virginia Van Cleave, Investigator Office of Ir,vestigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made promptly, and in a.ny ennt at or befort the time spectSed in the subpoena for mmphance by the person to whom tbc subpoena is directed, and on notice to the pany at whose instance the subpoena was issued, the Commission may (1) quash or modify the subpoena if it is unreasonable or requires ewdence not relevant to any matter in issue, or C;candition denial of the motion on just and reasonable terms. Such rnotion should tx: directed to the Secrettry of the Commission, Washington, DC 20555. Failure to comply with the tenns of this subpoen a may result in the Commission's seekinE judicial enforament of the subpoens pursuant to Secten 233 of the Atomic

. Energy Act of 1954, as amended,42 U.S.C. 2281.

Mutteh 5tates of Amertra NUCLEAR REGULATORY COMMISSION swr IN TIIE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: Will J. Jump Licensino Manager Houston lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 YOU ARE HEREBr COADL(VDED, pursuant to Section 161 (c) of the Atomic EnerEy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 30th day of June ,1992 , at 8:00 a .m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project,

' including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

YOU ARE FURTHER CO3DL6DED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

BY ORDE TIIE DIRE O O m CE VEST) - 'S BY ^

J .

a " -

/M DA Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made promptly, and in any event at or before the time spec Led in the subpoena for votnpbance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Commission may (1) quash or modify the subpoen ifit is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denia) of the motion on just and reasonable terms. Such motion should be daccted to tbc Secrettry of the Commission. Washington, DC 20555. Failure to comply with the terms of this subpoena may result in the Commission's seeking ju!.icial enfortement of the subpoena pursuant to Section 233 of the Atomic

- EnerEy Act of 1954, as tmended,42 U.S.C. 2281.

~

Mutich 8tates of America NUCLEAR REGULATORY COMMISSION

. x0^)OOOC0x-IN THE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: W. H. Kinsey Vice President, Nuclear Generation Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 TOU ARE HEREBYCOAOL4NDED, pursuant to Section 161 (c) of the Atomic Energe Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas .

on the 1st day of July ,1992 , at 8:00a .m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project,

, including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

YOU ARE FURTHER CO3Df4/mED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

BY ORD - F THI D OFTI DIVE A O B - _ _D v DATE Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made promptly, and in any event at or before the time speciSed in the subpoena for compliance by tbc person to wbom the subpoena is directed, and on notice to the party at whose instance the subpocna was issued, the Commission 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 terms. Such motion should be dtrected to the Secrettry of the Commission, Washington, DC 20555. Failure to complywith the terms of this subpoena m ay result in tbc Commission's seeking judicial enforcement of the subpoena pursuant to Secuan 233 of the Atomic

. EnerEy Act of 1954, as amended,42 U.S.C.2281.

Muitch 5tates of America NUCLEAR REGUIATORY COMMISSION 1:coCOCccm IN THE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: John W. Odom Manager, Human Resources Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 1'OU ARE HEREB}'CO3DioDED, pursuant to Section 161 (c) of the Atomic Energy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas or, the 30th day of June ,1992 , at 4 :00 p.m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project, including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

l'OU ARE FURTHER COAStoDED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

BY ORD THE D CT OFT 1 INVE OS B1 b v'n

.  ;, W&A9u Requested by:

Virginia Van Cleave, Investigator Office of Investigations, Region IV .

U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 ,

TELEPHONE: 817-860-8286 On motion made promptly, and in any event at or before tbc time specified in the subpoena for compbance by tbc

. person to wbom the subpoena is directed, and on notice to the parry at whose instanm the subpocoa was issued, tbe Commission may (1) quash or modify the subpoena if it is unreasonable or requires evidece not relevant to any matterin issue,or (2) condition denit!of the motion on just and reasonable terms. Such m . ion should be directed to the Secretary of the Commission, Washington, DC 20555. Failure to comply with tbc terms of this subpoena may result in the Commission's seeking judicial enforcement of the subpoena pursuant to Secuon 233 of the Atomic

- Energy Act c!1954, as amended,42 U.S.C.2281.

Ll. Enitch 8tates of America NUCLEAR REGULATORY COhD,ilSSION

. ~ m.,

IN DE MAITER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: R. 3. Rehkugler Director Quality Assurance Houston L,ighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 l'OU ARE HEREBT CO3DL&DED, pursuant to Section 161 (c) of the Atomic Energy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 29th day of June ,1992 , at 12:00 p.m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project,

. including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

l'OUAREFURTHER CO3DLWDED to provide the NRC any and all files, recorcs, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or 1bc.t T h w s .1 S.aporito.

BY ORDERppf1II DIRECTO OITICE . YEST1 NS BY DATE O '

f Requested by: f Virginia Van Cleave, Investigator Office of Investigations, Region IV (J.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On motion made promp0y, and in any event at or before the time speeded in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Commission may (1) quash or modify the subpoems if it is unreasor able or requires evidence not relevant to any matter in issue,or (2) condition denial of the motion on just and reasonable terms. Such motion shouH be directed to the Secretary of the Commission, Washington, DC 20555. Failure to comply with the terms of this subpoeoa snay result in the Commission's seeking judicial enforcement of the subpoena pursuant to Section 233 of the Atomic

. Enern Act of 1954, as amended,42 UIC. 2281.

1f Hutteh Biatra of America NUCLEAR REGULATORY COMMISSION

_.:c.gc.:.-

IN THE MATTER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: Daniel P. Sanchez Director, Maintenance Production Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 TOU ARE HEREBY CO3GitVDED, pursuant to Section 161 (c) of the Atomic EnerEy Act of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 29th day of June ,1992 . at 1:30 pm. to testify in the matter of the employment of Thomas 3. Saporito at the South Texas Project, including any and all circumstances surrounding his hiring, work history, employment termine"on, the granting and revoking of his unescorted site access, and any ar_ ell discussions you participated in, were a witness to, or have knowledge of regarding this matter.

YOU AREFURTHER CO3DitVDED to provide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control y taining to any employment related activity of or about Thomas 3. Saporito.

4 BY O OF THE D CTO O O DAT ' $N B' v"

.rE MeMW '

Requested by:

/

Virginia Van . Cleave, Investigator Office of Investigations, Region IV U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On mutkn =ade promptly, and in any event at or before the time spectSed in Lbe subpoena for compliance by the person to whom the subpoena is duected, and on notice to the party at whose instance the subpoena was issued, the Commission may (1) quash or modify the subpoena ifit is unreasonable or requires evidence not relevant to any matterin issue, or (2) condition denia) of the motion on just and reasonable terms. Such motion should be directed to the Secretary of the Commission, Washington,DC 20555. Failure to comply with the terms of this subpoena eay result in the Commission's seeking judicial enforcement of the subpoena pursuant to Secuan 233 of tbc Atomic

. EnerEy Act of 1954. as amended,42 U.S.C. 2281.

Eniteh 9tates of America

~

NUCLEAR REGULATORY COMMISSION

, vc.pr IN TIE MATIER OF: NRC INVESTIGATION CASE NO. : 4-92-003 TO: Mark R. Wisenburg Plant Manager Houston Lighting & Power Company South Texas Project P. O. Box 289 Wadsworth, Texas 77483 YOU ARE HEREhr COAuf4NDED, pursuant to Section 161 (c) of the Atomic Energy Act .

of 1954, as amended, to appear at the South Texas Project, Wadsworth, Texas on the 1st day of July ,1992 , at 10:00 a.m. to testify in the matter of the employment of Thomas J. Saporito at the South Texas Project, including any and all circumstances surrounding his hiring, work history, employment termination, the granting and revoking of his unescorted site access, and any and all discussions you participated in, were a witness to, or have knowledge of regarding this matter.

TOU ARE EURTHER CO3Df4KDED to p! ovide the NRC any and all files, records, correspondence, and personal notes in your custody, possession, or control pertaining to any employment related activity of or about Thomas J. Saporito.

BY ORD . THID , O Om 'VE .

B m Havnt DATE Requested by: / /

Virginia Van. Cleave, Investigator Office of Investigations, Region IV U.S. 6'uclear Regula tory Commission 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 TELEPHONE: 817-860-8286 On rootion made promptly, and in any event a: or before tbc time specifed a the subpoena for compliance by the person to whom the subpoen is directed, and on notice to the party at whose instance the subpoeoa was issued, the Commission may (1) quash or modify the subpoena ifit is unreasonable or requires evidence not relevant to any matter in issue,or (2) condition denial of the motion on just and reasonable terms. Such motion should be directed to the Secretary of the Commission, Washington, DC 20555. Failure to complywith the terms of this subpoeea may result in the Commission's seeking judicial enforcement of the subpoena pursuant to Secuan 233 of tbc Atomic

. Energy Act of 1954, as amended,42 U.S.C. 2281.

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e.. Attcchment 2

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NEWMAN & Hor /rziwonn, P.C.  ! 1615 L STA C CT. N.W. WASHt NGTON. O.C. 20036 s c 00 202 ess seco William E. Baer, Jr. DIRECT DIAL KutGER: (202) 915-6647 TILECCir1Its (202) 872-0581 VIA TELECOPY April 24, 1992 Es. Virginia Van Cleave Investigator, Office of Investigations ' U.S. Nuclear Regulatory CommiEision 611 Ryan Plaza, Suite 400 Arlington, TX 76011

Dear Hs. Van Cleave:

The purpose of this letter is to summarize E&P's position regarding the availability of transcripts of interviews of E&P management personnel by the NRC Office of Investigations ("OI"), which we discussed by telephone on Wednesday, April 22, 1992. The OI has requested interviews with certain Houston Lighting & Power ("E&P") management personnel in connection with , cn investigation concerning denial of access authorization to an individual at the South Texas Project Electric Generation Station ("STPEGS"). HL&P and these individuals are a proceeding with these interviews voluntarily,greeable and my to understanding is that OI does not object to the representation of these management individuals by company counsel. In addition, OI wishes to transcribe these management interviews, but does'not want to allow the individuals to have copies of their transcripts. Based on our conversations my understanding is that this position is based on a concern,that the interviewees could share transcripts with each other or with other potential interviewees. Both E&P and the individuals involved desire to cooperate iully with this invertigation and are willing to proceed with the interviews on a voluntary basie under reasonable conditions. At l ' the same time, however, HL&P has been made a party to a proceeding before the Department of Labor (" DOL") involving the very same facts as are under investigation by OI. There is also the possibility of a collateral state c7urt action on this matter. Accordingly, both HL&P and the individual interviewees l I

       . .)        '

NewxAn & HO15 ZINGER P.C. Ms. Virginia Van Cloave April 24, 1992 Page 2 (who are likely to be witnesses in the DOL proceeding) have an absolute need for complete and accurate records relative to what has been said to both DOL and the NRC. It is fundamentally unfair to require IIL&P and the individual management personnel to participate in a government adjudicatory proceeding (the DOL p >ceeding) without providing them with copies of the statements they have voluntarily made to government investigators. This is especially true where, as here, the NRC and DOL have officially cgreed to share information developed during investigations of cuch matters, and the interviewees' testimony cc.* tid be usod in th.e DOL proceeding. If these witnesses do not have copies of.' their testianony, their ability to adequately prepare themselves to participate in the DOL litigation or other related litigation is seriously prejudiced. To accommodate these concerns while still meeting OI's investigatory needs and assuring the accuracy of the record of the interviews, we suggest the following alternatives, any of which would be acceptable:

1. OI could provide a court reporter to transcribe the interviews, and provide the interviewees with transcripts (at HL&P's expense) of their interviews as soon as the transcripts are prepared;

2. OI could provide a court reporter to transcribe the interviews and provide the interviewees with tran-scripts of their interviews within two weeks of each interview (HL&P would pay for these transcripts). This would permit OI to complete the interviews of others it has requested to speak with before the transcripts are released; 3.

HL&P, at its own expense, could provide a court reporter mutually acceptable to HL&P and OI to tran-scribe the intervjows and provide transcripts to OI at no expense to OI;

4. HL&P, at its own expense, could tape record the interviews and provide copies of these tapes to OI at no expense to OI; and l

   ,i -       -

e . d ,5 I NewitAn & Ilot.rzinorn. P.C. Ms. Virginia Van Cleave April 24, 1992 Page 3

5. OI could provide a court reporter to transcribe the interviews, and allow an HLGP secretary to assist counsel for the individuals in taking notes to assure the accuracy of the transcript.

For each of these options, the interviewees would agree in writing to hold the transcripts or tapes confidential and not chare them with other interviewees or anyone other than counsel until such time as OI's investigation is completed or OI other-wise releases copies of the transcripts. In addition, each individual would be promptly given the opportunity, with counsel, to review and note any inaccuracies in the tape or transcript retained by OI. These options protect the interests of the HL&P personnel interviewed by OI, while also minimizing the impact on the OI investigation. I believe that these options are fully consistent with the recommendations of the Renort of the Advisory Committee for Review of Investigation Policy on Rights of Licensee Employees, submitted to the NRC on September 13, 1983. It might also be possible to agree upon a compromise based on some combination of these options. If none of these options is acceptable to OI, the indivi-duals would nevertheless agree to be interviewed provided no recording or transcript is made. Also, if there are any other conditions that you can identify that may serve both HL&P's and OI's legitimate needs, I would be glad to discuss them. Very truly yours,

                                                    /  h17 ?                   -.

William E. Baer, Jr. WEB / pay , 1 o

_ . . . . . __ _ _ . . ~ . . . - - _ - - _ . _ _ . . _ _ . _ - . . _ _ _ _ . _ _ _ . - _ _

                +     ,
 ,.                                                                                                                                                                        Attachment - ~ 3 -         -

1*-

                  ,       .]                                                      _

NEwn.A.x 8e HOLT 21NGER. P.C. 1615 L ST RCCT. N.W. e-WAS HINGTON. O.C,2 OO 36 -56 0 0 2O2 9SS.6600

                ==m- m. n                   ar.

SMEN DIAL Nt (N2) 915-4447 TItadtFIEta (M2) 47261 April 27, 1992 Ms.? Virginia van cleave Investigator, Office _of Investigations ss U.S. Nuclear Regulatory Commission 611,Ryan Plaza, suite 400 . Arlington, TX 76011-

Dear Ms. Van cleave:

This is.to update you concerning the availability of individuals that the Office of Investigations ("OI") wishes to interview, as well as to advise you of our view of the right of Mr. R.W. Cink to counsel during an OI interview. With respect to the availability of individuals that you inforneo me OI desires to interview, during the week of May 4, 11992, these individuals will be available as follows: Name Availability- ', R.'Balcom All week - ' R. Cink All week D. Hall May 5 only J.W. Hinsen All week W. Jump All week W. Finsey May 5 only J. Odom May 4-7 only R..Rehkugler All week D. Sanchez All week Asjyou can see, all of these witnesses will be available at come time during the next week.- There may be particular times on

             -particular' days when-certain individuals are not available;
            -however, I_think that-any schedule difficulties can be resolved.

e I _ ~ _ . _ . . . _ - _ . . . _ _ _ _ _ _ . _ . _ . . _ . _ . _ _..__ _ - - _ . _ -

s-Newxa & HotTzmorn. P.C. i Ms. Virginia Van Cleave April 27, 1992 POge 2 Of course, should you wish to:. transcribe any of these interviews, we would need to come to a sutually acceptable position on the availability of transcripts, an discussed in my 1ctter dated April 24, 1992. With respect to Mr'. Cink 's right to counsel, you have

        ~

informed me that it is OI's policy to allow company counsel to represent only management personnel, and that, because you do not believe Er. Cink to be in that category, you would object to the presence of company counsel,during his interview.1/ I believe that based upon his . position; 'the nature of his responsibilities, the' level of discretion exercised by him in the conduct of his . cctivities, and the fact that NRC ,ind DOL typically hold companies accountable for reports and investigations of the type ha prepares, Mr. cink does qualify as a management individual.

      'In any event, however, Mr. Cink has requested that I represent him (he made this request several weeks ago during your initial visit to the South Texas Project Electrical Generating Statio1

("STPEGS") to investigate this matter), and he has an absolute right to counsel of his choice. Sea Professional Reactor Ooerator's society, et al. v. NRC, July 1991. In sum, Mr. Cink wishes to cooperate with OI and is willing to be interviewed, but not without the counsel of his choice. Please let me know which individuals you would like to interview next week so that appropriate interview times and dates can be established. In addition, please do not hesitate to call if there are any other matters that we should discuns. Very truly yours, 3

                                                    /  Y/   -

William P. Baer, Jr. WEB / pay - i 1/ I understand that there have been numerous instances in

which OI has allowed 'ompany counsel to represent non-l management individuals, so I am not really sure that any l

firm po?lcy exists. l

.    . 4' i' #                                                                                          Attachtent 4 N EWMAN & HOLT 21NG E R. P.C.

O tGIS L STRECT. H W-w ASNINGTON. O.C. 20036 56eo 202 955 6600 Villiam E. Baer, Jr. 31 RECT DIAL FJHE n (202) 955-6647 TYI2corini (202) 872-4581 MIA TELECOPY April 29, 1992 Ms. Virginia Van Cleave Investigator, Office of Investigations U.S. Nuclear Regulatory Commission 611 Ryan Plaza, Suite 400 Arlington, TX 76011

Dear Ms. Van Cleave:

This is to confirm our telephone conversations of April 28 and 29, 1992, regarding interviews by the Office of Investiga-tions ("OI") of management individuals at the South Texas Project Electrical Generating Station ("STPEGS"). With respect to the availability for interview of Mr. Mark Wisenburg, he will be available during the week of May 4, 1992 on Thursday and Friday only (May 7 and 8, 1992). With respect to individual interviewees' rights to review the copies of their transcripts, you have told me that the individuals would probably be allowed to inspect copies of their transcripts approximately 5 days after the completion of their interviews, provided that OI has completed its interviews on this matter at STPEGS. Counsel would be allowed to accompany the individuals during the review o' their transcripts. However, you also noted that, should OI decide that further interviews at STPEGS are necessary, the review of the transcripts could be delayed. In response to my letter dated April 24, 1992, OI has proposed that-it would not share the transcripts of interviews of the management personnel with-the Department of Labor (" DOL"), or, in the event that the transcripts were turned over to the DOL, they would also be made available to the individual interviewees at that time. OI would also provide the transcripts to the individuals at the completion of OI's investigation of this matter, though no time at which this will occur can now be specified. OI would not guarantee, however, that the individuals would get copies of their transcripts in the event that they were

                  ._.    .          ..     . . _ _ ~ _ _ __   _       .. _ _-

? . NewxAN & HoLTaworn. P.C. Ms. Virginia Van Cleave April 29, 1992 Page 2 turned over to other Federal agencies, such as the Department of Justice. Also, you did not believe OI could guarantee that the transcripts would be provided to the individuals at the time any NRC order or enforcement action involving the subject matter of the investigation were issued against HL&P or the individuals (you agreed to check on this). This proposal has been carefully considered, and we have concluded that it does not adequately protect the interests of the individuals that OI desires to interview. First, as mentioned in my letter of April 24, 1992, it seems fundamentally unfair to deprive these individuals of transcripts of their statements, and the proposal does not address this problem. Second, as also noted in my letter of April 24, llouston Lighting & Power Company (HL&P) is involved in litigation before the DOL concerning the very same matters as are under investigation by OI, and these individuals are likely to be witnesses in those proceedings. In addition, there is the possibility of collateral state court litigation on the same matter. Even if OI agrees to provide copies of the transcripts to individuals at the same time as they are released to the DOL or other parties, forcing these individuals to participate in that litigation without the benefit of their prior on-the-record statements severely prejudices their ability to prepare for the litigation and forces them to run the risk that the testimony they provide to OI might someday be used as a' basis for challenging the results of the litigation or reopening the litigation. Also, with respect to the commitment not to share the transcripts with DOL, I am not sure that OI has the authority to make such a commitment in view of the NRC's official policy that the NRC and DOL " agree to share and promote access to all information (they obtain) concerning a particular allegation." Een Memorandum of Understanding Between NRC and Department of Labor, Employeo Protection, 47 Eed. Reg. 54585, December 3, 1982. Third, OI apparently will not guarantee that individuals will be provided copies of their transcripts even if the NRC issues an order or takes other enforcement action on matters involved in this investigation. This would put both HL&P and its management individuals in the position of having to respond to an NRC order or enforcement action without being able to review the evidence on which it is based. Such a situation (which I understand has occurred in previous cases) is extremely unfair and presents an unacceptable risk.

a

          .g*    .

N ewnAn & HoLTrtwor.H. H C. o Ms. Virginia Van Cleavo April 29, 1992 Page 3 Finally, under normal circumstancos thoso individuals are entitlod to copies of their transcripts under the applicable provision of the Administrative Proceduro Act. Sec 5 U.S.C. 5 555. I also understand that thoro have boon a number of past casos in which OI has allowed individuals to have copios of

            ' transcripts of their interviews with OI investigators.                                                                                         The only    ,

basis 0I has provided for not allowing the STPEGS individuals to have "opios of their transcripts is a generalized investigatory policy based on a porco1vod concern that interviewoos might share transcripts with other intervievees or prospectivo interviewees, thereby somehow potentially projudicing OI's investigation. No specific facts or conditions involved in this invoutigation which substantiate this concern or othorviso demonstrato any otrong need for withholding the transcripts from the individuals interviewed have been identiflod. In addition, as noted in my lotter to you of April 24, 1992, each of the individuals involved is willing to agroo in writing that he will not sharo copios of the transcript with anyone except counso) (counsel would also agroo to be so bound). Such a procedure is a standard practico in various types of legal proceedings, and would protect the interests of both those individuals and 01. As noted in my lottor dated April 24, 1992, the individuals would also be willing to wait two weeks before receiving transcripts (allowing interviews to be completed in the intorim) if 01 fools this would help secure the integrity of its investigation. I want to reiterate 'that both HL&P and the int, viduale that OI desires to interview wish to cooperate with this 'savcetigation provided that their rights and legitimato interests arn adequately protected. As noted in my letter dated Apr.' 24, 1992, those individuals are willing to voluntarily be interviewed either on the basis that they receive copies of their transcripts, or that no transcript of the interview is inado, or under arg of the other proposals set forth in that letter. Please call me should you wish to discuss those matters further. Very truly yours, f(fffb William E Baer, Jr. WEB / pay

__.c_-_-

 %. , 1    ,,                               r-h  .

k_I Attachment 5 NztWMAN & HOLTZINOl!H. H C. 10 6 6 L S T H t ti. N, w . W A 5HINGTON. O.C. 70036 56e0 70P.98 6 6600 tilliam I:. Saat. Jr. 01HC7 DIAL ImKras (202) 95$-4647 fnJntPIlts (202) ted-4341 BY TI1EC01MER Juno 9, 1992 Daryl n. Shapiro, Esq. Office of the General Counsel U.S. Nuclear Regulatory Commission One White Flint North . 11555 Rockville Pike Rockvil10, HD 20052 Rot Interviews of Ilouston Lighting & Power Company ' Personnel by NRC Office of Investigat1RDB Dear Mr. Chapiros This in to confirm our recent conversations concerning interviewc of Ilouston Lighting & Power Company (*lE&P") personnel by the NRC Office of Investigations ("OI"). You have informod me that OI plans to issue subpoenas for a number of IE&P personnel. Based npon my conversations with Ms. Virginia van Cleave of OI, my understanding is that thoso individuals include D. IIall, W. Kinsey, M. Wisonborg, W. Ju.'p, D. Dalcom, J. Odom, R. Rehkugler, W. Illnson, D. Sanchez and R. Cink. You also agreed to let me know which interviews OI plans to transcribe. In order to save time and effort by overyono concerned, those individuals have authorized me to accept service of the subpoonas on their l behalf, and do not plan to contest service. Because llL&P and the affected individuals desire to volun-tarily cooperate with OI's investigation, I wau disappointed that we were unable to reach an agreement which would assure the individuals to be interviewed that they would receive copies of their transcripts on a timely basis. As we diccussed, these individuals the transcription are villing of theirto bo interviewed and do not object to interviews. L 11owever, because of the concurrent Department of I. abor litigation on this matter and the possibility of later enforcement acwions, they are unwilling to proceed with transcribed interviews without such assurance. l l

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Daryl H. Shapiro, Esq. June 9, 1992 Page 2 With respect to 01's concern that release of tho transcripts might somehow impair the integrity of the investigation, the individuals also are willing to agroo in writing not to share their transcripts with anyone but counsol until 01 completos its interviews, and are willing to wait for a reasonable specified time (such an up to 45 days after the interview) before having copies of the transcripts provided to them. Such an arrangement would preclude any possibility that the release of the tran-ceripts could somehow impair the integrity of the investigation, cnd, given the actual nature and scopo of this investigation, would provido amplo timo for any necessary review and follow-up interviews prior to the titao the transcripts would be given to the individuals. Under these circumstances, it is not clear why the individuals' legitimato concerns cannot be accommodated, thereby avoiding the entiro subpoena process.

leano let no know when you plan to serve subpoenas we can then prc, coed to schedulo any of the interviews that OI wishes to conduct without transcription while the issue of transcribed interviews is resolved. Altso please do not hesitate to call me if there is anything that we might usefully discuss.

Very truly yours, 01 T William E. Baer, Jr. WED/ pay cc Ms. Virginia Van Cleave URC Office of Investigations 1

ATTACHMENT 6 LEGISLATIVE IIISTORY OF SECTION 555(C) OF TIIE ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 555(C))' (b) INVESTIGATIONS. - Investigative process la not , t r' he issued or enforced except as authorized by law,

        %th'1s compelled to submit data or evidence are vt' Lied to retain or, on payment of costo, to procure copies except that in nonpublic proceedings a witness may for good cause be limited to inspection of the off1cial transcript.

This section is designed to preclude " fishing expeditions" and investigationc beyond the jurisdiction or authority of an agency. It applied to any demand, whether or not a formal subpoena is actually issued.

        "Nonpublic investigatory proceeding" means those of the grand jury kind in which evidence is taken behind closed doors.                  The limitation, for good cause, to inspection of the official transcript is deemed necessary where evidence is taken in a case in which prosecutions may be brought later and it is obviously detrimental to the due execution of the laws to permit copies to be circulated. In those cases the witness or his counsel may be limited to inspection of the relevant portions of the transcript.                                              Parties should in any case have copies or an opportunity for inspection in order to assure that their evidence is correctly set forth, to refresh their memories in the case of stale proceedings, and to enable them to be advised by counsel. They should also have such copies whenever needed in legal or administrative proceedings.:
 */     betion $55 ten mas crislamuy promulgated as Netion kh) of the Administrothe Prwalur, Act of 1945. It sunbia, as sowndal,in substantially the sanw form.
 ** /   Reprinted from: S. Rep. No. 752, 79th Cong., let k a., (19451, repressa be Administsatin lYwnture Acts 14i alatin IIisters, 7%h Congma, 164446, et 20$.206 (16461; !!.R. Rep. No- 19150, 79th Cong., let bas. (1944, reprmsed se Administrothe Prwature Art:

Igislathe matary,79th Congma 164446, et 264 265 (1646L 'Ibe quoted test is identical in hath the benste and flouse reports.}}