ML20210B074
| ML20210B074 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/04/1987 |
| From: | Jim Hickey GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20210A887 | List: |
| References | |
| CIV-PEN, EA-84-137, NUDOCS 8702090069 | |
| Download: ML20210B074 (22) | |
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'87IEE-kIk$$7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Law Judge In the Matter of
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50-320 ggo P6 N GPU Nuclear Corporation
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Docket No.
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EA 84-137 (Three Mile Island Nuclear
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Station, Unit No. 2)
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GPU NUCLEAR CORPORATION'S MOTION FOR ISSUANCE OF SUBPOENAS I.
Introduction Pursuant to 10 C.F.R. 5 2.720, GPU Nuclear Corporation
("GPUN") moves the Presiding Officer to issue subpoenas for the deposition of Ronald A. Meeks and David Feinberg. Mr. Meeks is an NRC employee with the Office of Investigations and was the prin-cipal NRC investigator of Parks' allegations.
Mr. Feinberg, who is now retired, was the Department of Labor Compliance Officer who conducted the investigation into Parks' discrimination com-plaint.
GPUN wishes to question these individuals concerning the I
factual information on which they based their reported in-vestigative findings, additional information they may have obtained during their investigations which is not reflected in 8702090069 870204 ADOCK05000gO l
PDR o
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l their reports, and the existence and location of all records of such factual information and of any other relevant evidence.
GPUN wishes to depose Mr. Meeks and Mr. Feinberg during the week of February 23 or of March 9 (dates agreeable to the NRC Staff) at a location convenient for the witnesses.
GPUN also moves the Presiding Officer for issuance of subpoenas duces tecum instructing the deponents to bring to the deposition all notes, files, and other documents not previously produced which are in their possession, custody, or control and related to their investigation of Mr. Parks' allegations.
In ad-dition, GPUN moves the Presiding Officer for issuance of a subpoena duces tecum to the custodian of the DOL investigative materials compiled on Parks' complaint.
Proposed subpoenas are attached to this motion.
A discussion of the background of this enforcement proceed-ing and of general principles of discovery applicable to such a proceeding is contained in GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents and Request for Oral Argu-ment (filed this same date).
That discussion is incorporated herein by reference.
A discussion of the legal principles gov-erning the issuance of subpoenas and argument supporting this mo-tion are presented below.
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e II.
Standards Governing the Issuance of Subpoenas Section 161(c) of the Atomic Energy Act, 42 U.S.C.
$ 2201(c), confers on the Nuclear Regulatory Commission the power to issue subpoenas.
10 C.F.R.
$ 2.720 delegates this power to the Presiding Officer in NRC adjudicatory proceedings.
10 C.F.R. 5 2.720(a) provides that on application by any party, the Presiding Officer will issue subpoenas requiring the attendance and testimony of witnesses or the prcduction of evi-dence.
The Presiding Officer may require a showing of general relevance of the evidence or testimony sought, but will not at-tempt to determine the admissibility of evidence.
The general relevance standard for permissible discovery is broad:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceed-ing, whether it relates to the claim or de-fense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable mat-ter.
It is not ground for objection that the information sought is inadmissible at the hearing if the information is reason-ably calculated to lead to the discovery of admissible evidence.
10 C.F.R. 5 2.740(b)(1).
m The NRC's Rules of Practice contain a special provision gov-erning the subpoena of NRC employees which, while primarily ap-plicable to licensing proceedings, generally give an authoriza-tion to the Executive Director of Operations to designate which NRC employees will testify at a deposition or hearing.
Neverthe-less, the Presiding Officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director of Operations, order other NRC personnel to appear.
10 C.F.R.
$ 2.720(h)(2)(i).
III.
Argument The NRC has brought this enforcement action against GPUN on the basis of the DOL Report on Mr. Parks' discrimination com-
. plaint and OI's investigation of Parks' allegations.
Despite its discovery efforts to date, GPUN is still uncertain of the scope of these investigations and the information that was obtained.
With respect to OI's September 1, 1983 Report on Mr. Parks' technical and procedural issues, GPUN has been provided only some signed statements and brief interview summaries of OI's inter-views of certain witnesses, appended to the Report.
GPUN does not know if these were the only witnesses interviewed.
GPUN does not know whether the witnesses gave testimony on subjects other than Parks' procedural and technical allegations (for example, l l
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m testimony relevant to Parks' harassment allegations) that was not included in the summaries because it exceeded the scope of the September 1, 1983 Report.
GPUN does not know where the records of these interviews are located, nor what records were made.
.The May 18, 1984 OI Report addressing Parks' claims of ha-rassment is even less informative.
That report simply attaches a highly redacted version of the DOL Compliance Officer's Report.
The NRC, however, has stated that OI also conducted an investiga-tion.
See Letter of James M. Taylor, Director of Inspection &
Enforcement, to GPUN, transmitting Notice of Violation (Aug. 12, 1985).
GPUN is left wondering to whom the NRC talked, what in-formation and evidence was obtained, and where that evidence is presently located.
GPUN is clearly entitled to this information.
GPUN has the same type of questions concerning the DOL Report.
GPUN still has not received a complete copy of that Report -- at least one witness statement is still being withheld
-- al.d has no guarantee that there were not other witness state-ments tbt.t are in the DOL case file on Parks but that were not inch.ded as attachments to the Report.
Further, the DOL Report refers to exhibits which are not attached and have not been pro-vided to GPUN.
The subpoenas which are sought by this motion are necessary to obtain the answers to these questions.
GPUN has a fundamental right to this information, both under the NRC's discovery rules and as a matter of fairness.
W The subpoenas that GPUN seeks are permissible under the Com-mission's rules and authority.
Mr. Feinberg is not an NRC employee.
Accordingly, at this request and subject only to an optional showing of general relevance, the Presiding Officer must issue a subpoena requiring Mr. Feinberg's attendance at deposi-tion.
10 C.F.R. S 2.720(a).
The information that GPUN wishes to obtain from Mr. Feinberg clearly satisfies the general relevance standard.
Mr. Feinberg authored the DOL Report on which the NRC Staff based (at least partially) this enforcement action.
His investigation addressed the same issues as this proceeding.
The NRC Staff may seek to rely on the DOL Report or interview statements written by Mr. Feinberg, or otherwise rely on Mr. Feinberg's findings.
GPUN is therefore entitled to probe the details of Mr. Feinberg's in-quiry, and to learn the factual information on which he relied.
There may be other evidence, witness statements, or relevant in-formation of which GPUN has not been informed.
GPUN is entitled to discover what undisclosed evidence was obtained, its nature, and its location.
The subpoena duces tecum directed to the Department of Labor is intended to accomplish the same objectives.
Since Mr. Feinberg is reportedly retired and may no longer have access to pertinent files and documents, this subpoena is necessary.
This material may be necessary or useful to refresh Mr. Feinberg's recollection of events, and it should be produced.
e-j If the provisions of 10 C.F.R. 5 2.720(h) apply to Mr. Meeks, an NRC employee, exceptional circumstances warrant or-dering his attendance at deposition.
First, as demonstrated below, the bases for the rules limiting discovery against the NRC Staff are inapplicable to this enforcement proceeding.1/
- Second, Mr. Meeks has direct personal knowledge of discoverable in-formation critical to GPUN's defense, which information is not possessed by other witnesses designated by the NRC Staff.
Under these circumstances, GPUN's motion to subpoena Mr. Meeks must be granted as a matter of fundamental fairness Drukker Communica-tions, Inc. v. NLRB, 700 F.2d 727, 733 (D.C. Cir. 1983) (in an administrative proceeding subject to a rule prohibiting testimony of NLRB employees absent permission from the agency's general counsel, the NLRB's refusal to subpoena an employee with critical information was held repugnant to notions of fairness, and the agency's decision was set aside).
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GPUN is not seeking a waiver of the rule, but contends that the circumstances involved in an enforcement proceeding differ radically from those the Commission considered in promulgating the rule, and that these circumstances should therefore be con-sidered " exceptional" as that term is used in the rule.
The Pre-siding Officer is authorized by the rule to issue a subpoena in such circumstances.
A.
When Considered Under 10 C.F.R. 5 2.720(h)(2)(i),
the Circumstances Surrounding an Enforcement Action Are " Exceptional" and Justify the Subpoena of NRC Employees Possessing Pertinent Information.
The special discovery rules applying to the NRC Staff were formulated for reactor licensing proceedings.
At the time the regulations were promulgated, the large number of reactor licens-ing proceedings was severely taxing the resources of the NRC Staff.
As the Commission explained:
In view of the increasing number of adjudica-tory proceedings, and the demands on the time and energies of AEC policymaking, supervisory and staff personnel, the Commission considers it desirable to provide a procedure and criteria for determining the appropriateness of attendance and testimony of such persons in AEC adjudicatory proceedings.
The proce-dure and criteria established seek to accomodate the public interest in having par-ticipation by appropriate AEC personnel in resolving matters in issue in an adjudicatory proceeding with a parallel public interest in maintaining the efficient and expeditious conduct of this and other agency functions.
35 Fed. Reg. 19,500 (1970).
In balancing these competing objectives, the Commision relied fundamentally on the ready availability of relevant in-formation from other sources:
Since routinely available documents should.
reasonably disclose the basis for the staff's position, staff-directed dis-covery can be limited to information concern-ing a matter vital to a decision in the case and not obtainable elsewhere ($ 2.744).
[
37 Fed. Reg. 15,127 (1972)
(" Restructuring of Facility License Review and Hearing Processees
.").
It is emphasized that this (rule] is not an attempt to inhibit discovery procedures as a legitimate means of obtaining needed in-formation.
It is, rather, an attempt to de-vise a means of making masses of material readily and routinely available without re-sort to time-consuming and perhaps less fruitful formal discovery procedures.
37 Fed. Reg. 9,331, 9,332 (1972).
The Appeal Board has similarly observed:
With limited exceptions, Commission regula-tions make staff documents that are relevant to licensing proceedings routinely available in the NRC Public Document Room.
The contemplation is that these "should reasonably disclose the basis for the staff's position," thereby reducing any need for formal discovery.
.Susquehanna, supra, ALAB-613, 12 N.R.C.
at 232, citing "NRC Statement of General Policy and Procedure: Conduct of Proceedings for the Issuance of Construction Permits and Operating Licenses,"
10 C.F.R. Part 2, App. A, IV(d).
I The considerations above are inapposite to this enforcement proceeding.
This is not a reactor licensing proceeding where discovery would divert NRC Staff resources necessary for licens-ing review.
Nor is all relevant information routinely available.
Rather, as is evident from GPUN's Motion to Compel (filed this same date), the NRC's investigations were conducted essentially
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in secret.
The notes and transcripts of investigative inter-views, and other evidence obtaining during those investigations, are not publicly available.
Further, in an enforcement proceeding such as this, there is a private interest dissimilar to those interests of the partici-pants in reactor licensing proceedings.
While publicly available documents revealing the " position" of the NRC Staff may satisfy the public interests in a reactor licensing proceeding, in an en-forcement proceeding the party being prosecuted has a significant private interest and compelling need for access to information in the NRC's possesion that is relevant to its defense.
Knowing the NRC Staff's position is no substitute.
Moreover, in an enforcement proceeding, the NRC Staff takes on an adversarial role unlike any it fulfills in licensing pro-ceedings.
In a licensing proceeding, a license applicant is opposing intervenors on issues they raised; the license appli-cant's and intervenors' rights of discovery against each other are unfettered; and the NRC Staff's involvement is removed and impartial.
In a licensing proceeding, the testimony of NRC Staff l
witnesses and deponents is expert; the NRC Staff is rendering an opinion on facts presented by the license applicants.
In such a proceeding, it makes sense for the NRC Staff to be able to desig-nate who will convey its judgment.
In contrast, in this enforce-ment proceeding, the NRC and the licensee are the only parties, they are direct opponents, the issues are factual, and GPUN is seeking factual evidence in the NRC's possession.
Given the direct adversarial role of the NRC Staff in an enforcement pro-ceeding, it would be unfair to allow the NRC Staff to choose whom the prosecuted party may or may not depose.
For these reasons alone, the circumstances surrounding an enforcement proceeding should be considered exceptional per se, justifying the deposition of persons other than those designated by the Executive Director of Operations.
B.
The Particular Information in Mr. Meeks' Possession Justifies Issuing a Subpoena for his Deposition.
Even if one concludes that the circumstances surrounding an enforcement action are not per se exceptional, the particular facts of this case do present such exceptional circumstances and justify the issuance of a subpoena requiring Mr. Meeks to appear for deposition.
In this proceeding, the NRC Staff may offer as evidence or rely upon the September 1, 1983 and May 18, 1984 OI Reports on Parks' allegations, or interview statements authored by OI in support of the reports.
GPUN is therefore entitled to probe the accuracy of the interview statements, and the existence of exculpatory factual information and other relevant evidence gathered by OI and not disclosed in the OI reports.
Mr. Meeks has knowledge of critical information on these subjects which other witnesses designated by the NRC Staff lack. l l
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The extreme importance to GPUN of the information in Mr.
Meeks' possession is readily illustrated.
Richard Parks' prior statements are obviously critical evidence in this case.
Mr. Meeks met with Richard Parks on April 27, 1983 and inter-viewed him for ten hours.
Mr. Meeks conducted follow-up inter-views with Mr. Parks on May 2, and May 3, 1983.
NRC documents from that time frame indicate that memoranda were prepared after I
the interviews and that a complete statement of the interviews existed.
Yet the only record that the NRC Staff has produced of those interviews is a two-page summary and a six-page statement (dated June 6) in the September 1, 1983 OI Report.
See GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Docu-ments and Request for Oral Argument at 26-28.
GPUN finds it inconceivable that notes, transcripts, memoranda or other records were not prepared providing a complete account of the interview.
GPUN is entitled to discover their ex-istence and location.
Further, if such records have been de-stroyed or lost, GPUN is entitled to probe the circumstances sur-rounding such occurrences.
Similar questions arise concerning the interviews of other i
witnesses.
Mr. Meeks interviewed Edwin Gischel on April 7-8, 1983.
In his original affidavit (Exhibit D-5 to the OI Report),
Gischel had claimed that Mr. Kanga of Bechtel, in a March 23, l
1983 meeting, suggested that Parks could be put on a leave of i
absence and then "[gotten] rid of.
quietly," and that Mr. Barton of GPUN urged that Parks be fired.
These statements are cited by the Staff as support for the claim in the Notice of Violation that the decision to suspend Parks was retaliatory.
NRC Staff Response to GPU Nuclear Corporation's First Set of In-terrogatories (Sept. 23, 1986) at 26.
The OI Report pro-vides a two-page summary of Meeks' interview with Gischel, and a statement dated April 8 and typed by Meeks, but not signed by Gischel until May 10.
See September 1, 1983 OI Report at C-10 and D-6.
Neither the April 8/May 10 statement nor the summary refers to any notes of the March 23 meeting.
However, during the deposition of J. Chwastyk in this proceeding, the NRC Staff pro-duced a set of notes of Mr. Gischel relating to the meeting, which had been provided by Mr. Gischel to OI.
While the notes purport to quote numerous statements made at the meeting, there is no reference to the Kanga statement or the Barton statement alleged in Gischel's affidavit.
Deposing Mr. Meeks is vital to permit GPUN to learn what other evidence Mr. Meeks and OI gathered and where it is located, so that we may seek its production.
Mr. Meeks has direct personal knowledge of these matters.
He was the principal OI investigator looking into Parks' ha-rassment allegations and conducted the interviews of Parks and others for which GPUN is seeking complete accounts.
Mr. Meeks would most likely know of the existence and location of records of those interviews, and may recall specific details which do not appear in the interview cummaries.
Mr. Meeks is at the very least a potential impeachment witness in this proceeding, if any witness deviates from his OI statement.
Further, as evidenced by the affidavits accompanying the NRC Staff's responses to GPUN's discovery requests, Mr. Meeks is the member of OI who conducted document searches in response.
Only he knows where he searched and what he looked at. and the "exis-tence and location of any.
. documents" is expressly within the scope of discovery.
IV.
Conclusion For the reasons stated above, GPUN requests that the Presid-ing Officer issue subpoenas, as proposed in attachments 1, 2 and 3 hereto, requiring Mr. Ronald A. Meeks and Mr. David Feinberg to
,5 attend depositions and to bring to the depositions relevant docu-ments in their possession, custody, or control, and requiring production of the DOL files on Mr. Parks' complaint.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
__ r By:
J. Eia'trickHjckey,P.C.
DavJgd R.
Lewis Counsel for GPU Nuclear Corporation Dated: February 4, 1987 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Administrative Law Judge Ivan W.
Smith In the Matter of
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GPU Nuclear Corporation
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Docket No. 50-320
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EA 84-137 (Three Mile Island Nuclear
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Station, Unit No. 2)
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SUBPOENA
~
In accordance with section 161(c) of the Atomic Energy Act, 42 U.S.C.
$ 2201(c) (1982), and 10 C.F.R.
$ 2.720, Ronald A.
Meeks is hereby ordered to attend and give testimony at deposi-tion upon oral examination by counsel for GPU Nuclear Corporation in the above captioned proceeding.
The deposition will be held i
at a mutually convenient time and location, but no later than j
1987.
The deposition will be conducted before a l
Notary Public.
Ronald A. Meeks is further ordered to produce at the deposition all notes, memoranda, files, and other documents in his possession, custody, or control relating to Mr. Richard l
Parks, allegations made by Mr. Parks, or investigations of such allegations, i
On motion made promptly, and in any event at or before 1987, and on notice to GPU Nuclear Corporation, the Presiding Officer (or if the Presiding Officer is unavailable, I
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6 the Commission) may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter or issue, or (2) condition denial of the motion on just and reason-able terms.
A copy of the order designating the issues in this proceeding is attached.
1 Ivan W.
Smith Administrative Law Judge Dated at Bethesda, Maryland this day of
- 1987, l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Administrative Law Judge Ivan W.
Smith In the~ Matter of
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GPU Nuclear Corporation
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Docket No. 50-320
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EA 84-137 (Three Mile Island Nuclear
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Station, Unit No. 2)
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SUBPOENA In accordance with section 161(c) of the Atomic Energy Act, 42 U.S.C.
5 2201(c) (1982), and 10 C.F.R. 6 2.720, David Feinberg is hereby ordered to attend and give testimony at deposition upon oral examination by counsel for GPU Nuclear Corporation in the above captioned proceeding.
The deposition will be held at a mu-tually convenient time and location, but not later than 1987.
The deposition will be conducted before a Notary Public.
David Feinberg is further ordered to produce at-the deposition all notes, memoranda, files, and other documents in his possession, custody, or control relating 2to Mr. Richard Parks, allegations made by Mr. Parks, or investigations of, in-quiry into, or evaluation of such allegations.
On motion made promptly, and in any event at or before 1987, and on notice to GPU Nuclear Corporation, the Presiding Officer (or if the Presiding Officer is unavailable, a
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t the Commission) may (1) quash or modify the subpoena if it is i
unreasonable or requires evidence not relevant to any matter or issue, or (2) condition denial of the motion on just and reason-able terms.
A copy of the order designating the issues in this proceeding is attached.
3 Ivan W.
Smith Administrative Law Judge s
Dated at Bethesda, Maryland this day of 1987.
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Administrative Law Judge Ivan W. Smith In the Matter of
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GPU Nuclear Corporation
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Docket No. 50-320
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EA-84-137 (Three Mile Island Nuclear
)
Station, Unit No. 2)
)
SUBPOENA DUCES TECUM In accordance with section 161(c) of the Atomic Energy Act, 42 U.S.C.
6 2201(c) (1982), and 10 C.F.R.
$ 2.720, the Adminis-trator, Wage and Hour Division, U.S. Department of Labor, is hereby ordered to produce, for the inspection and copying by GPU Nuclear Corporation, all documents in its possession, custody, or control relating to Mr. Richard D. Parks, to the complaint which Mr. Parks filed with the Wage and Hour Division on March 23, 1983, and to the Compliance Officer's investigation and report on that complaint.
Such documen*;s shall include the complete case file on Mr. Parks' complaint; all transcripts, notes, affidavits, or records of any kind of statements by witnesses interviewed by the Compliance Officer, or anyone acting on behalf of the Compli-ance Officer; and all documents, exhibits and evidence gathered by or submitted to the Compliance Officer.
These documents must be made available to counsel for GPU Nuclear Corporation --
J. Patrick Hickey, Shaw, Pittman, Potts & Trowbridge, 2300
N Street, N.W., Washington, D.C. 20037 (tel. (202) 663-8103) --
at a mutually agreeable time and location, but not later than 1987.
On motion made promptly, and in any event at or before and on notice to GPUN Nuclear Corporation, the Presiding Officer (or if the Presiding Officer is unavailable, the Commission) may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter or issue, or (2) condition denial of the motion on just and reason-able terms.
A copy of the order designating the issues in the above captioned proceeding is attached.
Ivan W.
Smith Administrative Law Judge Dated at Bethesda, Maryland this __ day of 1987.
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l UNITED STATES OF AMERICA ANUCLEAR REGULATORY COMMISSION
'87 FEB -5 P3 :25 Before the Administrative Law Judge 4ppgg, ; _,,,,,,,
9 9C K E 1 0 fi 4 M P W r.l.
B U NtM In the Matter of
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GPU Nuclear Corporation
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Docket No. 50-320
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License No. DPR-73
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EA-84-137 (Three Mile Island Nuclear
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Station, Unit No. 2)
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3 1
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents and Request for Oral Argument" and " CPU Nuclear Corporation's Motion for Issuance of Subpoenas," both dated February 4, 1987, were served by deposit in the United States Mail, First Class, postage prepaid this 4th day of February, 1987, to the following persons:
Ivan Sraith, Esquire Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 George E. Johnson, Esquire Office of the General Counsel 9604 MNBB.
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 J. Patrick) Hickey Dated:
February 4, 1987 l
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