ML20235C842

Urges Commission Denial of Gap 870529 Motion to Quash Subpoena Issued by EDO for Appearance of B Garde to Present Info Re Plant Safety Allegations & Denial of 10CFR2.206 Petition.Util to B Garde Encl

ML20235C842
Person / Time
Site:	South Texas
Issue date:	06/11/1987
From:	Newman J HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20235C774	List: ML20235C773 ML20235C842
References
FOIA-87-464 2.206, OL, NUDOCS 8709250033
Download: ML20235C842 (17)

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NzwxAw & Hor;rzINGER, E C. bb JACK R. NEWMAN ISIS L STREET, N.W. . WILUAM E. SACR, JR, JOMN E. MOLTZINGER. JR. DOUGLAS L. DERESFORO MA OF WASHINGTON, D.C. 2003 6 A A T{N

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UGL G. GREEN AN R W N GREENE' MAROL LYN NEWMAN PAMELA A LACEY JOHN T. STOUGM,JR FRANK R LINOM JAMES 5 VASILE KEVIN J UPSON MICHAEL A. SAUSER p KATHLEIN M. McDERMOTT lLVIN M GUTTERMAN JEFFTC B. MULMALL' EDWARD J. TWOMEY ,_ I l , ERROL R PAtTERSON JJ.MES S WILCOK JR # JANE 1.RYAN KEYIN P GALLEN - I PAUL J. SAVIDGE*

THOMAS A. SCMMUTZ DONALD J. SALVERMAN MICHAEL F MEALY l JACOLYN A. SIMMONS RosERT e. WMiTE RosERT M. SOLOMON SCOTT A MARMAN JOSEPH E. STUBBS STEVEN P. FRANTI NANCY A. WHITE' OAvlO 3 RASKIN ROSIN T. WIGGINS*

ROsERT LOWENSTEIN W AOteIYTED IN O C HElsERra COMN CINEST C. SAYNARO.111 OF COuwSEL June 11, 198' Samuel J. Chilk, Secretary Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Houston Lighting & Power Co., et al.

South Texas Project, Units 1 & 2 Docket Nos. 50-498 OI, 50-499 OL

Dear Mr. Chilk:

Houston Lighting & Power Company (HL&P) is in receipt of two documents filed by the Government Accountability Project (GAP) on May 29, 1987: first, a motion to quash a subpoena issued by the Commission's Executive Director for Operations (EDO) to Ms. Billie Garde to appear and present information which Ms. Garde claims to have regarding the safety of the South Texas Project (STP), and second, a petition pursuant to 10 CFR S 2.206 regarding the STP.

HL&P urges the Commission to deny both the motion and the 2.206 Petition and to continue investigation of the allega-tions purported to be in the possession of Ms. Garde. The Commission's obligations to protect the public health and safety require it to explore fully any allegations that there may be i safety significant deficiencies in a nuclear power plant.

HL&P, has itself, actively sought to obtain GAP's cooperation in assuring that the allegations are investigated.

When the first press accounts of the allegations appeared, HL&P l

8709250033 070922 PDR FOIA RUBINTOs7-464 PDR s

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,,-  : s Nzww w & Hot.Tztwoza, P. C.

Samuel J. Chilk June'll, 1987 Page 3 Commission, including compulsory testimony and document produc-tion. 'The' Commission should proceed with this investigation in the manner it deems most appropriate.

Motion to Quash Aside from its condemnation of Commission officials who might investigate its allegations, GAP identifies two basic legal grounds for quashing the subpoena. Neither is of any substance.

1. The EDO Lacks Authority To Issue The Subpoena The Commission's authority to issue the subpoena is clear under Section 161(c) of the Atomic Energy Act. The EDO has broad statutory authority to act on the Commission's behalf pursuant to Section 209(a) of the Energy Reorganization Act and the Commission's regulations (10 CFR S 1.40).

2. The Information Sought By The Subpoena Is Privileged GAP claims that the information sought by NRC is shielded from discovery because it is confidential attorney / client communication or constitutes attorney work product. Neither claim provides a basis for quashing the ,

subpoena unless it is proven that all relevant information in the -l possession of the witness is protected from discovery. In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 429, 437-40 (E.D. Pa. 1981). It appears from the face of GAP's pleadings that Ms. Garde possesses information which is neither privileged nor protected from discovery. Further, GAP's all encompassing claim of work product protection is insupportable.

Ms. Garde argues that the attorney / client privilege serves as a complete bar to the enforcement of the subpoena, but her Motion to Quash and accompanying affidavit show that much of the information in her possession is not protected by the privi-lege. First, it appears that a number of the individuals who provided information to Ms. Garde are not represented by her at all and, therefore, have no claim to any attorney / client privi-lege. Ms. Garde's January 20, 1987 letter to Eqssrs. Stello and Mattox states that " GAP currently either represants or is working with approximately 36 current and/or former employees of the South Texas Project." (Emphasis added.) Whatever is meant by

" working with," it obviously falls far short of any possible

o

• NdwwAw & Hot.Tzzworn, P. C.

Samuel J. Chilk June 11, 1987 Page 4 attorney / client relationship. Accordingly, at least some j individuals have apparently provided information to her outside l the attorney / client context.

Second, where Ms. Garde has been " retained to represent j employees in litigation against their employers and/or to provide advice regarding disputes and potential disputes with their employers" (Garde Affidavit, 1 3), communications between these clients and Ms. Garde may, under certain conditions, be protected by the attorney / client privilege. The privilege, however, does not extend to communications mede by those employees who .

contacted Ms. Garde for the primary purpose of investigating and i reporting " safety concerns that they wanted pursued by the NRC."

Id. at 1 2. The retention of Ms. Garde to investigate and report j to the NRC safety concerns which the employee, for whatever-reasons, chooses not to report himself does not constitute legal services. The service provided by Ms. Garde in this vein is not any different than that performed by a lay investigator or detec-tive whose employer requests that his identity remain anonymous.

Non-legal services such as these are not protected by the attorney / client privilege. See Underwater Storage, Inc. v.

United States Rubber Co., 314 F. Supp. 546, 548 (D.D.C. 1970).

Ms. Garde also argues that she is prohibited from disclosing the identity of her clients by her obligations under the attorney / client privilege. Even assuming, arguendo, that the attorney / client privilege is applicable to her communications with these persons, Ms. Garde's contention is without merit and is contrary to the law. The courts widely and uniformly hold, as a general principle, that the attorney / client privilege does not protect the identity of the attorney's client. _3/ In re Grand 3/ The rationale for the general rule is a simple one:

The existence of the relation of attorney and client is not a privileged communication. The privilege pertains to the subject matter, and not to the fact of the employment as attorney, and since it presupposes the relationship of attorney and client, it does not attach to the creation of that relationship. So, ordinar-ily, the identity of the attorney's clierit, or the name of the real party in interest, and

, the terms of the employment will not be

( considered as privileged matter.

N.L.R.B. v. Harvey, infra, 349 F.2d at 904 (quoting Behrens v.

Hironimus, 170 F.2d 627 (4th Cir. 1948)).

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, - NawwAx & HoLTuxoom, R C. -

i Samuel J. Chilk  !

June 11, 1987 j Page 5~

Jury Investigation, 631 F.2d 17, 19 (3d Cir. 1980), cert. denied,  !

sub nom. Tinari v. United States, 449 U.S. 1083 (1981); i N.L.R.B. v. Harvey, 349 F.2d 900, 904-905 (4th Cir. 1965).

I Finally, GAP claims a broad " work product" privilege j for records or documents in Ms. Garde's possession pertaining to j the safety of STP. She contends that all of these records and i documents are protected from' disclosure by the work product rule. .

Contrary to Ms. Garde's assertion, however, the work product rule )

does-not confer upon the subpoenaed records an absolute .;

protection against discovery.

l First, the rule applies only to materials prepared in

" anticipation of, litigation." Allegations provided to Ms. Garde  ;

for purposes of securing an NRC investigation of individuals' '

concerns, rather than in connection with a potential Department of Labor proceeding, for example, are not provided in anticipa-tion of' litigation and therefore are not protected work product.

See', e.a., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C.Cir. 1980). '

Secondly, even if some of the information in.,Ms.

Garde's possession is work product, it may nevertheless be discovered for " good cause" shown. Given the strong public interest involved in a thorough, orderly investigation of ,

potentially significant safety matters, there is good cause for '

requiring disclosure. As stated by Ms. Garde's attorney (Mr.

Roisman) in a recent pleading on behalf of another client in the Comanche Peak proceeding:

The logical extension of [ Applicant's claim of work product protection]'is that so long as a document is prepared with an eye to possible use in any litigation it and the materials and methodology used in preparing it can be with-held from disclosure to the NRC even though it contains information that is vital to the NRC in carrying out its health and safety func-tions. Needs far less significant to the public than protection of life and health have been found to be sufficient to compel produc-tion of documents prepared by attorneys or at their direction and under their control and even where the attorney-client privilege is involved.

Consolidated Interveners' Reply,to TUEC's Opposition to Motion to Compel Re: Gregory Discovery (Sets 5 and 6) dated April 20, 1987 (citations omitted).

Nzwwa.x & Ho!.T21N3sn. P. C.

Samuel'J. Chilk June 11, 1987 Page 6 Finally, to the limited extent that the work product rule apo?ies at all, it would be limited to' documents (or poluions whereof) which record the lawyer's thought processes and mental irancessions, and would not affect the ability of Ms. Garde to. provide testimony in response to the subpoena.

Individual determinations regarding whether the attcr-ney/ client privilege or the attorney work product rule apply to the information sought by the subpoena can best be made when Ms.

Garde testifies in response to the subpoena.

I The Section 2.206 Petition The Motion to Quash was accompanied by another document addressed to the Commission, this one styled as a petition pursuant to 10 CFR S 2.206 (GAP Petition). The GAP Petition reiterates the basic arguments of the Motion to Quash (i.e., that GAP has received certain " safety allegations" related to STP and that Region IV and Mr. Stello cannot be entrusted with their investigation), and requests that the Commission order a special investigation of the STP and direct that the investigation team not include members from Region-IV and not be under the supervision of Mr. Stello or his staff.

Section 2.206(a) permits any person to file a request for sp.acified NRC Office Directors "to institute a proceeding pursuant to S 2.202 to modify, suspend or revoke a license, or for such other action as may be proper." The Petition must specify, among other things, the facts that constitute the basis for the request."

The GAP Petition asserts that GAP has received a number of " safety allegations", but fails to specify any supporting facts. GAP Petition at 1. GAP cannot invoke the Section 2.206 process and at the same time refuse to provide any of the alleged facts which form the basis for the requested action. See, o.a.,

' Duke Power Co. (Oconee Nuclear Station, Units 1, 2 and 3), DD-79-6, 9 NRC 661 (1979). A Section 2.202 proceeding might be appropriate only after completion of such an investigation, not before any facts are known or asserted.

This inadequate attempt to invoke Section 2.206 should not distract the NRC trom the basic issue of how to proceed in the face of GAP's refusal to disclose the " serious safety allega-tions" allegedly in its possession. GAP Petition at 1.

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NzwwAn & Ho3.T21NOER E C.

Samuel J. Chilk June 11, 1987 Page 7 I

t By its Motion to Quash and its Section 2.206 Petition, GAP is seeking to dictate to the Commission how it manages NRC resources. It implicitly refuses to provide its allegations to the NRC unless and until NaC agrees to GAP's terms regarding the manner in which NRC employees should be assigned to investigate them. The Commission need not accede to such pressure. It has the authority to compel the disclosure of the allegations and to determine for itself how they should be handled.

If the concerns expressed by GAP -- that the inability, unreliability or incompetence of Region IV and/or the EDO and his Staff will Jepede the investigation -- have any substance, GAP will be free to point out deficiencies in the investigation after it is completed and to seek appropriate relief at that time.

GAP has made very serious allegations and has since refused to provide any specifics that can be investigated without further information. WJ urge the NRC to investigate these allegations. The testimony of Ms. Garde is a necessary and appropriate step in such an investigation. Ms. Garde's claim that she cannot testify because of her professional relationship to various unnamed individuals is not supported by sufficient evidence to meet her burden of demonstrating that no relevant information can be obtained through her testimony. Accordingly, we urge that the Motion to Quash and the accompanying Section 2.206 Petition be denied.

Respectfully submitted, ack R. Newman' AAVW Attorney for Houston Lighting &

Power Company, Project Manager of

- the South Texas Project, acting herein on behalf of itself and the other Applicants, CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS

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April 6, 1987 Ms. Billie Garde IPdfl /7[F T l Director of the Midwest Office b Government Accountability Project A.PR 0 91987 3424 N. Marcos Lane Appleton, Wisconsin 54911 ,_MrQ Q l Newman & Holtzinger, P.C.

Dear Ms. Garde:

In response to your lettir of March 27, 1987, please be advised that Houston Lighting & Power Company is very skeptical that any further dialogue (

with GAP would be constructive. Although we are ready to utilize our SAFETEAM organization to perform investigations of any concerns related to nuclear safety or quality at the South Texas Project, we believe that protracted discussion with your organization is wasting valuable time that <

could be better spent investigating such matters.

Your obvious Icw regard for SAFETEAM, which is consistent with the manner in which GAP has criticized other nuclear projects, prompts us to again urge that you immediately share your concerns with the Nuclear Regulatory Commission. Your letter suggests that you have sought " guidance" from the Nuclear Regulatory Commission but "have not received a response".

That statement is puzzling. In fact, you have received a response from Mr. Stello by letter of February 18, 1987 (available in the Nuclear Regulatory Consnission public document room) in which you were assured of the availability of Nuclear Regulatory Commission resources to resolve issues your clients might raise. That letter concluded that failing to bring forth information promptly "would not ba in the best interests of assuring the prompt resolution of legitimate safety concerns".

Your letter states that Houston Lighting & Power and its contractors have been made aware of serious safety concerns through internal processes.

The innuendo is that nothing has been done. To the best of our knowledge, every such matter brought to our attention or those of our principal contractors has been investigated and resolved or is the subject of a pending investigation. If you have information to the contrary 3 please tell us.

The statement in your letter concerning information obtained during discovery for the Goldstein case and and the conclusions which you have dfswn from that information are presumptuous at best. Contrary to your statement, a comparison of the interview transcript and the Investigation report reveals that each of the issues raised during the interview were understood, investigated, and conclusions drawn based upon the facts. In any event, as you well know, the Goldstein case has been adjourned. When it resumes later this year, the defendant will present its case and a conclusion will be reached based upon all the evidence.

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Houston Lighting & Power Company Ms. Billie Garde April 6, 1987 Page 2 I reiterate our suggestion that you try our SAFETEAM system as modified to meet your concerns with respect to any matter of potent.fal safety consequences. In the meantime, however, we are taking steps to request appropriate government officials to obtain from you or your organization information which could potentially affect the safety of the South Texas Project. If such information exists and is furnished to us, we .

will spare no effort in pursuing its resolution.

In closing, let me add at the risk of being immodest, that the South Texas Nuclear Project is managed by experienced professionals of the highest integrity. Our concern for public safety is of paramount importance. Any suggestion by your organization to the contrary is not supported by the record. Our concern for protecting the public and the plant is demonstrated by our dogged determination to unearth weaknesses wherever they can be found .

and dealing with them. SAFETEAM is but one of many techniques that we

' utilize in that effort. While our SAFETEAM program is not perfect, I believe it to be among the very best in the country.

VerytrulyyouJs, J. H. Goldberg Group Vice-President, Nuclear JHG/JEG/sd cc: Chairman L. W. Zech Commissioners K. M. Carr T. M. Roberts J. K. Asselstine F. M. Bernthal Exec. Dir. V. Stello Reg. Adm. R. D. Martin Dir..I & E J. M. Taylor owners T. V. Sneckley A. vonRosenberg M. B. Lee u

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S UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION In the Matter of )

)

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET AL. ) 50-499 OL

)

(South Texas Project, Units 1 )

and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the letter to Samuel J.

Chilk from Jack R. Newman, dated June 11, 1987, have been served on the following individuals and entities by deposit in the United States mail, first-class, postage prepaid, or by arranging for messenger delivery as indicated by asterisk,

-on this lith day of June 1987.

Lando W. Zech, Jr., Chairman

• David S. Rubinton*

U.S. Nuclear Regulatory Commission Richard E. Condit*

Washington, D.C. 20555 Government Accountability Project 1555 Connecticut Avenue, N.W.

Commissioner Thomas M. Roberts

• Suite 202 U.S. Nuclear Regulatory Commiscion Washington, D.C. 20036 Washington, D.C. 20555

. Anthony Z. Roisman*

Commissioner James K. Asselstine* 1401 New York Avenue, N.W.

U.S. Nuclear Regulatory Commission Suite 600 Washington, D.C. 20555 Washington, D.C. 20005 Commissioner Frederick M. Bernthal* William Paton*

U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Kenneth M. Carr*

U.S. Nuclear Regulatory Commission Jack R. Goldberg*

Washington, D.C. 20555 Office of the General Counsel U.S. Nuclear Regulatory Commission Ms. Billie P. Garde Washington, D.C. 20555 Director of the Midwest Office Government Accountability Project Office of the Secretary

• 3424 North Marcos Lane U.S. Nuclear Regulatory Commission Appleton, Wisconsin 54911 Washington, D.C. 20555 i(Wk t ho .

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Attachment 1 '

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' In ormation in this record was deleted I

' in accordance with the Freedom of information Act, exemptions 6 FOIA 87 - M c _ _= _ _ _ _ - _ _ _ _ _ _ _ _ _ _ ____-

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UNITED STATES ACT{0N - GCunningham

'. i " * ~NUC1' EAR REGULATORY CdMMISSION T/s* Dircks wAssmorow.o.c.rosss Rehm

,% f Stello l**...*/ July 20,.1982 e

DeYoung Regional

}cererorTws secarTAny Administrator

.Barry M?.MORANDUM FOR: William J. Dircks, Executive Director l for Operations i

I rROM:

~

Samuel J. Chilk, Secretaa

SUBJECT:

SECY-82-239 - DELEGATION OP UBPOENA AUTHORITY l This is to advise you that 'the coinmission (with all Commissioners ~

j agreeing) has approved the subject paper and has delegated to -_*

• i .

the Executive Director for operations the authority to issue subpoenas during the course of investigations or inspections, 1

with the power to redelegate that authority to the Director,n 4 n

Office of Inspection and Enforcement, and to Regional f4 Administrators. The Commission requests that you advise

( it in advance of the staff's intention to exercise subpoenag4 . 'l authority (at least for an initial trial period of about 10 caYes).

You should amend . subsections -02 and -03 of Manual Chapter 0103 as indicated in the attachment. You should also

,' make any. required conforming changes to other sections of the NRC Manual' and to 10 CFR Part 1. ($LD)

Attachments. . -

5/29/82OGCMemo([r.g m

ec: Chaittman Palladino i comriissioner Gilinsky Commissioner Ahearne . 4 p Contnissioner Roberts .

corraissioner Asselstine OG:C 07tE ~. -

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i CONTACT:

A. Bates (SECY) 41400  %

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U. S. NUCLEAR REGULATORY COMMISSION NRC MANUAL Volume:

Part  : 0100 0007 Ceneral Adminirt.r'ation Organization EDO CHAPTER 0103 ORGANIZATION AND FUNCTIONS 0103-01 OFFICE OF THE EXECUTIVE DIRECTOR FOR SUPERVISION .-

The Executive Director for Operations (EDO)

~ provided in Reorganization Plan No.1e Chairman of 19EO. as The E -

the general policies of the Commission and by such regel governed t by i

Ings and determinationsfas the Commission may by law beu a ory decisions, find ~

$ The EDO, through the' Chairman, shall ensure authorized to make. .'/ W

! and currently informed about matters within its functionsthat the Commission is fully J 0103 02 FUNCTIONS The Executive Director for Operations, subject to other chapter, is specifically responsible for: provisions of this 021 administrative and grievance matters and providing. support services. functions EEO of the 022 -

. execution of the budget of the Commission.

023 distribution of business among the offices which report t 024 o the EDO.

preparation for Commission consideration of:

a.

the budget estimate for the Commission; b.

the proposed programs distribution and purposes; and of appropriated funds acc ording to major c.

proposals the EDO. for the reorganization of the major offices which rep ort to 025 consulting with the the appointments of the Chairman prior to the Chairman's initiation of Material Safety and Safeguards, Directors of Nuclear Reactor Regulation, Nuclear and Enforcement. Nuclear Regulatory Research and inspection without026 appointing and removing after consultation any further action by the Commission, all with the Chairman and officers and employees of Approved: December 3,1985

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'41 Attachment 10 M

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• • '* UNITED STAT Es Cys:Steli:

NUCLEAR REGULATORY COMMISSION Roe

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f. I w AssiNotoN. o.c. 20sss Sniezek GC am June 17, 1986 be-san Dentos

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-- $$CRETARY Iayl7 Davis Regior:s I-V 01 _,

! . MEMORANDUM FOR: Victor Stello, Jr. ~J' Ex ti e Director for Operations FROM: gamuel . Chilk, Secretary SUBJECT ISSUANCE OF SUBPOENAS WITHOUT PRIOR l CONSULTATION WITH THE COMMISSION This is to inform you that the Commission does not object to

. your exercising final approval over issuance of subpoenas by the staff without prior consultation with the Commission as ostlined -

! in your June 4, 1986 memorandum.  %

cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine 1

Commissioner Bernthal Commissioner Zech OGC I

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ADJUDICATOR oSUE June 22, 1987 (Affirmation)

SECY-87-151 For: Information n

in this record was deleted The Commissioners h h Freedom ofInformation Act, exemptions -

From:

James A. Fitzgerald F0lA 87'%V '

Assistant General Counsel for Adjudications and Opinions

Background:

TEXAS ALLEGATIONS AND MOTI Director of the Midwest Office of the Govern Accountability Project (GAP), informed the NRC the safety of the South Texas plant.that GAP wa Ms. Garde, GAP received these allegations fromAccording to approximately the plant. 36 current and former employees of completion of the investigation it would issueGAP fu 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. l l

Correspondence followed between the EDO and GAP 1 regarding allegations management. See Attachments 2-6.

GAP des $ red 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 i that region can adequately conduct the investiga-  !

tion, and in any event, GAP should turn over the

Contact:

Karla simith, OGC, 41465 G mweass nw.

2 L

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 provide the allegations to the agency pursuant to the subpoena, unless the agency establishes an independent investigatory unit. ,

Discussion: This paper addresses both the motion to quash and. -

the 2.206 petition. Tim, I. Billie Garde's Motion to Quash Ms. Garde moves to quash the May 20, 19 87 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.

Ms. Garde ites no authority for her first argument, robably because it could not possibly serve as a basis for quashing the subpoena.1 In fact, failure to comply with the subpoena Yould more likely jeopardize the public health and safety, because such action only results in delay - '

i of resolution of any safety problems. "=

Movant's second argument is eq7 ally 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. See Attachments 8, 9, & 10.

l For various reasons outlined in the attached draft I memorandum and order, Ms. Garde has not provided sufficient factual information upon which the 1 Commission can make a determination that all the information that the subpoena requests is protected by the attorney-client privilege or work product doctrine. Appropriate determinations regardidg the applicability of these doctrines can best be made when and if Ms. Garde testifies in response to the subpoena. At that time she may i

-~

3 invoke privileges which she' believes.are applicable.

premature. At this time, her assertions are II. GAP's

• 2.206 Petition" In its 2.206 petition, GAP specifically notes that it would be inappropriate for Region IV officials or the EDO to be involved in the petition decision. Since 2.206 petitions are addressed to the office. directors (Nuclear Reactor Regulation and Nuclear Material Safety and Safeguards) who -

report directly to the EDO, it is clear that the EDO2.206

.the by virtue of his position deliberative would be involved in process. - -

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o James A. Fitzgerald b4-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 meno re delegation of -

subpoena authority -=

9. NRC Manual Chapter 103 (Excerpt)

10. Chilk meno re issuance of subpoenas w/o prior consultation with Commission .

+

e, 5

Commissioners comments to the Office of the Secretary or by consent c.o.b. should be provided directly Tuesday, July 7, 1987

~ Meeting during the Week of July 1997 6,This paper is tentatively schedule

--specific date and time. appropriate Weekly Commission Schedule, when published, f Please refer to the DISTRIBUTION Commissioners OGC (H Street)

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UNITED STATES ACTJON - GCunningham I- *

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NUC1' EAR REGULATORY COMhilSSION 'C.Es : Dircks

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Rehm 5 Stello j ]*...* July 20, 1982 DeYoung Regional iener or TH  ;

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Admihistrato Barry MEMORANDUM FOR: WilliRm J. Dircks, E):ecutive Director i for Operations

! 4 i TROM: Samuel J. Chilk, Secreta: i

SUBJECT:

SECY-82-239 - DELEGATION OF CBPOINA AUTHORITY {

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This is to advise you that 'the Cor'nmission (with all Co=sissioners - \

) egroeing) has approved tha subject paper and has delegated to .,* P i .

t.be Executive Director for Operations the authority to issue subpoenas during the course of investigations or inspections, i

t with the power to redelegate that authority to the Director, 4 Office of Inspection and Enforcement, and to Regional Administrators. The Commission requests that you advise it in advance of the staff's intention to exercise subpoena 41 authority (at least for an initial trial period of about 10 e es).

You should amend .subssetions -02 and ~03 of Manual Cha,%er 0103 as indicated in the attachment. You should also

,~ snake any . required conforming. changes to other sections of theNRCManual'andto10CFRPart1.(6LD)

Attachments . -

6/29/82 OGC Memo ([r.ch[

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er: Chairman Palladino Commissioner Gilinsky Commissioner Ahearne .

Commissioner Roberts p

commissioner Asselstine OGC OPE . -

i CONTACT:

A. Bates (SECY) 41400 .

Rec'd Off. EDO  %

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4pge.w%+6s- 4pp.

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Attachment 9 h

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f U. S. NUCLEAR REGULATORY COMMISSION -

NRC MANUAL volume: 0000' General Administration Part : 0100 Organization E00 4

CHAPTER 0103 ORGANIZATION AND FUNCTIONS ,

1 0FFICE OF THE EXECUTIVE DIRECTOR FOR OPEAA f 0103-01 SUPERVISION The

.providedChairman; th and le subject to the supervision and direc -

the geheral policies of the Commiss!on sno by ons, find-such regulator

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} The - EDO, through the Chairman,ings and determinations as the Comm . .'!28e l- &nd currently Ir, formed about matters within its functionsshall ensure that the Comm t .

l 0103 02 FUNCTIONS The Executive chapter, Director is specifically for ' Operations, responsible for: subject to other provisions of this 021 administrative

> and grievance matters and providing. support services.funt.tions of the Ccmm 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 programs distribution and purposes; snd of appropriated funds according to major i c.

proposals the EDO. for the reorganization of the major offices which report to 025 consulting with the the appointments of the Chaleman prior to the Chairman's initiation of Material Safety and Safeguards, Directors of Nuclear Reactor Regulation, Nuclear and Enforcement. Nuclear Regulatory Research and inspection without 026 appointing any andbyremoving further action after consultation with the Chairman and the Commission, all officers and employees of Approved: December 3,1985 O

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UNITED STATES NUCLEAR REGULATORY COMMISSION Roe r i wassirectoN. o.c. rosss Rehm

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< ....* eberman 6 cmes or THE , June 17, 1986 Denton

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' Taylor Davis i Regions I-V i

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l i MEMORANDUM FOR: Victor Stello, Jr. J' l Ex ti e Director for Operations FROM: jfamuel . Chilk, Secretary SUBJECT ISSUANCE OF SUBPOENAS WITHOUT PRIOR

! CONSUL.TATION WITH THE COMMISSION This is to inform you that the Commission does not object to

.. your exerci-sing final approval over issuance of subpoenas by the I staff without prior consultation with the Commission as outlined -

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! in your June 4, 1086 memorandum.  % )

cc: Chairman Palladino j Commissioner Roberts Commissioner Asselstine L Commissioner Bernthal Commissioner Zech OGC I

OPE l

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