ML20054E098
| ML20054E098 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/19/1982 |
| From: | Cherry M AFFILIATION NOT ASSIGNED, CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-CP, NUDOCS 8204260134 | |
| Download: ML20054E098 (5) | |
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[pp, y 9 2 './1 UNITED STATES OF AMERICA NUCLEAR RIL'UIA'IORY CCHMISSICN Before the Atctnic Safety and Licensing Appeal Board In the Matter of
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CONSUMERS POER CCMPANY
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Docket Nos. 50-329 CP
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50-330 CP (Midland Plan'., Units 1 and 2)
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(Rarand Proceeding) o, 4
e SAGINAW VALLEY NUCIEAR S'IUDY GROUP'S RGCElVED RESPONSE 'IO AMICUS CURIAE BRIEP OF 9_
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Amicus Atanic Industrial Fortrn, Inc. (hereafter "
to fil d its Brief challenging the standards of the Licensing Board herein.
The Amicus Brief essentially makes two points:
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That the -Licensing Board improperly called for testimony -
at a hearing only if it was relevant and thus avoided the Otmnission's rule that the admissibility of evidence is also governed by the i
l concepts'of materiality or probity; and l
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That the Board's discussion.of.the standard on expert I
witnesses improperly interferes with the lawyer-client relationship.
The Amicus Brief need not detain us long since AM cus' explication of its points (while not altogether clear or succinctly explicated) are beside the point.
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A.
The Board Did Not Avoid The Test Of Materiality Or Probity The Licensing Board took great pains to include, in addition to relevance, the issue of materiality. See Partial Initial Decision (Panand Procealing), Deceber 22, 1981, Slip Opinion (hereafter "Sl. g.")
at 14, 15. Amicus' quarrel with the Licensing Board's dissertation on materiality is no different than the Licensing Board's standard. The Licensing Board indicated (Sl. g. at 13) that materiality is judged by whether the statment is capable of influencing a decision-snaker and clearly when. testimony is not " free fran doubt" as to whether it has capability of influencing a decision-maker, then the materiality test is clearly met.
This of course is no different than the test of probity or relevance which the Amicus adopts at page 11 of its Brief.
B.
The Attorney-Client Argument Has No Merit The rest of Amicus' Brief argues that by requiring the preparation of draft testimony to be produced in a hearing, the Licensing Board has improperly interfered with the attorney-client privilege.
But A'nicus' Brief misses the point. The Licensing Board below did not require as a standard that al'. draft testimony be produced. Pather, the Licensing Board found aut in this case the draft testimony demnstrated that lawyers were playing " hanky panky" with the issues in this proceeding rather than proceeding upon the application of sound and ethical professional judgment. Here the Licensing Board arrived at that conclusion l
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(Sl. g. at 27-30) by observing that lawyers were attcnpting to " massage" the draft testinony, and the evil was not in failing to produce the
" draft testinony" as such but the infonnation contained therein which was withheld in order to " finesse" the important issues.
The Licensing Board, therefore, did not adopt a hard and fast rule that draft testinony had to be produced but, within the context of the facts as found by the Licensing Board in this case, the massaging of the draft testinony was itself a violation of the duty of disclosure.
COCIUSICE Perhaps of nest interest in the Amicus' Brief is its quarrel, set farth at page 4 of the Amicus Brief, with the Licensing Board's obserration that there is a "nondelegabl'e duty to adhere to the highest standards of disclosing relevant information." Amicus finds that test 1
murky when in fact it is merely another way of saying that a hearing is called in order for witnesses to tell the truth, the whole truth, and nothing h2t the truth which is the oath each of then take.
While in the end we have no quarrel with the interest of the AIF to file its Brief, we think that its Brief is too lofty for This case involved conscious efforts of disclosure of this case.
infonnation which was adverse to the parties. As the Licensing Board observed (S1_. g. at 28):
"Specifically, one counsel for Consumers explained to Dow that he had not included {certain infouration]...
in the direct testinony...because such information would cause Consumers g ' lose the case. '"
[anphasis supplied.]
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This - not the Canons of Ethics of the District of Coltrabia Bar - is the key to this case. If the Appeal Board follows the lead of Amicus, we predict tJat the Nuclear Regulatory Ormission will find utilities and their lawyers continually withholding information which could adversely affect their positions. We urge the Appeal Board to deal with this case not, as Amicus would have us do, in an acadenic atnesphere, but in the context of a utility and its agents trying to pull the wool over the eyes of the Licensing Board whose duty ir, to protect the public health and safety, a duty which relies heavily upon full, frank and prompt disclosure of the regulated utilities.
Respectfully subnitted, SAGINAW VALLEY NUCLFAR STUDY By:
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One of Their Atto,ine,ys/
Y Myron M. Cherry, p.c.
Peter Flynn, p.c.
CHERRY & FLYNN Three First National Plaza l
Suite 3700 l
Chicago, Illinois. 60602
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(312) 372-2100 1
PLEASE NCTIE CHANGE OF ADDRESS j
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PROOF OF SERVICE j#-
e I certify that a copy of the foregoing Brief was served upon cou:tsel for Consaners Power Campany, Dow Chenical Cmpany, The Atanic Industrial Fonrn, Inc., the Regulatory Staff and the Secretary of the Nuclear Regulatory Otmnission (docketing) by mailing a copy of samt postage prepaid and properly addressed, on April 19, 1982. On the same date an original and three copies of the foregoing Brief were served upon the Secretary of the Appeal Board by postage prepaid ard properly addressed mail.
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